Coonamble & District RSL Club Ltd v McAlary
[2006] NSWWCCPD 224
•12 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Coonamble & District RSL Club Ltd v McAlary [2006] NSWWCCPD 224
APPELLANT: Coonamble & District RSL Club Ltd
RESPONDENT: Lynette Patricia McAlary
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC16619-05
DATE OF ARBITRATOR’S DECISION: 2 February 2006
DATE OF APPEAL DECISION: 12 September 2006
SUBJECT MATTER OF DECISION: Dependency; section 37(4) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore
Respondent: Whitelaw McDonald
ORDERS MADE ON APPEAL: Paragraph two of the Arbitrator’s decision of 2 February 2006 is revoked and the following order made:
“At all material times the Applicant’s de facto spouse, Robin Felix Carroll, was and is wholly or mainly dependent on her for support pursuant to section 37(4) of the Workers Compensation Act 1987.”
Paragraphs one, three and four of the Arbitrator’s decision are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 28 February 2006 Coonamble & District RSL Club Ltd (‘the Appellant Employer/the Club’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 2 February 2006.
The Respondent to the Appeal is Lynette Patricia McAlary (‘the Respondent Worker/Mrs McAlary’).
In 1997 Mrs McAlary started work with the Club as a casual office assistant. On 12 July 2003 she suffered a stroke and later developed epilepsy and depression. Her Application to Resolve a Dispute (‘the Application’) was registered with the Commission on 29 September 2005. It sought weekly compensation from 12 July 2003 to date and continuing and claimed her de facto husband, Robin Felix Carroll, as a dependant. By its Reply, the Appellant Employer denied injury, and denied that Mr Carroll was dependent.
The Arbitration was conducted on 14 December 2005 and decided in favour of Mrs McAlary in a reserved decision delivered on 2 February 2006. The Appellant Employer seeks leave to appeal the decision so far as it relates to an order that weekly compensation include an amount on the basis that the Respondent Worker’s de facto spouse was and is dependent on her for support.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an 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’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied.
At least 20% of the amount awarded is in issue and the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
On The Papers
Section 354(6) of 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 Numbers 1 and 6, the documents that are before me, and the submission 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.
Transcript
There is no transcript of the proceedings before the Arbitrator. As the appeal raises a narrow issue on the question of dependency and as all of the evidence given at the Arbitration was documentary, and the Arbitrator issued a written statement of reasons, I believe I am able to properly and fairly conduct a review under section 352 without a transcript. Neither party has submitted to the contrary.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 2 February 2006, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation;
·from 12 July 2003 to 23 November 2003 at the rate of $625.10 under s36 of the Workers Compensation Act 1987;
·at the rate of $250.75 from 24 November 2003 to 19 January 2004 under s40 of the Act;
·from 20 January 2004 to 5 March 2004 at the rate of $625.10 per week under s36 of the Act;
·from 6 March 2004 to 19 March 2004 at the maximum statutory rate for a worker with a dependent spouse under s37 of the Act;
·from 27 May 2004 to date at the maximum statutory rate for a worker with a dependent spouse under s37 of the Act.
2.That payment for the dependent spouse in the above order is subject to provision of proof of dependency.
3.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(a)whether the Respondent Worker’s de facto spouse (Mr Carroll) was and is wholly or mainly dependent on her for support;
(b)whether there is any evidence to support a finding that at the time of injury Mr Carroll was wholly or mainly dependent for support on the Respondent Worker, and
(c)whether the Arbitrator gave any reasons to support a finding of dependency in respect of Mr Carroll.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
The Respondent Worker seeks to rely of fresh evidence on appeal in the form of tax returns from Mrs McAlary for the financial years ending 30 June 2003 and 2004 and from her de facto for the financial year ending 30 June 2003. The tax returns for Mrs McAlary were attached to the Application and were before the Arbitrator. The tax return from Mr Carroll is not new evidence and adds nothing to the information already set out in Mrs McAlary’s returns.
