Archbold v Toll Pty Limited
[2007] NSWWCCPD 211
•16 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Archbold v Toll Pty Limited [2007] NSWWCCPD 211
APPELLANT: Stephen Archbold
RESPONDENT: Toll Pty Limited
INSURER:Self-insurer
FILE NUMBER: WCC17651-06
DATE OF ARBITRATOR’S DECISION: 22 December 2006
DATE OF APPEAL DECISION: 16 October 2007
SUBJECT MATTER OF DECISION: Leave to appeal – monetary threshold in section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998, ‘current weekly wage rate’, extension of time pursuant to section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Galluzzo Andriano
Respondent: Leigh Virtue & Associates
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 8 February 2007 Stephen Archbold (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 22 December 2006.
The Respondent to the Appeal is Toll Pty Limited (‘the Respondent Employer’).
The Appellant Worker worked as a driver of heavy vehicles. He was employed by Finemores Transport, and when that firm was taken over by the Respondent Employer, he continued in the same work, in the employ of the Respondent Employer. He was based at its Enfield depot. He was the union delegate at the depot from 1999. There was a history of some interpersonal conflict between the Appellant Worker and others. His statement of 23 October 2006 described arguments between he and Allan Nolan (a manager with the Respondent Employer) in November and December 2005, which led to various meetings, the outcome of which was that the Appellant Worker was transferred to the Port Kembla depot of the Respondent Employer. He commenced at that depot from 18 January 2006 ([12] to [14] of his statement).
A statement of Noel Hepper, dispatch manager with the Respondent Employer, dated 10 April 2006, recorded he had been threatened by the Appellant Worker “in February 2005 about a work issue”. Mr Hepper stated the Appellant Worker had also told Sandra Barden “not to stand near any window that he might come back and doing a drive by shooting” (sic). It is unclear whether Mr Hepper actually witnessed this threat.
Sandra Barden, whose duties included taking minutes at ‘toolbox’ and OH & S meetings, and acting as return to work co-ordinator, wrote to Alan Nolan on 9 December 2005, complaining about aggression and verbal abuse on the Appellant Worker’s part, and saying she felt threatened for her “personal safety due to the environment which I believe is created by Steve Archbold”. The letter stated in part “He (the Appellant Worker) then commented to Rod Samuels and myself that when he leaves his employment at Toll Liquids he will come back here and ‘finish off’ or words to that effect, everyone here that he doesn’t like”. It continued “Steve (the Appellant Worker) then made another comment to the effect of ‘when you see a guy in a ute drive past Allan’s office, make sure you are out of the way because a bullet will go through there’”.
There is a memorandum signed by the Appellant Worker and Allan Nolan, dated 22 December 2005, which records an investigation into threats of violence by the Appellant Worker against “other members of the O, H & S Committee”. It states the Appellant Worker was “verbally advised” of his dismissal on 15 December 2005. It records subsequent representations by the Appellant Worker and a union representative, resulting in agreement the Appellant Worker commence work at a different location after his annual leave expiring 13 January 2006. There are other provisions I do not need to detail.
The Appellant Worker stated he was happy being based at Port Kembla ([14]). He worked on Friday 24 March 2006, and then had rostered days off until either 28 or 29 March 2006, when he was due to resume on a shift commencing at 3pm.
On 25 March 2006 employees of the Respondent Employer at the Enfield depot observed a hole in a window, apparently consistent with a gunshot. Police attended, and a projectile was found (see Mr Hepper’s statement).
The Appellant Worker’s statement recorded two conversations on 28 March 2006, before he started work. It may well be the date was in fact 29 March 2006, which is further discussed below. The first conversation occurred at “about lunchtime”, when he received a telephone call from Ric Connor, who had replaced him as union delegate at the Enfield depot. Mr Connor told him “There was a gunshot and a bullet went through a window at Enfield on Friday night. I was speaking to Allan Nolan yesterday and he said that my predecessor had been identified to the Police as a person of interest.” The Appellant Worker denied being involved in the incident. The statement does not indicate where the Appellant Worker was at the time this conversation occurred. There is no reason to believe it occurred on his way to work.
