Visy Board Pty Ltd v Ali - [2007] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION

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

CITATION:Visy Board Pty Ltd v Ali [2007] NSWWCCPD 22
APPELLANT:  Visy Board Pty Ltd
RESPONDENT:  Zihni Ali
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC19065-05
DATE OF ARBITRATOR’S DECISION:          21 March 2006
DATE OF APPEAL DECISION:  24 January 2007
SUBJECT MATTER OF DECISION: Disease; whether it is open to find two deemed dates of injury under section 16 of the Workers Compensation Act 1987; application of Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Blake Dawson Waldron
Respondent:   Stacks Goudkamp

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 21 March 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 7 April 2006 Visy Board Pty Ltd (‘the Appellant Employer/Visy Board’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 March 2006.

The Respondent to the Appeal is Zihni Ali (‘the Respondent Worker/Mr Ali’).

Mr Ali was born in Cyprus on 21 April 1944 and came to Australia in 1970. He initially lived in Melbourne where he worked as a labourer until 1994 when he moved to Sydney and started work with Visy Board at its Chullora premises. His duties involved bending, lifting and general labouring duties. He alleged that as a result of his duties he developed pain in his neck, shoulders and back in about 2000. His symptoms increased over time and he ceased work 13 October 2002 when he was admitted to Liverpool Hospital because of a heart attack. He was discharged from hospital on 19 October 2002 but never resumed work for Visy Board. His employment was terminated on 3 February 2005.

Mr Ali made a claim for compensation on 5 February 2004 in respect of injury to his back, neck, both shoulders, both arms and legs. He was initially paid weekly benefits under a Salary Continuance Scheme supported by Visy Board. By letter dated 8 June 2004 CGU Workers Compensation (NSW) Limited denied liability for the claim on the grounds that the injury was not work related.

A claim for lump sum compensation was made on 3 March 2005.

On 9 November 2005 an Application to Resolve a Dispute (‘the Application’) was registered in the Commission. The Application, as amended, alleges that Mr Ali sustained injury to his neck, back, shoulders, arms and legs as a result of the nature and conditions of his employment with Visy Board from 30 September 1994 to 13 October 2002. It claims weekly compensation from 5 July 2004 to date and continuing and lump sum compensation in respect of 18% whole person impairment.

In its Reply filed on 30 November 2005 Visy Board raised issues as to injury, notice of injury, notice of claim, incapacity, nexus, whether employment was a substantial contributing…

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: [2007] NSWWCCPD 22
Decision Date: 24 January 2007

CaseChat Overview and Summary

In the matter of Visy Board Pty Ltd v Ali, the appeal was brought before the Workers Compensation Commission by Visy Board, the appellant employer, against a decision made by an arbitrator in favor of Zihni Ali, the respondent worker. The primary issue in dispute was whether the arbitrator had correctly applied the principles outlined in section 16 of the Workers Compensation Act 1987 in determining the deemed date of injury for Mr. Ali's claim for lump sum compensation. The appellant argued that the arbitrator erred in finding a different deemed date of injury for the lump sum claim compared to the claim for weekly compensation and medical expenses. The court considered the arguments presented and the relevant statutory provisions and case law, ultimately confirming the arbitrator's decision. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

The court found that the arbitrator's reasoning and application of the law were consistent with the principles discussed in relevant cases such as Alto Ford Pty Ltd v Antaw and Stone v Stannard Brothers Launch Services Pty Ltd. The court held that the deemed date of injury for the lump sum compensation claim could indeed be different from the date of incapacity for the weekly compensation claim, as the nature of the injury and the type of claim made by the worker could warrant separate determinations. The court also noted that the appellant's arguments were not supported by the applicable legal authorities and that the decision of the arbitrator was in accordance with the law. Consequently, the appeal was dismissed, and the decision of the arbitrator was upheld.

Orders