Simatovic v Nancy Rao T/as Caffe 43 - [2007] NSWWCCPD 120

WORKERS COMPENSATION COMMISSION

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

CITATION:Simatovic v Nancy Rao t/as Caffe 43 [2007] NSWWCCPD 120
APPELLANT:  Mira Simatovic
RESPONDENT:  Nancy Rao t/as Caffe 43
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC 6226-06
DATE OF ARBITRATOR’S DECISION:          21 August 2006
DATE OF APPEAL DECISION:  24 May 2007
SUBJECT MATTER OF DECISION: Sections 4, 9A, 15 and 16 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION:  Appellant:      PK Simpson & Co
Respondent:   Turks Legal

ORDERS MADE ON APPEAL: For the reasons stated in this decision the order recorded in paragraph (1) of the Certificate of Determination dated 21 August 2006 is revoked and the following order is made:

“(1) Award for the Respondent.”
Paragraphs (2) and (3) of the Arbitrator’s Determination dated 21 August 2006 are confirmed.
No order as to costs of the Appeal.

BACKGROUND TO THE APPEAL

On 11 September 2006 Mira Simatovic (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 August 2006.

The Respondent to the Appeal is Nancy Rao t/as Caffe 43 (‘the Respondent’).

The Appellant, a married woman who was born on 18 January 1962, commenced employment as a cook at Caffe 43, a business located at Heathcote Road, Moorebank, NSW, in 2001. That business was purchased by the Respondent in April 2003 at which time the Appellant’s employment with the Respondent commenced. The Appellant was initially engaged to perform her duties at the cafe 4 days per week up until December 2004 at which time her duties were reduced to 3 days work per week. At all relevant times the Appellant was concurrently employed as a bookkeeper by an organisation described as the Chester Hill Neighbourhood Centre.

In January 2005 the Appellant was experiencing pain and discomfort in her left knee and sought treatment from her General Practitioner, a Dr Loo of 279 Macquarie Street, Liverpool. That Practitioner arranged for a plain X-ray as well as an ultrasound study of the Appellant’s left knee. The Appellant was, it seems, prescribed medication for the alleviation of her symptoms.

The Appellant continued working without loss of time however experienced continued symptoms and sought the advice of Dr Shamoun, General Practitioner of 240-242 Macquarie Street, Liverpool. That Practitioner referred the Appellant to Dr Vijay Maniam, Specialist Surgeon. The Appellant first consulted Dr Maniam on a date in February 2005 at which time the Appellant made complaint of pain in both her knees.

The Appellant ceased work on 10 March 2005 by reason of knee pain and presented the Respondent with an Employee’s Compensation Claim form bearing date 16 March 2005. That claim form particularised the date of a work injury as being 16 January 2005 and the subject injury was described as “knee pain injury”. The Appellant nominated Dr Maniam as her treating Doctor in the claim form and attached…

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: [2007] NSWWCCPD 120
Decision Date: 24 May 2007

CaseChat Overview and Summary

Mira Simatovic sought to appeal against an arbitrator's decision in the Workers Compensation Commission that dismissed her application for workers compensation. The appeal was heard on the papers by Acting Deputy President Kevin O'Grady. The Arbitrator had found that Ms Simatovic had sustained injuries to her knees and abdomen but that her employment was not a substantial contributing factor to those injuries. Ms Simatovic challenged various findings of fact and the Arbitrator's application of the law to the facts. Acting Deputy President O'Grady dismissed the appeal, finding that the Arbitrator had not erred in his findings or in his application of the law to the facts. The appeal was dismissed and an award for the employer was substituted for the dismissal of the application. No order as to costs was made.

Orders