The statement described a further telephone conversation, “On my way to work, at about Heathcote”. At the time the Appellant Worker resided at Sefton, and drove to Port Kembla to work. He said he rang Allan Nolan, noted he (the Appellant Worker) had been identified as a person of interest, and sought details of the attending police, to clear his name. He said Allan Nolan “started ranting, shouting, and talking over me in an abusive tone”. The Appellant Worker said he felt “nauseous, anxious and in fear that I was going to lose my job when I hadn’t been involved in the incident in any way”. He did not actually attend work that day. He telephoned to say he could not attend, and saw Dr Tran at Bass Hill, who gave him a medical certificate and told him to stay home.
Dr Tran’s initial certificate is in fact dated 29 March 2006, and certifies the Appellant Worker as unfit for that day only, due to “medical condition”. Later certificates from that doctor are in ‘Workcover’ form, and certify unfitness from 30 March 2006 to 24 April 2006, when the Appellant Worker was certified fit for his pre-injury duties. The injury is described in the certificate of 30 March 2006 as “Unfair treatment from work, false allegations against him, victimisation”, with a diagnosis “stress from work”. This diagnosis varies in later certificates to “anxiety/ panic attack/ depression”.
The Appellant Worker’s claim form is dated 30 March 2006. It recorded the date of injury as “29/03/2006” at “14:54”. The injury is described as “Unfair treatment from Work due false Allegations against him (Victimisation)”.
The date of injury in the Application for Expedited Assessment (‘AEA’) is described as “March 05 and nature and conditions”. It alleges “Applicant suffered psychological injuries as a result of being the victim of unfair treatment from work due to false allegations against him.” The Appellant Worker’s claim is for weekly benefits on the basis of total incapacity, up to 24 April 2006. Although the AEA claimed from 21 March 2006, realistically any claim could not have commenced until 28 or 29 March 2006 (probably 29 March 2006), when the telephone conversations occurred, and the Appellant Worker first had time off, and saw Dr Tran. The AEA also claimed a sum of “$649.50 (at least)”, by way of medical expenses.
The Appellant Worker’s medical case included a report from Ms Bartlett, a psychologist, dated 14 November 2006. She saw the Appellant Worker on 11 April 2006, and recorded a history of him ceasing work on 21 March 2006. This appears erroneous having regard to the Appellant Worker’s statement and claim form, and the date of Dr Tran’s initial certificate. She diagnosed “symptoms of anxiety and depression caused by the claims of wrongdoing levelled against him by his employers”. The claims of wrongdoing recorded in the history are a clerical worker’s report that he had threatened to “drive past and shoot the place’, and him being blamed for the shooting in March 2006.
Dr Teoh, psychiatrist examined the Appellant Worker at the request of his own solicitors, on 17 August 2006. He concluded “Mr Archbold was incapacitated from work from 29 March 2006 to 24 April 2006 as a result of a psychological reaction following the allegations that were made against him regarding the incident at work” (page 5.9 of his report). In context, it is apparent the allegations referred to are those relating to the gunshot at Enfield.
The Respondent Employer relied on a report from Dr Roberts, psychiatrist dated 5 May 2006. Dr Roberts concluded “I consider that on grounds of probability Mr Archbold is suffering from a longstanding abnormality of personality traits and would by virtue of his behaviour fulfil the diagnosis of a Personality disorder. His behaviour may be aggravated by substance use. There is no evidence on presentation that Mr Archbold has sustained an injury arising from the circumstances and conditions of employment. The claimant’s employment with Toll is not a substantial contributing factor to his condition.” (at page 13.7).
THE DECISION UNDER REVIEW
The AEA was brought pursuant to Divisions 2 and 2A of Part 5 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Conciliation Teleconferences, at which both parties were legally represented, were conducted on 23 and 30 November 2006. The Delegate of the Registrar (‘the Delegate’) also issued an invitation to the parties, on 14 December 2006, to make submissions regarding whether the second conversation, at Heathcote, described at [10] above, was an ‘injury’ on a journey within the meaning of section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’), and if so, the significance of this. Both parties put on further written material pursuant to this invitation.
