ANZ Banking Group Limited v F - [2004] NSWWCCPD 91

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:ANZ Banking Group Limited v Ferraz [2004] NSW WCC PD 91
APPELLANT:  ANZ Banking Group Limited
RESPONDENT:  Debra Gaye Ferraz
INSURER:ANZ Banking Group Limited
FILE NUMBER:  WCC3994A-2004 and WCC3994B-2004
DATE OF ARBITRATOR’S DECISION:          1 September 2004, 23 November 2004
DATE OF APPEAL DECISION:  21 December 2004
SUBJECT MATTER OF DECISION:                Validity of a Notice issued under section 54 of the Workplace Injury Management and Workers Compensation Act 1998; clause 40A of the Workers Compensation Regulation 1995; jurisdiction of the Commission.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:24 November 2004, 1 December 2004
REPRESENTATION:  Appellant: Leigh Virtue & Associates Solicitors

Respondent: Shead Lawyers

ORDERS MADE ON APPEAL: The decisions of the Arbitrator, dated 1 September 2004 and 23 November 2004 are revoked.

The matter is remitted to the Arbitrator to be determined in accordance with these reasons.

THE APPEAL

On 1 March 2004 Debra Ferraz lodged an ‘Application to Resolve a Dispute’ in the Commission claiming ongoing weekly benefits compensation and medical expenses for an injury to her neck and right arm. Ms Ferraz claimed that her injury occurred on 22 October 1993 due to the repetitive nature of her data entry work for ANZ Banking Group Limited.

ANZ paid Ms Ferraz weekly compensation benefits and medical expenses from the time of her injury until 29 September 2003. ANZ denied liability for the claim on 19 August 2003.

This matter has been the subject of two decisions by an Arbitrator, and consequently two Certificates of Determination, issued on 1 September 2004 and 23 November 2004 respectively.

On 1 September 2004 the Arbitrator determined that the Bank failed to issue a valid notice in accordance with section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). On 24 September 2004 the Commission received an appeal from ANZ against that decision.

On 23 November 2004 the Arbitrator determined that the Commission had no jurisdiction to determine the application and that it should be ‘struck out’. On 30 November 2004 Ms Ferraz lodged an appeal against this decision.

Leave to appeal is granted in both matters.

THE PARTIES’ SUBMISSIONS

The parties have agreed that both appeals should be dealt with together.

The parties are in agreement that the Arbitrator’s decisions of 1 September 2004 and 23 November 2004 should be revoked. They have also jointly submitted that the matter should be remitted to the Arbitrator so that the substantive dispute may be determined on its merits. Neither party now takes issue with the question of whether effective notices had been issued to Ms Ferraz pursuant to section 54 of the Workers Compensation Act 1987 (the 1987 Act) or section 74 of the 1998 Act.

ANZ argue that the Arbitrator was wrong in her determination of 1 September 2004 in asserting that it was required to comply with, or alternatively, did not comply with, the requirements of section 74 of the 1998…

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: [2004] NSWWCCPD 91
Decision Date: 21 December 2004

CaseChat Overview and Summary

The Workers Compensation Commission has been called upon to review two decisions made by an Arbitrator in a dispute between ANZ Banking Group Limited and Debra Gaye Ferraz over ongoing workers compensation benefits. The Arbitrator initially ruled that ANZ had failed to issue a valid notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998, prompting ANZ to appeal. In a subsequent ruling, the Arbitrator concluded that the Commission lacked jurisdiction to hear the dispute, leading Debra Ferraz to appeal this decision as well. Both appeals were subsequently heard together by Deputy President Dr Gabriel Fleming.

The central legal issues before the court involved the validity of the notice issued under section 54 of the Workers Compensation Act 1987 and clause 40A of the Workers Compensation Regulation 1995, as well as the jurisdiction of the Commission to hear Ms. Ferraz's claim. ANZ argued that the Arbitrator erred in finding that a valid notice under section 74 of the 1998 Act was necessary and that they had failed to comply with it. Conversely, Ms. Ferraz contended that the Arbitrator incorrectly dismissed her claim for lack of jurisdiction and failed to address her entitlement to ongoing compensation benefits.

Dr Fleming determined that the Arbitrator had indeed erred in her findings. The court found that the Arbitrator should have considered the requirements of a section 54 notice under the 1987 Act, which is triggered when a worker receives weekly compensation payments for at least 12 weeks. Both parties agreed that the notice of 19 August 2003 satisfied this requirement. Furthermore, the court found that the Arbitrator incorrectly asserted the Commission's lack of jurisdiction to hear the dispute and improperly 'struck out' the matter. The failure to provide a proper section 54 notice does not deprive the Commission of jurisdiction; it merely affects the entitlement to compensation. Therefore, the Arbitrator's decision to strike out the matter was also erroneous.

In light of these findings, Dr Fleming revoked the Arbitrator's decisions of 1 September 2004 and 23 November 2004, and remitted the matter back to the Arbitrator to be determined on its merits, considering the validity of the section 54 notice and ANZ's liability for ongoing workers compensation payments to Ms. Ferraz. Both parties have agreed to proceed with the substantive dispute being resolved by the Arbitrator.

Orders