Vettas v Cho - [2006] NSWWCCPD 122

WORKERS COMPENSATION COMMISSION

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

CITATION:Vettas v Cho [2006] NSWWCCPD 122
APPELLANT:  Stella Beba Vettas
RESPONDENT:  Dr FS Cho
INSURER:GIO General Limited
FILE NUMBER:  WCC7238-04
DATE OF ARBITRATOR’S DECISION:          17 August 2005
DATE OF APPEAL DECISION:  15 June 2006
SUBJECT MATTER OF DECISION:                Weekly Benefits Compensation; Incapacity; Weight of Evidence
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the Papers
REPRESENTATION:  Appellant:      Jordan Djundja Solicitor
Respondent:   Turks Legal

ORDERS MADE ON APPEAL: Leave to appeal is granted.
The decision of the Arbitrator is confirmed.

No order as to costs.

BACKGROUND TO THE APPEAL

Stella Vettas worked for Dr Cho as a secretary/receptionist in his medical practice when, on 15 June 1999, she was injured in a car accident while on her lunch break. She claimed to have suffered an injury to her back, legs, arms and neck as a result of the accident.

GIO Workers Compensation (‘GIO’) was Dr Cho’s workers compensation insurer. GIO accepted Ms Vettas’ claim and she was paid weekly benefits compensation until 6 March 2002 when, on the basis of medical advice, it took the view that Ms Vettas was no longer incapacitated as a result of the injury of 15 June 1999.

Ms Vettas continues to seek weekly benefits compensation and reasonable medical expenses. She has also made a claim for lump sum compensation for permanent impairment of her back, left and right legs and her neck. GIO denied liability for the claim and on 29 April 2004 Ms Vettas lodged an ‘Application to Resolve a Dispute’ in the Commission. The dispute was determined by an Arbitrator on 17 August 2005 and on 13 September 2005 Ms Vettas sought leave to bring an ‘Appeal Against Decision of Arbitrator’.

The Respondent to the Appeal is Dr Cho, however GIO appeared for and on behalf of Dr Cho in all Commission proceedings.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 17 August 2005 records the Arbitrator’s orders as follows:
“ The Determination of the Commission in this matter is as follows:
·The respondent [Dr Cho] is to pay the applicant [Ms Vettas] the sum of $3000 for s.66 permanent impairment based on the MAC [Medical Assessment Certificate], which has issued.
·An award for the respondent in relation to the claim for weekly benefits.
·There should be an award for the respondent in relation to medical expenses.
·The respondent to pay the applicant’s costs of these proceedings as agreed or assessed.”

ISSUES IN DISPUTE

Ms Vettas does not challenge the Arbitrator’s award in relation to permanent impairment compensation or costs. She disputes the award in favour of Dr Cho for her claim to weekly compensation from 6 March 2002 (and continuing) and for medical expenses. Ms Vettas submitted that there were four grounds of appeal, namely:
“1.The determination of the Arbitrator was against the evidence and the weight of the evidence (‘Weight of Evidence’).
2.The Arbitrator’s finding that the medical evidence of the Applicant’s…

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 Vettas v Cho

Details

AGLC: Vettas v Cho [2006] NSWWCCPD 122
Case: [2006] NSWWCCPD 122
Decision Date: 15 June 2006

CaseChat Overview and Summary

In the matter of Stella Vettas v Dr FS Cho, the appellant, Ms Vettas, appealed a decision by an arbitrator concerning weekly benefits compensation, incapacity, and medical expenses. Dr Cho, the respondent, was represented by GIO Workers Compensation, which was also the insurer. The appellant, Ms Vettas, argued that the Arbitrator's decision was against the evidence and the weight of the evidence, there was an error of fact concerning permanent impairment, an error of law concerning incapacity, and an error of fact regarding medical expenses. GIO submitted that the Arbitrator's decision was correct and should be affirmed.

The Deputy President of the Workers Compensation Commission, Dr Gabriel Fleming, reviewed the appeal on the papers, finding that the issues were not particularly complex and could be adequately reviewed without an oral hearing. The appeal was lodged within 28 days of the Arbitrator's decision, meeting the threshold requirements of the Workplace Injury Management and Workers Compensation Act 1998. Leave to appeal was granted.

Upon consideration of the issues, Dr Fleming found that the Arbitrator did not err in her assessment of the weight of evidence. Although the Arbitrator failed to properly consider the reports of Dr Saunders, she considered relevant evidence, including the medical evidence of Dr Mahony, Professor Ehrlich, and Dr Silva. The Arbitrator's findings on incapacity and permanent impairment were supported by the evidence presented, and there was no evidence provided to support the claim for medical expenses.

The decision of the Arbitrator was confirmed, and no order was made as to costs. The Deputy President, Dr Gabriel Fleming, certified that this is a true and accurate record of the reasons for the decision.

Orders