Cooper v Family and Community Services (Ageing, Disability and Home Care) (wrongly sued as NSW Department of Family and Community Services (Ageing, Disability and Home Care))
[2014] NSWWCCPD 8
•21 February 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Cooper v Family and Community Services (Ageing, Disability and Home Care) (wrongly sued as NSW Department of Family and Community Services (Ageing, Disability and Home Care)) [2014] NSWWCCPD 8 | ||
| APPELLANT: | Robin Cooper | ||
| RESPONDENT: | Family and Community Services (Ageing, Disability and Home Care) | ||
| INSURER: | QBE Insurance (Australia) Ltd | ||
| FILE NUMBER: | A1-2757/13 | ||
| ARBITRATOR: | Ms D Moore | ||
| DATE OF ARBITRATOR’S DECISION: | 7 November 2013 | ||
| DATE OF APPEAL DECISION: | 21 February 2014 | ||
| SUBJECT MATTER OF DECISION: | Interlocutory orders; leave to appeal; dismissal of proceedings by Arbitrator; monetary thresholds not satisfied; s 352 of the Workplace Injury Management and Workers Compensation Act 1998 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Turner Freeman | |
| Respondent: | Bartier Perry | ||
| ORDERS MADE ON APPEAL: | 1. The respondent’s name is amended to Family and Community Services (Ageing, Disability and Home Care). 2. Leave to appeal is refused. 3. Each party is to pay her or its own costs of the appeal. | ||
INTRODUCTION
In this matter, the appellant worker, Robin Cooper, seeks to challenge an order made by Senior Arbitrator Moore on 6 November 2013 striking out the Application to Resolve a Dispute (the Application).
BACKGROUND
Ms Cooper suffered a psychological injury for which the respondent employer has admitted liability. The dispute centres on Ms Cooper’s entitlement to weekly compensation and medical expenses in respect of that injury.
The matter came before Senior Arbitrator Moore for a teleconference on 6 November 2013. On that day, the Senior Arbitrator struck the matter out. In a statement of reasons attached to the Certificate of Determination dated 7 November 2013, the Senior Arbitrator said:
“1. This claim for weekly benefits and medical expenses is so patently not ready to proceed that it would be inappropriate for it to be set down for hearing.
2. On the face of it, there has been a significant change in [Ms Cooper’s] condition since about October 2012 which is unexplained. There is evidence of intervening accidents and illnesses.
3. The claim for medical expenses relates to physical therapies, again unexplained in the context of a psychiatric case.
4. For these reasons, expanded on in some detail at the telephone conference, the matter is struck out.”
The teleconference proceedings were not recorded and there is no transcript of what occurred.
Ms Cooper filed an appeal on 2 December 2012 in which her solicitor, Richard Dababneh, asserted that the appeal did “not relate to an interlocutory event”.
The Commission issued a direction on 6 December 2013 stating that the decision appealed was interlocutory and that there is no appeal against such a decision without the leave of the Commission. Attached to the Direction was a copy of the Commission’s decision in Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57 (Shams) in which the Commission refused leave to appeal an Arbitrator’s decision striking out an Application to Resolve a Dispute. The Direction stated that, if, notwithstanding the Commission’s decision in Shams, the appeal was to proceed, Ms Cooper was to file further submissions stating, among other things, why leave to appeal should be granted.
On 13 December 2013, Mr Dababneh filed further submissions in which he argued that Shams was “very much distinguishable” from the present matter.
The respondent’s solicitor, Lauren McLean, filed a notice of opposition on 5 February 2014.
PRELIMINARY MATTERS
On the papers
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“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 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.
Interlocutory
Legislation
Section 352(3A) of the 1998 Act provides that there is no appeal under that section against an interlocutory decision except with the leave of the Commission. The Commission “is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”.
Submissions
Mr Dababneh submitted that, unlike Shams, there is no dispute that the Commission has jurisdiction to deal with the current dispute, noting that liability had been conceded and the only issue was Ms Cooper’s entitlement to weekly compensation and hospital and medical expenses. He said the Commission had been asked to “essentially” do an “assessment of capacity for employment”.
Mr Dababneh conceded that there had been no determination of the dispute, but added that the Senior Arbitrator “took a unilateral approach to strike out the matter despite parties engaging in settlement discussions before, during and after the teleconference”. He said that Ms Cooper’s history in the Commission was a “long one” and in circumstances where the application had been lodged in February 2013, “for [Ms Cooper] to wait for a teleconference so that it could only be struck out without any proper reasons, makes the leave to appeal more so necessary”.
