Woolworths Limited v Kassem - [2010] NSWWCCPD 72

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Woolworths Limited v Kassem [2010] NSWWCCPD 72
APPELLANT:		Woolworths Limited
RESPONDENT:		Ziad Kassem
INSURER:		Woolworths Limited
FILE NUMBER:		A1-9320/09
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:		17 March 2010
DATE OF APPEAL DECISION:		12 July 2010
SUBJECT MATTER OF DECISION:		Rejection of relevant evidence; Commission not bound by the rules of evidence; section 354(2) of the Workplace Injury Management and Workers Compensation Act 1998; admissibility of return to work co-ordinator’s case notes
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry
Respondent:		Cameron Gillingham Boyd
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 17 March 2010 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The respondent worker, Ziad Kassem, started work with the appellant employer, Woolworths Limited, as a reserve stock hand on 1 June 2006. He claims to have received injuries to his ankles, lumbar spine, neck and shoulders in the course of his employment as a result of an incident on 10 October 2006. On that day, he was unloading boxes from a truck into roll cages when one of the cages hit the side of a ramp and fell onto him, causing a fracture to his left ankle.
Woolworths accepted liability in respect of the injury to Mr Kassem’s left ankle and lumbar spine, but disputed liability in respect of alleged injuries to his neck, shoulders and right ankle. It paid voluntary weekly compensation for all periods up to August 2008.

After several weeks off work, Mr Kassem returned to work on suitable duties, initially on restricted hours but eventually on full hours (38 per week), but with significant restrictions. In August 2008, he applied for his hours to be reduced to 24 per week and then 16 per week. The issue in dispute concerns the reason for his application to reduce his hours.
Mr Kassem claimed lump sum compensation in respect of a 47 per cent whole person impairment as a result of his injuries, weekly compensation in the sum of $249.55 per week from 5 August 2008 to 24 August 2008 and in the sum of $392.16 per week from 25 August to date and continuing.
Woolworths disputed the claim for lump sum compensation on the ground that Mr Kassem had not injured his neck, shoulders or right ankle. In addition, in a section 74 notice issued on 17 November 2009, it disputed the claim for weekly compensation on the ground that Mr Kassem had reduced his work hours from full time to part time in August 2008 in order to accommodate his “study requirements”, not because of his injury. In view of this late notice, the Arbitrator gave leave for Mr Kassem to file a supplementary statement in response to the issue raised. He filed no further statement.
The Commission listed the…

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 Kassem

Details

AGLC: Woolworths Limited v Kassem [2010] NSWWCCPD 72
Case: [2010] NSWWCCPD 72
Decision Date: 12 July 2010

CaseChat Overview and Summary

Woolworths Limited, the appellant employer, challenged an arbitrator's decision in the context of a workers' compensation claim made by Kassem, the respondent worker. The dispute revolved around the admissibility of certain evidence, specifically the return to work co-ordinator’s case notes, which the arbitrator had considered in reaching his decision. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the tribunal was whether the arbitrator was correct in admitting and relying on the return to work co-ordinator’s case notes, which Woolworths argued were inadmissible as they did not comply with the rules of evidence. Woolworths contended that the notes were hearsay and speculative, and thus should not have been considered. The tribunal had to determine the extent to which the arbitrator was bound by the rules of evidence under section 354(2) of the Workplace Injury Management and Workers Compensation Act 1998.

The tribunal found that under the statutory framework, the arbitrator was not strictly bound by the common law rules of evidence. The tribunal emphasised that the arbitrator was empowered to consider all relevant evidence in making a determination. It was held that the return to work co-ordinator’s case notes were relevant and could be considered in the context of the overall evidence presented. The tribunal confirmed the arbitrator's decision, finding that the notes were properly admitted and that their consideration did not lead to an unjust outcome.

The tribunal confirmed the Arbitrator's determination of 17 March 2010 and ordered that the employer pay the worker’s costs of the appeal, as agreed or assessed.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 17 March 2010 is confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

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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