The ‘Certificate of Determination’, dated 22 December 2006 records the orders of the Delegate as follows:
1. The Application made by the Applicant pursuant to Division 2A of Part 5, Expedited assessment, of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 concerning weekly payments of compensation is refused.
2. The Application for an Interim Payment Direction pursuant to Division 2 of Part 5, Expedited assessment, of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 against the above Respondent for medical expenses compensation is refused.
3. I make no order as to costs.
The Certificate of Determination was accompanied by twenty pages of detailed Reasons.
ISSUES IN DISPUTE
The issues raised by the Appellant Worker in the appeal are:
1. Whether the Delegate erred in finding personal injury suffered by the Appellant Worker on 29 March 2006 resulted from a pre-existing medical condition?
2. Whether the Delegate erred in applying section 10(1D) of the 1987 Act, in the circumstances of the case.
The Respondent Employer disputes the Delegate was in error. It submits in the alternative, that the Delegate made other errors in respect of jurisdiction, determination of ‘injury’, and in the application of sections 9A and 11A of the 1987 Act. It accordingly submits that, if the Appellant Worker’s appeal is upheld, the matter should be “remitted for re-hearing in respect of all issues”. The Respondent Employer also makes submissions on threshold issues going to whether leave to appeal should be granted, which are dealt with below.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. In this matter, there are serious issues regarding whether leave to appeal should be granted. The first such dispute relates to whether the monetary threshold in section 352(2) of that Act is satisfied.
Section 352(2) of the 1998 Act provides:
“(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations) and
(b) at least 20% of the amount awarded in the decision appealed against.”
Having regard to the dates of the claim form and the initial certification by Dr Tran, and the periods of incapacity certified by Drs Tran and Teoh in the Appellant Worker’s case, the period of the weekly claim, had it succeeded, could not have exceeded 29 March 2006 to 21 April 2006 inclusive. This is a period of twenty-four days, or a little less than three and a half weeks. Compensation is claimed in the AEA on the basis the Appellant Worker’s probable gross earnings over the period, if not for injury, would have been $2,100.00, and the appropriate weekly sum therefore is $1,449.50 up to 31 March 2006, and $1,479.40 thereafter, representing the statutory cap in section 35 of the 1987 Act.
The Respondent Employer, in its submissions, makes the point that, if the Appellant Worker had succeeded, on the basis of total incapacity, compensation over this period would not have been based upon probable earnings. Rather it would have been at the Appellant Worker’s ‘current weekly wage rate’ (section 36(1) of the 1987 Act). This figure would have been calculated pursuant to section 42 of the 1987 Act. The Respondent Employer submits it would have been the ‘award rate’, pursuant to section 42(1)(a), a weekly figure of $941.65 according to the pay slips.
The Appellant Worker’s statement says he worked on an “EBA roster” (at [9]). I take this to be a reference to an Enterprise Bargain Agreement. It does not specifically say he was remunerated pursuant to such an agreement, although this would be a reasonable inference. No such agreement is in evidence. The copy pay slips attached to the AEA do not specifically identify the basis of the Appellant Worker’s remuneration.
The pay slips cover pay dates from 22 January 2006 to 19 March 2006. Although there are some variations on a week to week basis, there is a pattern of the pay slips alternating. They regularly record basic work hours of 31.13 weeks, with “10TH DAY UPD”, with the unpaid period being noted at “7.00 Hrs”. However on alternate weeks it appears the tenth day is worked, and during these weeks the basic working hours are generally recorded as “38.92 Hrs”. The earnings from these hours generally appear as $941.65 (for the weeks when the seventh day is worked), and a figure in the vicinity of $753.32 for the alternate weeks when the seventh day is not worked. There are some small variations in this figure of $753.32, which appear to reflect small variations in the hours worked (for example “31.10 Hrs” as opposed to “31.13 Hrs”). The pay slips record other components of remuneration. There is an item described as “SHIFT PREM”, brought in for either 38.92 hours (when the seventh day is worked), or a shorter period of about 31.10 hours (when it is not). The rates at which “SHIFT PREM” is paid vary between 2.4197 and 3.6295. This variation is not explicable on the basis of whether the seventh day was worked or not. There are also varying figures for “TEA TWU NSW”, ranging from 78.78 to 118.17.
