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…
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- Case
- [2003] NSWWCCPD 36
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the appeal met the requirements of section 352 of the Act, and in particular whether the amount of compensation at issue met the threshold requirements of subsections 352(2)(a) and (b). The court noted that the Appellant had submitted that there had been no assessment by an approved medical specialist, and that such assessments were not required for the application of the threshold test. The court noted that where no monetary award had been made in the decision appealed against, subsection 352(2)(b) could have no application. The court also noted that the Appellant had submitted that the threshold test was not dependent upon the assessment of an approved medical specialist.
The court found that the Appellant had not demonstrated that the amount of compensation at issue met the threshold requirements of section 352(2) of the Act. The court found that the Appellant had not provided any evidence to support their claim that the amount of compensation at issue met the threshold requirements. The court found that the Appellant had not demonstrated that the amount of compensation at issue was at least $5,000, or that it was at least 20% of the amount awarded in the decision appealed against. The court found that the Appellant had not demonstrated that the amount of compensation at issue met the threshold requirements of section 352(2) of the Act.
The decision of the Arbitrator was confirmed.
Orders
Orders of the court
The decision of the Arbitrator is confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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