Commercial Seating Systems Pty Ltd v Banka
[2012] NSWWCCPD 70
•27 November 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Commercial Seating Systems Pty Ltd v Banka [2012] NSWWCCPD 70 | ||||
| APPELLANT: | Commercial Seating Systems Pty Ltd | ||||
| RESPONDENT: | Zbigniew Banka | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-2504/12 | ||||
| ARBITRATOR: | Mr J Wynyard | ||||
| DATE OF ARBITRATOR’S DECISION: | 9 August 2012 | ||||
| DATE OF APPEAL DECISION: | 27 November 2012 | ||||
| SUBJECT MATTER OF DECISION: | Monetary threshold to appeal; s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |||
| Respondent: | Law Partners | ||||
ORDERS MADE ON APPEAL: | The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal. No order as to costs. | ||||
BACKGROUND
In an amended Application to Resolve a Dispute lodged on 24 May 2012, Zbigniew Banka claimed, among other things, weekly compensation from 14 October 2011 to date and continuing. So far as is relevant to the appeal, the Arbitrator made the following orders at [4] of the Certificate of Determination issued on 9 August 2012:
“4. The respondent will pay to the applicant the following: -
·The sum of $703.00 per week from 14 October 2011 to 14 April 2012 pursuant to sections 38(1) and 38(3) of the 1987 Act.
·The sum of $562.40 per week from 15 April to 26 June 2012 pursuant to s. 38(3)(a).
·The sum of $274.80 per week from 27 June 2012 to date and continuing pursuant to s.40.”
The appellant employer has filed an appeal challenging the above orders on the ground that, on the basis of “new evidence”, which was available but not tendered at the arbitration, Mr Banka is only entitled to compensation under s 38(3) of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $703 per week up to 6 February 2012 and that his entitlement from 7 February 2012 to 14 April 2012 is $562.40 per week instead of $703 per week.
The “new evidence” sought to be relied on is the Employer’s Report of Injury form dated 12 April 2012 and a document headed “Payments By Payment Code Detail” (the list of payments) under the letterhead of CGU Workers Compensation (NSW) Ltd (CGU), the appellant’s insurer. The list of payments is said to demonstrate that CGU paid Mr Banka voluntary weekly compensation under s 38(3) from 8 August 2011 to 16 October 2011 and, therefore, his entitlement under that section expired on 6 February 2012.
The appellant submitted that the “new evidence” was not tendered at the arbitration “due to an administrative error” and an overpayment was identified following a review of the list of payments, presumably after the Arbitrator delivered his decision. It was argued that the additional evidence is crucial to a proper assessment of the date on which Mr Banka’s entitlement to weekly compensation commences and the proper assessment of any award under s 38. The appellant has apologised for the error, but submitted that it should not suffer prejudice as a result of it.
It has also submitted that the list of payments “reveals an overpayment of compensation for the period 8 August 2011 to 16 October 2011 – the worker being erroneously paid $758.50 gross per week”. The alleged overpayment is $55.50 per week for about 10 weeks (approximately $555).
The appellant seeks that paragraph 4 of the Certificate of Determination be revoked and the following orders be made in its place:
“The respondent employer pay to the applicant worker the following:
·The sum of $703 per week from 8 August 2011 to 6 February 2012 pursuant to ss 38(1) and 38(3) of the 1987 Act.
·The sum of $562.40 per week from 7 February 2012 to 26 June 2012 pursuant to s 38(3)(a) of the 1987 Act.
·The sum of $274.80 per week from 27 June 2012 to date and continuing pursuant to s 40.
The respondent employer is to receive a credit for any payments made during these periods.”
Mr Banka’s solicitors have advised the Commission in writing that they continue to act for him but they will not be filing a Notice of Opposition to the appeal.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(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 Nos 1 and 6, the documents that are before me, and the submissions by the appellant 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.
