Coulter v Tanjo Pty Ltd
[2005] NSWWCCPD 4
•7 February 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Coulter v Tanjo Pty Ltd [2005] NSW WCC PD 4
APPELLANT: Jason Coulter
RESPONDENT: Tanjo Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC19649-03
DATE OF ARBITRATOR’S DECISION: 27 July 2004
DATE OF APPEAL DECISION: 7 February 2005
SUBJECT MATTER OF DECISION: Appeal against order for discontinuance.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Rankin & Nathan Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of the appeal.
THE APPEAL
Mr Coulter appeals against the decision of an Arbitrator, that his application to the Commission to resolve a dispute be discontinued. That application, filed on 11 December 2003, was in relation to a claim for lump sum compensation and medical expenses for an alleged work injury to his back, left leg and left knee.
On 16 June 2003 the Arbitrator directed that, among other things, the lump sum claim be discontinued. Mr Coulter did not appeal against that decision. He later filed another application in the Commission in relation to his lump sum claim.
This left the claim for medical expenses to be determined by the Arbitrator. The Respondent submitted that all reasonable medical expenses had been paid. On 27 July 2004 the parties attended a telephone conference. In light of the evidence that medical expenses had been paid, the Arbitrator was not satisfied that there was a dispute before him for determination. He therefore directed that the remainder of the application be discontinued. Mr Coulter has appealed against this direction.
Mr Coulter submits that the Arbitrator should have determined the issue of ‘liability’ and should not have directed that the matter be discontinued.
The appeal was not properly filed within time however its defects were subsequently rectified. I extend the time for filing of the appeal.
No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the Workplace Injury Management and Workers Compensation Act 1998 has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
Leave to appeal is granted.
There is no need for a hearing in this appeal as I am satisfied that I have sufficient information to proceed ‘on the papers’.
REASONS AND DECISION
This appeal is misconceived and futile. To suggest that two proceedings should continue, before two Arbitrators, in relation to the same facts, is not reasonable or appropriate. Proceedings for lump sum compensation in relation to the same injury were before another Arbitrator (11526-04). That Arbitrator has now decided the issue of liability and found that Mr Coulter did not receive an injury to his left knee arising out of his employment, but that an Approved Medical Specialist should assess his back injury. Mr Coulter has lodged an appeal against that decision, which has yet to be determined.
There was evidence before the Arbitrator on 27 July 2004 that all medical expenses relating to Mr Coulter’s claimed work injury had been paid. The Arbitrator therefore did not err in deciding that no dispute was before him. If there is a genuine dispute about payment of ongoing medical expenses it has not yet been properly put before the Commission. It does not appear to form part of the later application.
Mr Coulter is ‘unsuccessful’ on the appeal (section 345(3)). In my view the appeal was made ‘without proper justification’ (section 341(4)). It has resulted in unnecessary litigation and costs. The Appellant should pay the Respondent’s costs of the appeal.
ORDERS
The decision of the Arbitrator is confirmed
The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
7 February 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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