Georgandas v Qantas Flight Catering

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Nick Georgandas v Qantas Flight Catering [2003] NSW WCC PD 20
APPELLANT:	Nick Georgandas
RESPONDENT:	Qantas Flight Catering
INSURER:	Allianz Australia Workers Compensation
FILE NO:	WCC 4288-2002
DATE OF DECISION:	26 August, 2003
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
DECISION UNDER APPEAL:	Application for Leave to appeal against a decision of an Arbitrator;  no injury arose out of or in the course of employment; medical evidence of the Respondent preferred to the medical evidence of the Appellant; refusal to make an order under section 60 of 1987 Act.
DATE OF DECISION UNDER APPEAL:	8 May, 2003
HEARING:	Determined on the Papers
REPRESENTATION:	Appellant: Slattery Thompson Solicitors
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL:	Leave to Appeal is refused.  No order is made as to costs.

THE APPEAL

1. On 12 May, 2003 Nick Georgandas, (‘the Appellant Worker’), lodged in the Workers Compensation Commission (‘the Commission’) an ‘Application for Appeal Against a Decision of an Arbitrator’, dated 9 May, 2003.  The decision of the Arbitrator was dated 8 May, 2003.  The Respondent to the appeal is Qantas Flight Catering, (‘the Respondent Employer’) and the Insurer is Allianz Australia Workers Compensation, (‘the Insurer’).

2. The issues in dispute before the Arbitrator were summarized in the Arbitrator’s Statement of Reasons, as follows:

   ·Did the Applicant receive an injury related to his wrist arising out of or in the course of employment (WCA s9)?

   ·Was the Applicant’s employment a substantial contributing factor to his injury? (WCA s9A).

   ·Are some or all of the Applicant’s medical and related expenses incurred as a result of treatment, services or assistance that was [sic] reasonably necessary for the compensable injury?

   ·Is the Applicant estopped from pursuing a further claim for an injury to the same limb or following a settlement related to the same limb?

THE DECISION UNDER REVIEW

1. The Certificate of Determination issued by the Commission on 8 May, 2003, to which the Arbitrator’s Statement of Reasons for Decision was attached, was issued in the following terms:

   “(i)The Commission declines to make an Order under s 60 in favour of the   Applicant.

   (ii)I make no order in respect of costs.”

THE ISSUES IN DISPUTE

1. The issues in dispute, as set out in the grounds of appeal, may be summarized as follows:

   (1)  The Arbitrator erred in finding that “no act of injury” occurred arising out of or in the course of employment;

   (2)  The Arbitrator erred in accepting the Respondent Employer’s medical evidence in preference to the report of Dr. Maniam, submitted by the Appellant Worker, and

   (3)  A further report from Dr. Maniam should be allowed in evidence to “clarify his comment on ‘positive ulnar variance’ and to comment on the possible genesis of degenerative osteoarthritis in the Applicant’s [sic] left wrist.”

2. The Respondent Employer’s response, dated 7 July, 2003, is as follows:

   “The respondent objects to any appeal against the Arbitrator’s decision on the following grounds:

   1.The amount of compensation…