Therefore, the application to rely on fresh evidence is refused.
SUBMISSIONS AND FINDINGS
The Appellant Employer’s argument is that there was no evidence of dependency before the Arbitrator and no finding of fact was made and no reasons were given that Mr Carroll was at any relevant time dependent for support on Mrs McAlary.
I agree that the Arbitrator gave no reasons and made no finding that Mr Carroll was dependent on Mrs McAlary. A failure to give adequate reasons is an error of law (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). In this case that error indicates a failure by the Arbitrator to perform one of the duties required of him under the legislation, namely, determine all issues in the Application before him.
The Arbitrator’s orders also involve a serious procedural error in that he made an order for the payment of weekly compensation at the rate applicable for a worker with a dependent spouse without first making a finding that the spouse was in fact dependent. It is not appropriate to make an order “subject to provision of proof”. The factual findings on which an award is based must be made before the award or order is made.
Normally such an error would result in the relevant decision or award being set aside and remitted for a redetermination under section 352(7) of the 1998 Act. However, in the present case the available evidence is sufficient for me to determine the matter and that is what I propose to do.
The evidence on dependency is found in Mrs McAlary’s statement of 16 March 2005 where at paragraph three she stated that she lived with her de facto husband of 23 years, Robin Felix Carroll, and has lived with him at their current address for 15 years. In her 2003 tax return she declared Mr Carroll as her spouse and that his taxable income and “separate net income” for the 2003 financial year was $240.00. She claimed a tax offset in respect of her spouse for the whole of the 2003 financial year. In her 2004 tax return she declared Mr Carroll to be her spouse and that his taxable and “separate net income” for the financial year 2004 was ‘nil’. Mrs McAlary again claimed a tax offset in respect of Mr Carroll for the whole of the 2004 financial year.
In her own tax returns for 2003 and 2004 Mrs McAlary’s taxable income was declared to be $35,402.00 and $24,234.00 respectively. Therefore, it is my view that the only reasonable inference open from this evidence is that Mr Carroll was wholly or mainly dependent for support on Mrs McAlary at the time of her injury on 12 July 2003 and I make that finding.
In addition, the Respondent Worker relies on the evidence in Mrs McAlary’s statement of 16 March 2005 that “currently Rob is in receipt of a Carer’s Benefit and assists me to manage various activities on a daily basis”. This evidence would support a conclusion that, if Mr Carroll had been employed, he ceased that employment to care for Mrs McAlary. In that event section 37(6) of the 1987 Act would apply and he would be “regarded as being dependent at the time of the injury” if he had left employment for the purpose of caring for Mrs McAlary. However, a finding that he ‘left employment for the purpose of caring for Mrs McAlary’ is not open in the present case because other evidence makes it clear that he was not employed at the time of injury but was dependent on Mrs McAlary for support.
The receipt of a carer’s benefit does not prevent a finding that Mr Carroll is dependent on the Respondent Worker for support (see Fatovic v Standard Telephones & Cable Pty Ltd, Compensation Court of NSW, Burke CCJ, unreported, 4 March 1991 (‘Fatovic’)
Further, as there was evidence of dependency before and at the time of the injury, there is a presumption of continuance of that dependency with the evidentiary onus on the Appellant Employer to establish a change (‘Fatovic’). No evidence was called by the Appellant Employer to show a change in the situation established in the tax records and in Mrs McAlary’s statement. Therefore, I find that at all material times Mr Carroll was and is wholly or mainly dependent for support on the Respondent Worker. I reject the ‘no evidence’ argument advanced by the Appellant Employer.
DECISION
Paragraph two of the Arbitrator’s decision of 2 February 2006 is revoked and the following order made:
“At all material times the Applicant’s de facto spouse, Robin Felix Carroll, was and is wholly or mainly dependent on her for support pursuant to section 37(4) of the Workers Compensation Act 1987.”
Paragraphs one, three and four of the Arbitrator’s decision are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
12 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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