Mr Dababneh said that, at the teleconference, Ms Cooper’s solicitor was not given the opportunity to respond to the Senior Arbitrator or to draw her attention to particular evidence that supported the claim. He asserted that Ms Cooper’s fitness for work had been outlined in several reports from her treating psychiatrist (Dr Teoh) and, more recently, in WorkCover medical certificates from the treating psychiatrist. He said the Senior Arbitrator had not considered the document annexed to the application to admit late documents dated 30 July 2013. He also said that the Senior Arbitrator had not considered evidence from Dr Teoh in his report of 2 December 2010 before finding that the matter was not ready to proceed.
Mr Dababneh pointed out that Ms Cooper’s condition was “clearly severe”, she having previously been admitted to hospital for her condition.
Ms McLean said that, at the teleconference on 6 November 2013, the respondent had submitted there was no evidence “regarding [Ms Cooper’s] capacity or incapacity for work beyond December 2010” and, in addition, Ms Cooper’s condition “appeared to have deteriorated towards the end of 2012 in that she was admitted for inpatient treatment, however, there was no evidence about this”.
On the issue of Ms Cooper’s deterioration at the end of 2012, Mr Dababneh said that the Senior Arbitrator’s suggestion that there had been a significant change in Ms Cooper’s condition in October 2012 was “baseless”. He said, without reference to any evidence, that it was in October 2012 that Ms Cooper’s claim for permanent impairment compensation was decided and “the outcome was clearly one which caused a relapse”.
Ms McLean said that the Senior Arbitrator acknowledged the respondent’s submissions and considered that the matter was not ready to proceed, as there was a lack of evidence about Ms Cooper’s capacity for work in the period in which she was claiming compensation and about the apparent deterioration in her condition. As a result, Ms McLean said the Senior Arbitrator “considered that the matter should be struck out and proceeded accordingly”.
Ms McLean argued that the appeal should not proceed because the Senior Arbitrator’s decision was an interlocutory decision, because it did not determine the parties’ rights, and “the appeal is not necessary or desirable for proper and effective determination of the dispute”. Ms McLean said that it was open to Ms Cooper to file further proceedings and that she (Ms Cooper) suffered no prejudice because she has the same rights now as she had before the matter was struck out.
Discussion and findings
Ms McLean’s submissions are correct.
In Shams, the Commission made it clear (at [37]-[38]) that an order striking out proceedings is an interlocutory order because it has not finally determined the parties’ rights (Licul v Corney [1976] HCA 6; 180 CLR 213 at 443–444). That principle applies in this matter.
Though the basis for the strike out order in Shams (the worker had allegedly not “made a claim” as required by the legislation) is different to the basis in the present matter (the worker has allegedly not provided appropriate evidence in support of her claim for weekly and other compensation), the principle is the same. That principle is that the order has not finally determined the parties’ rights.
Mr Dababneh has advanced no reason why leave to appeal should be granted. He has conceded that there has been no determination of the issues in dispute. That being so, Ms Cooper is not prejudiced and is entitled to recommence her proceedings without penalty.
Section 352(3A) is in clear terms. The Commission is “not to grant leave [to appeal an interlocutory decision] unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”.
Granting leave to appeal, and upholding the appeal, is neither necessary nor desirable for the proper and effective determination of the dispute. That is because, as in Shams, the Senior Arbitrator made no findings on the merits of the claim and no order made on appeal, if leave were granted, will advance the determination of the claim. It will merely remit the matter to another Arbitrator. That step can be achieved, without any prejudice to Ms Cooper, by the issuing of a fresh application.
OTHER MATTERS
The above reasons are sufficient to dispose of the appeal, but there is an additional ground why the appeal cannot proceed. There is no right of appeal under s 352 unless the amount of compensation at issue on appeal is at least $5,000 and at least 20 per cent of the amount awarded. As no orders have been made in respect of Ms Cooper’s rights to weekly or other compensation, and as the Senior Arbitrator made no findings that will affect Ms Cooper’s rights to such compensation, there is no compensation “at issue” in the appeal and no right of appeal.
The respondent has been wrongly sued as NSW Department of Family and Community Services (Ageing, Disability and Home Care). Its correct identity is Family and Community Services (Ageing, Disability and Home Care) and the record has been amended accordingly.
CONCLUSION
This appeal had no prospect of success and should not have been filed.
DECISION
Leave to appeal is refused.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
21 February 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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