Transfield Constructions Pty Ltd v Ahmed - [2005] NSWWCCPD 88

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Transfield Constructions Pty Ltd v Ahmed [2005] NSW WCC PD 88
APPELLANT:  Transfield Constructions Pty Ltd
RESPONDENT:  Gulfam Ahmed
INSURER:Transfield Constructions Pty Ltd
FILE NUMBER:  WCC7122-03
DATE OF ARBITRATOR’S DECISION:          12 August 2004
DATE OF APPEAL DECISION:  17 August 2005
SUBJECT MATTER OF DECISION:                Lack of evidence to support findings, reliance on own observations, adequacy of reasons
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Hicksons Lawyers
Respondent: Buttar Caldwell & Co, Solicitors

ORDERS MADE ON APPEAL: 1. The first three paragraphs of the decision of the Arbitrator dated 12 August 2004 dealing with the payment of weekly compensation to Mr Ahmed are revoked and that part of the decision is remitted to an Arbitrator to be redetermined in accordance with the law.

2. The decision is otherwise confirmed.
3. No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 8 September 2004, Transfield Constructions Pty Ltd (‘Transfield’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 12 August 2004.
The Respondent to the Appeal is Gulfam Ahmed. Mr Ahmed was born in Pakistan on 28 March 1971 and migrated to Australia arriving on 19 May 2000. He is married with four dependent children. Mr Ahmed commenced employment with Transfield as a process worker in its Corrosion Protection Division in October 2000. His duties involved hanging pieces of iron on a jig. He stated that in early November 2001, he began experiencing pain in the lower side of his back whenever lifting “excessive weights”. While working on 26 November 2001, he experienced severe pain that he reported to his safety officer on 28 November 2001 before going home due to the pain. When he returned to work on 29 November 2001, he was unable to “even stand for a few hours”. As a consequence, he was put on light duties until 21 December 2001, when he was made redundant as a result of the closure of the Corrosion Protection Division.
On 21 February 2003, Mr Ahmed’s ‘Application to Resolve a Dispute’ was received by the Commission in respect of the injury to his back on 26 November 2001 and Mr Ahmed’s claim for weekly compensation since 26 November 2001 to date and continuing, and his claim for compensation for permanent impairment and pain and suffering. Transfield’s ‘Reply’ was received by the Commission on 5 March 2003.
An Arbitrator conducted a teleconference with the parties on 5 June 2003 and directed Mr Ahmed to submit to a medical assessment by an Approved Medical Specialist for the purpose of assessing the percentage permanent impairment of his lower back, legs and neck. Mr Ahmed was examined by Dr Ian Meakin, Orthopaedic Surgeon, on 19 August 2003. In Dr Meakin’s Medical Assessment Certificate of that date, he stated that Mr Ahmed’s x-rays dated…

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.

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Details

Case: [2005] NSWWCCPD 88
Decision Date: 17 August 2005

CaseChat Overview and Summary

Transfield Constructions Pty Ltd appealed a decision of the Workers Compensation Commission's Arbitrator, who had awarded weekly compensation to Mr Ahmed for injuries sustained during his employment. The Arbitrator had found Mr Ahmed had a 10% permanent impairment to his back attributable to his work injury and had been partially incapacitated for work from 21 December 2001 until 22 June 2004, at which time he became totally incapacitated. The Arbitrator awarded weekly compensation under section 40 of the Workers Compensation Act 1987 for the period of partial incapacity and under section 37 for the period of total incapacity. Transfield challenged the Arbitrator's findings of Mr Ahmed's probable weekly earnings but for the injury, in the same or comparable employment, and his ability to earn $200 per week in suitable employment. Transfield also challenged the finding that Mr Ahmed became totally incapacitated for work on 22 June 2004 in circumstances giving rise to a liability to Transfield. The Acting Deputy President found the Arbitrator made errors of law in determining Mr Ahmed's probable weekly earnings and his capacity to earn $200 per week in suitable employment. The Acting Deputy President also found the Arbitrator made an error of law by finding Mr Ahmed was totally incapacitated for work from 22 June 2004 based on her own observations rather than sufficient evidence. The first three paragraphs of the Arbitrator's decision dealing with weekly compensation to Mr Ahmed were revoked and the matter was remitted to a different Arbitrator to be redetermined in accordance with the law. The decision was otherwise confirmed, and no order was made as to the costs of the appeal.

Orders