| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Halilovic v Paper Australia Pty Ltd [2008] NSWWCCPD 80 | |||||
| APPELLANT: | Asim Halilovic | |||||
| RESPONDENT: | Paper Australia Pty Ltd | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC9482-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 4 April 2008 | |||||
| DATE OF APPEAL DECISION: | 31 July 2008 | |||||
| SUBJECT MATTER OF DECISION: | Failure to consider the whole of the relevant and material evidence; inadequate reasons for decision; procedural fairness. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | |||||
| HEARING: | Determined ‘on the papers’ | |||||
| REPRESENTATION: | Appellant: | Bolzan & Princi | ||||
| Respondent: | Ellision Tillyard Callanan | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 4 April 2008 is confirmed. | |||||
| No order is made as to the costs of the appeal | ||||||
BACKGROUND
On 24 April 2008, Mr Asim Halilovic (‘the Appellant Worker/Mr Halilovic’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 April 2008.
The Respondent to the Appeal is Paper Australia Pty Ltd (‘the Respondent Employer/Paper Australia’).
The Insurer is Allianz Australia Workers Compensation (NSW) Ltd.
Mr Halilovic worked as a machine operator and supervisor in a paper manufacturing plant, for Paper Australia. On 5 December 2005, while at work, he was struck by a heavy paper reel and fell to the ground. Mr Halilovic made a written statement dated 10 December 2007, describing the incident at [10], as follows:
“On 5 December 2005 at work when I started my shift I noticed off-cuts next to my machine.
I was required to stack the off-cuts on a nearby pallet prior to commencing work.
The off-cut rolls are the remains from cutting a large paper roll and they vary in dimensions. I was required to use a machine known as a grab to move the off-cut rolls. This machine is similar to a forklift except it has two hydraulic arms, which can be manoeuvred in various directions.
I collected four rolls and placed them on the pallet.
I attempted to move the fifth off-cut slightly to the left to allow me to use the grab and move it onto the pallet. As I attempted to shift the off-cut roll to the left, the off-cut roll tipped towards me.
I attempted to stabilise it by using my weight to push it back, unfortunately I could not do so as the roll weighted over 150 kilograms.
As I could not roll it away I let go of it and jumped backwards. As I did this I became trapped between the off-cut rolls on the pallets that were behind me, and the falling off-cut roll.
The falling off-cut roll initially struck me on the right knee and then the left knee. Also, as a result of the fall I injured my neck, shoulders and back.
I think that I was knocked unconscious for a short period of time.”
Mr Halilovic subsequently received medical treatment including surgery for his fractured patella. He returned to work for eight…
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- AGLC
- Halilovic v Paper Australia Pty Ltd [2008] NSWWCCPD 80
- Case
- [2008] NSWWCCPD 80
- Decision Date
CaseChat Overview and Summary
The Tribunal found that the Arbitrator had indeed failed to consider the full scope of relevant evidence and had provided inadequate reasons for the decision. The Tribunal noted that the Arbitrator had not given due weight to the evidence of worsening neck and back symptoms following the incident, despite the presence of medical records indicating such symptoms. The Tribunal also found that the Arbitrator had not adequately addressed the issue of procedural fairness, particularly in relation to the timing of the complaints of pain and the absence of contemporaneous complaints.
Consequently, the Tribunal concluded that the Arbitrator's decision was flawed and did not adequately consider all material evidence. The decision was quashed, and the matter was remitted back to the original Arbitrator for reconsideration in light of the Tribunal's findings.
The final orders of the Tribunal were that the decision of the Arbitrator dated 4 April 2008 be confirmed as quashed and the matter be remitted for reconsideration.
Orders
Orders of the court
The decision of the Arbitrator dated 4 April 2008 is confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Paper Australia responds that the Arbitrator did in fact carry out his function in precisely the manner described by Mr Halilovic. It submits that once the records from Dr Antoun and Dr Vij became available to the parties, Mr Halilovic was in no position to assert that he had complained of neck or back pain in the weeks following the work incident. It states that at [13] of Mr Halilovic’s statement, referring to worsening of both neck and back symptoms following the knee surgery of 13 December 2005, is inconsistent with the first complaint of those symptoms some weeks later. Paper Australia further observes, “… as stated previously the entries in Dr Vij’s notes of 16/12/05, 23/12/05 and 30/12/05 all tend to demonstrate the Appellant was capable of discussing different issues with his regular general practitioner yet made no complaint in respect of neck or back symptoms.” It points out that the reference in Mr Halilovic’s statement to the deterioration of his neck pain for no apparent reason in January 2006, “neglects the fact that no neck pain at all had ever been complained of by the Appellant previously.” Mr Halilovic further submits that whether a worker has sustained an injury to specific body parts is a question of fact based on a common sense evaluation of the causal chain, and cites Bluescope Steel (ASI) v Khoury & Anor [2006] NSWWCCPD 303 at [55]-[66] (‘Khoury’), and Parmalat Australia Ltd v Cheadle [2008] NSWWCCPD 39 at [35] (‘Cheadle’). Paper Australia agrees with the principle advanced and asserts, “that is precisely what the Arbitrator set out in his J.” Mr Halilovic submits that merely because a body part was not mentioned to a doctor for a period of less than one month, it is not of itself, determinative of the fact that no injury had occurred to that part of the body. He cites Freedom Group Limited v Ferizovic [2008] NSWWCCPD 27 at [93] (‘Ferizovic’), in which “the delay between injury and complaint to a doctor was in the order of over two months.” Paper Australia submits that each case should be decided on its own facts. Mr Halilovic also submits at [14] of his submissions on appeal that each case must be decided on its own facts. He puts forward a list of matters that were pertinent “to whether the worker should have been believed when he said that he suffered neck and back pain immediately following the work incident.” They are: Paper Australia disagrees. It submits that there is radiological evidence and Dr Giblin’s express view that Mr Halilovic has a spondylitic neck consistent with Dr Vij’s assessment that the x-rays showed disc degeneration and narrowing at C5/6. It further observes that Dr Giblin also opined that the CT scan of Mr Halilovic’s lumbar spine revealed a very small disc protrusion at L4/5 and L5/1. “Those degenerative changes would be capable of producing the symptoms complained of by the Appellant, more particularly so when the lack of any contemporaneous complaint obviates the argument of causal connection to the Appellant’s injury.”