Kumar v Bartter Enterprises Pty Ltd - [2006] NSWWCCPD 31

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Kumar v Bartter Enterprises Pty Ltd [2006] NSWWCCPD 31
APPELLANT:  Rajinder Kumar
RESPONDENT:  Bartter Enterprises Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC6792-04
DATE OF ARBITRATOR’S DECISION:          11 October 2004
DATE OF APPEAL DECISION:  1 March 2006
SUBJECT MATTER OF DECISION: Section 4 of the Workers Compensation Act 1987; chronic pain syndrome; abnormal illness behaviour; incapacity for work
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Sassella
HEARING:On the papers
REPRESENTATION:  Appellant: Buttar Caldwell & Company
Respondent: Rankin & Nathan Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The costs of the appeal in this matter are to be paid by the Respondent Employer.

BACKGROUND TO THE APPEAL

On 8 November 2004 the Appellant Worker, Rajinder Kumar (‘Mr Kumar’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 October 2004.

The Respondent Employer to the Appeal is Bartter Enterprises Pty Ltd (‘Bartter Enterprises’).

Mr Kumar is aged 38, having been born in Punjab, India on 3 February 1968. He completed high school education in India and then became a jewellery maker, working for his father. In 1986 he was shot in the face when the jewellery shop he worked in was burgled.

He went to New Zealand in 1989 and became a citizen in 1993. In New Zealand he worked in a wood factory and in a bakery. In 1994 he came to Australia and obtained citizenship. He moved to Griffith and commenced work at Bartter Enterprises on 24 July 1995.

Mr Kumar was employed in the firm’s processing plant where his duties included lifting tubs of chicken from a line onto metal pallets, cutting and trimming chicken fillets and packing chicken into tubs which he then had to move. Mr Kumar said that these tubs weighed about 30 kg when full, had to be lifted down from a three-feet high conveyor belt, and were normally moved by two workers.

In 1998 Mr Kumar complained of headaches. He was examined and diagnosed with transverse myelitis. He was given a lumbar puncture from which he says he “made a reasonable recovery” after a period of resulting lumbar pain.

Between 9 and 31 August 2001 Mr Kumar’s evidence is that he lifted the full tubs alone and did so all of each work day. On 29 August 2001 Mr Kumar noticed soreness in his back. The back pain persisted until 3 September 2001 and after that date. On that date he was assigned to work in the fillet room where heavy lifting was not required.

On 7 September 2001 he was working in the packing room when he felt severe back pain. He reported this to his supervisor. He saw a nurse who gave him a certificate for light duties for the next two weeks. The symptoms remained. He saw his general practitioner, Dr T Samuel, who certified…

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.

Keep reading for free

Create a free CaseChat account to read Kumar v Bartter Enterprises Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWWCCPD 31
Decision Date: 1 March 2006

CaseChat Overview and Summary

Rajinder Kumar, the appellant, appealed against the decision of an arbitrator in the Workers Compensation Commission who had determined that he was not entitled to weekly compensation or medical expenses beyond 30 October 2003. Kumar argued that the Arbitrator had erred in finding that his symptoms should have abated by 30 October 2003, and in not addressing the diagnosis of chronic pain syndrome and abnormal illness behaviour. The central issue in this appeal was whether the Arbitrator erred in finding that Kumar's symptoms should have abated by 30 October 2003, and in not addressing the diagnosis of chronic pain syndrome and abnormal illness behaviour. The Arbitrator failed to explicitly address Kumar's argument that it was the chronic pain syndrome or abnormal illness behaviour that prevented him from working and that this condition was a sequela of the orthopaedic injury that arose out of or in the course of his employment. However, this error of law did not affect the fairness and lawfulness of the Arbitrator’s decision and the proper exercise of her powers. The Arbitrator was justified in finding that there were impairments affecting only the neck and back and that these were minor. Although there was evidence that Kumar suffered from chronic pain syndrome or abnormal illness behaviour, there was also evidence that his conduct when not under scrutiny by medical experts was inconsistent with him suffering from such a syndrome. The Arbitrator had material before her sufficient to justify the findings she did make. The decision of the Arbitrator is confirmed. The costs of the appeal in this matter are to be paid by the Respondent Employer.

Orders