Cardona v Penrith City Council - [2003] NSWWCCPD 36

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWWCCPD 36
Decision Date: 5 December 2003

CaseChat Overview and Summary

Cardona appealed against a decision of an arbitrator in relation to a claim for workers' compensation under the Workplace Injury Management and Workers Compensation Act 1998. The appeal was lodged within 28 days of the Arbitrator’s decision, as required by section 352(4) of the Act. Penrith City Council submitted that leave to appeal should not be granted because the amount of compensation at issue did not meet the threshold requirements in section 352(2) of the Act. The Appellant 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 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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