D'Er v Glemby International (Aust) Pty Ltd

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WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: D’Er v Glemby International (Aust) Pty Ltd [2016] NSWWCCPD 42
APPELLANT: Christine D’Er
RESPONDENT: Glemby International (Aust) Pty Ltd
INSURER: GIO General Ltd
FILE NUMBER: A1-4872/15
ARBITRATOR: Mr R Perrignon
DATE OF ARBITRATOR’S DECISION: 28 April 2016
DATE OF APPEAL DECISION: 31 August 2016
SUBJECT MATTER OF DECISION: Monetary threshold in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; interlocutory decisions – s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; application of the principles in House v R [1936] HCA 40; 55 CLR 499; ‘work capacity decisions’ and the application of Sabanayagam v St George Bank Limited [2016] NSWCA 145; jurisdiction of the Commission in matters involving ‘existing recipients of weekly payments’ – s 43(3) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Michael Snell
HEARING: On the papers
REPRESENTATION: Appellant: Shine Lawyers
Respondent: TurksLegal
ORDERS MADE ON APPEAL:

1.       The orders in paragraphs [1], [4], [5] and [6] of the Certificate of Determination dated 28 April 2016 are confirmed.

2.       The orders in paragraphs [2] and [3] of the Certificate of Determination dated 28 April 2016 are revoked.

3.       The matter is remitted to another Arbitrator for re-determination, on the issue of the appellant’s weekly entitlement from 10 December 2012 to 31 August 2015.

INTRODUCTION

  1. This appeal raises issues going to the jurisdiction of the Commission to make an award for weekly payments, having regard to s 43 of the Workers Compensation Act 1987 (the 1987 Act), and the decision of the Court of Appeal in Sabanayagam v St George Bank Limited [2016] NSWCA 145 (Sabanayagam No. 2).

BACKGROUND

  1. Christine D’Er (the appellant) worked for Glemby International (Aust) Pty Ltd (the respondent) as a hairdresser from about 1988 to 1992. She developed symptoms of carpal tunnel syndrome, and a ganglion, in her dominant right hand and wrist. She underwent surgery for these problems in February 1991 and November 1992.

  2. The appellant ceased work from about June 1991. GIO General Ltd (the insurer) made voluntary payments for absences from work prior to 21 November 1991.

  3. On 6 October 1992 the appellant, in Compensation Court proceedings, recovered ongoing weekly payments of $100 per week. There was a consent reduction of this award, to $50 per week, from 20 October 2003.

  4. On about 7 June 2005 an agreement was registered pursuant to s 66A of the 1987 Act, providing for payment of lump sum compensation in respect of 19 per cent permanent loss of use of the right arm at or above the elbow, together with a sum pursuant to the then s 67 of the 1987 Act, for pain and suffering.

  5. In Commission proceedings decided on 2 October 2007, the appellant received an award for ongoing weekly payments, at the full statutory rate pursuant…

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Details
Case
[2016] NSWWCCPD 42
Decision Date

CaseChat Overview and Summary

The case of D'Er v Glemby International (Aust) Pty Ltd involved an appeal by D'Er against an earlier decision made by an Arbitrator. The dispute centered on the jurisdiction of the Commission to determine a claim for weekly compensation for the period from 10 December 2012 to 31 August 2015. The Arbitrator had ruled that the Commission lacked the power to determine this claim, given a prior work capacity decision made by the insurer.

The key legal issues revolved around the application of section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) concerning the monetary threshold for appeals, and the interpretation of the concept of 'work capacity decisions' as defined by section 43 of the Workers Compensation Act 1987. Additionally, the court had to consider the application of principles from House v R and Sabanayagam v St George Bank Limited in the context of these statutory provisions.

The court examined the Arbitrator's findings that the decision made by the insurer constituted a work capacity decision, which precluded the Commission from making a finding inconsistent with that decision. The Arbitrator's conclusion was based on the statutory definition and the objective circumstances of the case. The court noted that the characterisation of the decision as a work capacity decision was not dependent on the intent of the decision maker, but rather on the statutory provisions and the overall context. Consequently, the court determined that the appeal met the time threshold under section 352(4) of the 1998 Act, but questioned whether it satisfied the monetary threshold in section 352(3). The court ultimately concluded that the appeal did not meet the monetary threshold, and as such, the orders in paragraphs [2] and [3] of the Certificate of Determination were revoked.

The court ordered that the matter be remitted to another Arbitrator for re-determination of the appellant's weekly entitlement from 10 December 2012 to 31 August 2015. The decision underscored the importance of statutory interpretation and the objective assessment of work capacity decisions in the context of workers' compensation claims.

