Jafari v Bartter Enterprises Pty Limited - [2004] NSWWCCPD 88

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Jafari v Bartter Enterprises Pty Limited [2004] NSW WCC PD 88
APPELLANT:  Mohammad Jafari
RESPONDENT:  Bartter Enterprises Pty Limited
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC10573-2003
DATE OF ARBITRATOR’S DECISION:          16 October 2003
DATE OF APPEAL DECISION:  15 December 2004
SUBJECT MATTER OF DECISION:                Compliance with Injury Management Plan.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant: Buttar, Caldwell & Company Solicitors & Barristers
Respondent: Rankin & Nathan Solicitors & Notaries

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.

Background

On 13 November 2003 the Commission received an appeal from Mohammad Jafari against the decision of an Arbitrator dated 16 October 2003.

The Respondent to the appeal is Bartter Enterprises Pty Limited, located in Griffith in NSW. The relevant insurer is QBE Workers Compensation (NSW) Ltd. Mr Jafari worked for Bartter as a process worker.

The appeal concerns a claim by Mr Jafari for weekly benefits compensation for an injury he sustained to his lower back at work on 16 January 2003. He felt a sudden onset of pain in his lower back as he was stacking a pallet. He sought payments of weekly compensation from 17 March 2003, to date and continuing, for total incapacity for work.

The Insurer accepted liability and Mr Jafari was placed on a rehabilitation program as part of his injury management plan. Mr Jafari returned to work on light duties and Dr Moursi was nominated as his treating practitioner.

On 17 March 2003 Mr Jafari advised the Insurer that he had moved to Sydney because he was unhappy with the services he was receiving from Dr Moursi. Bartter indicated to Mr Jafari that his actions were inappropriate without consultation and advised him of his obligation to return to work at Griffith. On 26 March 2003 Bartter wrote to Mr Jafari advising that he was taken to have abandoned employment as he had failed to comply with the injury management plan.

The dispute about Mr Jafari’s entitlement to weekly workers compensation benefits went before an Arbitrator who found him to be partially incapacitated as a result of an injury to his back sustained at work. However the Arbitrator also found that Mr Jafari was not entitled to weekly benefits because of an unreasonable failure to comply with the requirements of workplace injury management.

The issues in dispute on the appeal are:
·     Was the Arbitrator wrong to find that a proper ‘Injury Management Plan’ was in place for Mr Jafari?
·     Was the Arbitrator wrong to find that Mr Jafari unreasonably failed to comply with the ‘Injury Management Plan’?
·     Did the Arbitrator take irrelevant consideration into account in reaching her decision that Mr Jafari unreasonably failed to comply with the ‘Injury Management Plan’?

I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate…

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: [2004] NSWWCCPD 88
Decision Date: 15 December 2004

CaseChat Overview and Summary

In the matter of Jafari v Bartter Enterprises Pty Limited, the applicant, Jafari, sought to introduce fresh evidence in the form of a medical report from Dr Qidwai, dated 5 November 2003, during an appeal. This application arose from a workers' compensation claim where Jafari alleged that he suffered an injury during his employment with Bartter Enterprises Pty Limited. The Commission was tasked with determining whether the fresh evidence could be admitted under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, considering the principles and criteria set out in Practice Direction No. 6 and relevant case law.

The legal issues before the court were whether the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator, and if failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case. Additionally, the court had to consider factors that weighed in favour of, and against, the exercise of the discretion to admit fresh evidence, including the potential for a substantial injustice, the probative value of the evidence, and the finality of litigation.

The Commission held that the fresh evidence could not be admitted. The court found that the medical report was not new evidence as it was available to Jafari at the time of the original proceedings. Furthermore, the report did not possess significant probative value that would lead to a different outcome in the case. The court noted that the report did not address the central issue of the appeal, which was the credibility of the witness and the merits of the case, rather than the specific medical condition. The court also highlighted the importance of the finality of litigation and the potential prejudice to the opposing party if new arguments were introduced on appeal.

The final orders of the Commission were that the application for leave to adduce fresh evidence was dismissed. The court concluded that the evidence did not meet the criteria for admission and that allowing it would not result in a substantial injustice. The appeal was to be determined on the basis of the evidence already presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Fresh or additional evidence may only be given on an appeal with the leave of the Commission (s352(6) of the Workplace Injury Management and Workers Compensation Act 1998) (the 1998 Act). Practice Direction No. 6 details how such an application for leave must be made, as follows:“New EvidenceWhere a party seeks leave to give new evidence in relation to the decision appealedagainst, that party must serve a copy of the new evidence on the other parties to thedispute when serving the Application or Opposition.In general, the Commission will allow new evidence to be introduced only where itcan be demonstrated that the new evidence could not reasonably have beenobtained by the party and tendered in proceedings before the Arbitrator and thatfailure to allow the new evidence would cause a substantial injustice in thecircumstances of the individual case.” Principles relevant to the exercise of the discretion to admit fresh evidence in proceedings before the Commission were discussed in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7. Factors weighing in favour of the exercise of discretion to admit fresh evidence in the appeal include: whether, if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted; whether the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings, and whether the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case. Factors weighing against the exercise of the discretion to admit fresh evidence in the appeal include: the interest in the finality of litigation and the importance of the ability of the successful party to rely on the outcome of the proceedings; the prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and the intention of the legislative scheme in relation to the nature of the proceedings. In some cases the introduction of fresh evidence will effectively raise new arguments in the appeal (Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287). It is undesirable, and potentially unfair, to allow a party to effectively present a new and different case on appeal, to that which was before the primary decision-maker (see also Surgenor v Cenehill Pty Limited t/as Rocks Real Estate [2004] NSW WCC PD 4). It is important to consider what opportunity the parties had to fully and fairly present their evidence. Compliance with the statutory workers compensation scheme should lead to particularization of a claim and the gathering of evidence to support or refute it early in the life of a dispute, well before an application to the Commission is contemplated. Mr Jafari seeks to admit into evidence a medical report from Dr Qidwai, dated 5 November 2003. Mr Jafari had placed himself under the care of Dr Qidwai when he left Griffith for Sydney in March 2003. He submits that the fresh evidence refutes the unsubstantiated allegations of Ms Donna Fenson, his supervisor from Bartter, that she made reasonable, albeit unsuccessful, attempts to contact Dr Qidwai.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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