Endeavour Energy v Tzivanopoulos - [2022] NSWPICPD 41

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Endeavour Energy v Tzivanopoulos [2022] NSWPICPD 41
APPELLANT:	Endeavour Energy
RESPONDENT:	George Tzivanopoulos
INSURER:	Self-insured
FILE NUMBER:	A1-W3957/21
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	2 November 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 18 January 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – the test to establish injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987; application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and associated decisions
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms J Palamara, solicitor
Sparke Helmore Lawyers
Respondent:
Mr J McEnaney, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr A Scarcella
DATE OF Member’s DECISION:	18 January 2022

INTRODUCTION AND BACKGROUND

George Tzivanopoulos (the respondent/worker) was employed full-time by Endeavour Energy (the appellant/employer) as an electrical engineer from 28 May 2011. He stated that he was working at his desk for “at least 90% of the time” and that the workstations were “not ergonomically conscious”. He stated that he used a computer and telephone for prolonged periods of time. He said that he developed pain in his neck and shoulders when he was very busy at work in 2013. Some changes to his workstation were made following an ergonomic assessment. The respondent said that he was unable to take rest breaks and there was pressure to work hard and to “stay on top of things”.[1] He stated that he had chiropractic treatment in 2013 which helped to relieve symptoms and he was able to keep working although he continued to have pain.
[1] Respondent’s statement, 18/2/2021, Application to Resolve a Dispute (ARD), pp 1–9, [2]–[3], [15]–[36].
The respondent continued in his work, with some additional adjustments to his workstation, and with further flare ups in his symptoms, which he stated increased in severity. He described himself as “struggling to manage”. He was placed on a “Performance Improvement Plan” in June 2018 and took extended leave from 6 July 2018 to 10 September 2018. He stated that on his return his workload was “immense”. He said that his condition was “deteriorating steadily in 2018” and he was “having more and more difficulties managing”.[2] He was issued with a “final warning” on 17 December 2018 and a “final review” was to occur on 15 January 2019. He stated that on 10 January 2019 he ceased work due to his injuries and has not worked since.[3]
[2] Statement 18/2/21, [56]–[65].
[3] Statement 18/2/21, [68]–[71], [75], [77].
The respondent saw a spinal surgeon, Dr Nair, who administered a cortisone injection on 5 March 2019. Dr Nair recommended surgery on the respondent’s neck. The respondent made a workers compensation claim on 18 March 2019.[4] The respondent’s employment was terminated. He was examined by Dr Cochrane on the appellant’s behalf on…

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 Endeavour Energy v Tzivanopoulos

Details

AGLC: Endeavour Energy v Tzivanopoulos [2022] NSWPICPD 41
Case: [2022] NSWPICPD 41
Decision Date: 2 November 2022

CaseChat Overview and Summary

In the case of Endeavour Energy v Tzivanopoulos, the plaintiff, Endeavour Energy, brought an application against the defendant, Tzivanopoulos, regarding a dispute concerning workers' compensation. The case was heard in the Court of Appeal, where the primary issue revolved around the interpretation of section 4(b)(ii) of the Workers Compensation Act 1987. Specifically, the court was required to determine whether Tzivanopoulos had sustained an injury as defined under the Act and whether the factual error by the primary tribunal warranted a new trial.

The legal issues before the court were primarily whether the trial judge had applied the correct test to establish an injury under section 4(b)(ii) of the Workers Compensation Act and whether the trial judge's finding constituted a factual error that necessitated a new trial. The court considered the relevant precedents, including the decision in Federal Broom Co Pty Ltd v Semlitch, and the subsequent cases such as Raulston v Toll Pty Ltd, which provided guidance on the application of factual errors in workers' compensation matters.

The court, in its reasoning, closely examined the trial judge's application of the legal test set out in Federal Broom Co Pty Ltd v Semlitch and found that the trial judge had indeed applied the correct legal test. However, the court held that there was a factual error in the trial judge's findings. The court applied the principles from Raulston v Toll Pty Ltd and associated decisions to conclude that the error was material and led to a miscarriage of justice. Consequently, the court allowed the appeal, quashed the primary decision, and remitted the matter to the primary tribunal for a new trial.

Orders