| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| Reported Decision: Greif Australia Pty Ltd v Ahmed (2007) 6 DDCR 461 STATUS: Reconsideration: This decision is a reconsideration of the decision in Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195 | |||||
| CITATION: | Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 229 | ||||
| APPELLANT: | Greif Australia Pty Limited | ||||
| RESPONDENT: | Rashid Ahmed | ||||
| APPLICANT FOR RECONSIDERATION: | Rashid Ahmed | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | WCC2-07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 26 April 2007 | ||||
| DATE OF APPEAL DECISION: | 14 September 2007 | ||||
| DATE OF RECONSIDERATION: | 22 November 2007 | ||||
| SUBJECT MATTER OF DECISION: | Reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; fresh evidence; onus of proof; medical evidence; matters not raised at the arbitration. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore | |||
| Respondent: | Buttar Caldwell & Co | ||||
| ORDERS MADE ON APPEAL: | Having reconsidered the decision of Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195, the findings and orders made in that matter are confirmed and the Respondent Worker’s reconsideration application is dismissed. | ||||
| No order as to costs of the reconsideration application. | |||||
BACKGROUND TO THE APPLICATION
This matter was the subject of an appeal and determination by me on 14 September 2007 (Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195 (‘Greif No 1/the appeal’)). The background to the matter is set out in Greif No 1 at [3] to [9], which I set out below:
“3.Mr Ahmed is a 50-year-old man who was employed by Greif Australia Pty Ltd from 1989 as a machine operator/leading hand. His duties included driving a forklift, filling hoppers with 25-kilogram bags, cleaning out rubbish, lifting 30-kilogram moulds, quality control and lifting loads of more than 20-kilograms throughout the day.
4.Whilst working the night shift on 17 March 2005 Mr Ahmed felt a click and severe pain in the right side of his neck when he lifted a 60-litre drum filled with rubbish onto a pallet positioned four feet above the ground. The following morning he consulted his general practitioner, Dr Khoo, who prescribed analgesics and gave him a medical certificate for time off work due to “soft tissue injury of right shoulder” (medical certificate, 18 March 2005). Dr Khoo also referred Mr Ahmed to Dr Elliott, orthopaedic surgeon, who saw him on 24 March 2005, arranged an MRI scan of the cervical spine and referred him to Professor Dan, neurosurgeon. The MRI scan dated 12 April 2005 revealed a large right-sided posterolateral protrusion of the C5/6 disc with a small left posterolateral protrusion of the C6/7 disc.
5.On or about 12 May 2005 Mr Ahmed took painkillers in the afternoon for his neck and shoulder and went to sleep because he was feeling lethargic. He slept through the evening and, as a result, did not take any medication that night. When he woke the next morning he felt pain in his back and was unable…
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- Case
- [2007] NSWWCCPD 229
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to decide was whether Mr Ahmed had provided sufficient evidence to justify a reconsideration of the previous decision under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. Additionally, the court had to determine if the new medical evidence presented by Mr Ahmed constituted fresh evidence and whether the onus of proof was on him to show that the new evidence warranted reconsideration. The court also needed to assess whether the matters raised by Mr Ahmed had been previously raised at the arbitration and thus could not be considered under the reconsideration provisions.
The court held that Mr Ahmed had not demonstrated that the new medical evidence was sufficiently fresh or different from the evidence previously considered to warrant reconsideration. The court emphasised that the onus of proving the relevance and significance of the new evidence lay with Mr Ahmed. Furthermore, the court noted that the matters raised by Mr Ahmed had been previously considered at the arbitration, and thus were not eligible for reconsideration. Consequently, the court dismissed the reconsideration application and confirmed the findings and orders made in the initial decision.
The final orders of the court confirmed the findings and orders made in the previous decision and dismissed Mr Ahmed's reconsideration application. The court's decision underscored the importance of the proper application of the reconsideration provisions under the Act and the necessity for claimants to clearly demonstrate the novelty and relevance of new evidence.
Orders
Orders of the court
Having reconsidered the decision of Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195, the findings and orders made in that matter are confirmed and the Respondent Worker’s reconsideration application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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