Hellenic Tourism Organisation v Tzoumacas - [2005] NSWWCCPD 105

WORKERS COMPENSATION COMMISSION

DETERMINATION OF AN APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Hellenic Tourism Organisation v Tzoumacas [2005] NSW WCC PD 105
APPELLANT:  Hellenic Tourism Organisation
RESPONDENT:  Freda Tzoumacas
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER:  WCC18012-04
DATE OF ARBITRATOR’S DECISION:          17 June 2005
DATE OF APPEAL DECISION:  7 September 2005
SUBJECT MATTER OF DECISION: Sections 151A and 151C of the Workers Compensation Act 1987; election to commence proceedings in the District Court of New South Wales; preclusion from commencing proceedings for permanent loss compensation in the Workers Compensation Commission.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:    Rankin Nathan Lawyers
Respondent: Consolidated Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 17 June 2005, is revoked and the following decision is made in its place:
Ms Freda Tzoumacas is precluded from commencing proceedings to recover permanent loss compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987, by reason of her election to commence proceedings to recover damages in the District Court of New South Wales on 2 November 2001.

No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 5 July 2005 the Hellenic Tourism Organisation, the Appellant, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision dated 17 June 2005.

Ms Freda Tzoumacas, the Applicant in the proceedings before the Arbitrator, is the Respondent in this appeal.

The Insurer is GIO Workers Compensation (NSW) Limited.

Ms Tzoumacas claims that she suffered an injury, for which non-economic loss compensation is payable, arising out of and in the course of her employment with the Appellant. She claims that she sustained an injury to her back, left leg, right leg and neck during the period 21 March 1985 to 20 July 2001, as a result of the nature and conditions of her employment, which is said to have comprised “continuous and repetitious heavy lifting, bending and carrying.” Ms Tzoumacas claims various amounts pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Insurer denied liability for the claim that she made as a result of the injury allegedly sustained.

On 3 November 2004 Ms Tzoumacas lodged in the Commission, an ‘Application to Resolve a Dispute’ in relation to this claim.

There is no dispute that on 2 November 2001 Ms Tzoumacas lodged a claim in the District Court of New South Wales for injuries sustained in the course of her employment with the Appellant. The injury, the subject of those proceedings, is the same injury in dispute before the Arbitrator.

On 8 November 2003 the matter was listed for hearing in the District Court, but the proceedings were discontinued by consent, due to Ms Tzoumacas’ failure to comply with section 151C of the 1987 Act, as it provided at the relevant date. It is not disputed that Ms Tzoumacas commenced the District…

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

Case: [2005] NSWWCCPD 105
Decision Date: 7 September 2005

CaseChat Overview and Summary

Hellenic Tourism Organisation sought to appeal a decision made by an arbitrator in the Workers Compensation Commission, concerning a claim for permanent loss compensation brought by Freda Tzoumacas. The central issue was whether Ms Tzoumacas was precluded from seeking compensation in the Workers Compensation Commission due to her prior election to commence proceedings in the District Court of New South Wales for damages arising from the same injury. Ms Tzoumacas had filed a claim in the District Court on 2 November 2001, and later sought to proceed with her claim in the Workers Compensation Commission. The insurer, GIO Workers Compensation (NSW) Limited, argued that her election to pursue the District Court claim effectively precluded her from seeking compensation under the Workers Compensation Act 1987.

The appeal hinged on the interpretation of section 151A of the Act, which addresses the election of remedies, and section 151C, which sets out a condition precedent for commencing proceedings for damages. The key question was whether the invalid initiation of proceedings in the District Court, due to non-compliance with section 151C, rendered those proceedings a nullity or if they nonetheless constituted a valid election under section 151A. The Deputy President found that the proceedings in the District Court, despite their invalid commencement, were not a nullity and constituted a valid election, precluding Ms Tzoumacas from pursuing her claim in the Workers Compensation Commission. The appeal was thus successful, and Ms Tzoumacas was precluded from recovering permanent loss compensation under the Act.

The Deputy President's decision was grounded in the Court of Appeal's ruling in Gordon v Berowra Holdings Pty Ltd, which held that proceedings commenced in contravention of section 151C are not void but may be subject to sanctions. The reasoning extended to the conclusion that Ms Tzoumacas's election to pursue the District Court claim, despite its procedural flaws, effectively precluded her from claiming under the Workers Compensation Act. The appeal decision was made without a formal hearing, as sufficient information was available to determine the matter on the papers. No costs were awarded for the appeal.

Orders