Karkamaz v Future Form Pty Limited - [2013] NSWWCCPD 68

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Karkamaz v Future Form Pty Limited [2013] NSWWCCPD 68
APPELLANT:	Ali Karkamaz
RESPONDENT:	Future Form Pty Limited
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-7960/12
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	30 August 2013
DATE OF APPEAL DECISION:	3 December 2013
SUBJECT MATTER OF DECISION:	Section 54 and former s 52A of the Workers Compensation Act 1987; requirements of notice of termination of weekly payments; whether such notice brings to an end an award of the Commission; proof of ground upon which such notice is founded
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Kheir Lawyers
Respondent:	Bartier Perry Lawyers
ORDERS MADE ON APPEAL:	1. The finding and orders made by the Arbitrator as recorded in the Certificate of Determination dated 30 August 2013 are confirmed. 2. No order as to costs of this appeal.

BACKGROUND

This appeal concerns the consequences in law of service of a notice by an insurer upon a worker informing him of its intention to discontinue compensation payments. Notice of such intention is required to be given to a worker who has received such payments for a continuous period exceeding 12 weeks: s 54 Workers Compensation Act 1987 (the 1987 Act). Such requirement had application to the present facts.
The notice in question was served by Allianz Australia Workers’ Compensation (NSW) Limited (Allianz), agent for the NSW WorkCover scheme, the insurer of Future Form Pty Limited (Future Form), upon the postal address of Mr Ali Karkamaz (the appellant) on 6 December 2011. Reliance was placed upon the former s 52A of the 1987 Act.
The appellant had received injury arising out of and in the course of his employment with Future Form on 3 November 2005. On 21 December 2006, an Arbitrator of the Commission entered an award in favour of the appellant providing, inter alia, for payment of continuing weekly benefits in respect of his partial incapacity.
On 17 January 2012 payment of weekly benefits ceased, as anticipated by the terms of the notice. The worker then filed an Application with the Commission seeking the following relief:
(a) an order that the insurer’s termination of weekly payments is null and void and of no effect, and
(b) an order that the worker’s weekly payments be resumed as and from 17 January 2012.
Future Form opposed the orders as sought and the matter came before Arbitrator Garth Brown for conciliation/arbitration on 20 March 2013. The matter proceeded to arbitration and the Arbitrator reserved his decision. A Certificate of Determination was issued on 30 August 2013 in which the following determination and orders were made:
“The Commission determines:
1. That the respondent resume payments of weekly payments compensation under section 40 of the Workers Compensation Act 1987 (the 1987 Act) pursuant to orders made in matter WCC 13661 – 06 for the period 18 January 2012 to 21 January 2012 at…

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.

Continue reading Karkamaz v Future Form Pty Limited

Details

AGLC: Karkamaz v Future Form Pty Limited [2013] NSWWCCPD 68
Case: [2013] NSWWCCPD 68
Decision Date: 3 December 2013

CaseChat Overview and Summary

Karkamaz v Future Form Pty Limited was a dispute heard by the Industrial Court of New South Wales. The plaintiff, Karkamaz, was an employee who had been injured in the course of his employment. The defendant, Future Form Pty Limited, was his employer. The dispute centred on the employer's notice of termination of weekly payments made to the plaintiff under a workers compensation award. The employer argued that the notice correctly terminated the weekly payments and, by extension, the workers compensation award itself.

The court was required to decide whether the notice of termination of weekly payments was legally sufficient and whether it brought to an end the award of the Commission. Specifically, the court had to examine whether the employer complied with the statutory requirements under the Workers Compensation Act 1987, particularly section 54 and the former section 52A. The court also had to consider whether the employer proved the ground upon which the notice was founded.

The court found that the notice of termination was not legally sufficient. The notice did not comply with the statutory requirements, specifically it did not include the necessary details to substantiate the grounds for termination. Consequently, the notice did not bring to an end the award of the Commission. The court confirmed the findings and orders made by the Arbitrator as recorded in the Certificate of Determination dated 30 August 2013, and made no order as to costs of the appeal.

Orders

Orders of the court

1. The finding and orders made by the Arbitrator as recorded in the Certificate of Determination dated 30 August 2013 are confirmed.

2. No order as to costs of this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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