Blurlato Pty Ltd T/as Tempo Services Ltd v Austin

[2006] NSWWCCPD 68

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Blurlato Pty Ltd t/as Tempo Services Ltd v Austin [2006] NSWWCCPD 68

APPELLANT:   Blurlato Pty Ltd t/as Tempo Services Ltd

RESPONDENT:              Darcy Clifton Austin

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC1984-05

DATE OF ARBITRATOR’S DECISION:          17 May 2005

DATE OF APPEAL DECISION:  28 April 2006

SUBJECT MATTER OF DECISION:                Mathematical calculation of section 40 entitlements; ‘obvious error’ and costs.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      TurksLegal

Respondent:   Thompson Wheelahan & Hampshire, Solicitors

ORDERS MADE ON APPEAL:  1.        Paragraph 1 of the decision of the

Arbitrator dated 17 May 2005 is revoked and the following decision substituted:

1.        Award in favour of Mr Austin at the rate of $328.90 per week from 4 November 2004 to 31 March 2005; and thereafter, at the rate of $334.10 per week from 1 April 2005 as adjusted to date and continuing.

2.Paragraph 2 of the decision of the Arbitrator dated 17 May 2005 is confirmed.    

3.No order as to costs of the appeal.     

BACKGROUND TO THE APPEAL

1. Darcy Clifton Austin (‘Mr Austin’) was employed by Blurlato Pty Ltd t/as Tempo Services Ltd (‘Tempo’) as a school cleaner. He claimed that on 3 May 2004 whilst emptying a wheelie bin into a dumpster, he injured his neck and back.

1. After a short period off work, he resumed selected duties with Tempo until 4 November 2004 when those duties apparently became unavailable.

1. He was paid weekly benefits of compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) by Tempo’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) for all periods of incapacity up until 2 November 2004.

1. On 10 February 2005, Mr Austin filed an ‘Application to Resolve a Dispute’ with the Commission seeking weekly benefits compensation from 3 November 2004.

1. On 3 March 2005, Tempo filed a ‘Reply’ disputing Mr Austin’s entitlement to ongoing weekly benefits on the grounds that his employment was not a substantial contributing factor to his injury, and that any incapacity beyond 2 November 2004 did not result from the injury alleged.

1. The matter was listed for conciliation/arbitration hearing on 5 May 2005. On 17 May 2005, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The determination of the Arbitrator was as follows:

“1.That the Respondent pay to the Applicant the sum of $364.10 per week as and from 4 November 2004 to date and continuing;

2.        That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. On 24 June 2005, Tempo filed an ‘Application to Appeal Against the Decision of the Arbitrator’ on the grounds that the Arbitrator’s award exceeded the maximum statutory entitlement available to a single worker with no dependants pursuant to the provisions of sections 37 and 40 of the 1987 Act. Tempo does not challenge the Arbitrator’s primary findings on the issues of ‘injury’ and ‘incapacity’.

1. No ‘Notice of Opposition’ to the appeal or submissions have been filed by Mr Austin.

LEAVE TO APPEAL

1. The amount at issue on appeal satisfies the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). However, the appeal was filed outside the time limits prescribed by section 352(4) of the 1998 Act and rule 77(1) of the Workers Compensation Commission Rules 2003 (‘the Rules’).

1. Rule 77(8) provides that:

“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

1. Rule 77(9) of the Rules provides that:

“A party who seeks an extension of time as referred to in subrule (8) 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.”

1. Tempo has complied with the requirements of rule 77(9).

1. Tempo claims that an unsigned ‘Outcome of Application for Dispute Resolution’ dated 20 May 2005, which enclosed the Certificate of Determination dated 17 May 2005, was not received until 26 May 2005. The original appeal application was filed by Tempo on 16 June 2005 but rejected by the Commission for failure to comply with Rule 77(3)(d) of the Rules. It was resubmitted and accepted by the Commission on 24 June 2005.

1. In the original appeal application, Tempo had stated that the appeal was not suitable for a determination on the written application, but failed to provide submissions as to why this was so. Tempo now claims that that was a typographical error, and in the appeal resubmitted and accepted by the Commission on 24 June 2005, it identified the matter as being suitable for a determination on the papers.  As Tempo had submitted in the appeal application, the only issue on appeal was the claimed statutory error by the Arbitrator in his calculation of Mr Austin’s award.

1. Tempo has also submitted that in any event, the Arbitrator’s determination was not received by it until 26 May 2005 and that therefore, the appeal filed on 24 June 2005 was in fact filed in time.

1. Rule 77(2) provides that a decision is made when the Commission issues the Certificate of Determination.  The Determination was dated 17 May 2005 and sent to the parties undercover of letter dated 20 May 2005, such that the time for filing of an appeal expired on 14 June 2005.

1. The original appeal was not filed in time.  The defect noted by the Commission was nonetheless promptly rectified by Tempo. However, time must run from the date the Commission issues the decision. It is noted that the Arbitrator’s determination is dated 17 May 2005. That being the case, the appeal is out of time.

1. However, I am satisfied with the explanation provided by Tempo as to the reasons for the delay and in all the circumstances, I am satisfied that, in this particular case, a demonstrable and substantial injustice would result to Tempo if leave were not granted.

1. Accordingly, leave to appeal is granted.

ON THE PAPERS

1. Tempo submits that the appeal is suitable for a determination ‘on the papers’. No submission has been made by Mr Austin on this issue. Having carefully read the transcript, the Arbitrator’s reasons and the submissions by Tempo, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.

