Cardona v Penrith City Council
[2003] NSWWCCPD 36
•5 December 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Mario Cardona v Penrith City Council [2003] NSW WCC PD 36 |
| APPELLANT: | Mario Cardona |
| RESPONDENT: | Penrith City Council |
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited |
| FILE NO: | WCC 4185 -2002 |
| DATE OF DECISION UNDER APPEAL: | 22 May 2003 |
| DECISION UNDER APPEAL: | Application for Leave to appeal against a decision of an Arbitrator, Election provisions of the Workers Compensation Act 1987, Application precluded by earlier election to claim damages in the District Court. |
| APPEAL HEARING: | 18 November 2003 |
| DATE OF APPEAL DECISION: | 5 December 2003 |
| PRESIDENTIAL MEMBER: | Deputy President, Dr Gabriel Fleming. |
| REPRESENTATION: | Appellant: Xenos Jordan Djundja Lawyers |
| Respondent: Sparke Helmore Solicitors | |
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator is confirmed. |
THE APPEAL
On 18 June 2003, Mario Cardona (‘the Appellant’), lodged an ‘Appeal Against the Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’). The appeal named Penrith City Council as the Respondent (‘the Respondent’). The relevant insurer is Allianz Australia Workers Compensation (NSW) Limited (‘the Insurer’).
The appeal concerns the Appellant’s claim for lump sum workers compensation of $39,000.00 for permanent impairment of his lower back and left leg, and for related medical expenses.
The Certificate of Determination and attached Statement of Reasons, dated 22 May 2003, set out the decision of the Arbitrator, as follows:
1)The application insofar as it claims compensation for permanent impairment pursuant to the Workers Compensation Act 1987 is dismissed for want of jurisdiction.
2)By 13 June 2003 the Applicant shall file and serve an amended application seeking weekly compensation payments and specifying what s.60 expenses he is claiming.
3)By 27 June 2003 the Respondent shall file and serve an amended reply.
4)This application is to be listed for a conciliation conference/arbitration at 9:30 am on 9 July 2003.
The Appellant seeks to have the Arbitrator’s decision set aside. The Appellant filed written submissions in the appeal with the original application and further submissions on 30 June 2003 and 19 September 2003.
The Respondent filed submissions in reply on 19 June 2003 and 30 June 2003.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the 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’), as follows:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(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.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with subsection 352(4) of the 1998 Act.
The Respondent submits that leave should not be granted to review the Arbitrator’s decision on the basis that the amount of compensation cannot confidently be said to meet the threshold requirements in subsections 352(2)(a) & (b) of the 1998 Act.
The submissions filed by the Appellant’s legal representative on the threshold issues disclosed a lack of understanding of the appeal provisions of the 1998 Act, the Commission’s processes and relevant, published Presidential decisions. The Appellant submitted (in submissions dated 19 September) in part, that:
The Presidential Member is not to grant Leave to Appeal unless the amount of compensation at issue in the Appeal is at least $5,000.00. The Appellant’s position is that he is in the position of establishing potential damages in order to gain review of what he says is a gross misinterpretation of the law of New South Wales as set out in the Applicant’s Submissions. To be sure there has not been an assessment by an approved medical specialist. Such an assessment is not holy writ. Such assessments rely on diagnostic scans as well as examination and expert opinion.
The application of the threshold test in subsections 352(2)(a) and (b) of the 1998 Act is not dependent upon the assessment of an Approved Medical Specialist. Where no monetary award has been made in the decision appealed against, subsection 352(2)(b) can have no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, Grimson v Integral Energy [2003] NSW WCC PD 29).
The ‘amount of compensation at issue on the appeal’, subsection 352(2)(a) of the 1998 Act, may be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (Ingram v Norco Co-operative Limited [2003] NSW WCC PD 1). In this case the Applicant claimed an amount of $39,000.
ON THE PAPERS REVIEW
Subsection 354(6) of the 1998 Act provides as follows:
354 Procedure before Commission
(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 the President’s Practice Directions, No’s 1 and 6, the submissions by both parties, and the documents that were before me, I was satisfied that I had sufficient information to proceed to determine the threshold issue of leave to appeal ‘on the papers’ without holding any conference or formal hearing.
For the reasons set out briefly above it is clear the appeal meets the threshold requirements of section 352 of the 1998 Act. Leave to appeal was granted ‘on the papers’ by order dated 22 October 2003.
The Respondent had no objection to the whole of the appeal proceeding on the papers.
The Appellant’s legal representative urged, in the strongest terms, that the matter not be determined on the papers, stating (in submissions dated 19 September 2003) that:
The Leave Application, because of its complexities and issues of law and interpretation of law should in no circumstances be determined on the papers.
It is the Appellant’s submission that this is the precise reason why the matter has ended up where it presently is. Complex issues are misunderstood in the absence of clarification as the analysis of the issues unfolds.
[In relation to whether the substantive matter should be determined on the papers]. . . In essence the Appellant repeats [the above]. The issues in this case are quite complex and require judicial interpretation of the law.
At this urging, a hearing was held on 18 November 2003. The Appellant attended in person, accompanied by his family members. Both parties were represented by Counsel.
At the hearing the Commission gained no further assistance in understanding the ‘complex issues’ involved in this matter. The Appellant’s legal representative added nothing to his previously filed submissions and the entire hearing was concluded in less than thirty minutes. In my view this face-to-face hearing of the appeal was entirely unnecessary, and the Appellant worker was unnecessarily put through the stress, and potential costs, of attending.
ISSUES IN DISPUTE IN THE APPEAL
The Appellant submitted that the Arbitrator’s decision was incorrect because:
1. Only a claim under the Motor Accidents Compensation Act 1999 can succeed (Section 122) “In respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”.
