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Rick Damelian Pty Limited v Romanas

Rick Damelian Pty Limited v Romanas

Case [2004] NSWWCCPD 93 22 December 2004

Admissibility of Evidence

Procedural Fairness

Reasons for Decision

Medical Evidence

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Rick Damelian Pty Limited v Romanas [2004] NSWWCCPD 93
APPELLANT:  Rick Damelian Pty Limited
RESPONDENT:  Athanasios Romanas
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC10454-2003
DATE OF ARBITRATOR’S DECISION:          12 December 2003
DATE OF APPEAL DECISION:  22 December 2004
SUBJECT MATTER OF DECISION:                Admission of more than one report from same medical specialty; lack of procedural fairness; inadequacy of reasons; credit; sections 4 and 9A of 1987 Act; findings not based on evidence and weight of evidence.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:29 September 2004
REPRESENTATION:  Appellant: Leigh Virtue & Associates
Respondent: Shead Lawyers Pty Limited

ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked.
The matter is remitted back to the Arbitrator concerned for determination afresh and preparation of written reasons for decision, in accordance with these reasons.

No order is made as to costs.

BACKGROUND TO THE APPEAL

Mr Athanasios Romanas, the Respondent Worker in this appeal, commenced working for Rick Damelian Pty Limited, the Appellant Employer, in 1990. He says that before he commenced this employment he had experienced back pain from time to time and “may have seen an orthopaedic surgeon, Dr J Roarty at St Vincent’s Medical Centre about that pain on referral from my family doctor Dr Macarounas at Earlwood, who continues to be my GP to this day.” He further states that he “may have” been hospitalised for one day for the purpose of an injection in his back before he commenced his employment with the Appellant Employer, “but I cannot completely recall.”

He states that he hurt his back in 1990 or 1991 and had a few weeks off work. He does not recall how he hurt his back, only that he did it at work after being employed by the Appellant Employer. He says that it became gradually worse and he started having trouble getting out of bed in the morning because of the pain. He had difficulty sitting and standing and experienced pain down the left leg. He underwent a laminectomy in 1992 at St Vincent’s Private Hospital. He was off work from October to mid December. Mr Romanas states that he returned to work on full time duties and was “basically pain free throughout 1993, 1994 and most of 1995.” He experienced lower back pain on a later date that he does not recall and reported this to the Service Manager, Mr Tony Brown. He consulted Dr Roarty and had a couple of weeks off work.

Later still, on a date that he cannot pinpoint, he felt pain in his lower back and left leg, while at work. He reported this to the Service Manager, consulted Dr Macarounas and Dr Roarty, took painkillers and had a couple of weeks off work. He completed a workers compensation claim form upon his return to work. He took further time off work around this time because of muscular pain in his left…

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 Rick Damelian Pty Limited v Romanas

Details

AGLC: Rick Damelian Pty Limited v Romanas [2004] NSWWCCPD 93
Case: [2004] NSWWCCPD 93
Decision Date: 22 December 2004

CaseChat Overview and Summary

Rick Damelian Pty Limited (the appellant employer) has appealed against the decision of the Workers Compensation Commission of New South Wales (the Commission), constituted by an arbitrator, to award compensation to Athanasios Romanas (the respondent worker). The Arbitrator's decision was that the respondent worker was entitled to weekly compensation for a closed period of 17 weeks from 21 October 2002 to 2 March 2003 at the rate of $740.38 per week and amounting to $12,586.46. The appellant employer argued that the Arbitrator's decision should be revoked on the grounds that the Arbitrator erred in: allowing the respondent worker to admit two reports from doctors of the same specialty; denying the appellant employer procedural fairness by refusing to allow the respondent worker to be questioned; failing to properly consider the employer's objections to material the respondent worker sought to have admitted; failing to allow the appellant employer to make proper or complete submissions; failing to provide adequate reasons for decision; failing to properly consider sections 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act); making findings not based on the evidence or contrary to the evidence before him; and failing to draw an adverse inference against the respondent worker for evidence omitted, excluded or not called by the respondent worker. The respondent worker argued that the appeal was unmeritorious and that the Arbitrator's decision was correct in law, and that procedural fairness was afforded to the appellant employer. The Deputy President of the Commission, Gary Byron, found that the Arbitrator did not err in admitting the report of Dr Cairns into evidence, included as it was, in the history set out in the treating doctor's report. The Deputy President also found that the Arbitrator did not deny the appellant employer procedural fairness and that he permitted the appellant employer to make submissions and objections adequately. The Deputy President found that the Arbitrator failed to give adequate reasons for decision and that this amounted to an error of law. The Deputy President revoked the decision of the Arbitrator and remitted the matter back to the Arbitrator concerned for determination afresh and preparation of written reasons for decision, in accordance with these reasons. No order was made as to costs.

Orders