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Babylon Property & Cleaning Services Pty Ltd v Hormoz

Babylon Property & Cleaning Services Pty Ltd v Hormoz

Case [2005] NSWWCCPD 21 24 March 2005

Appeal

Admissibility of Evidence

Compensatory Damages

Jurisdiction

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Babylon Property & Cleaning Services Pty Ltd v Hormoz [2005] NSW WCC PD 21
APPELLANT:  Babylon Property & Cleaning Services Pty Ltd
RESPONDENT:  Mikhail Hormoz
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:  WCC11499-03
DATE OF ARBITRATOR’S DECISION:            27 November 2003
DATE OF APPEAL DECISION:  24 March 2005
SUBJECT MATTER OF DECISION:                  Arbitrator’s discretion as to weight of evidence; adequacy of reasons.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President.
HEARING:11 March 2005
REPRESENTATION:  Appellant:       Nevill & Edwards Solicitors
Respondent:   Galluzzo Golotta Andriano Solicitors and Barristers

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 27 November 2003, is revoked and the following decision is made in its place:

The Appellant is to pay the Respondent weekly compensation at the rate of $332 from 31 January 2003 to 24 March 2005 under section 40 of the Workers Compensation Act 1987.
Such weekly compensation is to continue in accordance with the provisions of the Workers Compensation Act 1987.

Background to the Appeal

Mikhail Hormoz was employed by Babylon Property & Cleaning Services Pty Ltd as a supermarket trolley collector when, on 23 August 2001, he injured his back whilst pushing trolleys up a ramp and onto a trailer. He was unable to return to work after the incident, and lodged a claim for compensation. The relevant workers compensation insurer is Employers Mutual Indemnity (Workers Compensation) Limited. It accepted liability for the injury and paid Mr Hormoz weekly benefits in accordance with his WorkCover medical certificates.

On 7 November 2002 the insurer advised Mr Hormoz it had obtained a medical opinion that he was only partially incapacitated and fit for suitable duties. His weekly payment was reduced (in accordance with section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’)). The Insurer then wrote to Mr Hormoz on 18 December 2002 informing him that liability for his claim had been denied and that weekly payments would cease on 31 January 2003 on the basis of medical opinions declaring him fit for suitable duties on a full time basis.

On 26 June 2003 Mr Hormoz filed an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission. He claimed workers compensation benefits by way of payment of weekly benefits, medical expenses and lump sums for permanent impairment and pain and suffering.

On 27 November 2003, the dispute proceeded to conciliation and arbitration before a Commission Arbitrator who found that Mr Hormoz was totally incapacitated for work. The Arbitrator’s decision was given orally, and is recorded in the written transcript of the arbitration. A Certificate of Determination was issued on 2 December 2003, ordering the Employer to pay Mr Hormoz weekly compensation under section 37 of the 1987 Act from 31 January 2003 and continuing. The Arbitrator also referred Mr Hormoz to an Approved Medical Specialist for assessment of permanent impairment.

On 18 December 2003 the Employer filed an appeal against the Arbitrator’s decision. Employer submits, in…

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 Babylon Property & Cleaning Services Pty Ltd v Hormoz

Details

AGLC: Babylon Property & Cleaning Services Pty Ltd v Hormoz [2005] NSWWCCPD 21
Case: [2005] NSWWCCPD 21
Decision Date: 24 March 2005

CaseChat Overview and Summary

Babylon Property & Cleaning Services Pty Ltd appealed against a decision of the Workers Compensation Commission, represented by an Arbitrator, that Mikhail Hormoz, a former employee who suffered a work-related back injury, should receive total incapacity workers compensation benefits. The insurer, Employers Mutual Indemnity (Workers Compensation) Limited, had previously denied liability on the basis that Hormoz was fit for suitable duties. Hormoz argued that he was unable to return to work and sought weekly compensation benefits. The key legal issues were whether the Arbitrator failed to properly weigh the evidence regarding Hormoz's incapacity and whether the Arbitrator provided adequate reasons for his decision. The court found that the Arbitrator had failed to properly weigh the medical evidence, particularly by relying on outdated reports that did not address Hormoz's incapacity from January 2003. The court also found that the Arbitrator did not adequately explain how he reached his decision. The Arbitrator's decision was revoked and replaced with an order that Hormoz receive partial incapacity benefits at a rate of $332 per week. The court held that Hormoz was partially, but not totally, incapacitated for work. The weekly compensation reflected Hormoz's earning capacity of $150 per week, taking into account his injury, skills, and other factors. The court did not order costs to either party.

Orders