Tozanis v Ku Children's Services

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Tozanis v KU Children’s Services [2010] NSWWCCPD 51
APPELLANT:		Alice Tozanis
RESPONDENT:		KU Children’s Services
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		A1-9028/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:		5 February 2010
DATE OF APPEAL DECISION:		13 May 2010
SUBJECT MATTER OF DECISION:		Section 352 of the Workplace Injury Management and Workers Compensation Act 1998; interlocutory orders of a preliminary nature
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Stacks/Goudkamp
Respondent:	Edward Michael Lawyers
ORDERS MADE ON APPEAL:		Leave to appeal the Arbitrator’s Determination of 5 February 2010 is refused. Each party is to pay its or her own costs of the appeal.

BACKGROUND

1. The appellant worker, Ms Tozanis, injured her lower back whilst lifting a child in the course of her employment with the respondent employer, KU Children’s Services (‘the respondent’), in the course of her employment on 31 July 2000.

1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 5 November 2009, Ms Tozanis sought lump sum compensation under the Table of Disabilities in respect of a 50 per cent permanent impairment of her back and a 35 per cent permanent loss of efficient use of her left leg at or above the knee, together with compensation for pain and suffering.

1. The respondent’s insurer, Employers Mutual NSW Limited (‘Employers Mutual’), did not dispute that Ms Tozanis injured her back as alleged on 31 July 2000, but disputed that that injury caused a disc protrusion at the L5/S1 level of her lumbar spine.

1. The Commission listed the matter for conciliation and arbitration on 20 January 2010.  The parties were legally represented at the arbitration.  The matter proceeded with lengthy submissions, but neither side called any oral evidence.

1. In a reserved decision delivered on 5 February 2010, the Arbitrator found that the worker’s injury on 31 July 2000 “did not extend to” the disc pathology found to exist at the L5/S1 level of the lumbar spine.  The Commission issued a Certificate of Determination on 5 February 2010 in the following terms:

“The Commission determines:

1.   The matter should be remitted to the Registrar to be referred to an Approved Medical Specialist to assess, pursuant to the Table of Maims, permanent impairment to the Applicant’s lumbar spine and to her left leg at or above the knee arising from the injury which occurred on 31 July 2000.

The AMS should be supplied with all documents submitted into evidence in this arbitration, together with a copy of this Determination.

2.   The Respondent to pay the Applicant’s costs as agreed or assessed.”

1. In an appeal filed on 3 March 2010, Ms Tozanis seeks leave to appeal the Arbitrator’s Determination.

LEAVE TO APPEAL

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).