The pay slips also contain figures for what appear to be substantial payments of overtime. These are payments over and above the regular hours referred to in the preceding paragraph. These figures range from $895.28 (pay date 5 February 2006) to $1,725.22 (pay date 26 February 2006). They average $1,285.15 per week.
Section 42(1) of the 1987 Act provides:
“(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:
(a) was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))—is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,”
Section 42(6) of the 1987 Act provides:
“(6) In determining a worker’s current weekly wage rate in accordance with subsection (1) (a) or (b) or (4), any amount paid or payable to the worker:
(a) in respect of shift work, overtime or other penalty rates,
(b) under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker, or
(c) to cover special expenses incurred by the worker because of the nature of the worker’s employment,
is, except in so far as the regulations otherwise provide, to be disregarded.”
Section 42(8) of the 1987 Act includes:
“award means:
(a) an award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force,
(b) an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991,
(c) an agreement made under the Public Service Act 1979 or an agreement with respect to wages or salaries entered into under the provisions of any other Act by an employer constituted by that other Act with any association or organisation representing any group or class of employees, or
(d) an award made by the Coal Industry Tribunal under the Coal Industry Act 1946,
(e) (without limiting the above) includes a State industrial instrument,
and includes any such award, industrial agreement or other agreement or instrument as from time to time amended.”
The weekly sum payable to the Respondent Worker pursuant to any relevant Enterprise Bargain Agreement, should be taken to represent an ‘award’ for the purposes of section 42(1)(a): Woolworths Limited v Lister [2004] NSWCA 292. However the sum is to be calculated disregarding the amounts excluded by section 42(6).
The claim form describes the Respondent Worker’s award rate of pay as $109,200 and his average weekly earnings as $2,100 (which represents $109,200 divided by 52). It says this is for normal working hours being 3am to 3pm Monday to Saturday, averaging 68 hours per week. None of the weekly gross sums in the pay slips equals $2,100.00. Most exceed this figure, although one (5 February 2006) is less. These figures include considerable sums which, on their face, are precluded from inclusion in the ‘current weekly wage rate’, by section 42(6). There are sums payable for varying hours, at time and one half, double and triple time. On their face, these appear to be payments by way of overtime. In the absence of explanation, such payments do not appear to be part of the ‘ordinary rate’ paid to the Respondent Worker: see Lismore City Council v Garland (1992) 26 NSWLR 542. Shift work, overtime and penalty rates are specifically excluded from the calculation by section 42(6). The payments described as “SHIFT 10%”, without further explanation, probably represent shift allowances. If this is their true nature, they would be precluded by section 42(6)(a). The payments described as “TEA TWU NSW” may well represent (although this would be conjecture) payment of meal allowances associated with shift work. If this is so, they are precluded by section 42(6)(c).
It is regrettable, given the nature of the dispute on this point, that neither party has put any relevant Enterprise Bargain Agreement into evidence. The evidence regarding the earnings of the Appellant Worker, and the basis of such earnings, is to some extent unsatisfactory. The onus of establishing the threshold requirements of section 352(2)(a) have been satisfied, must rest with the party seeking leave to appeal, in this case the Appellant Worker. This is consistent with the approach taken by Roche ADP in Pinder v Jack & Kathleen Schlacter t/as Central Book Supplies [2006] NSWWCCPD 219. The only payments one could be satisfied represented the ordinary rate payable to the Respondent Worker, excluding those sums precluded by section 42(6), were those which appear in the pay slips at the ordinary rate of 24.1966, for hours which (when the tenth day is worked) total a little in excess of thirty-eight hours per week. For the weeks when the tenth day is worked, those hours yield weekly earnings of $941.65. This is the figure the Respondent Employer submits should be taken as the ‘award rate’. I cannot, on the evidence, be satisfied any higher rate is justified.
