Estate of the Late Konstandinos Mormanis v Leader Commercial Kitchens - [2022] NSWPIC 57

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Estate of the Late Konstandinos Mormanis v Leader Commercial Kitchens [2022] NSWPIC 57
APPLICANT:	Estate of the Late Konstandinos Mormanis
RESPONDENT:	Leader Commercial Kitchens
MEMBER:	Cameron Burge
DATE OF DECISION:	9 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for death benefit by estate of kitchen assembly worker; the deceased worked with a number of solvents and also from time to time as a welder; after ceasing work with the respondent, he developed bladder cancer which ultimately caused his death; the respondent denied liability, alleging the deceased had not suffered a work-related injury; the dispute was whether the deceased’s employment relevantly caused his fatal bladder cancer; Held - the applicant had not discharged the onus of proof in establishing a causal connection between the deceased’s employment and his bladder cancer; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Konstandinos Mormanis (the deceased) was employed by Leader Commercial Kitchens (the respondent) as an assembler/sheet metal worker involved in the manufacturing and installation of commercial kitchens.
The deceased first worked for the respondent from 1986 until October 1989. In or about late 1990 or early 1991, the deceased returned to work with the respondent. In his statement dated 7 April 2017, the deceased set out the nature of his duties, and indicated that he worked until approximately September 1996, at which time he suffered a neck injury in the course of his employment.
The deceased came to have neck surgery and remained on workers compensation until 2000. He did not return to work until 2004, when he bought a bait and tackle shop in Drummoyne. In July 2008, the deceased was diagnosed with bladder cancer, which metastasised and caused his death on 12 February 2018.
The deceased’s estate (the applicant) brings these proceedings seeking payment of the relevant death benefit. By section 78 notice dated 14 July 2020, the respondent’s insurer denied liability, alleging that the deceased had not suffered relevant workplace injury.

ISSUES FOR DETERMINATION

The parties agree that the only issue which remains in dispute is whether the deceased’s employment caused the injury which led to his death.
The parties agree the deceased’s estate has standing to bring the proceedings, and that he had no dependants at the date of his death.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the telephone conference before the Personal Injury Commission (the Commission) on 9 November 2021, leave was granted without objection to amend the Application to Resolve a Dispute (the Application) as follows:
(a) amend 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.

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Details

AGLC: Estate of the Late Konstandinos Mormanis v Leader Commercial Kitchens [2022] NSWPIC 57
Case: [2022] NSWPIC 57
Decision Date: 9 February 2022

CaseChat Overview and Summary

The Estate of the Late Konstandinos Mormanis brought an action against Leader Commercial Kitchens for a death benefit following the death of a kitchen assembly worker who had been exposed to various solvents and occasionally worked as a welder. The estate claimed that the deceased's employment with Leader Commercial Kitchens was the cause of his fatal bladder cancer, which developed after he ceased working for the respondent. Leader Commercial Kitchens denied liability, asserting that the deceased had not suffered a work-related injury. The court was required to determine whether the deceased's employment with the respondent was a relevant cause of his fatal bladder cancer. The central issue was whether the applicant could establish a causal connection between the deceased’s employment and his fatal condition.

The court examined the evidence presented to assess the connection between the deceased's occupational exposure to solvents and his bladder cancer. The court found that the evidence did not sufficiently establish that the deceased's employment with Leader Commercial Kitchens caused or contributed to his bladder cancer. The court held that the applicant had not discharged the onus of proof, concluding that the applicant had not proven that the deceased's employment relevantly caused his fatal bladder cancer. The court found in favour of Leader Commercial Kitchens, stating that the applicant had not established the necessary causal link.

The court's decision resulted in an award in favour of Leader Commercial Kitchens, dismissing the claim for a death benefit brought by the estate of the deceased. The court's reasoning was based on the applicant's failure to demonstrate a causal connection between the deceased's employment and his fatal bladder cancer. Consequently, the court ruled that Leader Commercial Kitchens was not liable for the death benefit claimed by the estate of the deceased.

Orders