Awick v Formcorp Pty Ltd

[2009] NSWWCCPD 61

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Awick v Formcorp Pty Ltd [2009] NSWWCCPD 61
APPELLANT:		Mohammad Awick
RESPONDENT:		Formcorp Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A2-7692-08
ARBITRATOR:	Ms J. Conley
DATE OF ARBITRATOR’S DECISION:		18 February 2009
DATE OF APPEAL DECISION:		3 June 2009
SUBJECT MATTER OF DECISION:		Section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
REPRESENTATION:		Appellant:		P K Simpson & Co
Respondent:		Bartier Perry
ORDERS MADE ON APPEAL:		Leave to appeal the Arbitrator’s decision dated 18 February 2009 is refused. No order as to cost of the appeal.

BACKGROUND TO THE APPEAL

1. On 9 March 2009 Mohammad Awick (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 February 2009.

1. The Respondent to the Appeal is Formcorp Pty Ltd (‘the respondent’).

1. The appellant, who is 28 years of age, commenced employment with the respondent on 30 June 2007 as a formwork-stripper. On that first day of employment the appellant was clearing debris on a worksite at Roseberry NSW when he was struck by a number of scaffold pipes which had fallen towards him as he was dislodging a wooden plank beneath those pipes. The pipes struck the appellant on the forehead and the chest causing him to fall onto his back.

1. As a result of the incident the appellant sustained a laceration to his forehead and was other wise injured.

1. The appellant was transported to the Prince of Wales Hospital by ambulance where he received treatment at the outpatients department. Treatment received at the hospital included the insertion of four nylon sutures at the site of the scalp laceration.

1. The appellant did not return to work by reason of his injuries and made a claim in respect of workers compensation benefits. Whilst there was subsequently a dispute between the appellant and the respondent concerning employment it appears that the respondent’s insurer accepted liability, initially on a provisional basis, and weekly payments were made until 22 December 2007.

1. A dispute arose between the parties concerning entitlement to and liability for compensation benefits and an Application to Resolve a Dispute (‘Application’) was filed on the appellant’s behalf by his solicitors on 25 September 2008.

1. It was alleged in that Application that as a result of the incident on 30 June 2007 the appellant had received injury to his head, neck, right arm, left arm, chest, back, right leg, right foot, left leg, bowel function, sexual organs, scarring and it was further alleged that he suffered anxiety and/or depression.

1. The respondent defended the Application brought by the appellant and the matter came before an arbitrator for conciliation/arbitration on 21 January 2009. The respondent at the arbitration hearing denied employment of the appellant, disputed the injuries as particularised in the Application and denied the alleged incapacity.

1. Following conduct of the hearing the Arbitrator reserved her determination of the dispute. A Certificate of Determination issued on 18 February 2009 accompanied by a Statement of Reasons (‘reasons’).

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 18 February 2009 records the Arbitrator’s orders as follows:

“The Commission determines:

1. The Respondent is to pay the Applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 (the Act) for the period 23 December 2007 to date and continuing at the rate of $225.00 per week.

2.   The Applicant sustained an injury to his neck on 30 June 2007 arising out of or in the course of his employment with the Respondent. 

3.   The Respondent is to pay the Applicant compensation for reasonably necessary treatment expenses pursuant to section 60 of the Act upon production of accounts and/or receipts. 

4.   An award for the Respondent in respect of the allegation of injury on 30 June 2007 to the right arm, left arm, chest, back, thoracic spine, right leg, right foot, left leg, bowel function, sexual organs, scarring. 

5.   The claim for lump sum compensation for permanent impairment of the cervical spine is remitted to the Registrar for referral to an Approved Medical Specialist (the AMS) for assessment of the degree of permanent impairment, if any. 

1.The documents to be included in the referral to the AMS comprise the following:

For the Applicant

·   The Application and all the documents annexed. Leave was given to admit the following late evidence:

a.   statements dated 7 October 2008 and 27 November 2008
b.     Psychological functioning assessment report dated 24 October 2008
c.   tax records

For the Respondent

·   The Reply and all the documents annexed.  Leave was given to admit the following late evidence:

a.    Clinical notes and records from Bankstown family medical practice, and Prince of Wales Hospital

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

1. It may be seen from the terms of the determination that the Arbitrator found in favour of the appellant with respect to the issues raised concerning employment and incapacity. Paragraph 4 of the Arbitrator’s determination records those matters concerning injury alleged by the appellant in respect of which an award was entered in favour of the respondent. The only challenge brought on this appeal against the Arbitrator’s determination is her finding and subsequent award in favour of the respondent concerning the appellant’s allegation of injury being “scarring”.

