Howlader v FRF Holdings Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Howlader v FRF Holdings Pty Ltd [2019] NSWWCCPD 55

APPELLANT:

Muhammad Imtiaz Hossain Howlader

RESPONDENT:

FRF Holdings Pty Ltd

INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-6756/18

ARBITRATOR:

Mr J Harris

DATE OF ARBITRATOR’S DECISION:

17 April 2019

DATE OF APPEAL DECISION:

30 October 2019

SUBJECT MATTER OF DECISION:

Whether the amount at issue on appeal satisfies the percentage threshold requirement to appeal – s 352(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998; Olympic Fencing (NSW) Pty Ltd v Crossley [2007] NSWWCCPD 121, Popovic v Liverpool City Council [2017] NSWWCCPD 49, Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3 applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Counsel:

Mr P Perry (Appellant)

Mr R Hanrahan (Respondent)

Solicitors:

Turner Freeman Lawyers (Appellant)

Gair Legal (Respondent)

ORDERS MADE ON APPEAL:

1.     The name of the respondent wherever it appears in the appeal and in the proceedings below is amended where necessary to read “FRF Holdings Pty Ltd”.

2. The threshold percentage in s 352(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied, and there is no right of appeal.

INTRODUCTION AND BACKGROUND

1. Mr Muhammad Imtiaz Hossain Howlader (the appellant) was employed by FRF Holdings Pty Ltd (the respondent) as a truck driver. On 13 October 2016, the appellant suffered an injury to his back in the course of his employment while attempting to remove a pallet jack which was stuck under a heavy pallet. As a result of that injury, he also suffered a secondary psychological condition.

2. The respondent accepted that the appellant suffered a work-related injury in the nature of a musculo-ligamentous strain to his lumbar spine, and paid weekly compensation until 28 June 2017. The respondent thereafter denied liability for ongoing weekly payments and also treatment expenses.

3. The appellant commenced proceedings in the Commission, claiming weekly payments of compensation on an ongoing basis, past treatment expenses quantified at $54,409.36 plus any amount specified in a Medicare Notice of Charge. The past treatment expenses were said to be incurred in relation to consultations with a general practitioner, physiotherapy and hydrotherapy treatment, and pain medication. He claimed future treatment expenses estimated at $29,628.21, plus anaesthetist’s fees, in respect of the expenses of, and associated with, a proposed laminectomy at the L4/5 and L5/S1 levels of the spine.

4. The appellant underwent the proposed surgery on 20 December 2018 at St George Hospital at the hands of Dr Peter Khong, neurosurgeon.

5. On 12 March 2019, the appellant lodged an Application to Admit Late Documents (AALD) dated 11 March 2019. Annexed was an updated schedule of treatment expenses claimed pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act), claiming a total of $68,011.83.

6. The matter proceeded to arbitration on 26 March 2019. The Arbitrator issued a Certificate of Determination (COD) on 17 April 2019, with a written statement of reasons…