Snaith Industries Pty Ltd v Kataieh

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Snaith Industries Pty Ltd v Kataieh [2010] NSWWCCPD 112
APPELLANT:		Snaith Industries Pty Ltd
RESPONDENT:		Ahmad Kataieh
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC A1-1291/10
ARBITRATOR:	Mr G McIlwaine
DATE OF ARBITRATOR’S DECISION:		30 June 2010
DATE OF APPEAL DECISION:		28 October 2010
SUBJECT MATTER OF DECISION:		Weight of evidence, finding of total incapacity inconsistent with the evidence.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Keddies Lawyers
ORDERS MADE ON APPEAL:		1.    Paragraphs 1, 2, 3 and 4 of the Arbitrator’s determination of 30 June 2010 are revoked. 2.    The matter is to be remitted to a different arbitrator to determine afresh the worker’s entitlement to weekly compensation. 3.    Paragraphs 5, 6, 7 and 8 of the Arbitrator’s determination of 30 June 2010 are confirmed. 4.   No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

1. The respondent worker, Mr Kataieh, was employed by the appellant, Snaith Industries Pty Ltd, initially as a material mixer and subsequently as a die-setter. His employment in both capacities involved heavy physical work, particularly involving both arms.

2. On 21 November 2008, Mr Kataieh sustained injuries to both arms whilst changing a container mould. He remained off work until approximately April 2009, when he returned to work on light duties, with a lifting restriction of 2 kg and on restricted hours. After two weeks on suitable duties, he was unable to cope with the demands of the work and went off work again. He has not worked since.

3. On 28 September 2009, Mr Kataieh’s employment was terminated on the basis that the appellant could no longer provide suitable duties.

4. Mr Kataieh claimed compensation for injuries to his neck, both shoulders, both arms and lower back as a result of injuries sustained on 21 November 2008. His claim was accepted. On 17 September 2009, CGU Workers Compensation (NSW) Limited (CGU) issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying any further liability from 17 September 2009, on the basis that medical evidence indicated that Mr Kataieh’s “current injuries are no longer related to your employment”. CGU issued a second notice under s 74 of the 1998 Act on 23 December 2009 rejecting Mr Kataieh’s claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of impairment of the neck, lower back, bilateral shoulders and hands. That claim was rejected on the same basis as Mr Kataieh’s claim for weekly payments and medical expenses.

5. An Application to Resolve a Dispute (the Application) was registered in the Commission on 19 February 2010. Mr Kataieh claimed weekly compensation from 17 September 2009 to date and continuing in the sum of $774.80, lump sum compensation in the sum of $11,000 in respect of eight per cent whole person impairment…