Chen v McAlpine Hussman Pty Ltd
[2006] NSWWCCPD 50
•20 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Chen v McAlpine Hussman Pty Ltd [2006] NSWWCCPD 50
APPELLANT: Jian Cheng Chen
RESPONDENT: McAlpine Hussman Pty Ltd
INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER: WCC 17162-04
DATE OF ARBITRATOR’S DECISION: 18 April 2005
DATE OF APPEAL DECISION: 20 March 2006
SUBJECT MATTER OF DECISION: The thresholds for leave to appeal: subsections 352(2) and (4) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Bryden’s Law Office
Respondent: Edwards Michael Lawyers
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Arbitrator dated 18 April 2005 is refused.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 30 May 2005, Jian Cheng Chen sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 18 April 2005. The Respondent to the appeal is McAlpine Hussman Pty Ltd (‘McAlpine’), formerly known as Triangle Refridgeration Pty Ltd. McAlpine’s workers compensation insurer is Employers Mutual Indemnity (Workers Compensation) Ltd (‘EMI’).
Mr Chen was born in China on 7 November 1958 and is aged 47. He arrived in Australia in about 1988 and is married with one child aged 14. From about 1990, Mr Chen was employed by McAlpine as a machine operator. He suffered a number of injuries in the course of that employment during the period 1990 to May 1999, following which, in December 1999, his employment was terminated.
In 2001, Mr Chen commenced proceedings in the Compensation Court of NSW and, on 3 December 2003, received an award of weekly compensation on the basis of total incapacity, together with lump sum compensation for permanent impairment (in respect of his neck, back, left arm at or above the elbow, left and right legs at or above the knee, and loss of use of sexual organs) and pain and suffering, and medical, hospital and related expenses.
On 22 October 2004, the Commission registered McAlpine’s ‘Application to Resolve a Dispute’ in respect of McAlpine’s application for a variation of the Compensation Court’s award for the ongoing payment of weekly compensation and medical expenses, namely a discontinuance of liability on the basis that Mr Chen is no longer totally incapacitated for work. Mr Chen’s ‘Reply’ was filed on 12 November 2004.
On 4 February 2005, the Arbitrator conducted a teleconference with the parties and, on 28 February 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing on the threshold issue of whether there had been a change in Mr Chen’s circumstances. The Arbitrator found that there had been a change of circumstances and Mr Chen was “physically capable of some employment”. Following this, on 16 March 2005, the Arbitrator conducted a further teleconference with the parties when it was agreed that the parties would make written submissions to the Arbitrator on the amount of weekly compensation payable, which the Arbitrator would then determine ‘on the papers’. The Arbitrator’s determination, set out below, was issued on 18 April 2005.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 18 April 2005, records the Arbitrator’s orders as follows:
“1. The award in favour of the Respondent is varied to an Award under Section 40 of the 1987 Act.
2. No order as to costs.”
In the Statement of Reasons for his decision, the Arbitrator, having reviewed the medical evidence in respect of the period since the Compensation Court award on 3 December 2003, found that while Mr Chen had demonstrated he is physically capable of some employment, the only specific evidence was that of Dr Mao’s WorkCover Certificate, dated 30 April 2004, that Mr Chen is “fit for suitable duties” for 6 hours a week.
Having considered the parties’ written submissions, the Arbitrator found that Mr Chen now suffers from a partial incapacity for work, and the award in relation to weekly compensation should therefore be varied to one under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator then considered the application of the approach in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’). However, he found that he did not have:
“reliable evidence as to an appropriate figure for Step 1 of a Mitchell’s Case calculation nor do I accept the Applicant’s submission that I should work on a gross weekly wage of some $513.00 per week, for the purpose of Mitchell’s Step 2, because the Respondent’s working capacity is limited to a few hours only.”
The Arbitrator concluded:
“In the circumstances I cannot make a Mitchell’s case type calculation. I cannot therefore vary the monetary amount to be received by way of weekly benefits. The Applicant has simply not put the necessary evidence before this arbitration.”
With regard to the Compensation Court award in relation to expenses under section 60 of the 1987 Act, the Arbitrator said: “Nothing before me in this arbitration suggests that the Order should be varied.”
ISSUES IN DISPUTE
Mr Chen’s solicitors submit the Arbitrator erred in making a finding of partial incapacity and in finding that there was sufficient evidence of a change in circumstances to justify a variation of the Compensation Court’s award. Moreover, the Arbitrator should have made an order for costs in favour of Mr Chen. McAlpine’s primary submission is that the appeal fails to meet the threshold requirement imposed by section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
ON THE PAPERS REVIEW
Section 354(6) of 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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
Neither party sought to adduce fresh evidence.