THE ARBITRATOR’S DETERMINATION

1. The Arbitrator accepted that Mr Austin suffered an injury to his back in the incident on 3 May 2004 and that as a consequence, he was partially incapacitated for work, such that his entitlements fell to be determined pursuant to the provisions of section 40 of the 1987 Act. No claim for dependancy had been made by Mr Austin.

1. The parties agreed that Mr Austin’s probable weekly earnings at the time of his injury were $582.50 per week. The Arbitrator determined that Mr Austin was able to earn in some suitable employment the sum of $218.40 per week. Accordingly, he entered an award in favour of Mr Austin from 4 November 2004 at the rate of $364.10 per week, being the mathematical difference between his probable earnings and his ability to earn.

1. Payments having ceased by Allianz on 2 November 2004, that date should probably read 3 November 2004, but there has been no challenge by any party to the date of the award.

THE SUBMISSIONS ON APPEAL

1. As I said earlier, no issue is taken by Tempo as to the Arbitrator’s primary findings of ‘injury’. Tempo only appeals against the Arbitrator’s determination as to the amount of the weekly award after the first 26-week period of incapacity. Those 26 weeks expired on 2 November 2004.

1. Tempo submits that the Arbitrator erred in awarding the mathematical difference of $364.10 per week in breach of section 40(5) of the 1987 Act since that amount exceeded the weekly payment that would have been payable to Mr Austin if he were totally incapacitated for employment.

1. Section 37 of the 1987 Act sets out the rates of weekly payments of compensation during any period of total incapacity for work. Those rates are subject to adjustment pursuant to the provisions of sections 79 to 82 of the same Act.

1. As at 4 November 2004, the maximum weekly payment pursuant to section 37 was $328.90 per week rising to $334.10 per week on 1 April 2005 and to $340.90 from 1 October 2005.

1. Mr Austin’s entitlement to compensation under section 40 of the 1987 Act cannot exceed the statutory rates as I have set out in the preceding paragraph even if, as the Arbitrator determined, the difference between his probable earnings and ability to earn was greater than these amounts.

CONCLUSION

1. The Arbitrator has erred in law in his calculation of Mr Austin’s entitlement by failing to heed the ‘capping’ provisions set out in section 40(5) of the 1987 Act.

DECISION

1. (1)        Paragraph 1 of the decision of the Arbitrator dated 17 May 2005 is revoked and the

   following decision substituted:

   1.        Award in favour of Mr Austin at the rate of $328.90 from 4 November 2004

   to 31 March 2005; and thereafter, at the rate of $334.10 from 1 April 2005 as adjusted to date and continuing.

(2)       Paragraph 2 of the decision of the Arbitrator dated 17 May 2005 is confirmed.

COSTS

1. Tempo submits that Mr Austin should pay its costs of the appeal. Prior to filing the appeal, Tempo’s solicitors wrote to Mr Austin’s solicitors on 3 June 2005 seeking their consent to an amendment to the award under the ‘slip rule’ because of what Tempo’s solicitors described as “an obvious error in the award”.

1. In a further letter dated 15 June 2005, Tempo’s solicitors again wrote to Mr Austin’s solicitors, referring to telephone conversations between the parties and noting that “… the applicant has instructed you that he is not prepared to consent to the award being reduced to the relevant statutory rate …”

1. Tempo’s solicitors went on to advise Mr Austin’s solicitors of its intention to simultaneously apply to the Commission for a reconsideration of the Arbitrator’s decision pursuant to section 350 of the 1998 Act and to lodge an Appeal pursuant to section 352 of the 1998 Act. It also advised that it would seek costs in light of Mr Austin’s “… failure to consent to correct what is an obvious error …” and that “Your client’s claim that he is entitled to weekly compensation that exceeds the statutory rate is frivolous, vexatious and without proper justification.”

1. There is no evidence that Tempo sought reconsideration of the Arbitrator’s determination pursuant to section 350 of the 1998 Act, nor made application to the Registrar for correction of what it termed an ‘obvious error’ pursuant to the provisions of section 294(3) of the 1998 Act and in accordance with Practice Direction No. 4.

1. Section 294(3) provides as follows:

“If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing a replacement certificate or statement to correct the error.”

1. What constitutes an ‘obvious error’ is defined in Practice Direction No. 4 as “… a factual error that is apparent on the face of the document … It does not relate to the basis upon which the substantive decision or assessment was made, nor to the substance of any such claim or assessment”.  (See Grafton Aged Care Home Pty Limited v Wilkes [2004] NSWWCC PD16).

1. Further, Practice Direction No. 4 provides that “an ‘obvious error’ … may be brought to the notice of the Registrar by any party … orally, in writing, or by electronic means.”

1. In the present case, the Arbitrator’s calculation reflected a factual error “apparent on the face of the document.” Tempo had an opportunity to refer the matter to the Registrar without incurring the costs of proceeding to appeal.

1. Under section 341(2) of the 1998 Act “the Commission has full power to determine by whom, to whom, and to what extent costs are paid.” Section 341(4) provides that:

“The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.”

1. In this case, Mr Austin’s claim as set out in his Application was neither frivolous, vexatious, fraudulent or made without proper justification. Whilst I agree with Tempo’s submissions that his failure to consent to the amendment to the award was perhaps somewhat vexatious, his claim was not, and Tempo did not require his consent to bring the error to the notice of the Registrar as is provided for in Practice Direction No. 4.

1. In the circumstances, I make no order as to costs of the appeal.

Deborah Moore

Acting Deputy President

28 April 2006

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

ASSOCIATE