Goktas v Goodyear Australia Pty Ltd - [2006] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Goktas v Goodyear Australia Pty Ltd [2006] NSWWCCPD 17
APPELLANT:  Saffet Goktas
RESPONDENT:  Goodyear Australia Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC 11909-03
DATE OF ARBITRATOR’S DECISION:          12 November 2004
DATE OF APPEAL DECISION:  9 February 2006
SUBJECT MATTER OF DECISION:                Weight accorded to the evidence
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Steve Masselos & Co, Solicitors
Respondent: Hicksons Lawyers

ORDERS MADE ON APPEAL: Clauses 1, 3 and 4 of the decision of the Arbitrator dated 12 November 2004 are confirmed.

Clause 2 of the decision of the Arbitrator dated 12 November 2004 is revoked and
(1) in substitution as to part, there is an award in favour of Goodyear Australia Pty Ltd in respect of Mr Goktas’ claim for weekly compensation from 31 January 1991 to 23 August 2000, and
(2) as to the other part, Mr Goktas’ entitlement to weekly compensation for the period 24 August 2000 to date and continuing is remitted to the Arbitrator for determination.
The Respondent, Goodyear Australia Pty Ltd, is to pay the Appellant, Mr Goktas’ costs in this appeal.

BACKGROUND TO THE APPEAL

On 10 December 2004, Saffet Goktas sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 12 November 2004. The Respondent to the Appeal is Goodyear Australia Pty Ltd (‘Goodyear’). Goodyear’s workers compensation insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’).

Mr Goktas was born on 1 March 1962 and is aged 43. He was employed by Goodyear as a millman from 9 March 1987 to 31 January 1991, when he was retrenched. On 13 August 1990, he injured his back and neck when lifting heavy skips of rubber. His then general practitioner, Dr Y Bulbulia, issued him with a certificate stating that he was unfit for work on 14 August 1990, and he notified Goodyear of the injury on 15 August 1990.

On 9 April 1999, Mr Goktas commenced casual employment with B V Property Holdings Pty Ltd (trading as ‘Aussie Table Hire’). On 20 August 2000, in the course of his employment with Aussie Table Hire, a stacked box fell onto Mr Goktas’ left shoulder injuring his shoulder and neck. He claimed compensation in respect of this injury in the District Court of NSW, where, on 27 February 2003, an arbitrator made an award in his favour.

On 7 July 2003, Mr Goktas lodged an ‘Application to Resolve a Dispute’ with the Commission in respect of his claim against Goodyear for (1) weekly compensation from 31 January 1991 to date and continuing, (2) medical expenses, and (3) compensation for permanent impairment and pain and suffering. Goodyear’s ‘Reply’ was received on 25 August 2003. On 1 October 2003, the Arbitrator conducted a teleconference with the parties, at which it was agreed, and confirmed in the Arbitrator’s Directions, that the Application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWWCCPD 17
Decision Date: 9 February 2006

CaseChat Overview and Summary

Saffet Goktas appealed against a decision of an arbitrator, seeking workers compensation for injuries sustained while employed by Goodyear Australia Pty Ltd. The arbitrator had awarded Goktas compensation for permanent impairment but rejected his claim for weekly compensation, finding insufficient evidence to support his claim of total or partial incapacity for work. Goktas contended the arbitrator erred in her treatment of the evidence and the weight she accorded to it, particularly in relation to his claim for weekly compensation. The court had to determine whether Goktas was entitled to receive weekly compensation from 31 January 1991 to the present.

The court reviewed the evidence and found that the arbitrator’s judgment as to the weight of evidence had miscarried in relation to the period from 24 August 2000, constituting an error of law. The Arbitrator had awarded Goodyear compensation for the period from 31 January 1991 to 23 August 2000, but the court found there was sufficient evidence to support a finding of partial incapacity for work from 24 August 2000. The court revoked the arbitrator’s award in favour of Goodyear for the period from 31 January 1991 to 23 August 2000 and remitted the determination of Goktas’ entitlement to weekly compensation for the period from 24 August 2000 to the present back to the arbitrator for determination.

The court confirmed clauses 1, 3 and 4 of the arbitrator’s decision and revoked clause 2, substituting an award in favour of Goodyear for the period from 31 January 1991 to 23 August 2000 and remitting Goktas’ entitlement to weekly compensation for the period from 24 August 2000 to the present back to the arbitrator for determination. Goodyear was ordered to pay Goktas’ costs in the appeal.

Orders