Damalas v Skiadopoulos - [2005] NSWWCCPD 106

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Damalas v Skiadopoulos [2005] NSW WCC PD 106
APPELLANT:  George Damalas
RESPONDENT:  Dennis Skiadopoulos
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC4826-04
DATE OF ARBITRATOR’S DECISION:          9 September 2004
DATE OF APPEAL DECISION:  8 September 2005
SUBJECT MATTER OF DECISION:                Reliance by arbitrator on “specialised knowledge”; no evidence for arbitrator’s decision.
PRESIDENTIAL MEMBER:  Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION:  Appellant: Slattery Thompson
Respondent: Sparke Helmore

ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator is confirmed.
(2) No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

The appellant is Mr George Damalas (‘the Appellant’). He seeks leave to appeal the decision of an arbitrator (‘the Arbitrator’) given orally on 2 September 2004 and confirmed by Certificate of Determination dated 9 September 2004. The Arbitrator dismissed Mr Damalas’ application for compensation for permanent impairment of his right wrist due to a carpal tunnel condition and medical expenses. The respondent to the appeal is Mr Dennis Skiadopoulos (‘the Respondent’). The insurer is GIO Workers Compensation (NSW) Ltd (‘the Insurer’).

Mr Damalas alleges that he suffered an injury to his right wrist on 15 October 2000 at a time when he was employed by the Respondent as a taxi driver. Mr Damalas said in his oral evidence at the arbitration that he injured his right wrist and his back while extricating a heavy suitcase from the trunk of the cab, the suitcase having become stuck. He said he gave written notice to the Respondent of the incident by leaving a note in the taxi. Some of this account is inconsistent with Mr Damalas’ application, filed in March 2004. In the application the date of injury is given as 19 October 2001 and the date of notice of the injury as 19 October 2003. The application as filed claims an injury to the back, although the monetary claim (in the application 3% whole person impairment or $3750) appears to only relate to the wrist injury, supported by a medical report from Dr Bentivoglio dated 11 November 2003. The Appellant’s representative confirmed at the arbitration that the only claim related to the injury to the right wrist (transcript page 10 line 55) and medical expenses related to that condition (transcript page 34 line 46). The application was amended to add a claimed injury to the right wrist and to claim $7500 for 10% permanent loss of efficient use of the right arm below the elbow (transcript page 35).

The reply filed by the Insurer on behalf of the Respondent opposed the claim on a number of grounds. In addition, at the teleconference on 29 June 2004 the Insurer flagged that the Respondent also denied that the Appellant was a ‘worker’ within the meaning of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). This issue was set down 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 Damalas v Skiadopoulos

Details

AGLC: Damalas v Skiadopoulos [2005] NSW WCC PD 106
Case: [2005] NSWWCCPD 106
Decision Date: 8 September 2005

CaseChat Overview and Summary

The appeal by George Damalas against the decision of the Workers Compensation Commission constituted by an arbitrator, dismissed his application for compensation for permanent impairment of his right wrist due to a carpal tunnel condition and medical expenses, was heard on the papers. The Arbitrator dismissed the claim based on the absence of sufficient evidence to establish a causal relationship between the Appellant's carpal tunnel syndrome diagnosed in November 2003 and the injury to his right wrist in October 2000. The Appellant contested the Arbitrator's reliance on his own specialised knowledge and the sufficiency of the evidence to support the Arbitrator's conclusions.

The court examined whether the Arbitrator had evidence to support his decision and whether he appropriately relied on his own specialised knowledge. The court found that the Arbitrator had ample evidence to conclude that the Appellant failed to establish a causal connection between the carpal tunnel syndrome and the injury, including the long lapse of time without significant complaint and the medical report of Dr Bornstein. The court also noted that while the Arbitrator's reliance on his own specialised knowledge might have been an error, he did not base his decision on this knowledge but rather on the evidence presented.

Given that neither ground of appeal was established, the court confirmed the Arbitrator's decision. The court declined to order any party to pay the Appellant's costs of the appeal as the worker was unsuccessful.

Orders