1. The identity of the respondent is amended by consent to ‘A O Design Pty Ltd’.
2. The Arbitrator’s decision dated 14 October 2019 is revoked.
3. The matter is remitted to a different Arbitrator for re-determination.
INTRODUCTION AND BACKGROUND
Neshan Nader (the appellant) was employed by A O Design Pty Ltd (the respondent) as a fitter and joiner, from about 2001. He suffered injury (the occurrence of the incident is not disputed) on 13 June 2012. He was attempting to lift a cabinet weighing about 20 kilograms when he slipped. The cabinet fell against his left hand which was lacerated. He attended Liverpool Hospital where the wound was sutured. He was off work until about August 2012, when he resumed normal duties. The respondent terminated the appellant’s employment effective 26 April 2013. He has not worked since. It is common ground that the appellant had some back symptoms prior to this incident.[1] He alleges that he injured the lumbar and thoracic regions of his back in the incident. The appellant underwent surgery involving decompression at L4/5 at the hands of Dr van Gelder, a neurosurgeon, on 16 May 2017.[2]
[1] Appellant’s statement, 11/7/17, Application to Resolve a Dispute (ARD), pp 1–2.
[2] Dr van Gelder’s report 19/5/16, ARD, p 105.
The appellant was seen by Dr New, orthopaedic surgeon, at the request of his solicitors. The doctor, in a report dated 14 February 2017, assessed the appellant’s whole person impairment at 21 per cent, in respect of the thoracic spine, the lumbar spine and scarring.[3] He was also assessed by Dr Lai, a surgeon, who reported on diagnosed left ulnar nerve compression resulting from the same incident, and assessed 4 per cent whole person impairment in respect of the left upper extremity and scarring.[4] A claim for lump sum compensation was made in respect of 24 per cent permanent impairment (the outcome when the two figures are ‘combined’).[5] That claim was disputed in a s 74 notice dated 7 June 2017.[6] The fundamental issue was whether the appellant had injured his back in the incident. The current proceedings, for lump sum compensation, were commenced by an Application to Resolve a…
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 Nader v A O Design Pty Ltd
Sign in free to access the full text
Details
AGLC
Nader v A O Design Pty Ltd [2020] NSWWCCPD 19
Case
[2020] NSWWCCPD 19
Decision Date
CaseChat Overview and Summary
Nader initiated proceedings against A O Design Pty Ltd in the Fair Work Commission, contesting the refusal of the respondent to provide compensation for a workplace injury. The crux of the dispute lay in the interpretation and application of various sections of the Workplace Injury Management and Workers Compensation Act 1998, particularly sections 79 and 289, which govern the procedure for disputing liability and the conditions under which claims can be referred to the Commission. Nader argued that the respondent had failed to adhere to statutory requirements in disputing liability and had improperly refused to provide compensation. The court had to determine whether the respondent's actions complied with legislative mandates and if the refusal to compensate was justified under the Act.
The court examined whether the respondent correctly identified provisions of the workers compensation legislation to dispute liability, as required by section 79 of the 1998 Act, and if the dispute could be referred to the Commission under section 289. It also assessed the credibility of the evidence presented, including contemporaneous documents, in accordance with established legal principles. The court needed to ascertain if the statutory notice was sufficiently detailed and whether Nader had sufficiently proven the injury to warrant compensation. The case hinged on the interpretation of statutory language and the factual circumstances surrounding the injury.
The court concluded that the respondent did not accurately identify the provisions of the workers compensation legislation on which it relied to dispute liability, thus failing to meet the statutory requirements set out in section 79. Furthermore, the court found that the evidence did not sufficiently support the refusal of compensation. The Arbitrator's decision was deemed to contain factual errors and an incorrect application of legal principles, particularly in relation to Raulston v Toll Pty Ltd and Onassis v Vergottis. Consequently, the Arbitrator's decision was revoked, and the matter was remitted to a different Arbitrator for re-determination.
The court ordered the identity of the respondent to be amended by consent to 'A O Design Pty Ltd'. The Arbitrator’s decision dated 14 October 2019 was revoked, and the matter was remitted to a different Arbitrator for re-determination.
Orders
Orders of the court
ORDERS MADE ON APPEAL:
1. The identity of the respondent is amended by consent to ‘A O Design Pty Ltd’.
2. The Arbitrator’s decision dated 14 October 2019 is revoked.
3. The matter is remitted to a different Arbitrator for re-determination.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Section 79 of the 1998 Act provides:“79 How notice of decision is given(1) A notice required by this Division must be given—(a)to the claimant or worker concerned, and(b)in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.(2) The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.(3) In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.(4) The regulations may make provision for—(a) the manner in which a notice under this Division is to be given, and(b) the form of and other information to be included in or to accompany the notice.” Section 289 of the 1998 Act provides:“289 Restrictions as to when dispute can be referred to Commission(1) A dispute about a claim for weekly payments (other than a dispute based on a work capacity decision) cannot be referred for determination by the Commission unless the person on whom the claim is made—(a) disputes liability for the claim (wholly or in part), or(b) fails to determine the claim as and when required by this Act.Note. The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments pursuant to a work capacity decision (without having disputed liability) constitutes a failure to determine the claim.(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—(a) disputes liability for the claim (wholly or in part), or(b) fails to determine the claim as and when required by this Act.(2A) Subsection (2) does not prevent the referral to the Commission of a dispute about whether any proposed treatment or service is reasonably necessary as a result of an injury.Note. Section 60 of the 1987 Act provides for such a dispute to be referred to the Commission.(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—(a) wholly disputes liability for the claim, or(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or(c) fails to determine the claim as and when required by this Act.Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.(4) A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until—(a) 28 days after the claim for compensation is made, or(b) the person on whom the claim is made disputes liability for the claim (wholly or in part),whichever happens first.(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”