Morcos v Deosa Enterprises Pty Limited

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

CITATION:

Morcos v Deosa Enterprises Pty Limited [2020] NSWWCCPD 73

APPELLANT:

Andrew Morcos

RESPONDENT:

Deosa Enterprises Pty Limited

INSURER:

AAI Ltd t/as GIO

FILE NUMBER:

A1-2763/20

ARBITRATOR:

Mr J Isaksen

DATE OF ARBITRATOR’S DECISION:

5 August 2020

DATE OF APPEAL DECISION:

17 December 2020

SUBJECT MATTER OF DECISION:

Section 32A of the Workers Compensation Act 1987; no current work capacity

PRESIDENTIAL MEMBER:

Acting Deputy President Geoffrey Parker SC

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr L Morgan, counsel

Law Partners Personal Injury Lawyers

Respondent:

Mr J Beran, counsel

Hall & Wilcox Lawyers

ORDERS MADE ON APPEAL:

1.     Paragraph 1 of the Certificate of Determination dated 5 August 2020 is revoked.

2.     The appellant’s entitlement to weekly compensation from 12 January 2020 to date and continuing, if any, is remitted to the Arbitrator to determine whether the appellant is likely to continue indefinitely to have no current work capacity and otherwise to determine the matter in accordance with the reasons in this decision.

INTRODUCTION AND BACKGROUND

1. Andrew Morcos (the appellant) was employed by Deosa Enterprises Pty Limited (the respondent) as a self-employed electrician. On 23 May 2017, he sustained an injury to the right knee. Subsequently, on 4 December 2017, the right knee gave way and Mr Morcos fell onto his right arm causing a triceps tendon avulsion of the right elbow and the need for surgery on the right arm.

2. The appellant developed a secondary psychological condition described as an adjustment disorder.

3. As a result of the injury of 23 May 2017, the appellant was paid weekly payments of compensation for 130 weeks.

4. By letter dated 29 November 2019, the insurer informed the appellant that weekly payments of compensation would end on 11 January 2020 due to the operation of s 38(3) of the Workers Compensation Act1987 (the 1987 Act).

5. The issue before the Arbitrator for resolution was defined as:

   “(a)    Whether the applicant has no current work capacity since 12 January 2020 and is likely to continue indefinitely to have no current work capacity (sections 32A and 38(2) of the 1987 Act).”

6. A Certificate of Determination issued on 5 August 2020[1] recorded the Arbitrator’s determination of that issue:

   “The Commission determines:

   1.     The applicant has failed to establish that he has had no current work capacity from 12 January 2020 to the date of his decision.”

   [1] Morcos v Deosa Enterprises Pty Ltd [2020] NSWWCC 267 (Reasons).

7. The appeal is against that determination and identifies two grounds of appeal asserting that the Arbitrator erred in fact and law in:

   (a)    determining the applicant has current work capacity, and

   (b) failing to determine the application or otherwise of s 32A and s 38.

8. The relief sought in the appeal are orders:

   (a)    that the determination of the Arbitrator be set aside, and

   (b)    that the matter be returned to (an) alternative arbitrator for determination.

9. For the reasons that follow, Ground 1 of the appeal…