Weir Warman Limited v Naji - [2007] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION

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

CITATION:Weir Warman Limited v Naji [2007] NSWWCCPD 12
APPELLANT:  Ahmad Naji
RESPONDENT:  Weir Warman Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC4986-06
DATE OF ARBITRATOR’S DECISION:          25 August 2006
DATE OF APPEAL DECISION:  16 January 2007
SUBJECT MATTER OF DECISION:                Weight of evidence
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Deacons
Respondent:   Beilby Poulden Costello

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 25 August 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 15 September 2006 Weir Warman Limited (‘the Appellant Employer/Warman’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 August 2006.

The Respondent to the Appeal is Ahmad Naji (‘the Respondent Worker/Mr Naji’).

Mr Naji was born in Syria on 14 July 1958. He has worked as a fitter and turner the whole of his working life. He came to Australia in 1990 and started work with the Appellant Employer in 2002. He worked for six days per week working Monday to Friday 2pm to midnight and 5am to 5pm on Sundays. His duties required him to assemble pumps.

On 5 July 2004 he was performing his normal duties when he was struck on the back of the head by a swinging hand control device used to operate a crane. As a result of the blow Mr Naji fell forward and grabbed a metal bar in front of him but did not fall to the ground. He did not lose consciousness but had severe pain in his head and dizziness. The incident was reported and he attended on first aid where ice was applied and he was given panadol.

Whether Mr Naji returned to work on the night of the incident is the subject of conflicting evidence. Later that night he went home and he visited his general practitioner, Dr Aziz, on 6 July 2004 when he was noted to have mild tenderness at the back of his head. Mr Naji has remained off work since the incident. His claim for compensation was accepted and he was paid compensation until his claim was declined by letter dated 16 May 2005. Weekly compensation continued until 27 May 2005.

An Application to Resolve a Dispute (‘the Application’) was file in the Commission on 28 March 2006 claiming weekly compensation from 27 May 2005 and lump sum compensation in respect of a 28% whole person impairment. The injury described in the Application is ‘head injury’.

By its Reply filed on 10 April 2006 the Appellant Employer disputed the claim for weekly compensation on the ground that Mr Naji was, at least, fit to return to suitable duties on a full time basis and had not complied with the return to work program. Reliance was also placed on surveillance video, which…

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 12
Decision Date: 16 January 2007

CaseChat Overview and Summary

In this appeal, Weir Warman Limited, the appellant employer, challenged a decision made by an arbitrator in the Workers Compensation Commission against Ahmad Naji, the respondent worker. The arbitrator had ruled in favor of Mr. Naji, awarding him weekly compensation and directing that the claim for payment of expenses be referred to an Approved Medical Specialist. The employer argued that the arbitrator erred in various aspects of her decision and sought to overturn the award.

The primary issues in the appeal revolved around the arbitrator's assessment of the evidence, particularly her preference for documentary evidence over oral testimony, her handling of conflicting medical opinions, and her conclusion that Mr. Naji was incapacitated for work. The employer contended that the arbitrator failed to adequately consider the video surveillance and the opinions of certain medical experts, which they believed demonstrated Mr. Naji's fitness to return to work.

Upon review, Deputy President Bill Roche found that the arbitrator's approach to the evidence was reasonable. The Deputy President noted that the arbitrator had acknowledged the unreliability of Mr. Naji's oral testimony and properly relied on the documentary evidence and other independent assessments to support her findings. The Deputy President also found that the arbitrator had considered all relevant evidence, including the conflicting medical opinions and surveillance footage, and had exercised her discretion appropriately in reaching her conclusions. The Deputy President concluded that the arbitrator's decision did not contain any legal, factual, or discretionary errors and, therefore, the appeal was dismissed.

As a result of the dismissal, the original decision of the arbitrator, awarding Mr. Naji weekly compensation and directing that his claim for payment of expenses be referred to an Approved Medical Specialist, was upheld. Additionally, the appellant employer was ordered to pay the respondent worker's costs of the appeal.

Orders