Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads v Bouza

[2007] NSWWCCPD 185

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads v Bouza & Ors [2007] NSWWCCPD 185
APPELLANT:		Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads
FIRST RESPONDENT:		Francisco Manuel Bouza
SECOND RESPONDENT:		Peter Stergiou and Maria Stergiou t/as Taste of Europe Bakery or t/as Hurstville Hot Breads
THIRD RESPONDENT:		Peter Stergiou and Gerry Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads
FOURTH RESPONDENT:		Gerry, Vicki and Frank Koutsioukis t/as Taste of Europe Bakery or t/as Hurstville Hot Breads
FIFTH RESPONDENT:		The WorkCover Authority of New South Wales
INSURERS:		Appellant: Employers Mutual (NSW) limited (on risk from 19.7.2001)
Second Respondent: Allianz Australia Workers Compensation (NSW) Limited (unknown)
Third Respondent: GIO General Limited (on risk prior to 4.11.1997)
Fourth Respondent: Uninsured
FILE NUMBER:		WCC986-06
DATE OF ARBITRATOR’S DECISION:		21 December 2006
DATE OF APPEAL DECISION:		28 August 2007
SUBJECT MATTER OF DECISION:		Whether the evidence supported the Arbitrator’s finding that the last employer/insurer was liable for the award; ‘Injury’; Application of sections 9A, 15 and 16 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		19 July 2007
REPRESENTATION:		Appellant:	Edwards Michael Moroney
First Respondent: PK Simpson & Co
Second Respondent: No appearance
Third Respondent: Rankin & Nathan
Fourth Respondent: No appearance
Fifth Respondent: Sparke Helmore
ORDERS MADE ON APPEAL:		1.Time to appeal the Arbitrator’s decision of 13 December 2006 is extended to 16 January 2007.
2.Paragraphs 1 to 5 inclusive of the Arbitrator’s ‘Certificate of Determination’ dated 13 December 2006 are confirmed.
3.Paragraph 6 is revoked.
4.The matter is remitted to the Arbitrator at first instance for referral of all the Applicant’s claims for lump sum compensation to an ‘Approved Medical Specialist’ in accordance with these reasons.
5.The Appellant is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

1. By a document titled “ Fourth Amended Application for Determination” filed in the former Compensation Court of New South Wales on 17 December 2003, Francisco Manuel Bouza (‘Mr Bouza’) sought compensation from his employers being either Peter Stergiou, Maria Stergiou, Gerry Koutsioukis, Frank Koutsioukis or Vicki Koutsioukis or a combination of any of those persons as a result of various injuries he claimed to have sustained in the course of his employment.

1. The proceedings were transferred to the Workers Compensation Commission (‘the Commission’) and an ‘Application to Resolve a Dispute’ was filed in the Commission on 24 January 2006.

1. The various employers and their insurers are set out in the citation to this appeal.

1. Mr Bouza was born on 8 October 1944 and is presently 62 years of age. He migrated to Australia from Uruguay in about 1979. He apparently worked as a baker in Uruguay and continued that occupation in Australia from about 1981.

1. Mr Bouza commenced employment with the “Taste of Europe Bakeries” or “Hurstville Hot Breads” in about 1994.