DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230
APPELLANT: Ricky Singh
RESPONDENT: FTW Products Pty Ltd
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC823-07
DATE OF ARBITRATOR’S DECISION: 7 August 2007
DATE OF APPEAL DECISION: 27 November 2007
SUBJECT MATTER OF DECISION: Notice under section 54 of the Workers Compensation Act 1987; application of amendments effected by Workers Compensation Legislative Amendment (Miscellaneous Provisions) Act 2005; referral to an Approved Medical Specialist; reasons; weight of and analysis of evidence.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Bell Lawyers
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 7 August 2007 is revoked and the following orders made:
“1. The matter is remitted to a different Arbitrator for the Appellant Worker’s rights to be re-determined in accordance with the reasons given in this decision.
2. Costs of the first arbitration and of the second arbitration are to follow the events of the second arbitration.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Ricky Singh (‘the Appellant Worker/Mr Singh’) was born on 2 August 1966 and is now 41 years old. After obtaining his higher school certificate he completed a degree in Graphic Arts at Sydney University. He started work as a screen printer with FTW Products Pty Ltd (‘the Respondent Employer/FTW’) in January 2002.
At about 3.30pm on 28 January 2003 he was working at FTW’s premises at Kingswood when he fell down several stairs sustaining injury to various parts of his body. The exact circumstances of his fall are contested but the fact that he fell and sustained injury is not disputed. He continued working but went home slightly earlier than normal. At home he was in such pain that an ambulance was called and he was admitted to Nepean Hospital until 31 January 2003. He was again admitted to Nepean Hospital because of his injuries from 3 February 2003 until 7 February 2003.
Whilst it was suspected that Mr Singh had sustained an undisplaced fracture of C5-6, later investigations established that there was no fracture. Because of his ongoing symptoms Mr Singh has not returned to work since his accident and has remained on strong pain relieving medication. He continues to consult Dr Manohar for pain management.
His claim was accepted and voluntary weekly compensation paid until, by notice issued by CGU Workers Compensation (NSW) Limited (‘CGU’) on 13 October 2006, liability was declined under section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’) and payments stopped on 23 November 2006. Liability was declined on the basis of medical reports from Dr Shatwell dated 8 September 2006 and Dr Fulop dated 11 October 2006. The insurer forwarded a further copy of the letter of 13 October 2006 to Mr Singh on 14 November 2006.
By letter dated 30 November 2006 Mr Singh claimed lump…
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 Singh v FTW Products Pty Ltd
Sign in free to access the full text
Details
AGLC
Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230
Case
[2007] NSWWCCPD 230
Decision Date
CaseChat Overview and Summary
This case involved an appeal against a decision of the Workers Compensation Commission. The appellant, Ricky Singh, was injured in a work accident in January 2003. He sought weekly and lump sum compensation for his injuries. The insurer declined liability for the claim under section 54 of the Workers Compensation Act 1987. The issues on appeal related to the Arbitrator's referral to an Approved Medical Specialist, the referral of medical reports, the weight of evidence, and the Arbitrator's analysis of the evidence. The Deputy President found that the Arbitrator erred in the weight and analysis of the evidence and in the reasons provided for the decision. The Deputy President revoked the Arbitrator's determination and remitted the matter to a different Arbitrator for re-determination. The Respondent Employer was ordered to pay the Appellant Worker's costs of the appeal.