ISSUES IN DISPUTE

1. Documentation lodged on behalf of the appellant in support of this appeal does not contain an explicit statement of the grounds upon which the Arbitrator’s decision is challenged. However it is clear from the written submissions attached to the appellant’s application that the challenge is founded upon an assertion of error of fact.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the 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

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

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

1. The Commission must further be satisfied of the matters raised in section 352(2) of the 1998 Act which 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 determination of the Arbitrator makes provision for an award of weekly payments as sought in the appellant’s Application and an order remitting the lump sum compensation claim to the Registrar for referral to an approved medical specialist. Those orders followed the Arbitrator’s determination of disputed facts which included the question of employment, the nature and extent of any injury received by the appellant in the course of his employment and the causation and extent of any resultant incapacity.

1. In the course of her reasons the Arbitrator determined that the appellant has, as a result of injury, suffered a partial incapacity for work. That incapacity was found to result from the “combined effects of the neck injury and the psychological injury”(at [66]). The Arbitrator at [42] of reasons dealt with the appellant’s allegations concerning injury to other body parts. It was there stated:

“42. In respect of an injury to all other body parts pleaded at Part 4 of the Application to Resolve a Dispute, the right arm, left arm, chest, back, right leg, right foot, left leg, bowel function, sexual organs, and scarring there is no evidence of any treatment in respect of those body parts.  I note that the only evidence in respect of the laceration is that it was well healed.  Three (sic–there) is no evidence of scarring, I am therefore unable to make any findings of scarring.  In respect of the other body parts the only record of complaint is to the qualified doctors in respect of some of those body parts a very lengthy period of time after the incident and also the Applicant’s statement.  There is therefore insufficient evidence to support a finding of injury particularly having regard to the hospital records and clinical records of the treating doctors.”  

1. Having regard to the findings as set forth in [42] of reasons the Arbitrator proceeded to enter an award for the respondent in respect of those matters recorded at paragraph 4 of the Certificate of Determination. Included as part of the Arbitrator’s determination was an award for the respondent in respect of the allegation of injury being scarring. As noted above it is this decision concerning scarring that is the subject of challenge on appeal.

1. It is to be noted that the appellant has declined to provide any submissions concerning the monetary thresholds prescribed by section 352(2).

1. The respondent in the annexure to its Opposition to this appeal submits that the appellant “…has failed to satisfy the threshold requirement under section 352(2)…”. That submission includes the assertion that:

“The appellant has not made a claim for impairment compensation, weekly benefits or sought payment of medical expenses in respect of scarring.”

1. The proper construction and application of the provisions of section 352(2) was considered in the matter of Grimson v Integral Energy [2003] NSWWCCPD 29 (‘Grimson’) where it was stated by Deputy President Fleming (at [30]):

“30. The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award.  The “. . . amount of compensation at issue on the appeal” is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”

1. The respondent correctly notes in its submission that no claim pursuant to section 66 of the 1987 Act has been made nor included in the Application adjudicated by the Arbitrator. The appellant, in the proceedings, has not particularised any monetary sum being medical expenses incurred with respect to treatment of the laceration and alleged scarring. There is no evidentiary material that suggests incapacity for work has been caused by the alleged scarring. In those circumstances it cannot be said that there is “an amount of compensation at issue on the appeal” that meets the thresholds specified by section 352(2) as construed by Dr Fleming in the matter of Grimson. In those circumstances leave to proceed with this appeal must be refused.

1. I note in passing that under the heading “Opinion” Dr Habib, in his report of 30 May 2008, noted, following examination of the appellant, that:

“He had laceration of the forehead which has healed well with minimal scarring.”

1. Should the appellant be advised to bring a claim in respect of lump sum entitlement founded upon evidence of scarring, such claim, if disputed, may require an application seeking reconsideration of the Arbitrator’s decision as recorded in the Certificate of Determination. Having regard to the appellant’s failure to secure leave to proceed with this appeal it is unnecessary to examine the competing submissions concerning the existence or otherwise of evidence in support of the appellant’s allegation of injury of that character.

DECISION

1. Leave to appeal the Arbitrator’s decision dated 18 February 2009 is refused.

COSTS

1. No order as to costs on this appeal.

Kevin O’Grady

Deputy President  

3 June 2009

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE