Department of Community Services v Hickey
[2006] NSWWCCPD 320
•27 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Department of Community Services v Hickey [2006] NSWWCCPD 320
APPELLANT: Department of Community Services
RESPONDENT: Sandra Hickey
INSURER:Allianz Australia Insurance Limited as agent for NSW Self Insurance Corporation
FILE NUMBER: WCC9625-06
DATE OF ARBITRATOR’S DECISION: 9 August 2006
DATE OF APPEAL DECISION: 27 November 2006
SUBJECT MATTER OF DECISION: Leave to appeal; definition of ‘compensation’ and ‘any monetary benefit’; sections 4 and 352(2) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: Lee Peisley & Foley
ORDERS MADE ON APPEAL: Leave to appeal is refused.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 6 September 2006 the Department of Community Services (‘the Appellant Employer/the Department’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 August 2006.
The Respondent to the Appeal is Sandra Hickey (‘the Respondent Worker/Ms Hickey’).
Ms Hickey was born on 13 June 1961 and has work for the Department since about 2000 as a social worker. She ceased work in November 2005 alleging that she had been harassed and bullied at work. Liability for her claim was denied by letter dated 12 April 2006 on the grounds that “work is not a substantial contributing factor” to the injury.
On 23 June 2006 an Application to Resolve a Workplace Injury Management Dispute (‘the Application’) was filed in the Commission alleging that:
· no Injury Management Plan had been established or maintained as required under section 43 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’);
· no return to work plan had been established as required under section 52 of the 1998 Act, and
· no suitable duties had been provided.
An Injury Management Plan was established by the Department on 3 February 2006.
No formal Reply was filed by the Department, but on 6 July 2006 its solicitor filed a letter with the Commission serving several documents including the letter denying liability dated 12 April 2006 together with a report from Ms Koussa, consultant psychologist, with the Centre for Corporate Health dated 4 April 2006.
A teleconference was held between the parties and a Commission Arbitrator on 8 August 2006. The parties were unable to reach agreement and the solicitor for the Department requested that the matter be listed for a formal hearing. The Arbitrator declined that request as she was satisfied that the documents supplied were sufficient “as required by s354 (6) of the 1998 Act” ( Arbitrator’s Statement of Reasons for Decision (‘Reasons’) paragraph eight).
The Arbitrator made orders in favour of the Ms Hickey and the Department now seeks leave to appeal those orders.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 August 2006, records the Arbitrator’s orders as follows:
“1.The Insurer is to immediately establish a Return to Work Plan for the Applicant.
2.The Insurer is to immediately approve services from MEND, Rehabilitation Provider for assistance with development of a Return to Work Plan to return to employment.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
PRELIMINARY MATTERS
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 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.
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 parties each seek to introduce fresh evidence on appeal in the form of quotes from Mend Services Pty Ltd (‘Mend’) setting out the anticipated cost of rehabilitation services for the Respondent Worker. The quote relied on by the Appellant Employer is dated 12 September 2006 and is for $6,776.00. The quote relied on by the Respondent Worker is dated 19 September 2006 and is attached to a letter from Mend of the same date. The letter states that Mend originally provided a quote to Allianz TMF for rehabilitation services for Ms Hickey on 11 September 2006 in the sum of $2,376.00. Mend was then contacted by Mr Filewood of Allianz “requesting a higher cost quote to include all aspects of what might be included in Ms Hickey’s rehabilitation program” (letter from Mend to Respondent Worker’s solicitor 19 September 2006). Mend replied that what was being requested “was highly unusual as the quote would be contingent upon the findings from the initial assessment”. However, a second quote was given in the sum of $6,776.00. This is the quote the Appellant Employer seeks to rely on in the appeal.
None of the quotes were available at the time of the teleconference on 8 August 2006 or at the time the appeal was filed. In order to determine if the thresholds set out in section 352(2) have been satisfied it is necessary for the Commission to have evidence before it. In Lilly v Tomago Aluminium Company Pty Ltd [2004] NSWWCCPD 62 (‘Lilly’) fresh evidence was allowed on appeal in order to provide evidence of the cost of a knee replacement operation. That evidence established that the cost was well in excess of $5,000.00 and leave to appeal was granted.
The authority of Lilly does not apply in the present appeal. For the reasons set out below, the present appeal does not involve an ‘amount of compensation’. Therefore, the fresh evidence sought to be relied on is irrelevant to the appeal.
The application to rely on fresh evidence is refused.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether any ‘compensation’ is ‘at issue’ on appeal.
LEAVE TO APPEAL
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. That section provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.” (emphasis added)
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”.
On 13 October 2006 the Commission wrote to the Appellant Employer’s solicitors drawing their attention to my decision in Sydney Opera House Trust v Sykes [2006] NSWWCCPD 227 (‘Sykes’) and advising that the present appeal involves an Application to Resolve a Workplace Injury Management Dispute and “as such, does not seek an order for the payment of compensation”.
The solicitors for the Appellant Employer replied to the Commission by letter dated 16 October 2006 “disputing any suggestion that the matter of Sydney Opera House Trust v Sykes (2006) is authority for the proposition that Applications for Workplace Injury Management Disputes do not involve amounts of compensation”. It is submitted by the Appellant Employer that, unlike Sykes, there is an amount of compensation in issue in the present matter, namely, the sum of $6,776.00. That amount is the cost of rehabilitation services it is anticipated will be provided to the Respondent Worker by Mend as ordered by the Arbitrator.