A rate of $941.65 per week for three and one half weeks equals $3,295.77. In addition there were section 60 expenses in issue. These were described as “$649.50 (at least)” in the AEA. The Appellant Worker’s submissions in support of this appeal described them in the same way. There is nothing to suggest they exceed $649.50. This gives a total sum at issue of $3,945.27. Even if the weekly period at issue exceeded three and one half weeks to some small extent (depending upon how weekends fell), the amount of compensation at issue would not satisfy the monetary threshold in section 352(2)(a) of the 1998 Act. It follows that leave to appeal cannot be granted.
If I am wrong in this conclusion, there is a further difficulty in the Appellant Worker’s lack of compliance with section 352(4) of the 1998 Act, which provides “An appeal can only be made within 28 days after the making of the decision appealed against.” The decision of the Delegate of the Registrar was dated 22 December 2006. The Application to Appeal was lodged in the Commission on 8 February 2007, outside the twenty-eight day period.
There is provision to extend the time in which an appeal may be brought, in subrules 16.2(11) and (12) of the Workers Compensation Commission Rules 2006 (‘the Rules’), which provide:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(12) A party who seeks an extension of time as referred to in subrule (11) must:
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The Appellant Worker’s submissions, supporting an extension of time, state the office of his solicitors closed from 22 December 2006, until 9 and 10 January 2007, when the office re-opened for the conduct of “pre-scheduled teleconferences only”. The office then “re-opened for normal business from Monday 15 January 2007”. It is submitted the decision was not “received and reviewed until 15 January 2007”, and time should be extended to twenty-eight days after that, being 12 February 2007. The Respondent Employer submits an extension should not be granted. It is submitted the Appellant Worker was in a position to lodge an appeal within the twenty-eight day period, yet did not lodge an appeal until 8 February 2007. This is twenty-four days after the office of the Appellant Worker’s solicitors re-opened. The Respondent Employer does not assert prejudice.
“Exceptional circumstances” are required to enliven the discretion to extend time contained in subrule 16.2(11). In Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196 I recently referred to a number of decisions dealing with whether ‘exceptional circumstances’ existed. Where appeals were out of time due to simple error in calculating the time in which to file an appeal (Department of Corrective Services v Buxton [2007] NSWWCCPD 55), or inadvertent failure to send documents promptly for filing (Department of Education & Training v Mekhail [2006] NSWWCCPD 1), this has been held not to constitute “exceptional circumstances”.
I do not regard the circumstances prevailing in the current appeal as constituting “exceptional circumstances”. The offices of the Appellant Worker’s solicitors were closed for a period during the Christmas/New Year Period, and beyond. Doubtlessly many firms close for varying periods at that time of year. Those of the Appellant Worker’s solicitors were closed for approximately three weeks. I cannot see that this, without more, constitutes “exceptional circumstances”. Accordingly the discretion to extend time is not enlivened.
It is also true, as the Respondent Employer submits, the office re-opened, and the decision was considered, at a time within the twenty-eight day period, when an appeal could be brought, in compliance with section 352(4) of the 1998 Act. Clearly it would have been necessary to consider the decision, obtain instructions, and draft necessary appeal documentation. This would have taken some time. However the appeal was not lodged until a date twenty-four days after the office re-opened. Whilst this time is not great, it is unexplained. Even if “exceptional circumstances” existed, this factor would militate against the exercise of the discretion.
It follows that, even if the monetary threshold in section 352(2)(a) was satisfied, I would decline to grant leave to appeal due to the appeal being lodged outside the time provided in section 352(4) of the 1998 Act.
DECISION
Leave to appeal is refused.
COSTS
I make no order as to costs of the appeal.
Michael Snell
Acting Deputy President
16 October 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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