Kosovic v Star City Pty Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Kosovic v Star City Pty Limited [2010] NSWWCCPD 107
APPELLANT:		Ibrahim Kosovic
RESPONDENT:		Star City Pty Limited
INSURER:		Self-insured
FILE NUMBER:		A1-8763/09
ARBITRATOR:	Ms J. David
DATE OF ARBITRATOR’S DECISION:		15 April 2010
DATE OF APPEAL DECISION:		7 October 2010
SUBJECT MATTER OF DECISION:		Assessment of the evidence, failure to determine incapacity; lack of reasons
PRESIDENTIAL MEMBER:		Acting Deputy President Lorna McFee
HEARING:		On the papers
REPRESENTATION:		Appellant:	Martin Bell & Company
Respondent:	George Mallos, Lawyer
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 15 April 2010 is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 12 July 2008, the appellant worker, Ibrahim Kosovic, was working for the respondent employer, collecting dirty plates from an express window for stacking in a dishwasher when he fell.  Mr Kosovic has not worked since.

2. The Application to Resolve a Dispute (the Application) registered in the Commission on 28 October 2009 recorded injury to the “right elbow, right upper extremity, lower back and lumbar spine, right leg, anxiety and depression”.

3. The claim advanced was for:

   (a)     continuing payments of weekly compensation from 11 September 2008, and

   (b) medical expenses and lump sum payments pursuant to ss 60, 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act).

4. The employer, a self-insurer, in a s 54 notice dated 10 October 2009, disputed liability on the grounds that:

   (a)     Mr Kosovic had recovered from his physical injuries and was fit for his pre-injury duties without restriction, and

   (b)     the alleged psychiatric injury was not related to the fall on 12 July 2008.

5. Amendments to the claim, including injury to the cervical spine, right shoulder and carpal tunnel syndrome, were subsequently withdrawn, and the injuries were confined to the “lumbar spine, cervical spine, right upper extremity (elbow), anxiety and adjustment disorder”.

6. The matter was listed for arbitration on 25 March 2010. The issues at the hearing involved:

   (a) the employer’s application for leave to raise a previously un-notified issue, that Mr Kosovic did not suffer any injury at work on 12 July 2008, and the exercise of discretion under s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

   (b)     a determination as to what injuries were suffered on 12 July 2008, and

   (c)     a determination as to total or partial incapacity for work as a result of injuries suffered on 12 July 2008.

7. Both parties were represented by counsel at the hearing and Mr Kosovic was cross-examined at length. 

THE DECISION UNDER REVIEW

1. In a reserved decision, delivered on 15 April 2010, the Arbitrator:

   (a)     allowed the employer to dispute injury;

   (b)     found that Mr Kosovic suffered injury to his right upper extremity (elbow) and lumbar spine on 12 July 2008;

   (c)     found against Mr Kosovic in respect of injury to his cervical spine and psychiatric injury, and

   (d)     found against Mr Kosovic in…