Avery v RK & JE Greenfield Transport Pty Ltd

[2007] NSWWCCPD 77

WORKERS COMPENSATION COMMISSION

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

CITATION:Avery v RK & JE Greenfield Transport Pty Ltd [2007] NSWWCCPD 77

APPELLANT:  Terry James Avery

RESPONDENT:  RK & JE Greenfield Transport Pty Ltd

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC8880-06

DATE OF ARBITRATOR’S DECISION:          23 October 2006

DATE OF APPEAL DECISION:  7 March 2007

SUBJECT MATTER OF DECISION:                Absence of transcript; Constructive failure to give reasons

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Commins Hendricks

Respondent:   Sparke Helmore

ORDERS MADE ON APPEAL:  The Arbitrator’s orders and findings dated 23 October 2006 and numbered one to eight inclusive are revoked and the matter is remitted to the same Arbitrator for redetermination.  The Arbitrator’s orders as to costs are confirmed.

The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 17 November 2006 Terry James Avery (‘the Appellant Worker/Mr Avery’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 October 2006.

1. The Respondent to the Appeal is RK & JE Greenfield Transport Pty Ltd (‘the Respondent Employer/Greenfield’).

1. Greenfield is an interstate transport company that transports newspapers, magazines and overnight express airfreight.  In 2002 Mr Avery was engaged to drive a truck for Greenfield from Wagga Wagga to Kiama in NSW and then to Melbourne and back to Wagga Wagga.  In addition, he drove a van from Wagga Wagga to Albury and back delivering airfreight.

1. On 17 October 2004 Mr Avery was washing “his work truck” (see Part 3 Application to Resolve a Dispute (‘the Application’)) when he fell and suffered a dislocation fracture to his left elbow and injury to his left shoulder, left eye and neck.  His claim form was not completed until 28 November 2005.  The claim was initially accepted but liability was declined by letter from Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) dated 20 February 2006 on the grounds that the injury was not considered to be one that arose out of or in the course of employment. 

1. Mr Avery’s Application was registered in the Commission on 13 June 2006.  In it he sought weekly compensation from 1 February 2005 to date and continuing together with hospital and medical expenses in the sum of $10,080.75.  By its Reply filed on 4 July 2006 Greenfield disputed worker, injury, incapacity and whether the claimed section 60 expenses were reasonably necessary.

1. The matter was listed for conciliation and arbitration before a Commission Arbitrator in Wagga Wagga on 18 September 2006 when oral evidence was taken from Mr Avery.  The hearing continued in Sydney on 19 October 2006 when submissions were heard from both parties and the Arbitrator delivered an ex tempore decision in favour of Mr Avery.

1. In the course of his decision the Arbitrator found Mr Avery’s probable earnings but for injury under section 40(2)(a) of the Workers Compensation Act 1987 (‘the 1987 Act’) to be $515.20 per week and his ability to earn in some suitable employment under section 40(2)(b) to be $100.00 per week. As there were no discretionary factors to take into account the Arbitrator awarded Mr Avery the maximum statutory rate applicable to a worker with no dependants from 21 February 2006 to date and continuing.

1. Mr Avery seeks leave to appeal that decision on the grounds that comparable earnings under section 40(2)(a) were $2,523.68 per week and the Arbitrator failed to consider or determine Mr Avery’s entitlement to weekly compensation for the period 1 February 2005 until 20 February 2006.

LEAVE TO APPEAL

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. Section 352(2) 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.”

1. The Appellant Worker challenges the Arbitrator’s finding that probable earnings but for injury were only $515.20 per week when his unchallenged wage schedule indicated the correct figure to be $2,523.68 per week. 

1. The Respondent Employer argues that the thresholds in section 352 have not been met because Mr Avery was awarded the maximum rate of weekly compensation for a single worker with no dependants from 21 February 2006 plus medical and hospital expenses under section 60. Therefore, the appeal does not involve either $5,000.00 or at least 20% of the amount awarded.

1. On 7 February 2007 I issued a Direction to the parties drawing their attention to the terms of section 352(2) and to the fact that the award in favour of Mr Avery was at the maximum statutory rate, and invited further submissions on why leave to appeal should be granted. As a result of that Direction the Appellant Worker made further submissions on 19 February 2007 and the Respondent Employer on 21 February 2007.

