Calleja v Real Foods Pty Ltd

[2006] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Calleja v Real Foods Pty Ltd [2006] NSWWCCPD 54

APPELLANT:  Francisco Calleja

RESPONDENT:  Real Foods Pty Ltd

INSURER:QBE Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC 16384-04

DATE OF ARBITRATOR’S DECISION:          18 January 2005

DATE OF APPEAL DECISION:  27 March 2006

SUBJECT MATTER OF DECISION: Leave to appeal; the threshold in section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: McCabe Partners, Lawyers

Respondent: In-House Legal Department, QBE Workers Compensation (NSW) Ltd

ORDERS MADE ON APPEAL:  Leave to appeal against the decision of the Arbitrator dated 18 January 2005 is refused.

There is no order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 7 March 2005, Mr Calleja sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 18 January 2005. The Respondent to the appeal is Real Foods Pty Ltd.

1. Mr Calleja was born in Spain on 14 January 1968 and is aged 38. He migrated to Australia at the age of 4. He is a qualified electrician but, following surgery on his right knee in 2000, he obtained other employment culminating in his commencing employment with Real Foods as a process worker on 24 October 2001. On 8 November 2001, Mr Calleja injured his back while lifting a bag of grain. He consulted the company doctor and was “off work” for about two or three weeks receiving workers compensation payments. However, he resigned from his employment with Real Foods on 14 November 2001 and later returned to doing electrical work from about June 2002, running his own business. Real Foods paid Mr Calleja up to and including 14 November 2001.

1. In early 2004, Mr Calleja filed an ‘Application to Resolve a Dispute’ in the Commission in respect of his claim for compensation for permanent impairment from Real Foods for his back injury. This claim was settled on 28 June 2004 following a teleconference with an arbitrator, with Real Foods agreeing to pay $6,000 to Mr Calleja in respect of a 10% permanent impairment of his back, together with $1,541.52 in respect of outstanding medical, hospital or other treatment expenses, and Mr Calleja’s costs as agreed or assessed. Following this, Mr Calleja made a claim for weekly compensation.

1. On 13 October 2004, the Commission registered Mr Calleja’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation for the period from 15 November 2001 to 17 February 2002. On 22 December 2004, the Arbitrator conducted a teleconference with the parties and, on 10 January 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing. The Arbitrator’s decision dated 18 January 2005 is set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 18 January 2005, records the Arbitrator’s orders as follows:

“1. That the Respondent pay the Applicant weekly compensation at the rate of $570.31 from 15 November 2001 to 27 November 2001 under s 36 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant weekly compensation at the rate of $20.13 from 28 November 2001 to 16 March 2002 under s 40 of the Workers Compensation Act 1987.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. In the Statement of Reasons for his decision, the Arbitrator found that Mr Calleja injured his back in the course of his employment as a process worker with Real Foods and that his employment was a substantial contributing factor to his injury. He was totally incapacitated for work because of his injuries from 15 November 2001 to 27 November 2001, and partially incapacitated for work from 28 November 2001 to 16 March 2002. His probable earnings but for the injury had he continued to be employed in the same or some comparable employment were $570.31 per week, the amount shown on his group certificate. While Mr Calleja was partially incapacitated for work from 28 November 2001 to 16 March 2002, the average weekly amount he was earning or able to earn in some suitable employment was $550.18, his earnings as a fork lift driver. Therefore, his entitlement for that period of partial incapacity was $20.13 per week.

1. The Arbitrator found Mr Calleja had obtained employment through a labour hire company and had worked as a fork lift driver between 28 November 2001 and 2 February 2002 when that job ended. He did not work again until 18 June 2002, when he commenced his own electrical subcontracting business. In the meanwhile, however, he had undergone surgery on his left knee to repair an old sporting injury.

1. The Arbitrator found that after Mr Calleja’s work as a fork lift driver came to an end, he could, nevertheless, have continued doing that work and thus “his loss from 2 February 2002 to 16 March 2002 was again $20.13 per week”. For the period after 16 March 2002, the Arbitrator found that Mr Calleja took himself out of the labour market by electing to have surgery on his left knee. There was no reason he could not have commenced electrical subcontracting work from 17 March 2002 (rather than from 18 June 2002) and, if he had done so, then, as in June 2002, he would not have suffered any wage loss.

ISSUE IN DISPUTE

1. The issue in dispute in the appeal derives from a dispute over Mr Calleja’s earnings as a fork lift driver between 28 November 2001 and 2 February 2002. Mr Calleja’s solicitors submit he was only able to earn $490.96 per week during the period 28 November 2001 to 16 March 2002, rather than the $550.18 per week found by the Arbitrator. Thus, the award for Mr Calleja for that period should have been $79.35 per week rather than the $20.13 per week found by the Arbitrator.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(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 submission by Mr Calleja’s solicitors, there being no response from Real Foods to the appeal, 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.

1. Mr Calleja’s solicitors did not seek to adduce any fresh evidence.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the threshold requirements for leave to appeal set out in section 352 of the 1998 Act are satisfied. There are two relevant requirements: subsections 352(2) and (4). Section 352(2) states:

“(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. As stated above, the issue in dispute in the appeal involves the Arbitrator’s finding that Mr Calleja had an earning capacity of $550.18 per week for the period 28 November 2001 to 16 March 2002. Mr Calleja’s solicitors submit his earning capacity was $490.96 per week for this period, and that the award made in his favour by the Arbitrator should have been $79.35 per week rather than $20.13 per week, a difference of $59.22 per week. I calculate that the period 28 November 2001 to 16 March 2002 was one of 15 weeks and three days and that the amount of compensation in dispute is therefore $923.83. This is significantly less than the threshold of $5,000 required for the granting of leave to appeal, and leave is therefore refused.

DECISION

1. Leave to appeal against the decision of the Arbitrator dated 18 January 2005 is refused.

COSTS

1. There is no order as to the costs of the appeal.

Robin Handley

Acting Deputy President  

27 March 2006

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

ASSOCIATE