ISS Property Services Pty Ltd v Abdou

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	ISS Property Services Pty Ltd v Abdou [2017] NSWWCCPD 28
APPELLANT:	ISS Property Services Pty Ltd
RESPONDENT:	Ahmad Abdou
INSURER:	ISS Property Services Pty Ltd
FILE NUMBER:	A1-761/17
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	10 May 2017
DATE OF APPEAL DECISION:	4 July 2017
SUBJECT MATTER OF DECISION:	Absence of transcript of extempore reasons for decision; statutory duty to give reasons; s 294 of the Workplace Injury Management and Workers Compensation Act 1998; r 15.6 of the Workers Compensation Commission Rules 2011; constructive failure to give reasons
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2.       The Senior Arbitrator’s determination of 10 May 2017 is revoked. 3.       The matter is remitted to another Arbitrator for determination afresh.

INTRODUCTION

1. This matter concerns whether an appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) can proceed in the absence of a transcript of the Senior Arbitrator’s extempore reasons for decision.

BACKGROUND

1. Mr Abdou, the respondent to the appeal, was employed by the appellant, ISS Property Services Pty Ltd (ISS), as a cleaner.

2. On 29 November 2013, Mr Abdou was emptying garbage bins into a trolley. By reason of the fact that an hydraulic lift attached to the trolley was out of service, Mr Abdou was required to physically lift the load into the trolley. He alleges that, in the course of doing so, he sustained an injury to his back. Mr Abdou also claims that the general nature and conditions of his employment involving repetitive and excessive lifting emptying garbage bags, vacuuming, sweeping, and using a blower aggravated a disease process in his lower back.

3. On 4 February 2014, Mr Abdou made a claim of injury to his back on 29 November 2013. He described the injury to have occurred while “lifting heavy box” and “cleaning rubbish”.

4. On 27 February 2014, ISS issued a notice under s 74 of the 1998 Act. It declined liability on the basis that Mr Abdou suffered from a pre-existing condition and had not suffered an injury arising out of or in the course of his employment.

5. On 16 February 2017, Mr Abdou lodged an Application to Resolve a Dispute in the Commission (the Application). He sought weekly compensation from 27 February 2014 to 27 May 2014. He also sought hospital and medical expenses of, and incidental to, a laminectomy and spinal fusion operation performed by Dr Darwish on 18 September 2015. In addition, he claimed lump sum compensation in the sum of $40,425 in respect of a 23 per cent whole person impairment, pursuant to s 66 of the Workers Compensation Act 1987.

6. On 9 March 2017, ISS filed a reply to…