Sandarousi v L & A Pressure Welding Pty Ltd - [2005] NSWWCCPD 59

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Sandarousi v L & A Pressure Welding Pty Ltd [2005] NSW WCC PD 59
APPELLANT:  Keriakos Carlos Sandarousi
RESPONDENT:  L & A Pressure Welding Pty Ltd
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER:  WCC5006-04
DATE OF ARBITRATOR’S DECISION:          29 October 2004
DATE OF APPEAL DECISION:  1 July 2005
SUBJECT MATTER OF DECISION: Sections 151A(3)(a) and 151C of the Workers Compensation Act 1987; preclusion from commencing proceedings in the Workers Compensation Commission; election to commence proceedings in the District Court.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant: Carroll & O’Dea Lawyers
Respondent: Rankin Nathan Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to costs.

BACKGROUND TO THE APPEAL

On 23 November 2004 Keriakos Carlos Sandarousi (‘the Appellant/Mr Sandarousi’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 29 October 2004.

The Respondent to the Appeal is L & A Pressure Welding Pty Ltd (‘the Respondent/Pressure Welding’).

The insurer is GIO Workers Compensation (NSW) Limited (‘the Insurer’).

Mr Sandarousi claims to have suffered an injury to his back, left arm and shoulder, on 16 August 2001, when he fell from a timber ladder at work, because the rung on which he was standing, broke. He claims that permanent impairment compensation is payable as a result of his injury, as it arose out of and in the course of, his employment.

On 24 March 2004 he lodged an ‘Application to Resolve a Dispute’ in the Commission for “non-economic loss compensation and compensation for pain and suffering.”

The Insurer denied liability for the claim on 27 May 2004 on the basis that Mr Sandarousi is prohibited from bringing his claim, given that he elected to bring common law proceedings in respect of his claim.

It is not in dispute that Mr Sandarousi commenced a claim in the District Court on 22 November 2001 for injuries sustained while in the employ of Pressure Welding. It is not disputed that on 8 August 2003 those proceedings were dismissed by consent, due to the failure of Mr Sandarousi to comply with the provisions of section 151C of the Workers Compensation Act 1988 (‘the 1987 Act’), as it then was.

Mr Sandarousi concedes that the Statement of Claim filed in the District Court alleges the same injury as relied upon in these proceedings before the Commission.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 29 October 2004 records the Arbitrator’s orders as follows:

“The determination of the Commission in this matter is as follows:
1.That the Respondent is not liable for the payment of compensation under section 66 and/or section 67 of the 1987 Act.
2.No order as to costs.”

ISSUES IN DISPUTE

The issue in dispute in the appeal is whether the Arbitrator erred in deciding that Pressure Welding is not liable for payment…

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 59
Decision Date: 1 July 2005

CaseChat Overview and Summary

In the case of Sandarousi v L & A Pressure Welding Pty Ltd, the appellant, Keriakos Carlos Sandarousi, sought leave to appeal a decision of the Workers Compensation Commission. The dispute revolves around Sandarousi's claim for permanent impairment compensation following an injury at work. The insurer, GIO Workers Compensation (NSW) Limited, denied liability, arguing that Sandarousi was precluded from making a claim due to a prior election to commence proceedings in the District Court. Sandarousi had initiated common law proceedings against his employer, L & A Pressure Welding Pty Ltd, in November 2001, which were dismissed in August 2003 for failure to comply with the six-month waiting period specified in section 151C of the Workers Compensation Act 1987.

The legal issue before the court was whether the Arbitrator's decision to dismiss Sandarousi's claim was correct. Specifically, the court had to determine if Sandarousi's earlier proceedings in the District Court constituted an election under section 151A(3)(a) of the Act, thereby precluding him from seeking compensation in the Workers Compensation Commission. The court examined submissions from both parties, who relied on various court decisions and legislative provisions to support their positions. Sandarousi argued that his earlier proceedings were a nullity and thus did not constitute an election, while Pressure Welding contended that the proceedings, despite being premature, were valid and constituted an irrevocable election.

The court reviewed the relevant provisions of the Workers Compensation Act 1987 and noted the principles established in Gordon v Berowra Holdings Pty Ltd. The court found that the six-month waiting period in section 151C was procedural rather than jurisdictional, meaning that proceedings commenced in breach of this provision were not null and void. Therefore, the court concluded that Sandarousi's earlier proceedings in the District Court constituted an election, and he was precluded from seeking compensation in the Workers Compensation Commission. The Arbitrator's decision was affirmed, and no costs were awarded.

Orders