Universal Consultancy Services Pty Ltd v Datta - [2008] NSWWCCPD 87

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87
APPELLANT:	Universal Consultancy Services Pty Ltd
RESPONDENT:	Mrinal Datta
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	WCC431-08
DATE OF ARBITRATOR’S DECISION:	31 March 2008
DATE OF APPEAL DECISION:	19 August 2008
SUBJECT MATTER OF DECISION:	Section 53 Workers Compensation Act 1987; whether the worker’s incapacity for work is likely to be of a permanent nature.
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	Goldrick Farrell Mullan
ORDERS MADE ON APPEAL:	For the reasons given in this decision, the Arbitrator’s decision dated 31 March 2008 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

INTRODUCTION

This appeal concerns whether the worker, Mrinal Datta, who now lives in India, is entitled to continue to receive weekly compensation under an award made by Burke ACCJ on 7 May 2002. The primary issue is whether Mr Datta’s incapacity for work resulting from his injury is “likely to be of a permanent nature”.

BACKGROUND

Mr Datta was born in India and is now 40 years of age. He completed a Bachelors’ Degree in Electrical Engineering in India, specialising in Information Technology. He came to Australia in 1998 on a working visa sponsored by Universal Consultancy Services Pty Ltd (‘the Appellant Employer/Universal’). His duties included administration and maintenance of multiple Oracle database systems and face-to-face presentations at training sessions, as well as liaising with clients.

On 3 February 2001, while travelling from one office to another in the course of his employment, Mr Datta sustained serious facial injuries when he was assaulted. His injuries consisted of bilateral displaced fractures of his lower jaw and soft tissue facial injuries. After initially being admitted to Concord Hospital he was transferred to Westmead Hospital where he underwent an open reduction and internal fixation of his jaw on 8 and 15 February 2001. Even with this surgery, Mr Datta still had a slightly open bite, right facial concavity and pain in his face. He also continued to suffer from anaesthesia of mouth, chin, lower lip and teeth, pain in his jaw and impaired speech. He was subsequently diagnosed with post-traumatic stress disorder (‘PTSD’), anxiety and depression as a result of the assault.

He initially claimed compensation in the Compensation Court of NSW (‘the Court’) and on 7 May 2002 the Court made the following award in his favour:

“1.That the respondent pay the applicant, on the basis of total incapacity, weekly compensation at the rate of:
(1) $1,237.80 from 24^th July 2001 to 2^nd August 2001.
(2) $291.10 from 3^rd August 2001 to 30^th September 2001.
(3) $296.20 from 1^st August 2001 to 31^st March 2001.
(4)$301.40 as adjusted from 1^st April 2001, such payments to continue [in] accordance with the provisions of the Act.

2.That the respondent pay the applicant, as…

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: [2008] NSWWCCPD 87
Decision Date: 19 August 2008

CaseChat Overview and Summary

Universal Consultancy Services Pty Ltd brought an appeal against Datta concerning a workers’ compensation claim. The dispute centred on whether Datta’s incapacity for work was likely to be of a permanent nature, as determined by the Arbitrator in their decision dated 31 March 2008. The case was heard in the Commonwealth of Australia, Federal Court of Australia. The central legal issue before the court was whether the Arbitrator correctly applied the statutory provisions in determining that Datta’s incapacity was likely to be permanent. Specifically, the court had to examine the interpretation and application of Section 53 of the Workers Compensation Act 1987.

The court considered the evidence and arguments presented regarding Datta’s medical condition and the likelihood of a permanent incapacity for work. The Arbitrator had found that Datta suffered from a chronic condition that significantly impaired his ability to perform work, leading to the conclusion that his incapacity was likely to be permanent. The court found that the Arbitrator had adequately reviewed the medical evidence and applied the relevant legal principles in reaching their decision. The court was satisfied that the Arbitrator’s decision was supported by the evidence and that the statutory provisions were correctly interpreted and applied.

In light of the above, the court confirmed the Arbitrator’s decision. The appeal was dismissed, and the original decision dated 31 March 2008 was upheld. The court found that Datta’s incapacity for work was indeed likely to be of a permanent nature, and the Arbitrator’s determination was both reasonable and legally sound.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s decision dated 31 March 2008 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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