Sami v Victory Lodge Pty Limited

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

CITATION:

Sami v Victory Lodge Pty Limited [2020] NSWWCCPD 34

APPELLANT:

Yankat Sami

RESPONDENT:

Victory Lodge Pty Limited

INSURER:

Racing NSW

FILE NUMBER:

A1-3039/19

ARBITRATOR:

Mr J Wynyard

DATE OF ARBITRATOR’S DECISION:

24 October 2019

DATE OF APPEAL DECISION:

3 June 2020

SUBJECT MATTER OF DECISION:

Injury; s 4(b)(ii) of the Workers Compensation Act 1987; findings of fact based on the evidence; s 9B of the Workers Compensation Act 1987; drawing of inferences; adequacy of reasons

PRESIDENTIAL MEMBER:

Acting Deputy President Geoffrey Parker SC

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr S Moffett, counsel

Walker Law Group

Respondent:

Mr P Macken, solicitor

Leigh Virtue & Associates

ORDERS MADE ON APPEAL:

1.    The name of the respondent, wherever it appears, is amended to read ‘Victory Lodge Pty Limited’.

2.    The Arbitrator’s Certificate of Determination dated 24 October 2019 is confirmed.

INTRODUCTION

1. On 11 March 2015, Mr Sami (the appellant) suffered a heart attack whilst working at the premises of the respondent employer Victory Lodge Pty Limited. There is some confusion as to whether the heart attack occurred on 13 March 2015 (as the Arbitrator notes in his Award) or on 11 March 2015. The precise date is of no significance.

2. Mr Sami brought proceedings for lump sum compensation against Victory Lodge Pty Limited, the name of the respondent having been amended by the Arbitrator by consent.[1] I note that respondent is named in the Application – Appeal Against Decision of Arbitrator as ‘Racing NSW (Victory Lodge Pty Ltd)’. On 20 March 2020, the appellant made an application to amend the name of the respondent to ‘Victory Lodge Pty Limited’ by consent. The name of the respondent, wherever it appears, is amended to read ‘Victory Lodge Pty Limited’.

   [1] Transcript of arbitration, 25 September 2019, 2.10.

3. On 21 October 2019, an Arbitrator of the Commission rejected Mr Sami’s claim and entered an award for the respondent.

4. This appeal is from that determination.

BACKGROUND FACTS

1. Mr Sami commenced working as a stable hand at Victory Lodge from an unspecified date in 2010.

2. There is no dispute that the appellant suffered a myocardial infarction.

3. At the commencement of his oral reasons, the Arbitrator summarised the circumstances of the appellant’s injury.[2] He quoted from the appellant’s statement dated 1 June 2018:

   “I was carrying water. It was heavy and I started getting pain in the chest and the legs started giving way and then I fell onto my back and I lost consciousness. The next thing I woke up I was in Liverpool Hospital. I was then told I had a heart attack.”[3]

   [2] Transcript of oral reasons, 21 October 2019 (T) 1.27­–40.

   [3] Application to Resolve a Dispute (ARD), p 1.

4. In a second statement dated 8 June 2019, Mr Sami described his work in the following terms:

   “I gained employment at Victory Lodge as a full-time stable hand in 2010 and my daily work was very demanding.…