Davilla v ISS Facility Services Australia Ltd and Gemarn Pty Limited
[2009] NSWWCCPD 130
•15 October 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Davilla v ISS Facility Services Australia Ltd and Gemarn Pty Limited [2009] NSWWCCPD 130 | |||||
| APPELLANT: | Virginia Davilla | |||||
| RESPONDENTS: | ISS Facility Services Australia Ltd and Gemarn Pty Limited | |||||
| INSURER: | Allianz Australia Workers’ Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-2123/09 and A2-2123/09 | |||||
| ARBITRATOR: | Mr D Minus | |||||
| DATE OF ARBITRATOR’S DECISION: | 11 June 2009 | |||||
| DATE OF APPEAL DECISION: | 15 October 2009 | |||||
| SUBJECT MATTER OF DECISION: | Identification of employer; need for precision in particularising injury; need for remitter. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Steve Masselos & Co Solicitors | ||||
| Respondent: | Stephen Lee Legal | |||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs one, two, three and four of the Arbitrator’s determination dated 11 June 2009 are revoked and the matter is remitted back to another arbitrator for determination afresh. | |||||
| 2. Paragraph five of the Arbitrator’s decision is confirmed. | ||||||
| 3. Allianz Australia Workers Compensation (NSW) Limited to pay Mrs Davilla’s costs of the application before the Arbitrator and her costs in appeals numbered A1-2123/09 and A2-2123/09. | ||||||
BACKGROUND
Mrs Virginia Davilla, who is 57 years of age, was born in Peru and arrived in Australia in 1992. Mrs Davilla commenced employment as a cleaner in 1997 and was engaged in cleaning duties at the Meadowbank TAFE. The identity of Mrs Davilla’s employer at that time is, having regard to the state of the evidence, unclear. What is clear is that she remained engaged in those duties until November 2007 at which time she ceased work because of alleged incapacity. On 28 July 2008 she received correspondence from ISS Facility Services Australia Ltd in which notice of termination of her employment with that last named company was given.
Mrs Davilla performed her work without apparent difficulty until March 2005 at which time she began experiencing pain in her left shoulder extending into her left hand and pain at the base of her neck. By September 2005 Mrs Davilla was experiencing pain in both shoulders. She sought treatment from her general practitioner and was certified as being fit for restricted duties.
Mrs Davilla returned to Peru in November 2005 to visit her mother. Upon her return to Australia in January 2006 she resumed work however by reason of continuing symptoms she continued receiving treatment, lost time from work and was engaged on restricted duties. It seems that a claim for compensation benefits was made and accepted, however evidence of this is scant. Mrs Davilla continued performing restricted duties until 20 November 2007 on which day a meeting took place with her supervisor, her area manager and a representative of Allianz Australia Workers Compensation (NSW) Limited. Mrs Davilla became distressed during the course of that meeting and left the meeting place.
Mrs Davilla was offered employment at a different site which was distant from her home. That offer was not accepted by Mrs Davilla following which, on 3 January 2008, she received notice that her claim for workers compensation benefits had been declined.
Mrs Davilla has not worked since that time and a dispute has arisen concerning her entitlement to compensation benefits.
The dispute between Mrs Davilla and her employer was referred to the Workers Compensation Commission of New South Wales (‘the Commission’) following the filing of an Application to Resolve a Dispute on 19 March 2009. The Respondent to that application was named as “German [sic] Pty Limited”. The insurer in that application was named as Allianz Australia Workers Compensation (NSW) Limited. Particulars of the injury as alleged are noted and discussed below.
A Reply to that application was filed on behalf of Mrs Davilla’s employer in which that employer was identified as “ISS Facility Services Australia Ltd (incorrectly sued as Gemarn Pty Ltd)”. Part 2.2 of that Reply confirmed the identity of the employer’s insurer as being Allianz.
The matter came before an Arbitrator for conciliation/arbitration on 30 April 2009. At that hearing both Mrs Davilla and her employer were represented by counsel. The matter proceeded to hearing following which the Arbitrator reserved his decision. A Certificate of Determination was issued on 11 June 2009 which made provision for an award in favour of Mrs Davilla.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 11 June 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1.There is an award for the Applicant in respect of her claim for permanent impairment as the result of injury on 5 September 2005. I remit this file for the Registrar to organise an assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment by a relevant Approved Medical Specialist, of the degree of permanent impairment, resulting from the Applicant’s injury to her left and right upper extremities.