Orders

Orders of the court

1. The orders in paragraphs [1], [4], [5] and [6] of the Certificate of Determination dated 28 April 2016 are confirmed.

2. The orders in paragraphs [2] and [3] of the Certificate of Determination dated 28 April 2016 are revoked.

3. The matter is remitted to another Arbitrator for re-determination, on the issue of the appellant’s weekly entitlement from 10 December 2012 to 31 August 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At [72] and [73] the Arbitrator said:“72. For these reasons, I find that the decision evidenced by the letter of 29 November 2012 constituted a work capacity decision within the meaning of section 43.73. As a result, the Commission may not make a finding inconsistent with that decision, and I am prevented from finding that, as at 29 November 2012, the worker was incapable of full-time employment as a call centre operator, receptionist or sales assistant. I am also prevented from determining any dispute about that decision, including the claim for weekly compensation. No submission was made to the effect that the decision did not have a continuing operation, and it is unnecessary to consider that issue.” (emphasis added) Flowing from these findings, the Arbitrator made the following formal finding and order at [2] and [3] of the Certificate of Determination:“2. On or shortly before 29 November 2012, the insurer made a work capacity decision pursuant to section 43 of the Workers Compensation Act 1987. 3. By operation of section 43(3), the Commission lacks power to determine the claim for weekly compensation, or to make a decision in respect of that claim which is inconsistent with the said work capacity decision, and accordingly there is no award in respect of the claim for weekly compensation.” 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 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. There is no dispute between the parties that the threshold requirement as to time in s 352(4) of the 1998 Act has been met. There is an issue in respect of the monetary threshold provision in s 352(3) of the 1998 Act. The appellant appeals against the orders in paragraphs [2] and [3] of the Certificate of Determination. These orders involved a claim for weekly compensation from 10 December 2012 to 31 August 2015. The appellant submits that the amount in dispute is greater than $5,000. The respondent submits:“It is self-evident from the COD that the arbitrator did not deprive the worker of any of the compensation. He merely found that the commission [sic] lacked jurisdiction in relation to the weekly compensation claim. In such circumstances, the threshold cannot be satisfied.” This has similarities to the oral submission made by the respondent’s counsel on the issue of leave pursuant to s 289A(4) of the 1998 Act, where he said (at 21.12.15, T17.22–27):“This has nothing to do with whether the worker should get weekly compensation or not. The worker has got rights with WIRO and rights within the Workers Compensation Act.This is only to do with whether you can determine it. It’s got nothing to do with the worker’s rights.”

Decision

Reasons for decision

At [71] the Arbitrator said:“The characterisation of a given decision as a work capacity decision or otherwise is not determined by the subjective intent of the decision maker, though that may be a relevant factor, but objectively having regard to the relevant statutory provisions and all the circumstances of the case. Having regard to all the circumstances, and notwithstanding my view that the insurer probably had no intention of making a work capacity decision, I am satisfied that the decision which it made prior to the issue of its letter on 29 November 2012 was a decision about Ms D’Er’s ‘current work capacity’ as defined, even if it also constituted a work capacity assessment for the purposes of section 44A.” (emphasis added) At [72] and [73] the Arbitrator said:“72. For these reasons, I find that the decision evidenced by the letter of 29 November 2012 constituted a work capacity decision within the meaning of section 43.73. As a result, the Commission may not make a finding inconsistent with that decision, and I am prevented from finding that, as at 29 November 2012, the worker was incapable of full-time employment as a call centre operator, receptionist or sales assistant. I am also prevented from determining any dispute about that decision, including the claim for weekly compensation. No submission was made to the effect that the decision did not have a continuing operation, and it is unnecessary to consider that issue.” (emphasis added) Flowing from these findings, the Arbitrator made the following formal finding and order at [2] and [3] of the Certificate of Determination:“2. On or shortly before 29 November 2012, the insurer made a work capacity decision pursuant to section 43 of the Workers Compensation Act 1987. 3. By operation of section 43(3), the Commission lacks power to determine the claim for weekly compensation, or to make a decision in respect of that claim which is inconsistent with the said work capacity decision, and accordingly there is no award in respect of the claim for weekly compensation.” 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 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. There is no dispute between the parties that the threshold requirement as to time in s 352(4) of the 1998 Act has been met. There is an issue in respect of the monetary threshold provision in s 352(3) of the 1998 Act. The appellant appeals against the orders in paragraphs [2] and [3] of the Certificate of Determination. These orders involved a claim for weekly compensation from 10 December 2012 to 31 August 2015. The appellant submits that the amount in dispute is greater than $5,000.

Ratio Decidendi

Legal Principle Established

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