Star City Pty Ltd v Azam
[2004] NSWWCCPD 34
•22 June 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Star City Pty Ltd v Azam [2004] NSW WCC PD 34
APPELLANT: Star City Pty Ltd
RESPONDENT: Nuran Azam
INSURER:Star City Pty Ltd
FILE NUMBER: WCC9099-03
DATE OF ARBITRATOR’S DECISION: 10 December 2003
DATE OF APPEAL DECISION: 22 June 2004
SUBJECT MATTER OF DECISION: Liability for journey claim, Section 10 of the Workers Compensation Act 1987, Review of Arbitrator’s decision based on credit of witness.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Acting President
HEARING:On the papers.
REPRESENTATION: Appellant: Vardenaga Roberts Solicitors
Respondent: Steve Masselos & Co Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
THE APPEAL
On 6 January 2004 Star City Pty Ltd (‘Star City/the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 December 2003.
The Respondent to the Appeal is Nuran Azam (‘Ms Azam/the Respondent Worker’).
Star City Pty Ltd is a self-insurer for the purposes of workers compensation.
The appeal was referred to me for review on 9 June 2004.
ISSUES IN DISPUTE
Ms Azam claims to have fallen over, on 16 February 2001, on her way home from work as a hotel housemaid for Star City. She broke her left wrist in the fall. She has made a claim on Star City for workers compensation payments for non-economic loss and for medical expenses as a result of the injury.
The Arbitrator’s determination concerns only whether Ms Azam was injured on a ‘journey’ as that term is used in the Workers Compensation Act 1987 (‘the 1987 Act’). Ms Azam’s entitlement to compensation, if any, cannot be finally determined by the Commission until she has been assessed by an Approved Medical Specialist (section 65(3) of the 1998 Act).
The only issue in dispute is whether or not the Arbitrator erred in finding, as a matter of fact, that Ms Azam was injured on her way home from work, and not inside the boundary of her own home.
The Appellant Employer argues that Ms Azam has not proven that her injury occurred outside of the boundary of her home, specifically, on the footpath enroute from Lakemba railway station to her home. The Appellant Employer submits that the Arbitrator erred in finding that Ms Azam and her husband were credible witnesses.
Ms Azam submits that the decision should be confirmed.
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
The Appellant Employer submits that the parties should be given the opportunity to make oral submissions.
The Respondent Worker submits to my decision as to whether to proceed on the papers or not.
Both parties have made substantial submissions on the appeal. The issue in dispute is clear.
I have before me the Commission’s file in this matter, which contains all of the documents and evidence that was before the Arbitrator. Due to administrative error on the part of the Commission, no transcript of the hearings on 22 October 2003 and 18 November 2003 can be produced. I note that the Arbitrator took into account the oral evidence of Ms Azam, given at the hearing.
In the particular circumstances of this case I am satisfied that, despite the absence of a transcript, I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
EVIDENCE AND SUBMISSIONS
The evidence before the Arbitrator was extensive and is set out at length in the Arbitrator’s Reasons for Decision (‘the Reasons’). It is not repeated in full here.
The Appellant Employer has submitted that the Arbitrator made a number of errors of fact as follows:
· Finding that Dr Dang’s notes were “at odds” with Mrs Ali’s evidence,
· Finding Mr and Ms Azam’s evidence to be consistent and credible,
· Finding that there were ‘numerous’ medical reports that varied slightly, but nonetheless supported the worker’s account of how she injured herself, thereby ignoring, or failing to reconcile, the report of Dr Bodel with the other evidence, and
· Failing to give proper weight to the evidence of Jason Clare and Gayle Schmidt.
The Respondent Worker submits that the Arbitrator was in a unique position to make a determination on the evidence, in particular on the credit of the witnesses.
The Respondent Worker has submitted that the Arbitrator’s decision was one of fact, based upon his assessment of the credibility of the witnesses and the persuasiveness of the evidence. The Respondent Worker argues that I am constrained, on review, not to overturn a decision based on credit where the Arbitrator has had the opportunity “to assess the demeanour and credibility of witnesses who gave oral evidence” (Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190).
DISCUSSION AND FINDINGS
The Appellant Employer asserts that the onus is on Ms Azam to show that the ‘journey’ is one to which section 10 of the 1987 Act applies, and this is undoubtedly correct (Young v Commissioner for Railways [1961] ALR 258). The Arbitrator correctly approached the matter on this basis.
The Respondent Worker is absolutely correct in her assertion that this appeal solely challenges the Arbitrator’s findings on the worker’s credit. There were no witnesses to Ms Azam’s injury and ultimately the determination of where it occurred will depend upon whether the Arbitrator accepts her as a witness of truth. In coming to this decision the Arbitrator has, as he must, considered all of the evidence that has been presented by the parties. Matters of relevance and weight of evidence are for the Arbitrator to determine. The Arbitrator’s reasons disclose a careful analysis of evidence that was in conflict and reasons why certain evidence was preferred. In my view none of the issues submitted as errors of fact are sustainable on that ground.
A Presidential Member, on review, must not overturn findings based on credit unless they are clearly based on obvious mistake or misapprehension of the relevant facts (Abalos v Australian Postal Commission (1990) 171 CLR 167; Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190) or the Arbitrator’s unique position, in terms of having the benefit of having seen and heard the witness, has been somehow misused (State Rail Authority of NSW v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588).
The Arbitrator in this matter has given detailed and considered reasons for his decision. He has clearly weighed all the relevant evidence and come to his own view on its veracity. He has had the opportunity of seeing and hearing the witness give evidence. There is nothing in the reasons, nor in the submissions made by the parties, that demonstrates any unfairness or unlawfulness in the Arbitrator’s determination.
The Arbitrator did not err in making factual findings and, on the basis of those findings, forming the view that Ms Azam had been on a journey, pursuant to section 10 of the 1987 Act, at the time the injury occurred.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The appeal has been unsuccessful, and costs fall to be determined by section 345 of the 1998 Act, which provides as follows:
345 Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Dr Gabriel Fleming
Acting President
22 June 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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