2.There is an award for the Applicant in relation to her claim for medical expenses and the Respondent is to pay the Applicant’s reasonable medical expenses, pursuant to s.60 of the Workers Compensation Act 1987 on production of accounts and receipts and HIC notice of charge.
3.There is an award for the Applicant in respect of her claim for weekly compensation. The Respondent is to pay to the Applicant, pursuant to s 40 of the Workers Compensation Act 1987, compensation at the rate of $208.50 from 14/2/2008 to 30/6/2008, and $214.50 from 1/7/2008 to date and continuing.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.
5.I certify that this was a complex matter and determine that pursuant to Clause 11(a) of Schedule 6 of the Workers Compensation Regulation 2003 that in respect of both the Applicant’s and the Respondent’s costs that a percentage increase of 15% be applied.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
It is to be noted that the Certificate cites two companies as being “Respondents” to Mrs Davilla’s application namely ISS Facility Services Australia Ltd (‘ISS’) and Gemarn Pty Limited (‘Germarn’). The force and effect of that determination is to an extent uncertain in that reference to the employer is in the singular. This is but one anomaly that attends the proceedings as a whole concerning the proper identity of Mrs Davilla’s employer. These matters are addressed below.
THE APPEALS
On 3 July 2009 an application seeking leave to appeal against the Arbitrator’s decision was filed on behalf of Gemarn. The relief sought by Gemarn is the revocation of the Arbitrator’s decision and substitution with an award in favour “of the employer”.
On 8 July 2009 an application seeking leave to appeal against the Arbitrator’s decision was filed on behalf of Mrs Davilla. The Respondents named in that application are ISS and Gemarn. In that application Mrs Davilla sought a review of the quantum of the award made in her favour as expressed by the Arbitrator in order 3 of his determination. Mrs Davilla also sought a finding on review of the Arbitrator’s decision that she had “…sustained a ‘psychiatric injury’ arising out of and in the course of her employment with the Respondent which has in addition caused her partial incapacity for work for the periods over which she has claimed weekly compensation entitlements.”
Mrs Davilla’s solicitors wrote to the Commission on 24 July 2009 enclosing “further submissions in relation to the Appeal.” Those submissions have attached an extract from the records of the Australian Securities and Investments Commission concerning the status of Gemarn. The admissibility of that document on this appeal is addressed below. The relief sought in these supplementary submissions appear to be intended to replace those earlier sought. They are that the determination of the Arbitrator be set aside, that the application to resolve the dispute relied upon by Mrs Davilla be struck out and an order that “the Respondent employer through its insurer Allianz” pay Mrs Davilla’s costs both of the appeal and the arbitration hearing.
ON THE PAPERS REVIEW
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 Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeals 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.
LEAVE
There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.
The appeals having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeals and I so order.
FRESH EVIDENCE
Evidence that is fresh evidence or evidence in addition to or in substitution for evidence that is adduced before the Arbitrator may only be adduced on an appeal with leave of the Commission (section 352(6) of the 1998 Act). There has been no such application for leave made by either party however it has been noted above at [13] that attached to Mrs Davilla’s supplementary submissions is a copy of an extract of the records of ASIC. That extract has not been certified as is provided by section 155(1)(a)(ii) of the Evidence Act 1995. Such certification is a condition precedent to the exercise of discretion to admit such a document by a court or relevant tribunal. The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter permits (section 354(2) of the 1998 Act). No submission has been made by the employer/s concerning the admission or relevance of that document. The extract in question relates to registration details of Gemarn. It is apparent that that company was registered on 22 June 2001 and was deregistered on 31 December 2008. Having regard to the content of that document, the character of the extract, being a record of a Commonwealth commission and the significance of the fact of deregistration I determine on this review that it is proper that the document form part of the evidence in the proceedings.
PRELIMINARY MATTERS
It must be said that the state of the record before the Commission is most unsatisfactory. As noted above at [6] the employer cited in Mrs Davilla’s original application was named as “German Pty Limited”. It is clear that there has been, in all probability, a typographical error made when that document was engrossed. In usual circumstances such an error may easily be overcome during the course of proceedings, even at a point as late as the present being during conduct of the appeals. However, that does not represent the extent of error and confusion concerning the correct identity of the relevant employer/s.