1. Mr Avery argues that:

·the amount in issue on appeal exceeds $5,000.00 because the Arbitrator’s finding as to probable earnings may bind the parties in future applications which may arise in the event that he obtains suitable alternative employment;

·for reasons that are not explained (because of an absence of transcript of the evidence or Statement of Reasons for Decision (‘Reasons’)), the Arbitrator has only awarded compensation from 21 February 2006.  This involves an error because the Application claimed compensation from 1 February 2005.  Leave is sought to amend the grounds of appeal to allege that the Arbitrator erred in failing to deal with this part of the claim.  The compensation claimed from 1 February 2005 to 20 February 2006 exceeds $5,000.00, and

·in the alternative, in the absence of a transcript, the proceedings are a nullity and the Appellant Worker is entitled to a rehearing.

1. The Respondent Employer argues:

·the threshold for an appeal is determined by reference to the amount of compensation at issue. Since Mr Avery is receiving an award at the maximum statutory rate there can be no compensation “at issue” on appeal and, therefore, the thresholds in section 352 are not satisfied;

·in respect of compensation claimed from 1 February 2005, the Respondent Employer submits that liability was “accepted for the injury and weekly benefits and medical expenses paid by the insurer up until it declined liability by letter dated 20 February 2006” (further submissions 21 February 2007, paragraph 2.1).  Accordingly, there is no issue in respect of liability for weekly payments or medical expenses until 21 February 2006;

·the absence of a transcript is irrelevant because the section 352 thresholds have not been satisfied, and

·the appeal should be struck out.

1. I accept that if the only issue on appeal was the Arbitrator’s finding in respect of comparable earnings, then it is difficult to see how the appeal meets the thresholds in section 352. There is simply no compensation “at issue” on appeal in respect of the period from 21 February 2006 and the appeal does not concern “at least 20% of the amount awarded”.

1. However, the fact that the Application claimed compensation from 1 February 2005 and not from 21 February 2006 (the date on which the award commences) is a relevant matter to consider when determining whether leave to appeal should be granted. The fact that this issue was not identified in the original appeal is not fatal. Section 352(4) requires that an appeal be made within 28 days after the making of the decision appealed against. The appeal was filed in time. The section does not deal with the situation in which new grounds of appeal may be added to an appeal that was filed in time.

1. In my view, the raising of new grounds of appeal in these circumstances is a matter for the discretion of the Presidential Member hearing the appeal having regard to the facts of each case.  The Respondent Employer has pointed to no prejudice that would arise if leave were given to Mr Avery to rely on the new ground and, in my view, there is none.  It has had the opportunity to make submissions on the new ground and has done so. 

1. In these circumstances the Appellant Worker is entitled to rely on the new ground of appeal. If it were necessary to do so (and I do not believe it is) I would extend the time to appeal under Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) because for Mr Avery to lose the right to seek leave to appeal would work a demonstrable and substantial injustice.

1. The Respondent Employer’s point that weekly benefits and medical expenses from 1 February 2005 up to 20 February 2006 were paid is not correct.  Mr Avery’s claim form is dated 28 November 2005 and presumably was not submitted to Allianz until shortly after that date.  There is no evidence that Mr Avery was paid weekly compensation from 1 February 2005 to 20 February 2006.  His Application registered on 13 June 2006 and letter of 5 October 2005 giving notice of his claim both suggest that he was not.  Had Allianz been paying weekly compensation from 1 February 2005 it was required to give notice under section 54 of the 1987 Act before terminating those payments.  It did not do that.  The letter from Allianz date 20 February 2006 merely declines any further liability.  Mr Avery’s statement of 31 August 2006 makes no mention of him being paid weekly compensation up to 20 February 2006.

1. Having regard to these matters it is clear that no weekly compensation was paid to Mr Avery in the period from 1 February 2005 to 20 February 2006. His entitlement to weekly compensation in that period is still to be determined and, even allowing for the period when the section 40(2)(a) and (b) statutory maximum will prevent him recovering any compensation, his entitlement from 1 August 2005 until 20 February 2006 easily exceeds $5,000.00. The whole of that compensation is in issue on appeal because the Arbitrator has made no determination in respect of that part of the claim. Therefore, the thresholds in section 352 are satisfied.

1. Leave to appeal is granted.

PRELIMINARY MATTERS

1. 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.”

1. The Appellant Worker submits that as there is no transcript of the proceedings or the Arbitrator’s decision, the appeal cannot be determined ‘on the papers’ as it would impede the conduct of the appeal.  In his further submissions he argues that the proceedings are a nullity because of the absence of a transcript and he is entitled to a rehearing.

