Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 2)

DETERMINATION OF RECONSIDERATION APPLICATION IN RESPECT OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER

CITATION:

Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 2) [2025] NSWPICPD 23

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 RECONSIDERATION DECISION:

21 March 2025

ORDERS MADE ON RECONSIDERATION:

1.   The application for reconsideration of the decision in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80 is declined.

2.   The matter is remitted again to a non-presidential member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with the reasons expressed in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80.

CATCHWORDS:

WORKERS COMPENSATION – Section 57 of the Personal Injury Commission Act 2020 – reconsideration of decisions – principles to be applied – Procedural Direction WC 7; Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244; Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642; Samuel v Sebel Furniture [2006] NSWWCCPD 141; Fairfield City Council v McCall (No 2) [2022] NSWPICPD 29 applied

HEARING:

On the papers

REPRESENTATION:

Appellant:

Self-represented

Respondent:

Ms B Walsh, solicitor

Hall & Wilcox Lawyers

DECISION UNDER RECONSIDERATION:

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

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF PRESIDENTIAL MEMBER’S DECISION:

10 December 2024

INTRODUCTION AND BACKGROUND

1. Mr Tawfiqul Islam (the appellant) brought proceedings in the Personal Injury Commission against his former employer, Eureka Operations Pty Ltd t/as Coles Express (the respondent), claiming weekly payments and treatment 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.

2. 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).

3. The dispute proceeded to conciliation and arbitration before Member Wynyard on 29 March 2023, 9 May 2023 and 28 June 2023 and the appellant was subsequently given the opportunity to provide written submissions to the Member in response to the respondent’s submissions. Over the course of the proceedings up until that point, the only agreement that was reached was that the appellant’s pre-injury average weekly earnings figure was $733.38.

4. The Member issued a Certificate of Determination on 28 September 2023, ordering the respondent to pay the appellant weekly compensation at the rate of $586.70 (Order 1), as well as an order that the respondent…