As noted above at [7] the Reply filed in the proceedings named the Respondent to the application as “ISS Facility Services Australia Limited (incorrectly sued as Gemarn Pty Limited)”. On the face of that document it seems that the firm Stephen Lee Legal appears to defend the application on behalf of a party not named in the original application. Such an occurrence is not uncommon in the Commission when a party is misdescribed or misnamed in the originating process. One of the unsatisfactory aspects of the present matter is that, notwithstanding the filing of that document, no steps were taken to correct the state of the record concerning the proper identification of Mrs Davilla’s employer/s.
It is to be noted that at the commencement of the hearing before the Arbitrator, as is recorded in a transcript of those proceedings (‘transcript’), counsel for the employer/s stated (at 2.14):
“There are a couple of things, Arbitrator. One is that I should put on the record that as at the date of injury, 5 September 2005, I agree with what you said a moment ago that the employer was Gemarn Pty Limited and as at 5 September 2005 the insurer of that company was Allianz.”
At the time that statement was made by counsel no effort was made either by counsel appearing nor by the Arbitrator to clarify the identity of the employer/s, nor to confirm with any precision the identity of the party or parties for whom counsel making that statement appeared. It will be recalled that the Reply filed by those instructing counsel nominated the party represented as “ISS Facility Services Australia Ltd”.
Notwithstanding this state of uncertainty the proceedings continued and counsel was granted leave by the Arbitrator to cross-examine Mrs Davilla. Particular attention was directed by counsel during the course of cross-examination to the nature of the work performed by Mrs Davilla following her return from Peru in early 2006 up until her cessation of work in November 2007. The general tenor of that cross-examination suggested that such work caused pain and aggravated the condition of Mrs Davilla’s shoulders.
The hearing proceeded before the Arbitrator and counsel commenced their addresses. Counsel for Mrs Davilla was the first to address and it is of significance to note that which was put on her behalf as recorded at pages 17 and 18 of transcript:
“So before there’s any psychological aspect to this injury, the worker has, on one view of it, almost a 50 per cent reduced capacity to earn in that if you accept that she was advised to work only five hours a day instead of eight hours a day, she is down to 25 a week instead of 40 hours a week.” (At 17.25-30).
And –
“Now, there are other aspects of her injury, namely, the psychological or psychiatric aspects, and it’s difficult to know whether that stems from a primary type injury or a secondary injury. It’s been pleaded as a secondary injury and, in my submission, is more properly treated as a secondary injury.” (At 18.1-5).
It was following these submissions that Mrs Davilla’s counsel addressed the Arbitrator concerning the content of correspondence received by her from ISS signed by Mr Peter Flegg, general manager. That correspondence makes reference to a “work-related injury” which occurred on 5 September 2005 and subsequent rehabilitation efforts. The significant portion of the correspondence is as follows:
“In these circumstances, it has been decided that your employment with ISS is to be terminated, effective at the close of business on Friday 15 August 2008. In making the decision to terminate your employment various factors have been taken into account:
· you have either been absent from work or on restricted duties
· your doctor has indicated you will not be able to return to pre-injury duties…”.
The transcript reveals that it was at this point of the proceedings that more careful attention was addressed by all concerned to the question of the proper identity of Mrs Davilla’s employer/s. It was suggested by Mrs Davilla’s counsel that the correspondence quoted immediately above should be taken by the Arbitrator as having “…been written on behalf of the Respondent in this case.” The Arbitrator appeared to accept that submission by responding as follows:
“I accept that. Was there something else you wanted to – any other point you want to make about it?” (transcript 20.38-44).
It is important to note that during discussion as recorded counsel appearing for the employer/s paid particular attention to the identity of the employer as at 5 September 2005. Counsel is recorded as stating that the employer at that date was Gemarn, and made the observation “…it’s comforting to know that that is correct.” (transcript 19.57).
