Legal Research
Cases
Naidu v Able Manufacturing Pty Ltd

Naidu v Able Manufacturing Pty Ltd

Case [2007] NSWWCCPD 237 3 December 2007

Incapacity

Ability to Earn

Lump Sum Compensation

Medical Assessment

Workers Compensation Law

Type to search within this case.

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Naidu v Able Manufacturing Pty Ltd & anor [2007] NSWWCCPD 237
APPELLANT:  Ravikumar Govindarajulu Naidu
FIRST RESPONDENT:  Able Manufacturing Pty Ltd
SECOND RESPONDENT:  Giesecke & Devrient Australasia Pty Ltd
FIRST RESPONDENT’S INSURER:                 Gallagher Bassett Services Workers Compensation NSW
SECOND RESPONDENT’S INSURER:            CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC2588-07
DATE OF ARBITRATOR’S DECISION:          24 July 2007
DATE OF APPEAL DECISION:  3 December 2007
SUBJECT MATTER OF DECISION: Section 40(2)(b) of the Workers Compensation Act 1987; factors to be taken into account in assessing a worker’s ability to earn; requirements for a medical specialist to be eligible to provide a valid assessment of whole person impairment
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant: Buttar Caldwell & Co
First Respondent: Holman Webb Lawyers
Second Respondent: TurksLegal

ORDERS MADE ON APPEAL: The Arbitrator’s amended determination dated 28 July 2007 is revoked and the following orders made in its place:

“1. The Applicant’s claim for lump sum compensation as a result of injury to his cervical and lumbo-sacral spines on 15 August 2002 is referred to the Registrar for referral to an Approved Medical Specialist in order that the level of whole person impairment (if any) resulting from that injury be assessed. The documents to be referred to the Approved Medical Specialist are those listed at paragraph 11 of the Arbitrator’s Statement of Reasons for Decision dated 28 July 2007.
2. Award for the First Respondent.
3. The Second Respondent is to pay the Applicant Worker’s costs as agreed or assessed. The matter is certified complex under Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2003.”

The Appellant Worker’s claim for weekly compensation against the Second Respondent is remitted to a different Arbitrator for re-determination of his entitlement under section 40 of the Workers Compensation Act 1987 in accordance with the reasons in this decision.
The Second Respondent is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

Ravikumar Govindarajulu Naidu (‘the Appellant Worker/Mr Naidu’) was born in India on 20 October 1953 and is now 54 years old. He completed his schooling in India to year 11 standard. After leaving school he completed a diploma course to qualify as a moulder. He came to Australia in June 1999 and started work as a fibreglass laminator with a firm at Blacktown where he stayed until the business closed in April 2000. He started with Able Manufacturing Pty Ltd (a labour hire company) (‘the First Respondent/Able’) in May 2000 and was placed by that company with National Foods at Penrith where he initially worked as a production worker and then in the bottling section. He injured his lower back while lifting a pallet at work on 15 June 2000.

He attended his local doctor, Dr Bonovas, who certified him unfit for work until 4 July 2006 when he returned to work on suitable duties. Mr Naidu returned…

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 Naidu v Able Manufacturing Pty Ltd

Details

AGLC: Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237
Case: [2007] NSWWCCPD 237
Decision Date: 3 December 2007

CaseChat Overview and Summary

The case of Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237AP involved an appeal against the decision of an arbitrator in a workers compensation claim. Ravikumar Govindarajulu Naidu (the Appellant Worker) sought compensation from two respondents, Able Manufacturing Pty Ltd (the First Respondent) and Giesecke & Devrient Australasia Pty Ltd (the Second Respondent), for injuries sustained at work. The appeal addressed several issues, including the assessment of the worker's capacity to earn and the validity of a claim for lump sum compensation.

The court found that the arbitrator had erred in several respects. Firstly, the arbitrator failed to properly consider the Appellant Worker's limited English language skills, work experience, and workers compensation background when assessing his capacity to earn. The court noted that these factors are crucial in determining a worker's ability to earn in the open labour market. Secondly, the court held that the arbitrator incorrectly struck out the Appellant Worker's claim for lump sum compensation, as the medical specialist who assessed the worker's impairment was properly qualified according to the WorkCover Guides. The listing on the WorkCover website was deemed an administrative step, not a requirement for the specialist's qualifications.

Consequently, the appeal was partially allowed. The Arbitrator's determination regarding the Appellant Worker's capacity to earn was revoked, and the matter was remitted to a different arbitrator for re-determination. The claim for lump sum compensation was referred to an Approved Medical Specialist for assessment. The Second Respondent was ordered to pay the Appellant Worker's costs of the appeal. The matter was certified as complex under the Workers Compensation Regulation 2003.

Orders