Top View Windows Pty Ltd v Taha - [2006] NSWWCCPD 13

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Top View Windows Pty Ltd v Taha [2006] NSWWCCPD 13

APPELLANT:  Top View Windows Pty Ltd
RESPONDENT:  Maher Taha
INSURER:QBE Workers Compensation
FILE NUMBER:  WCC5200-05
DATE OF ARBITRATOR’S DECISION:          18 July 2005
DATE OF APPEAL DECISION:  2 February 2006
SUBJECT MATTER OF DECISION: Admission of late documents; weight of evidence; procedural fairness; section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:       McCulloch & Buggy, Solicitors
Respondent:   Kheir & Associates, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 18 July 2005 is confirmed.
The matter is remitted to the Arbitrator for determination of whether Mr Taha has ‘dependents’ for the purpose of the calculation of the amount of his statutory entitlement to weekly compensation.
The Appellant is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

Maher Taha claims that he suffered a number of injuries when employed by Top View Windows Pty Ltd as an Assembler in 2003. Top View denied liability for Mr Taha’s claim and, as a result, he applied to the Workers Compensation Commission to resolve the dispute. On 18 July 2005 a Commission Arbitrator decided that Mr Taha was entitled to certain payments of weekly benefits compensation and medical expenses. The Arbitrator referred Mr Taha’s claim of permanent impairment to an Approved Medical Specialist. On 12 August 2005 Top View lodged an Application for Leave to Appeal against the Arbitrator’s decision. This is the decision on the appeal.

QBE Workers Compensation is Top View’s workers compensation insurer and acted for and on behalf of Top View in the Commission proceedings.

Leave to appeal is granted (pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).

Top View submits an oral hearing should be held in order to fully address the issues on appeal. Both parties rely upon the evidence and submissions that were before the Arbitrator and have also filed submissions on the appeal issues. There is no fresh evidence on the appeal. I am satisfied that 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 (section 354(6) of the 1998 Act).

ISSUES IN DISPUTE

The issues in dispute in the appeal may be summarised as follows:
·Did the Arbitrator breach procedural fairness in admitting the report of Dr Sanki, dated 10 May 2005?
·Did the Arbitrator err in relying upon Dr Sanki’s report?
·Did the Arbitrator err in ‘misinterpreting’ the reports of Dr Sanki and Dr Berry?
·Did the Arbitrator err in finding that Mr Taha had four dependents?
·Did the Arbitrator err in his application of section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’)?
·Did the Arbitrator fail to give adequate reasons for his decision?

ANALYSIS OF THE ISSUES

Did the Arbitrator breach…

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 Top View Windows Pty Ltd v Taha

Details

AGLC: Top View Windows Pty Ltd v Taha [2006] NSWWCCPD 13
Case: [2006] NSWWCCPD 13
Decision Date: 2 February 2006

CaseChat Overview and Summary

In this case, the parties involved are Top View Windows Pty Ltd, the appellant, and Maher Taha, the respondent. The dispute revolves around a workers' compensation claim filed by Mr. Taha against Top View, which denies liability. The matter was heard by the Workers Compensation Commission, and the appeal against the Arbitrator's decision was heard by Dr. Gabriel Fleming, Deputy President. The Arbitrator had ruled in favor of Mr. Taha, awarding him certain payments of weekly benefits compensation and medical expenses. Top View lodged an Application for Leave to Appeal against the Arbitrator’s decision, which was granted, and the appeal was decided on the papers.

The appeal raised several issues, including whether the Arbitrator breached procedural fairness in admitting the report of Dr. Sanki, dated 10 May 2005, whether the Arbitrator erred in relying upon Dr. Sanki’s report, and whether the Arbitrator misinterpreted the reports of Dr. Sanki and Dr. Berry. Other issues included whether the Arbitrator erred in finding that Mr. Taha had four dependents, whether the Arbitrator erred in his application of section 40 of the Workers Compensation Act 1987, and whether the Arbitrator failed to give adequate reasons for his decision.

After considering the arguments, the Deputy President found that the Arbitrator did not breach procedural fairness in admitting Dr. Sanki's report and that the Arbitrator did not err in relying on it. The Deputy President also found that the Arbitrator had not misinterpreted the reports of Dr. Sanki and Dr. Berry. However, the Deputy President found that the Arbitrator erred in failing to determine the issue of dependency, as there was insufficient evidence to determine this issue on appeal. The matter should be remitted to the Arbitrator for the determination of this issue.

Additionally, the Deputy President found that the Arbitrator failed to address the discretionary element of section 40(1) of the 1987 Act, which was an error. However, on review of the evidence, the Deputy President was not satisfied that this error was such that the decision should be revoked. There was no basis, on the evidence, to reduce the amount of the award to Mr. Taha under section 40(1) of the 1987 Act. Finally, the Deputy President found that the Arbitrator's reasons for decision were inadequate, as they did not expressly consider the extent to which the reduction in weekly income calculated by reference to probable and actual earnings was "proper in the circumstances of the case" (section 40(1) of the 1987 Act).

The final decision confirmed the Arbitrator's decision, with the matter being remitted to the Arbitrator for determination of whether Mr. Taha has 'dependents' for the purpose of the calculation of the amount of his statutory entitlement to weekly compensation. Top View was ordered to pay the costs of the appeal.

Orders