Counsel appearing on behalf of the employer/s characterised the injury alleged by Mrs Davilla as being one “…occurring on 5 September 2005.” Detailed attention is then given in the course of argument to the medical evidence and that evidence given by Mrs Davilla in the course of cross-examination which implicates the nature and conditions of her employment during 2006 as being responsible, in part, for the alleged incapacity. When addressing those matters counsel is recorded as saying (at 25.35-57):
“Now, the case that she presents to you is through Dr Wallace, who identifies work that has caused the condition for which she was referred to Dr Wallace, and he implicates a number of different aspects of work, which clearly include the kind of work that she is performing. So, not just through 2006 - not just through 2005 but also the entirety of 2006 after her return from Peru she says that she continued with that work until at the end of 2006 (sic) it became unbearable.
What do we make of that? The applicant's claim is that work has exacerbated, aggravated or caused a deterioration in a condition. Now, they have proven that well and truly and they have proven an injury that occurred well and truly after 5 September 2005. At the very best, the applicant has got two injuries, one when in 2005 Gemarn was the employer, Allianz was the insurer, as we've agreed. In a case where you have evidence that there were a sequence of employers, there is sometimes difficulty in establishing employers and insurers. There is no evidence before you as to who the employer was, who the insurer was as at the date that the applicant was obliged to cease work at the end of 2007…”
The approach taken by counsel for the employer/s was reinforced when it was stated (at 29.1-6.):
“The injuries sustained after 5 September could not possibly be laid at the door of the employer and insurer at 5 September 2005. There is no evidence as to who was the employer after that date and who was the insurer after that date.”
It may be seen from the summary which I have attempted that the representatives of the employer/s during the course of the hearing have shifted their position as representative of ISS as appears in the Reply to an assertion that they act solely for Gemarn the agreed employer as at 5 September 2005. It is this shift together with the fact as now known that Gemarn is a deregistered company and has been so since a date prior to the making of the award that give rise to matters that require correction on this review.
The need for correction arises also, in part, by reason of the absence of precision found at Part 4 of Mrs Davilla’s original application. There is inconsistency between the particularisation at Part 4 of “date of injury” being 5 September 2005 and the description of the manner in which the injury occurred where it is stated:
“The nature and conditions of the Applicant’s employment caused, aggravated, accelerated and/or exacerbated the physical injuries referred to above. As a result of the physical injuries the Applicant became involved in a dispute with her supervisor regarding her continued ability to work causing, aggravating, exacerbating and/or accelerating the psychological condition referred to.”
It is reasonable to infer that the allegation of injury made by Mrs Davilla involves not only the injury which occurred, or was deemed to have occurred, on 5 September 2005 being an injury to her shoulders and neck as well as secondary psychological injury. It is reasonably clear that there is a further allegation of injury being that the physical injuries as particularised had been caused, aggravated, exacerbated and/or accelerated by the nature and conditions of work subsequent to September 2005 and psychological injury caused by the circumstances which prevailed during a dispute between Mrs Davilla and her supervisor. The evidence establishes that that dispute occurred in November 2007.
The need for review
The Arbitrator’s determination of the dispute has, in my view, miscarried having regard firstly to the fact that the determination fails to identify which of the two Respondents named in the Certificate of Determination is liable to Mrs Davilla in respect of the orders made.
Secondly, the determination was made at a time when Gemarn was deregistered and was thus non-existent (section 601AD(1) Corporations Act (Cwlth) 2001). There is no application before the Commission seeking to correct matters pursuant to section 162 of the Workers Compensation Act 1987 (‘the 1987 Act’) (refer supplementary submissions page 6).
DISCUSSION AND FINDINGS
The need for review and appropriate orders arises, as can be seen from [33] and [34] above, independently of the merits of the matters raised by each party on appeal. It is for that reason that it is not necessary to closely analyse the evidence before the Commission nor the arguments raised on appeal. Orders appropriate to the circumstances are made hereunder and involve the remitter of the matter for fresh determination on terms as stated. It is proposed to summarise matters relevant to the identification of Mrs Davilla’s employers to enable a proper understanding of the orders made.
