Singh v Taj (Sydney) Pty Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Remitted on Appeal: This decision has been the subject of a remitter from the Court of Appeal: see Singh v TAJ (Sydney) Pty Ltd [2006] NSWCA 330; (2007) 4 DDCR 557 and Singh v Taj (Sydney) Pty Limited [2007] NSWWCCPD 152
CITATION:		Singh v Taj (Sydney) Pty Limited [2006] NSWWCCPD 7
APPELLANT:		Gurminder Singh
RESPONDENT:		Taj (Sydney) Pty Limited
INSURER:		GIO Workers Compensation NSW (Limited)
FILE NUMBER:		WCC6776-04
DATE OF ARBITRATOR’S DECISION:		15 September 2004
DATE OF APPEAL DECISION:		30 January 2006
SUBJECT MATTER OF DECISION:		Entitlement to weekly compensation; impact of section 253 Migration Act 1958.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Buttar Caldwell & Co
Respondent:	Hicksons Lawyers
ORDERS MADE ON APPEAL:		1.       The decision of the Arbitrator is confirmed.
2.       No order as to costs of the appeal.

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BACKGROUND TO THE APPEAL

1. Gurminder Singh (‘the Appellant’) was employed by Taj (Sydney) Pty Limited (‘the Respondent’) as a general hand and truck driver.

1. On 19 April 2000 whilst unloading groceries from the truck onto a trolley, the trolley tipped and fell onto the Appellant injuring his chest, neck, back and right arm. He attempted to return to work but ceased in about May 2000.

1. On 12 April 2002, the Appellant received lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) by way of a consent award in respect of 12.5% permanent impairment of his neck, 7.5% permanent impairment of his back, and 5% loss of use of his right arm at or above the elbow. He also received a payment pursuant to section 67 of the same Act.

1. Weekly benefits were paid voluntarily by the Respondent’s insurer up until 2 February 2004. The insurer wrote to the Appellant on 23 December 2003 advising that those benefits would cease on 2 February 2004 because “… you have recently been granted a Bridging Visa Class E. Under the conditions of this Visa, you are not permitted to work in Australia …”

1. The Appellant arrived in Australia in 1997 on a visitor visa valid for three months. He subsequently obtained a Bridging Visa Class  “A” which entitled him to work.

1. The Appellant made an application for an Interim Payment Direction on 29 January 2004. The Application was refused by letter dated 12 March 2004.

1. On 28 April 2004, the Appellant filed an ‘Application to Resolve a Dispute’ seeking reinstatement of weekly benefits compensation and payment of medical, hospital or related expenses.

1. The matter was listed for a teleconference on 5 August 2004. On that date, the Arbitrator issued a direction that the matter be listed for arbitration on 7 September 2004 and that “the only matter for adjudication on the day will concern the Applicant’s legal eligibility for an award of weekly compensation pursuant to section 40 of the Workers Compensation Act 1987”.

1. The parties were then invited…