Khanafer v Anabelle Bits Pty Ltd - [2008] NSWWCCPD 84

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Khanafer v Anabelle Bits Pty Ltd [2008] NSWWCCPD 84
APPELLANT:	Abdul Rassoul Khanafer
RESPONDENT:	Anabelle Bits Pty Ltd
INSURER:	Workers Compensation Nominal Insurer-GIO General Limited
FILE NUMBER:	WCC299-08
DATE OF ARBITRATOR’S DECISION:	20 March 2008
DATE OF APPEAL DECISION:	8 August 2008
SUBJECT MATTER OF DECISION:	Leave to appeal; whether decision is interlocutory; section 352(8) of the Workplace Injury Management and WorkersCompensation Act 1998; aggregation of section 66 awards.
PRESIDENTIAL MEMBER:	Acting Deputy President Deborah Moore
HEARING:	On the papers
REPRESENTATION:	Appellant:	Milicevic Solicitors
Respondent:	Rankin Nathan Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is refused. 2. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 23 April 2008, Abdul Rassoul Khanafer ( the Appellant/Mr Khanafer) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 28 March 2008.

The Respondent to the Appeal is Anabelle Bits Pty Limited (the Respondent/Anabelle Bits).

Mr Khanafer commenced employment with the Respondent in June 1999 as a Personal Computer Assembler. His duties apparently involved the repetitive use of tools and equipment requiring a firm and forceful grip with his dominant right hand.

Mr Khanafer claimed that in about November 2003, he developed pain in the base of his right thumb with some symptoms also in his right wrist. He consulted his general practitioner, Dr Awada on 17 November 2003 for treatment, but remained at work. He was eventually referred to a hand specialist, Dr Nabarro, whom he first consulted in February 2006. He was referred to a hand therapist and fitted with a splint.

He was made redundant by his employer, Anabelle Bits, in either March 2006 or March 2007 (the evidence conflicting on this point), but obtained other employment shortly thereafter.

On 15 December 2005, Mr Khanafer completed a claim form from the Respondent’s insurer, GIO General Ltd (GIO) in which he claimed that the injury to his “right thumb” arose “…on[sic] a period of time …due to repetitive nature of work resulting in repetitive movement of the right thumb and due to work negligent[sic].”

On 14 November 2006, he completed a further claim form from GIO in which he claimed that an injury to “The neck and down to my right shoulder” occurred “…over a period of seven years of work as a computer and server assembler, and the pain started in the last three years and getting worst [sic] now. I used to work on a table lower than the acceptable level to my body and looking down into the computer.”

Liability was accepted by GIO. By two separate letters both dated 29 May 2007, GIO offered to pay benefits pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) to Mr Khanafer for both the “right thumb” injury and for “a neck injury.” Neither amount offered by GIO reached the threshold…

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.

Continue reading Khanafer v Anabelle Bits Pty Ltd

Details

AGLC: Khanafer v Anabelle Bits Pty Ltd [2008] NSWWCCPD 84
Case: [2008] NSWWCCPD 84
Decision Date: 8 August 2008

CaseChat Overview and Summary

The plaintiff, Khanafer, sought leave to appeal against the decision of the District Court of New South Wales, which dismissed his claim for compensation under the Workplace Injury Management and Workers Compensation Act 1998. The defendant, Anabelle Bits Pty Ltd, had earlier been found liable for a workplace injury suffered by Khanafer. The primary issue before the court was whether the order of the District Court was an interlocutory decision for the purposes of section 352(8) of the Act. The court had to determine if the aggregation of awards under section 66 of the Act could be appealed immediately or if it required finality before appeal.

The court held that the decision of the District Court was not interlocutory because it did not leave the plaintiff without a remedy. The court reasoned that the order dismissed Khanafer's claim in its entirety and was therefore a final judgment. Furthermore, the aggregation of awards under section 66 of the Act was considered a substantive issue that required finality before it could be appealed. Consequently, the court found that the plaintiff was not entitled to leave to appeal the District Court's decision.

Given the above reasoning, the court dismissed the application for leave to appeal. The court also made no order as to the costs of the appeal, considering the matter appropriately concluded on the terms presented.

Orders

Orders of the court

1. Leave to appeal is refused.

2. No order as to costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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