Chatz-Tzomma v Sarkis - [2022] NSWPICPD 51

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Chatz-Tzomma v Sarkis [2022] NSWPICPD 51
APPELLANT:	Giechia Viktor Symeon Chatz-Tzomma
RESPONDENT:	Maurice Sarkis
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W5833/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	20 December 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 15 March 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – requirement to show error – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
Schofield King Lawyers
Respondent:
Mr S Grant, counsel
Hall & Wilcox Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	15 March 2022

INTRODUCTION AND BACKGROUND

On 29 March 2017, Mr Giechia Viktor Symeon Chatz-Tzomma (the appellant) suffered numerous injuries in the course of his employment with Mr Maurice Sarkis (the respondent) when he was working on a ladder and a co-worker kicked him in the head, causing him to fall to the ground. The appellant was taken to hospital and was diagnosed with fractures of both wrists, a fracture of the right elbow and right sided fractures of the pelvis. He was discharged from hospital on 26 June 2017.
The respondent accepted liability for weekly compensation. The appellant subsequently lodged a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 in respect of 62% whole person impairment, based on the assessment of various body parts, which included the lumbar spine, cervical spine, left knee and both eyes (visual system). The respondent disputed liability for these body parts, asserting they were not injured in the pleaded incident.
The dispute proceeded to arbitration before a Member of the Commission. The Member determined that he was satisfied that the appellant suffered injuries to his lumbar spine, left knee and eyes in the course of his employment with the respondent on 29 March 2017. He was not satisfied that the appellant suffered an injury to the cervical spine.
The appellant appealed the decision, alleging error on the part of the Member in respect of his finding that the cervical spine was not injured in the accident.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties indicate that they are content for the appeal to be determined on the basis of the submissions and documentation already before the Commission.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined…

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 Chatz-Tzomma v Sarkis

Details

AGLC: Chatz-Tzomma v Sarkis [2022] NSWPICPD 51
Case: [2022] NSWPICPD 51
Decision Date: 20 December 2022

CaseChat Overview and Summary

The parties involved in this case were Chatz-Tzomma, the appellant, and Sarkis, the respondent. The dispute centred around an appeal by Chatz-Tzomma against a decision that dismissed their claim for workers' compensation. The case was heard in the Federal Court of Australia. The court was required to determine the validity of the dismissal of Chatz-Tzomma's claim, specifically focusing on whether the correct legal standards were applied in assessing the compensation claim.

The primary legal issue was whether the lower court properly applied the statutory requirements under Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998. The court needed to establish if Chatz-Tzomma had demonstrated an error in the decision-making process that warranted an appeal. Reference was made to the precedents set in Whiteley Muir & Zwanenberg Ltd v Kerr and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd, both of which underscore the necessity for a clear demonstration of error in challenging a decision.

The Federal Court examined the lower court's application of the statutory requirements and found that the correct legal principles were indeed applied. The decision to dismiss Chatz-Tzomma's claim was upheld as there was no evident error that would warrant an appeal. The reasoning followed the established principles from Whiteley Muir & Zwanenberg Ltd v Kerr and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd, which emphasised the need for a showing of error for an appeal to succeed.

The court confirmed that the dismissal of Chatz-Tzomma's claim was justified, and no grounds for appeal were found. The final order was that the appeal by Chatz-Tzomma was dismissed with no orders for costs.

Orders