Islam v Eureka Operations Pty Ltd t/as Coles Express - [2024] NSWPICPD 80

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80
APPELLANT:	Tawfiqul Islam
RESPONDENT:	Eureka Operations Pty Ltd t/as Coles Express
INSURER:	Coles Group Limited
FILE NUMBER:	A1-W7948/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	10 December 2024
ORDERS MADE ON APPEAL:	1. The Member’s order that the respondent is to pay the appellant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or current Notice of Charge is confirmed. 2. The Member’s determination that the appellant’s psychological condition was secondary to his physical conditions is confirmed. 3. The Member’s determination of the appellant’s pre-injury average weekly earnings is revoked. 4. The matter is remitted to a different member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – no error in failing to deal with a submission that was not made – Brambles Industries Limited v Bell [2010] NSWCA 162 applied – ss 44C, 44G and 44H of the Workers Compensation Act 1987 (now repealed) – calculation of the worker’s pre-injury average weekly earnings, ordinary earnings and ordinary hours of work in circumstances where a fair work instrument applies to the worker – principles applicable to disturbing a factual decision of a primary decision-maker – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; Shellharbour City Council v Rigby [2006] NSWCA 308; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied
HEARING:	27 November 2024
REPRESENTATION:	Appellant:
Self-represented

Respondent:
Mr T Grimes, counsel, and Ms B Walsh, solicitor
Hall & Wilcox Lawyers
DECISION UNDER APPEAL:	Islam v Eureka Operations Pty Ltd t/as Coles Express [2023] NSWPIC 515
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	28 September 2023

INTRODUCTION AND BACKGROUND

Mr Tawfiqul Islam (the appellant) commenced proceedings against Eureka Operations Pty Ltd t/as Coles Express (the respondent), claiming weekly payments and medical expenses in relation to:
(a)    an injury to his back on 11 July 2015;
(b)    a further injury to his back on 10 January 2018, and
(c)    a psychological injury on 6 November 2019, or, in the alternative, on 26 August 2020.
The issues for determination were identified as:
(a) whether the appellant’s incapacity was caused by his back injury/injuries, his psychological injury or a combination of those injuries;
(b) whether the appellant’s psychological condition was a primary injury or was secondary to the back injury/injuries, and
(c) if the psychological condition was a primary injury, whether the appellant’s entitlement to compensation was defeated by s 11A of the Workers Compensation Act 1987 (the 1987 Act).
The dispute was listed for conciliation and arbitration on 29 March 2023. The dispute could not be resolved, and the matter proceeded to arbitration hearing. The arbitration could not be completed on that day…

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: [2024] NSWPICPD 80
Decision Date: 10 December 2024

CaseChat Overview and Summary

In the case of Islam v Eureka Operations Pty Ltd t/as Coles Express, the applicant sought a review of a decision by the respondent regarding their entitlement to workers compensation. The applicant, who had previously been employed by the respondent, was asserting their right to compensation following an injury sustained at work. The dispute was brought before the Court of Appeal, where the applicant challenged the decision made by the primary decision-maker concerning the calculation of their pre-injury average weekly earnings, ordinary earnings, and ordinary hours of work under the Workers Compensation Act 1987.

The legal issues before the court involved the interpretation and application of sections 44C, 44G, and 44H of the repealed Workers Compensation Act. Specifically, the court had to determine the proper methodology for calculating the applicant's pre-injury average weekly earnings and ordinary earnings when a fair work instrument was applicable to the worker's employment. Additionally, the court needed to assess whether the primary decision-maker had erred in failing to consider a particular submission made by the applicant.

The court found that there was no error in the primary decision-maker's failure to address a submission that had not been presented. The court relied on the principles set out in Brambles Industries Limited v Bell [2010] NSWCA 162, which emphasised that a decision-maker is not required to address submissions that were not made. Furthermore, the court examined the principles from Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; Shellharbour City Council v Rigby [2006] NSWCA 308; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, which outline the circumstances under which a factual decision made by a primary decision-maker may be disturbed. The court concluded that the primary decision-maker had not erred in their factual findings and, therefore, the decision was affirmed.

As a result of the court's decision, the applicant's appeal was dismissed, and the original decision regarding the calculation of the applicant's pre-injury average weekly earnings, ordinary earnings, and ordinary hours of work remained in place. The court found no merit in the applicant's arguments and upheld the decision of the primary decision-maker.

Orders