2. Section 123 stipulates that any other common law claim is incompetent, no matter how described i.e. “A Court cannot award damages to a person in respect of a motor accident contrary to this Chapter”.
Accordingly it is submitted that the Arbitrator’s determination that the worker’s previous proceedings in the District Court constituted an election under Section 151A (2) of the Workers Compensation Act thereby precluding the worker from bringing an Application to the Commission for permanent impairment compensation under the Act, is incorrect and should be overturned.
SUBMISSIONS
The Appellant’s written submissions may be summarized as follows:
·Pursuant to sections 122 and 123 of the Motor Accidents Compensation Act 1999, a claim for an award of damages that relates to the death or injury of a person caused by the fault of the owner or driver of a motor vehicle, must be made according to provisions of the Motor Accidents Compensation Act 1999.
·However ‘inadvertent’ the wording of the Appellant’s Statement of Claim lodged in the District Court, the claim was made under the Motor Accidents Compensation Act 1999, and any other claim pursuant to section 123 of that Act is incompetent and of no effect.
·The Arbitrator had misdirected himself by failing to address the issues of sections 122 and 123 of the Motor Accidents Compensation Act 1999, when the Appellant made submissions before the Arbitrator that the proceedings at the District Court were clearly proceedings that fell under the provisions of the Motor Accidents Compensation Act 1999 or The Motor Accidents Act 1988 or, a combination of the two Acts.
The Respondent relies upon its submissions before the Arbitrator, the statement of reasons of the Arbitrator and their brief oral submissions on appeal. The Respondent’s submissions were summarised as follows:
1.The Applicant bears the onus of establishing that he has not elected, as a condition precedent to the commencement of proceedings for lump sum compensation.
2.On the documents that are available to the Commission in relation to election, there is no evidence, by way of statement from the Applicant or in our submission any other evidence that the Applicant sought to rely upon his claim for damages as a claim made under the Motor Accidents Act. No evidence has been provided in relation to compliance with the procedural requirements of the Motor Accidents Act and there is no evidence of any compliance with Practice Note 16 of the District Court Rules which requires that Statements of Claim commenced under the Motor Accidents Act must be endorsed with the words “Motor Accidents List”.
3.The damages claimed in the Statement of Claim filed are clearly payable under the Workers Compensation Act 1987.
4.The matter is distinguishable from McMartin’s case because there is no reference in the Statement of Claim to the accident, negligence and damages being regulated under the Motor Accidents Act 1988 as it was in McMartin’s case.
In addition to its submissions before the Arbitrator, the Appellant relied upon the recent decision of the Court of Appeal in Leo N Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343.
DISCUSSION AND FINDINGS
The issue for determination in this case is a narrow one. The Arbitrator correctly identified that the issue before him was ‘. . whether the Applicant is precluded from bringing these proceedings in the Commission by the former s.151A, because he is taken to have elected not to seek permanent loss compensation by commencing the District Court proceedings”.
The alleged error on appeal is one of law, in that the Arbitrator failed to appreciate the application of the provisions of the Motor Accidents Compensation Act 1999 to the Appellant’s claim filed in the District Court.
The Appellant puts much weight upon the claim, not argued before the Arbitrator, that section 123 of the Motor Accidents Compensation Act 1999 requires a claim for damages under that Act to be made only in accordance with that Act. In my view this submission does not assist the Appellant.
This argument relies upon a construction of subsection 151A(3)(a) of the Workers Compensation Act 1987 (‘the 1987 Act’), as it was at the time of the filing of the Statement of Claim in the District Court, that reads into the subsection words that are clearly not there. The subsection refers to ‘commencing proceedings in a court’. It does not stipulate that those proceedings, once commenced, must be found to be competent and properly made. A similar issue concerned His Honour Judge Burke in Jackson v Mayne Nickless Ltd (1992) 8 NSW CCR 547 where he said, “. . . It is not necessary that I determine whether the applicant has a viable claim under the Motor Accidents Act 1988, nor whether the matters alleged would support such a claim. All that is necessary for me to decide is whether the claim instituted is framed as a claim under that Act” (at 554).
The Appellant rightly submits that this decision predated the passage of the Motor Accidents Compensation Act 1999, and, in particular section 123 of that Act. However the principle remains the same. The fact that the Appellant commenced proceedings that may have been incompetent under the Motor Accidents Compensation Act 1999 Act, does not mean they were not commenced at all. The Arbitrator correctly stated that the task when determining whether an election has been made is to look at the substance and characteristics of the claim actually made.
The Arbitrator set out the guidance to be found in the relevant case law (Jackson v Mayne Nickless Ltd (1992) 8 NSW CCR 547, McMartin v Peter Warren (Fairfield) Pty Ltd (1996) 13 NSW CCR 30; NRMA Insurance Limited v NSW Grain Corporation (unreported) Court of Appeal, 8 December 1995) and considered the particulars of the statement of claim filed by the Appellant in the District Court.
The Arbitrator has correctly set out the applicable law and provided detailed reasons for his conclusion that the District Court proceedings commenced by the Applicant were not for damages under Chapter 5 of the Motor Accidents Compensation Act 1999 only. Therefore the Applicant has made an election that precludes him from now claiming permanent impairment compensation under the 1987 Act.
DECISION
The Arbitrator’s decision is confirmed.
COSTS
The appeal has been unsuccessful and costs of the appeal fall to be determined in accordance with section 345 of the 1998 Act, which provides as follows:
345Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount, as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The parties are urged to come to an agreement as to costs in accordance with the above provisions.
Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission
Registrar Date:
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