The evidence before the Arbitrator included numerous references to “Tempo Services” and “Tempo Cleaning Services”. The context suggests that Mrs Davilla was employed by an organisation of that description. It is well known in this State and this Commission that a large corporate entity with a name similar to those just mentioned is a substantial cleaning contractor conducting its business in the greater Sydney area. Mrs Davilla’s statement dated 21 October 2008, which was in evidence before the Arbitrator, nominated her employer as being “Tempo Services” (at [4]). It is open to inference, however I do not so find, that both Gemarn and ISS were companies associated with the cleaning contractor described by Mrs Davilla as Tempo Services. What is clear on the evidence is that Mrs Davilla’s employment between 1997 and November 2007 required seamless attendance as a cleaner at Meadowbank TAFE. That the identity of Mrs Davilla’s employer changed is apparent from the content of her taxation returns which are in evidence. Such changes occurred, it seems, without Mrs Davilla’s knowledge. The taxation return for the year ending June 2006 reveals that a company with the ABN number that corresponds to that of ISS paid her the sum of $8,233.00. That ABN number is evident, as highlighted in Mrs Davilla’s submissions on this appeal, in the correspondence giving notice of termination of employment. It may be seen, contrary to that which was stated by both counsel and as found by the Arbitrator, that there was evidence which, prima facie, establishes a change of employer at some time during the course of the financial year 2005-2006 and that ISS was the employer up until the end of the financial year ending June 2008.
It is plain that proper adjudication of Mrs Davilla’s rights in respect of the injury as alleged in September 2005 and as alleged with respect to the conditions of her work subsequently requires proper attention to be given to the identities of her employers at particular times.
Following remitter of this matter it is clear that an appropriate application seeking a declaration needs to be made pursuant to section 162 of the 1987 Act with respect to the now deregistered company Gemarn. It also appears necessary to join the subsequent employer which, on the limited evidence available, appears to be ISS. That joinder may be sought pursuant to Part 11 of the Workers Compensation Commission Rules 2006 (‘the rules’). I note in passing that, should such joinder be sought and granted, appropriate orders relating to compliance with rules and relevant timetables will need to be made to accommodate the need for fairness to any such Respondent and its insurer. In that regard the evidence strongly suggests that any such company is a member of the Tempo Group and is insured by Allianz.
Leaving aside the difficulty which has arisen by reason of the status of Gemarn, it is clear that the need for remitter has arisen principally because of the nature of the argument raised in defence of the claim concerning work conditions postdating September 2005 and the suggested involvement of an unidentified and non-participating employer. It is for that reason that, in the orders as appear below, the effect of costs orders made by the Arbitrator in Mrs Davilla’s favour is preserved.
It should be noted that the reasons expressed by the Arbitrator for his determination demonstrate that no proper consideration was given to Mrs Davilla’s allegation of injury being psychiatric injury nor was any consideration given to her allegation concerning the aggravation etc of her physical injuries caused by the nature and conditions of her work. The approach adopted by the Arbitrator is demonstrated by that which was stated at [23]:
“The Applicant was cross-examined about her statement that work has aggravated and caused a deterioration in her condition after 5/9/2005. On the basis of that evidence I accept the Respondent’s submission that the Applicant’s condition subsequently worsened so much so that she went off work in early 2007. However, there is no evidence before me who the employer or insurer was at that time. I therefore do not find that the worsening of the Applicant’s condition and increasing incapacity during the time from the deemed date of the injury is due to her employment with the Respondent.”
It may be seen from the last mentioned quotation from Reasons that it appears that a finding of injury post-dating September 2005 has been made however there has been no adjudication concerning liability and entitlement concerning such injury. The reasons stated by the Arbitrator for such an omission relate back to the difficulty summarised above concerning the manner in which the matter was conducted before him. A remitter of the matter will enable a proper adjudication of liability and any entitlement.
DECISION
Paragraphs one, two, three and four of the Arbitrator’s determination dated 11 June 2009 are revoked and the matter is remitted back to another Arbitrator for determination afresh.
Paragraph five of the Arbitrator’s determination is confirmed.
A Direction is made that Mrs Davilla take steps to make an appropriate application pursuant to section 162(1) of the 1987 Act seeking a declaration with respect to insurance of the former corporation Gemarn Pty Limited once the matter has been remitted to and listed before an Arbitrator. Appropriate Directions are to be given by that Arbitrator concerning any proposed joinder of a party or parties or insurers to the proceedings.
COSTS
Having regard to the circumstances above summarised concerning the need for remittal and in the exercise of discretion granted to the Commission pursuant to section 341 of the 1998 Act, I order that Mrs Davilla’s costs of the application before the Arbitrator and her costs in appeals numbered A1-2123/09 and A2-2123/09 be paid by Allianz Australia Workers Compensation (NSW) Limited.
Kevin O’Grady
Deputy President
15 October 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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