The term ‘compensation’ is defined in section 4 of the 1998 Act as follows:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.” (emphasis added)
Compensation is only payable if an entitlement is established under sections 9 and 9A of the 1987 Act. Section 9 provides:
“9 Liability of employers for injuries received by workers—general
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
The term ‘injury’ is defined in section 4 of the 1987 Act and the 1998 Act as follows:
“4 Definition of “injury”
4 In this Act:
injury-
(a) means personal injury arising out of or in the course of employment,
(b) includes:(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
No entitlement to compensation has been established in the present matter because liability has been denied and no determination has been made by the Commission on the threshold issue of ‘injury’.
It is argued that the cost of the service it is anticipated Mend will provide is a ‘monetary benefit’ under the Workers Compensation Acts (the 1987 Act and the 1998 Act) and that it is ‘compensation at issue’ in the appeal. Therefore, as the quote provided from Mend is above $5,000.00, the threshold test in section 352(2)(a) is satisfied.
I do not accept that argument. First, the Application filed by the Respondent Worker does not seek compensation (‘any monetary benefit’) but seeks the appointment of a rehabilitation provider, the implementation of an injury management plan and a return to work plan. Therefore, no ‘compensation’ is in issue in the Application. Second, the fact that the appointment of a rehabilitation provider will involve a cost does not make that cost a ‘monetary benefit’ under the legislation. The order made by the Arbitrator will not result in the insurer having to pay any monetary benefit to or on behalf of the Respondent Worker.
The word ‘benefit’ must be read in the context of the legislation. The legislation provides, among other things, that “a worker who has received an injury (and, in the case of the death of the worker, his or her dependents) shall receive compensation” (section 9 of the 1987 Act). Part 3 of the 1987 Act sets out the “Compensation – Benefits” that are payable. They include weekly compensation during total or partial incapacity (section 33), lump sum compensation in the event that the injury has resulted in permanent impairment (sections 66 and 67), death benefit compensation (sections 25, 26 and 27), compensation for the cost of hospital, medical and rehabilitation treatment (section 60), and compensation for domestic assistance (section 60AA).
The reference to “occupational rehabilitation service” in section 60 needs to be considered in the context of that section. Section 60 provides for the payment of those expenses “if, as a result of an injury received by a worker, it is reasonably necessary that” such service be provided. The quote from Mend does not come under section 60. First, there has been no determination that the cost is ‘reasonably necessary as a result of an injury’. Second, Section 60 is an indemnity provision and only applies to costs that have been incurred (New South Wales Sugar Milling Co-opinion Ltd v Manning (1998) 44 NSWLR 442). Third, the cost, if it is incurred, is a cost that will be incurred as a result of an order of the Commission pursuant to Chapter 3 of the 1998 Act, not section 60 of the 1987 Act. Chapter 3 does not deal with ‘compensation’ but with ‘workplace injury management’. Its object is to “establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries” (section 41(1) of the 1998 Act). It applies “even when there is a dispute as to liability” (section 41A). The term ‘workplace injury’ is defined in Chapter 3 to mean “an injury to a worker in respect of which compensation is or may be payable under this Act” (emphasis added) (section 42(1)). The addition of the words “may be payable” clearly contemplate the situation where, though liability is disputed by the insurer, compensation may be payable in the event that a claim for compensation is successful.
Therefore, the quote from Mend does not come under the definition of ‘compensation’ within the 1998 Act.
The Appellant Employer relies on Mawson v Fletshers International Exports Pty Limited [2002] NSWWCCPD 5 (‘Mawson’) where Deputy President Bryon said at [22]:
“22. No amount was awarded in the decision appealed against. An award was not an appropriate outcome given that the dispute before the Arbitrator was entirely related to applications for directions and not to the merits or other aspects of the substantive claim made by Mr. Mawson, and which is in dispute before the Commission, but not yet dealt with. While a reference to the Second Reading Speech was not helpful on the particular point, a “meaningful result” is not achieved by merely ignoring the provisions of subsection (8) of section 352. It seems that “20%” in subsection (2)(b) is limited to a decision in which an award is made and that the operation of this subsection does not preclude appeals against decisions in which no award was made. The purpose of subsection 2(b) in my view, applies a qualification or condition that must be met before leave to appeal is granted against a decision in which an award is made, but that particular qualification or condition does not and cannot meaningfully apply to a decision where this is not the case.”
However, the principal relief sought in Mawson was weekly compensation. It was not disputed that the amount of compensation ‘at issue’ in the appeal in that case was greater than $5,000.00 (see Mawson at [14]). That is not the case in the present matter.
The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The “. . . amount of compensation at issue on the appeal” is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
In the present case the Application does not seek an order for the payment of “compensation” but merely noted that the insurer had failed to establish or maintain an injury management plan and failed to establish a return to work plan. Therefore, no “compensation” is “at issue” on appeal and the appeal does not meet the thresholds in section 352(2). As a result, leave to appeal is refused.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
27 November 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.
ASSOCIATE
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