Allen v Roads and Maritime Services

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Allen v Roads and Maritime Services [2015] NSWWCCPD 39
APPELLANT:	Melanie Allen
RESPONDENT:	Roads and Maritime Services
INSURER:	QBE Insurance (Australia) Ltd
FILE NUMBER:	A1-14338/12
ARBITRATOR:	Mr R Caddies
DATE OF ARBITRATOR’S DECISION:	10 March 2015
DATE OF APPEAL DECISION:	1 July 2015
SUBJECT MATTER OF DECISION:	Extension of time to appeal; less than satisfactory explanation for why the appeal was not lodged in time; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; application for increase in weekly compensation under s 55 of the Workers Compensation Act 1987; previous award decreased in absence of application for a decrease by the respondent; determination of matter on basis not argued; denial of procedural fairness; principles in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 applied
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Emery Partners
Respondent:	Thompson Cooper Lawyers
ORDERS MADE ON APPEAL:	1.       Time to appeal is extended to 9 April 2015. 2.       The Arbitrator’s determination of 10 March 2015 is revoked and the matter is remitted to a different Arbitrator for re-determination. 3.       The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed. Costs of the arbitration before Arbitrator Caddies, and of the re-determination, are to follow the outcome of the re-determination.

INTRODUCTION

1. In proceedings in the Commission in 2005 and 2006, the appellant worker received an award of weekly compensation for a partial incapacity due to a back injury suffered in the course of her employment in 2002. In the present matter, she has sought an increase in that award because of an alleged deterioration in the condition of her back.

2. Her claim for an increase is under s 55 of the Workers Compensation Act 1987 (the 1987 Act). That section provides that any weekly payment of compensation may, because of a change in circumstances, be “reviewed” by the Commission on the request of the employer or the worker or the WorkCover Authority of NSW (s 55(1)). On any such review, the weekly payment may be “ended, reduced or increased” (s 55(2)).

3. Though the Workers Compensation Legislation Amendment Act 2012 has repealed s 55, it applies in this case because the worker was an existing recipient of weekly compensation (under the earlier award) immediately before 1 October 2012 (cl 6 of Pt 19H of Sch 6 to the 1987 Act).

4. The appellant alleges, among other things, that the Arbitrator denied her procedural fairness by reducing her award of weekly compensation in circumstances where the only application before the Commission was her application for an increase in that compensation and the employer had not sought a decrease. For the reasons explained below, that argument must be upheld and the matter must be re-determined before a different Arbitrator.

BACKGROUND

1. The appellant worker, Melanie Allen (formerly Colquhoun)…