Maruf v Target Australia Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Maruf v Target Australia Pty Ltd [2016] NSWWCCPD 12
APPELLANT:	Ashikur Maruf
RESPONDENT:	Target Australia Pty Ltd
INSURER:	Wesfarmers Group TeamCover
FILE NUMBER:	A1-5429/15
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	11 November 2015
DATE OF APPEAL DECISION:	18 February 2016
SUBJECT MATTER OF DECISION:	Interlocutory order; leave to appeal; dismissal of proceedings by Arbitrator; s 352 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Peninsula Law
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1.     Leave to appeal is refused.

INTRODUCTION

1. This matter concerns an appeal against an Arbitrator’s interlocutory determination that the worker’s proceedings be dismissed for failure to prosecute the claim with due dispatch, pursuant to s 354(7A)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and Pt 15 r 15.8 of the Workers Compensation Commission Rules 2011.

2. As the Arbitrator’s determination is interlocutory, the appellant worker requires leave to appeal pursuant to s 352(3A) of the 1998 Act. For the following reasons leave to appeal is refused.

BACKGROUND

1. The appellant, Mr Maruf, was employed by the respondent, Target Australia Pty Ltd (Target), as a customer service officer performing various duties including operating cash registers. He commenced employment in November 2013.

2. Mr Maruf alleged that he suffered an injury to his left shoulder, neck, upper and lower back and spine in the course of his employment between mid to late 2014 and prior to 30 November 2014. He said that:

   “[w]hilst lifting buckets containing heavy metal chains, lifting heavy, awkward boxes and lifting plastic large containers and general nature and conditions of employment with the respondent, [he] sustained the injuries referred to above.”

3. Target’s insurer accepted provisional liability for medical expenses and weekly benefits. However, on 24 June 2015, target’s insurer denied ongoing liability for weekly benefits and medical expenses. The insurer disputed that Mr Maruf sustained an injury arising out of or in the course of employment. If he did suffer any injury, it disputed that his employment was a substantial contributing factor to the injury.

4. Mr Maruf filed an Application to Resolve a Dispute (the application) in the Commission on 22 September 2015. He claimed weekly compensation from 9 November 2014 to date and continuing together with a claim to recover his medical expenses. The application pleaded an injury in August 2013, which is clearly an error as Mr Maruf did not commence employment until November 2013.

5. The matter came before Arbitrator Wynyard for a telephone conference on 10 November 2015. Mr Maruf was represented by Mr Bingham, solicitor, and Target was represented by Ms Walsh, solicitor.

6. At the time of the telephone conference Mr Maruf was overseas in Bangladesh. A telephone contact number for Mr Maruf had been conveyed to the Commission. However, contact could not be established with Mr Maruf for the purposes of his participation in…