LEAVE
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.”
In the decision under appeal, there was no variation of the amount of compensation previously awarded by the Compensation Court - only a variation of the section of the 1987 Act pursuant to which the award for weekly compensation is payable. Mr Chen’s solicitors, while recognising that the rate at which weekly compensation is paid to Mr Chen was not varied by the Arbitrator, submit that the Arbitrator erred by deciding there should be no order as to costs. Their costs in this matter (particularised in the appeal application) amount to $5,042.80 and therefore exceed the $5,000 threshold. McAlpine’s solicitors submit such “notional costs” do not bring the appeal within the ambit of section 352(2).
The monetary threshold in section 352(2) is defined in terms of “the amount of compensation at issue on the appeal”. The Commission has held in a number of decisions that the expression “the amount of compensation at issue” does not include costs associated with an application to the Commission (see for example, Grimson v Integral Energy [2003] NSW WCC PD 29, Benson v Integral Energy [2003] NSW WCC PD 37, and Hien Huu Tran v AP Facilities Pty Ltd t/as Atlab Australia [2004] NSW WCC PD 3). Thus, because Mr Chen’s appeal does not meet the section 352(2)(a) threshold, I do not have jurisdiction to hear the appeal.
Notwithstanding that, in my view, the application of section 352(2)(a) prevents me hearing this appeal, I note that Mr Chen’s appeal also fails to satisfy the other relevant threshold requirement in terms of leave to appeal. Section 352(4) states that “[a]n appeal can only be made within 28 days after the making of the decision appealed against”. The Arbitrator’s determination was made on 18 April 2005. Mr Chen’s appeal was lodged on 30 May 2005, more than 28 days later. Mr Chen’s solicitors claim they did not receive the determination until 2 May 2005.
The Commission’s file indicates that the determination was sent to Mr Chen’s solicitors by DX with a covering letter dated 18 April 2005. It appears Mr Chen’s solicitors contacted the Commission by phone on 2 May 2005, as a result of which the Commission faxed them another copy of the determination and Statement of Reasons on that day. Mr Chen’s solicitors point out that 30 May 2005 is within 28 days of 2 May 2005. They also point to what they submit are other special circumstances that would justify an extension of time, namely that the solicitor with the day to day carriage of Mr Chen’s file resigned from the firm from 6 May 2005, and that counsel briefed to prepare Mr Chen’s submissions on the appeal was hospitalised on 26 May 2005 and expected to remain there until 3 June 2005.
Rule 77(2) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that a decision is made when the Commission issues the Certificate of Determination. Thus, in Mr Chen’s case, where the determination was issued on 18 April 2005, the appeal had to be made by 16 May 2005. The appeal was lodged on 30 May 2005, and therefore outside the required time for lodging an appeal.
Rule 77(8) provides that a Presidential Member may extend the time for making an appeal where the Appellant demonstrates that exceptional circumstances exist, and that they would suffer a substantial injustice if the right of appeal were lost. The onus of proving exceptional circumstances rests with the Appellant.
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, this issue has often been the subject of judicial consideration. A leading case is Gallo v Dawson (1990) 93 ALR 479 where Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (i) the history of the proceedings, (ii) the conduct of the parties, (iii) the nature of the litigation, (iv) the consequences for the parties of the grant or refusal of the application for extension of time, (v) the prospects of the applicant succeeding if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in Commission proceedings: see, for example, Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22, and Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54.
In Mr Chen’s case, I have not found his solicitors’ submissions on exceptional circumstances to be persuasive. Even after receiving the second copy of the determination and Statement of Reasons faxed to them on 2 May 2005, they still had 14 days within which to lodge an appeal. The resignation of the solicitor with carriage of the matter may also have delayed preparation of the appeal documents, but counsel should have been on notice of the expiry of the time for lodging the appeal and should have completed the drafting of the appeal well before he was hospitalised. I am also not persuaded that Mr Chen will suffer a substantial injustice if the right to appeal is lost, given that the only change to the Compensation Court award made by the Arbitrator was of the section of the 1987 Act under which weekly compensation is payable. In my view, none of the other factors identified by Justice McHugh, referred to above, is of assistance in terms of any potential injustice that might be suffered by Mr Chen as a result of the strict compliance with this threshold requirement. Thus, in my view, Mr Chen’s case for an extension of time for lodging the appeal is weak.
DECISION
Leave to appeal against the decision of the Arbitrator dated 18 April 2005 is refused.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President 20 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.
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