Woolworths Limited v Alali - [2006] NSWWCCPD 174

WORKERS COMPENSATION COMMISSION

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

CITATION:Woolworths Limited v Alali [2006] NSWWCCPD 174
APPELLANT:  Woolworths Limited
RESPONDENT:  Layth Alali
INSURER:Woolworths Limited
FILE NUMBER:  WCC2839-05
DATE OF ARBITRATOR’S DECISION:          29 August 2005
DATE OF APPEAL DECISION:  2 August 2005
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; concurrent employment; incapacity and the adequacy of reasons.
PRESIDENTIAL MEMBER:  Acting Deputy President Elizabeth Tydd
HEARING:Determined on the Papers
REPRESENTATION:  Appellant:      Bartier Perry
Respondent:   Teakle, Ormsby, Conn

ORDERS MADE ON APPEAL: Paragraphs 1, 2 and 3 of the Arbitrator’s decision dated 29 August 2005 are revoked and the following orders made in their place:
“The amount of weekly compensation pursuant to section 40 Workers Compensation Act 1987 and refund of overpayments pursuant to section 58 of the 1987 Act are remitted to another Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for conciliation or determination if the parties are unable to come to a settlement in accordance with the findings contained in this decision.
A copy of this decision is to be served on Perfection Fresh who is to be given the opportunity to make further submissions on remitter as they relate to the issue of overpayment in accordance with section 58 of the 1987 Act.”
Order number 4 of the Arbitrator’s decision dated 29 August 2004 is confirmed.
No order as to costs of the Appeal.

BACKGROUND TO THE APPEAL

Employment and injuries

From 15 October 2000 until 2 July 2004 Mr Layth Alali (‘Mr Alali’) was concurrently employed as a store man by both Perfection Fresh Pty Limited (‘Perfection Fresh’) and Woolworths Limited (‘Woolworths’). Mr Alali worked 40 hours per week with Perfection Fresh and 29 hours per week with Woolworths.

Between March 2001 and June 2004 Mr Alali sustained three injuries relevant to these proceedings. These injuries are summarised as follows:

·     on 27 March 2001 Mr Alali was driving a forklift for Woolworths when the brakes failed and he sustained a crush fracture to his left ankle. Mr Alali was totally incapacitated for work until July 2001 when he returned to modified duties with Woolworths and Perfection Fresh.
·     in March 2002 Mr Alali was taking the door off a forklift for Woolworths and developed low back pain. Mr Alali was totally incapacitated for a period of three weeks. He then returned to modified duties with Woolworths and Perfection Fresh.
·     on 28 June 2004 Mr Alali was diagnosed with an undisplaced spiral fracture of his right fifth toe. Mr Alali claimed that this injury developed as a result of his left ankle injury which caused him to place most of his weight on his right foot. Mr Alali took three weeks off work using accrued leave and following that period returned to modified duties with Woolworths. Upon his return to work with Perfection Fresh, Mr Alali was required to provide certification that he was fit for…

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 Woolworths Limited v Alali

Details

AGLC: Woolworths Limited v Alali [2006] NSWWCCPD 174
Case: [2006] NSWWCCPD 174
Decision Date: 2 August 2005

CaseChat Overview and Summary

In the case of Woolworths Limited v Alali, the appeal was brought against the decision of an Arbitrator in the Workers Compensation Commission. The appeal centered on the Arbitrator’s determination of weekly compensation payable to Mr Alali, who had sustained injuries while concurrently employed by Woolworths and Perfection Fresh. The Arbitrator had ordered Woolworths to pay Mr Alali weekly compensation from July 2004 to the present, contingent on a refund of overpayments. Woolworths challenged the Arbitrator's decision on several grounds, including the finding of incapacity, the application of section 40(2)(b) of the Workers Compensation Act 1987, and the adequacy of the reasons provided for the award.

The Acting Deputy President, Elizabeth Tydd, found that while the Arbitrator correctly identified the incapacity arising from Mr Alali's left ankle injury, there were errors in the application of section 40(2)(b) of the 1987 Act and inadequate reasons for the award. The Arbitrator had erroneously placed a "ceiling" on the number of hours Mr Alali could work in suitable employment, a finding unsupported by the evidence. Additionally, the reasons for the award did not adequately explain the basis for the Arbitrator's decision, particularly regarding the calculation of Mr Alali's potential earnings.

Consequently, the Acting Deputy President revoked the Arbitrator’s orders regarding weekly compensation and the refund of overpayments, remitting the matter to another Arbitrator for conciliation or determination. The Acting Deputy President also confirmed the Arbitrator's order that Mr Alali pay Woolworths' costs as agreed or assessed. No order was made regarding the costs of the appeal itself. The decision highlighted the necessity for Arbitrators to carefully consider all relevant evidence and provide clear and adequate reasons for their findings.

Orders