Singh v Taj (Sydney) Pty Limited

WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITARTOR FOLLOWING REMITTER FROM THE COURT OF APPEAL
STATUS: Remitter: This decision is a decision on remitter from the Court of Appeal decision in Sing v TAJ (Sydney) Pty Ltd [2006] NSWCA 330; (2007) 4 DDCR 557
CITATION:		Singh v Taj (Sydney) Pty Limited [2007] NSWWCCPD 152
APPELLANT:		Gurminder Singh
RESPONDENT:		Taj (Sydney) Pty Limited
INSURER:		Gallagher Bassett Services Pty Limited
FILE NUMBER:		WCC6776-06
DATE OF ARBITRATOR’S DECISION:		7 September 2004
DATE OF INITIAL APPEAL DECISION:		30 January 2006
DATE OF REMITTER FROM COURT OF APPEAL:		27 November 2006
DATE OF DECISION ON REMITTER:		10 July 2007
SUBJECT MATTER OF DECISION:		Section 353(2) of the Workplace Injury Management & Workers Compensation Act 1998; section 40 Assessment; impact of section 253 of the 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.        Pursuant to section 353(2) of the Workplace Injury Management & Workers Compensation Act 1998 I make the following orders:
(a) The Respondent is to pay to the Applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 at the rate of $70.00 per week from 9 July 2003 to date and continuing.
(b)   Credit given to the Respondent for payments made to the Applicant between 9 July 2003 and 2 February 2004.
(c) The Respondent is to pay the weekly award to the Applicant in accordance with the provisions of section 53(2) of the Workers Compensation Act 1987.
2.        The Respondent is to pay the Applicant’s costs as agreed or assessed.
3.        The Respondent is to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL REMITTED

1. On 27 November 2006, the Court of Appeal remitted this matter to the Workers Compensation Commission (‘the Commission’) for redetermination.

1. Taj (Sydney) Pty Limited (‘the Respondent) succeeded before an Arbitrator of the Commission in respect of Mr Singh’s (‘the Appellant’) claim for weekly benefits on 7 September 2004. 

1. The Appellant failed in his appeal to a Presidential member (myself) against the Arbitrator’s decision – see Singh v Taj (Sydney) Pty Limited [2006] NSWWCCPD 7 – but then succeeded in his appeal to the Court of Appeal – see Singh v Taj (Sydney) Pty Limited [2006] NSWCA 330.

1. In the Court of Appeal, Beazley JA (with whom Santow and Tobias JJA agreed) determined as follows:

“(i)Section 40 of the Workers Compensation Act requires at least three steps to be taken before an award for incapacity payments may be made: the calculation of what the employee would have earned but for the injury assuming the same or comparable employment; the assessment of the employee’s post-injury earning capacity; and the exercise of a discretion.

Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (followed); Australian Wire Industries Pty Limited v Nicholson (1985) 1 NSWCCR 50 (followed)

(ii) The process that engages the decision maker under ss…