Zouroudis v Plastic Surfaces & anor. - [2005] NSWWCCPD 113

WORKERS COMPENSATION COMMISSION

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

CITATION:Zouroudis v Plastic Surfaces Pty Ltd (deregistered) and JW Parker Furniture Pty Ltd formerly Parker (Furniture) Pty Ltd under external administration [2005] NSW WCC PD 113
APPELLANT:  Basilios Zouroudis
FIRST RESPONDENT:  Plastic Surfaces Pty Ltd (deregistered)
SECOND RESPONDENT:  JW Parker Furniture Pty Ltd formerly Parker (Furniture) Pty Ltd under external administration

INSURERS:Zurich Workers Compensation Limited, for the First Respondent; QBE Insurance Limited and MMI Insurance c/o Allianz Australia Workers Compensation (NSW) Limited, for the Second Respondent.
FILE NUMBER:  WCC660-04
DATE OF ARBITRATOR’S DECISION:          3 August 2004
DATE OF APPEAL DECISION:  21 September 2005
SUBJECT MATTER OF DECISION:                Whether the ‘interests of justice’ allow the claim out of time; whether the claim was late due to ‘ignorance’.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:                  Voros Lawyers
First Respondent:     Vardanega Roberts Solicitors
Second Respondent: Moroney Betts Solicitors

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

BACKGROUND TO THE APPEAL

On 30 August 2004 Basilios Zouroudis sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 3 August 2004.

The First Respondent to the appeal is Plastic Surfaces Pty Ltd (deregistered), who was insured by Zurich Workers Compensation Limited. The Second Respondent is JW Parker Furniture Pty Ltd formerly Parker (Furniture) Pty Ltd under external administration, who was insured by QBE Insurance Limited until 30 June 1972, and MMI Insurance c/o Allianz Australia Workers Compensation (NSW) Limited until 19 June 1980. Zurich and Allianz instructed legal representatives to appear for and on behalf of the First and Second Respondents respectively, in the Commission proceedings.

Mr Zouroudis had worked for the Second Respondent as a chair maker in a factory, using heavy sanding and nail gun machinery from 1970 until 1981. He was then employed by the First Respondent to cut formica and ply board bench surfaces using a small machine, from April 1981 until December 1981. He did not return to any work after his employment with the First Respondent in December 1981, as he sustained an injury to his left hand, for which he later received compensation.

During the course of his employment with the Second Respondent, Mr Zouroudis had noticed his hearing deteriorate. This continued whilst employed by the First Respondent. He noticed increasing hearing loss and tinitus in the years following his last employment, and eventually sought medical attention in May 2000, after which tests showed that he did have hearing loss. Mr Zouroudis claims it was at this time that he first became aware of the causal connection between his hearing loss and his former work.

Mr Zouroudis lodged an application in the Compensation Court of NSW against the First and Second Respondents. The application was in relation to a claim for lump sum compensation for hearing loss. The claim was transferred to the Commission in January 2004 following…

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 Zouroudis v Plastic Surfaces & anor.

Details

AGLC: Zouroudis v Plastic Surfaces & anor. [2005] NSWWCCPD 113
Case: [2005] NSWWCCPD 113
Decision Date: 21 September 2005

CaseChat Overview and Summary

In the matter of Zouroudis v Plastic Surfaces & anor, the Workers Compensation Commission considered an appeal against a decision made by an Arbitrator. Basilios Zouroudis, the appellant, sought leave to appeal the Arbitrator's decision that his claim for compensation for hearing loss was out of time and not in the interests of justice. The Arbitrator had found that Zouroudis's failure to make the claim within the statutory period was not due to ignorance or other reasonable cause and that it was not in the interests of justice to allow the claim.

The legal issues before the court were whether the Arbitrator erred in finding that Zouroudis's failure to make a claim within time was not occasioned by ignorance, mistake or other reasonable cause, and whether the Arbitrator erred in finding that it was not in the 'interests of justice' that his claim be allowed. The court considered the evidence and arguments presented by both parties and concluded that the Arbitrator was correct in both findings. The Arbitrator was entitled to find that Zouroudis was aware of his hearing loss and the potential causal connection to his employment, and that the delay in making the claim was not due to ignorance of his rights. Furthermore, the court found that it was not in the interests of justice to allow the claim, given the significant delay and the difficulties in obtaining evidence to support the claim.

The court confirmed the decision of the Arbitrator, dismissing the appeal. The court also made no order as to costs, as the appellant was unsuccessful on the appeal. This case highlights the importance of timely claims in workers compensation matters and the balance that must be struck between the interests of the worker and the employer and insurer.

Orders