THRESHOLD ISSUE
Before a party can appeal to a Presidential member, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
Under s 352(3) of the 1998 Act there is no appeal under the section unless the amount of compensation “at issue” on appeal is both “at least $5,000” and at least 20 per cent of the amount awarded in the decision appealed against.
The appellant submitted that the arrears of compensation as at 6 September 2012 were $26,944.37 and that the insurer paid $7,463.64 in the period from 8 August 2011 to 16 October 2011. On that basis, it was submitted, “the determination ought be amended to include details of the payments made and allow for a credit to the appellant in respect of same”.
There is an immediate obstacle to the Commission making the orders sought by the appellant. Mr Banka only claimed compensation from 14 October 2011, the date on which he asserted that voluntary payments ceased. As there is no dispute about Mr Banka’s entitlement to compensation up to that date (or 16 October 2011, if payments were made to that date, as is asserted on appeal), it is not open to the employer to amend on appeal the worker’s claim for compensation. Workers, not employers, make claims for compensation.
Moreover, even if the employer were allowed to amend the worker’s claim, as there is no dispute that Mr Banka is entitled to the compensation paid in the period 8 August 2011 to 14 October 2011, that compensation is not “at issue” on appeal.
Once that is understood, it is clear that the only compensation “at issue” on appeal is the quantum of compensation for the period between 7 February 2012 and 14 April 2012, which the appellant says should be $562.40 per week instead of $703 per week. Accepting that that argument is correct, the total of that compensation is well below both the thresholds in s 352(3) and there is no right of appeal.
As to the argument that CGU overpaid Mr Banka in the period from 8 August 2011 to 16 October 2011, it is far from clear that that is so, even if the “new evidence” is considered. The list of payments records that Mr Banka was paid $1,307 for the period 8 August 2011 to 21 August 2011, $1,315 for each of the periods 22 August 2011 to 4 September 2011, 5 September 2011 to 18 September 2011 and 19 September 2011 to 2 October 2011, $789 for the period 3 October 2011 to 10 October 2011, and $526 for the period 11 October 2011 to 16 October 2011.
Contrary to the submissions made on appeal, these figures suggest that Mr Banka was paid an average of about $657.50 per week. If that is correct, and I make no determination on it, he was underpaid. Even if it is accepted that Mr Banka was overpaid, the issue of the overpayment was not argued before the Arbitrator and it is not open on appeal to submit that the Arbitrator erred by not dealing with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111).
Even if it were open to the appellant to challenge the Arbitrator’s decision because of the alleged failure to deal with the overpayment in the period up to 16 October 2011, the quantum of that overpayment, accepting the appellant’s figures, is only $550. That figure, combined with the overpayment under s 38(3), still does not come close to satisfying the monetary thresholds in s 352(3).
There may well be an issue about the correct quantum of compensation payable to Mr Banka between 7 February 2012 and 14 April 2012, and about whether the award should have commenced on 14 or 16 October 2011. However, as there is no right of appeal, they are not issues I have jurisdiction to determine.
ADDITIONAL EVIDENCE
In the circumstances, it is not necessary to deal with the application to rely on additional or fresh evidence on appeal, which was wrongly described as “new evidence” in the appellant’s submissions. However, I observe in passing that a submission that evidence that was readily available at the arbitration, but was not tendered due to “an administrative error”, will rarely satisfy the test for the admission of additional or fresh evidence in s 352(6) of the 1998 Act.
CONCLUSION
This appeal was misconceived and appears to have been filed without any regard to the terms of the legislation. That is unsatisfactory. The appellant has other remedies available to it and an appeal under s 352, which is restricted to the identification and correction of error, was clearly not the appropriate course to take in this matter.
The profession is reminded, yet again, that arbitrations are not trial runs where the parties can await the outcome and then attempt to tender on appeal material that could and should have been tendered at the arbitration. Appeals are not de novo hearings where basic omissions in preparation can be remedied, new arguments presented and new remedies sought.
DECISION
The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal.
COSTS
No order as to costs.
Bill Roche
Deputy President
27 November 2012
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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