JP Cordukes Pty Ltd v Mangarelli - [2005] NSWWCCPD 52

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:JP Cordukes Pty Ltd v Mangarelli [2005] NSW WCC PD 52
APPELLANT:  JP Cordukes Pty Ltd
RESPONDENT:  Carlos Mangarelli
INSURER:National Employers Mutual General Insurance Association Ltd
FILE NUMBER:  WCC 14314-03
DATE OF ARBITRATOR’S DECISION:          7 May 2004
DATE OF APPEAL DECISION:  22 June 2005
SUBJECT MATTER OF DECISION:                Prior redemption, res judicata
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: NW Aussel, Solicitor
Respondent: Villari & Co, Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 May 2004 is revoked and the following decision is made in its place. The Respondent, Mr Mangarelli, is barred from pursuing a claim for compensation in the Workers Compensation Commission of NSW in respect of binaural hearing loss by reason of res judicata arising from the Award of the Compensation Court of New South Wales dated 14 November 1994 in Matter No 16771 of 1994.
No order is made as to costs.

BACKGROUND TO THE APPEAL

On 3 June 2004, the Appellant, JP Cordukes Pty Ltd (‘Cordukes’), sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 7 May 2004.

The Respondent to the Appeal is Carlos Mangarelli. The Insurer is National Employers Mutual General Insurance Association Ltd (‘NEM’).

Mr Mangarelli was born in Uruguay on 9 June 1945 and is now aged 60. He migrated to Australia in 1974. Mr Mangarelli is a carpenter by trade and was employed by Cordukes from 1981. On 2 February 1982, he injured his back in an accident at work and made a claim for workers compensation. On 30 January 1985, Manser J of the Compensation Court of NSW made an award in favour of Mr Mangarelli including weekly compensation payments.

On 14 November 1994, Moran J of the Compensation Court approved a proposed settlement whereby Mr Mangarelli agreed to a redemption in respect of his rights to compensation for the sum of $40,000. On that day, Mr Mangarelli executed a Deed releasing Cordukes from any further liability in respect of any injury arising out of the course of his employment with Cordukes including any injury arising out of the nature and conditions of his employment. The Court Order of that date also notes:

“(4) This redemption includes any and all other injuries received during the course of or arising out of the course of the respondent’s employment with the applicant employer including any claim based upon the nature and conditions of employment …”

On 17 March 2003, Mr Mangarelli was examined by Dr G Lucchese, an Ear, Nose and Throat Surgeon, for the purpose of Dr Lucchese preparing a medico-legal report. In his report dated 19 March 2003, Dr Lucchese found Mr Mangarelli to be suffering from permanent binaural hearing loss of 17.7%, after adjustment for presbycusis. He attributed this hearing loss to exposure to industrial noise, noting that…

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 52
Decision Date: 22 June 2005

CaseChat Overview and Summary

In the case of JP Cordukes Pty Ltd v Mangarelli, the appellant, JP Cordukes Pty Ltd, appealed against a decision made by an arbitrator in the Workers Compensation Commission of New South Wales. The respondent, Carlos Mangarelli, sought compensation for binaural hearing loss that he claimed was caused by exposure to industrial noise during his employment with Cordukes. The central issue was whether Mr Mangarelli was barred from pursuing his claim for compensation due to a prior redemption agreement executed in 1994. The Acting Deputy President of the Commission, Robin Handley, reviewed the case and concluded that Mr Mangarelli's claim was indeed barred by res judicata, stemming from the 1994 Compensation Court Award. This decision effectively ended any further rights Mr Mangarelli had to claim compensation for injuries arising from his employment with Cordukes.

The Acting Deputy President found that the Arbitrator had erred in law by not recognizing the preclusive effect of the 1994 redemption agreement. The extensive documentation and evidence demonstrated that Mr Mangarelli had been fully informed of the comprehensive nature of the redemption, which included all injuries received during his employment with Cordukes. Despite Mr Mangarelli's later assertions that he misunderstood the implications of the redemption, there was no substantial evidence to support this claim. The President noted that the principle of res judicata applied, meaning that a matter that has been adjudicated cannot be re-litigated. Therefore, Mr Mangarelli's current claim for hearing loss was precluded by the prior judicial decision.

In light of this determination, the Acting Deputy President revoked the Arbitrator's decision and ruled that Mr Mangarelli was barred from pursuing his claim for compensation for binaural hearing loss. No order for costs was made as the claim was not found to be frivolous or vexatious.

Orders