1. The Respondent Employer submits that if the thresholds under section 352 are satisfied then the appeal must be successful due to the absence of reasons as a result of a lack of transcript.

2. In the absence of a transcript there is no point holding an oral hearing on appeal.  Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, 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. 

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 23 October 2006, records the Arbitrator’s orders as follows:

“1.I find the Applicant to be a worker in respect of the employment contract between he and the Respondent in relation to the delivery of paper between Kiama and Melbourne.

2.I find the Applicant suffered injury arising out of or in the course of his employment when he fell from the Respondent’s truck whilst cleaning it.

3.I find the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment to be $515.20 per week.

4.I find that the average weekly amount which the worker would be able to earn in some suitable employment from time to time following the injury and in fact which the worker was earning in August of 2006 to be $100 per week.

5.I see no reason to exercise my discretion in these circumstances.

6.The reduction therefore is $415.20 per week, which is in excess of the maximum statutory rate.

7.There will be an award in favour of the Applicant at the maximum statutory rate applicable to a worker with no dependants from 21 February 2006 to date and continuing.

8.I make a general order in favour of the Applicant pursuant to s60 of the 1987 Act.

9.I certify this matter as being complex for the reasons set out in my Ex Tempore Decision.

10.The Respondent is to pay the Applicant’s costs as agreed or assessed.

A brief statement of reasons for determination, in accordance with Rule 73 of the Workers Compensation Commission Rules 2003 is attached.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred:

(a)in failing to assess the Appellant Worker’s entitlement to weekly compensation in the period from 1 February 2005 until 20 February 2006, and

(b)finding that the Appellant Worker’s comparable earnings under section 40(2)(a) were $515.20 per week;

SUBMISSIONS AND FINDINGS

1. The absence of a transcript makes it impossible for me to properly and fairly assess the issues raised on review.  The absence of a transcript has been considered in numerous cases in the Commission.  In Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14 (‘Thompson’), as in the matter before me, the Arbitrator had given ex tempore reasons, which were then lost.  In dealing with the approach to be taken on appeal in such circumstances, Fleming DP said:

   “Where reasons are given ex tempore, recorded and made available to the parties, Section 294(2) and Rule 73 will be complied with, subject to the reasons being adequate. However, where there is no record of the reasons, and therefore nothing to be incorporated, by reference, in the ‘Certificate of Determination’, then the ‘Certificate of Determination’, issued under Section 294(2) of the 1998 Act, does not comply with Rule 73. There is, in effect, no statement as referred to in Rule 73. Failure to provide adequate reasons for decision is not only a breach of the Arbitrator’s statutory obligations; it is an error of law (Sydney Water Corporation Limited v Aqua Clear Technology P/L Supreme Court of NSW, Rolfe J, (P/L 55047/96) 17 December 1996; Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1988) 79 ALR 267).

   Where reasons are given ex tempore and there is a failure to make any record of those reasons, the reality is that the parties do not have a record of the reasons, the Commission does not have a record of the reasons, and there is no record of the reasons for the purpose of review by a Presidential member. This amounts to a constructive failure to give reasons, as required by Section 294 and Rule 73. It matters not whether this failure was occasioned by human error in the operation of the sound recording equipment, administrative failure or technical failure. Ultimately it must be said that the Arbitrator erred in failing to provide reasons for decision.” (at [11])

1. In the present matter the missing transcript relates not only to the Arbitrator’s ex tempore reasons but also all of the oral evidence and most of the submissions.  On appeal to a Presidential Member it is not the intention that the review be a fresh hearing of the matter (Barbour v BHP Steel Pty Limited [2004] NSWWCCPD 42 at [11]).

1. There is no decision to ‘review’.  Applying the authority of Thompson to the present matter, there has been a constructive failure to give reasons which amounts to an error of law.  It is most regrettable that this has occurred, but the only course open is for me to revoke the orders made and remit the matter to the same Arbitrator for redetermination. 

1. Whilst it is always a matter for the Arbitrator concerned, it may well be that this is an appropriate case in which to give a reserved decision on the next occasion.

DECISION

1. The Arbitrator’s orders and findings dated 23 October 2006 and numbered one to eight inclusive are revoked and the matter is remitted to the Arbitrator for redetermination.  The Arbitrator’s orders as to costs are confirmed.

COSTS

1. The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

Bill Roche

Deputy President  

7 March 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE