Department of Corrective Services v Buxton

[2007] NSWWCCPD 55

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION

CONSTITUTED BY AN ARBITRATOR

CITATION:Department of Corrective Services v Buxton [2007] NSWWCCPD 55

APPELLANT:  Department of Corrective Services

RESPONDENT:  Bronwen Buxton

INSURER:Employers Mutual Limited, an agent of TMF No 2

FILE NUMBER:  1376-05

DATE OF ARBITRATOR’S DECISION:          17 July 2006

DATE OF APPEAL DECISION:  19 February 2007

SUBJECT MATTER OF DECISION: Extension of time to make an appeal – Rule 16.2(11) of the Workers Compensation Rules 2006; Section 9A of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell

HEARING:On the papers

REPRESENTATION:  Appellant: Phillips Fox          

Respondent: Keddies

ORDERS MADE ON APPEAL:  Leave to appeal is refused.

The Appellant Employer is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 24 August 2006 the Department of Corrective Services (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 July 2006.

1. The Respondent to the Appeal is Bronwen Buxton (‘the Respondent Worker’). She was born on 21 January 1966. She obtained qualifications as a school teacher after leaving school, and had worked both as a school teacher, and teaching in a beauty therapy college, before joining the Appellant Employer on 29 July 1996, as a correctional officer. She had one son, born on 21 January 1999, at the time of the events giving rise to these proceedings, and a second son born on 23 April 2003.

1. The proceedings related to psychological injury suffered by the Respondent Worker, allegedly as a result of being counselled by her supervisor, Mr Schubert, on 16 December 2002, regarding her sick leave record. She was pregnant with her second son at the time. She went off work from that time.

1. The Application to Resolve a Dispute (‘the Application’) describes earlier proceedings between the parties relating to the same injury, which were settled on the basis of a closed period of weekly compensation, and the re-crediting of some sick leave. The Application in the current proceedings claims weekly compensation on a continuing basis from 1 August 2003, a general order for the payment of expenses pursuant to section 60 of the Workers Compensation Act, 1987 (‘the 1987 Act’), and lump sum compensation in respect of 19% whole person impairment, and associated pain and suffering.

1. The Reply filed on behalf of the Appellant Employer pleads multiple matters, and does little to narrow the issues genuinely in dispute between the parties. It does place in issue, inter alia, the occurrence of injury, incapacity, sections 9A and 11A of the 1987 Act, and entitlement to all the forms of relief which were claimed.

1. The lump sum component of the claim was referred to an approved medical specialist (‘AMS’), Dr Kossoff, who examined the Respondent Worker on 29 August 2005. The resulting medical assessment certificate (‘MAC’) certified the Respondent Worker suffered from 13% whole person impairment. This assessment was insufficiently high to entitle the Respondent Worker to compensation pursuant to sections 66 and 67, due to the operation of section 65A(3) of the 1987 Act. The Respondent Worker unsuccessfully appealed the MAC to a Medical Appeal Panel, which on 7 April 2006 confirmed the decision in the MAC. Consequently the claim for lump sum compensation could not be maintained.  

1. The balance of the claim was listed for arbitration hearing on 30 June 2006. Both parties were represented by counsel. There was no oral evidence. The arbitrator dealt with various objections to late documents, and heard submissions from both counsel.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 17 July 2006 records the Arbitrator’s orders as follows:

“1.The Applicant’s claim for non-economic loss compensation is dismissed in accordance with the medical assessment certificate of Dr Kosoff.

2.The Respondent shall pay the Applicant’s reasonably necessary medical expenses upon production of accounts and receipts.

3.The Respondent shall pay the Applicant weekly compensation under s. 37 at the statutory rate for a worker over 21 with two dependant children for the period 28 August 2003 to 24 July 2004.

4.The Respondent shall pay the Applicant weekly compensation under s.40 at the statutory rate for a worker over 21 with two dependant children for the period 25 July 2004 to date and continuing.

5.Liberty to apply with respect to the issue of costs until 12 August 2006.”

1. A detailed statement of reasons was attached to the Certificate of Determination. It deals largely (although not exclusively) with the issue between the parties regarding whether the Appellant Employer had a defence pursuant to section 11A of the 1987 Act.

ISSUES IN DISPUTE

1. The Application for Leave to Appeal does not identify actual grounds of appeal. The submissions, aside from matters going to leave under section 352 of the Workplace InjuryManagement and Workers Compensation Act 1998 (‘the 1998 Act’), and extension of time to appeal, raise the following issues:

(i)The arbitrator approached determination of the matter on the basis ‘substantial contributing factor’ (section 9A of the 1987 Act) had been conceded as an issue, by the Appellant Employer, when it had not. Accordingly the arbitrator failed to determine one of the issues between the parties, being whether section 9A was satisfied.

(ii)Various submissions put to the arbitrator by counsel for the Appellant Employer are referred to, as indicative of the fact the Appellant Employer continued to maintain the Respondent Worker was no longer incapacitated, or alternatively any incapacity was not causally related to the pleaded injury. These submissions are said to demonstrate ‘substantial contributing factor’ had not been abandoned as an issue by the Appellant Employer.

(iii)It is submitted  the arbitrator dealt with the matter on the basis the Appellant Employer had conceded the Respondent Worker to be partially incapacitated, when it had not.

1. The submissions of the Respondent Worker say counsel for the Appellant Employer in fact made the concession relied upon by the arbitrator, relating to section 9A. It is submitted the findings made by the arbitrator relevant to the section 11A issue, are such that section 9A clearly would have been satisfied in any event. It is submitted the arbitrator’s reasons for reaching his view on ‘incapacity’ deal with the evidence, including the arguments raised by the employer, and quoted in its submissions on the appeal. These arguments were, it is said, properly rejected by the arbitrator. Lastly, it is submitted the Appellant Employer’s argument that employment was not conceded as remaining a substantial contributing factor (my emphasis) was misconceived. If section 9A was satisfied, it could not then cease to be satisfied at some later time. Rather, the remaining question is simply one of whether incapacity resulted from the injury found.

ON THE PAPERS REVIEW

1. 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.”

2. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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.

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The Respondent Worker properly concedes that the amount in issue exceeds the sum of $5,000.00 prescribed in section 352(2) of the 1998 Act, and that in excess of 20% of the amount awarded in the decision is appealed against.

1. Section 352(4) of the 1998 Act provides an appeal can only be made within 28 days after the making of the decision appealed against. The arbitrator’s decision was made on the date of the Certificate of Determination, 17 July 2006: Rule 16.2(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’), previously Rule 77(2) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’). The Appellant Employer’s Application to appeal was initially lodged in the Commission on 17 August 2006, outside the time prescribed in section 352(4) and Rule 16.2(1). The document was rejected by the Commission by letter dated 22 August 2006, as it was lodged out of time, and did not contain adequate submissions in favour of granting an extension of time, in contravention of Rule 16.2(12) of the Rules. Extensions of time in which to bring a Presidential appeal in the Commission are governed by sub-rules (11) and (12) of Rule 16.2. Those sub-rules provide:

“(11)     The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.

(12)      A party who seeks an extension of time as referred to in subrule (11) must:

(a)  as soon as practicable give notice to the other parties of the intention to seek the extension, and

(b) lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”

1. The 2003 Rules, which had application at the time the appeal was being filed, contained provisions (in Rule 77) in identical form to those currently found in Rule 16.2, sub-rules (11) and (12).

2. The Appellant Employer then re-lodged its appeal on 24 August 2006, on this occasion accompanied by further submissions, which addressed its need for an extension of time, if the appeal was to be brought.

3. The Appellant Employer explained the delay in lodging the appeal on the basis of “administrative error”. In short, after receiving the Certificate of Determination and the arbitrator’s reasons, the Appellant Employer’s solicitors miscalculated the date by which any appeal would need to be lodged. A copy letter of advice dated 25 July 2006, from the solicitors to the insurer of the Appellant Employer, is attached to the submissions. It confirmed that at that time the solicitors were under the misapprehension any appeal needed to be filed by 21 August 2006. It is submitted the appeal was lodged a number of days late, in the mistaken belief it was still in time.

4. The Appellant Employer also submits “10 days elapsed between the requesting of the transcript of judgment and receipt of same by this Firm”, and for that period the solicitors could not “properly consider and advise whether appeal prospects existed”. I have difficulty with this submission. It would appear to be a reference to the period between 25 July 2006 (when the solicitors requested “a copy of the transcript of the proceedings” from the Commission), and 3 August 2006, when they received a CD from the Commission, being the sound recording of the arbitration hearing. However the submissions of the Appellant Employer, in support of the application to extend time, state the “Certificate of Determination and Statement of Reasons” of the arbitrator was received on 17 July 2006. The arbitrator’s reasons would not have formed part of the sound recording in any event, as his decision was reserved, and reduced to writing. Accordingly, it is difficult to see why it was necessary to receive a “transcript of judgment” on 3 August 2006, before considering whether appeal prospects existed. It may be the submission simply misdescribes the situation, and the solicitors were waiting for transcript of the arbitration hearing, rather than the judgment. If this were so, I would not regard it as a potent explanation for late lodgement of the appeal. It is commonplace, in Presidential appeals, for the appeal documentation to be filed within time, in the absence of transcript of the arbitration hearing, and for any necessary supplementary submissions to be filed after transcript becomes available. This is consistent with the procedure contemplated in Practice Direction No 6, which in part provides:

   “Any supplementary submissions following receipt of the transcript must be lodged and served within 28 days of the date of the letter from the Registrar addressed to the party enclosing a copy of the transcript.”

5. The Appellant Employer also points out the appeal was not very late, that an unsealed copy was served on the Respondent Worker’s solicitors on 17 August 2006, that the Respondent Worker is unlikely to suffer prejudice due to the delay, and that payments have been made to the Respondent Worker in compliance with the award. The Appellant Employer describes the award in the matter as being “approximately $650,000.00”, and says it would suffer “substantial financial injustice”, should it not be granted leave to appeal out of time. It is unclear how this sum was calculated.

6. The Respondent Worker opposes the application to appeal out of time. It is submitted the situation outlined by the Appellant Employer does not constitute “exceptional circumstances” within the meaning of Rule 16.2(11) of the Rules. It is submitted a simple administrative error in calculating the time for lodgement of an appeal does not justify the granting of an extension, particularly where a party is legally represented.

7. Rule 16.2(11), like its predecessor in the 2003 Rules, does not set out the factors to be considered by a Presidential member, in exercising his or her discretion on an application to extend the time for making an appeal. The following passage of the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) has frequently been helpful:

   “The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)

8. This passage has been applied on many occasions (see Madafiglio v Arnotts Biscuits [2006] NSWWCCPD 36, and the cases cited therein.

9. A starting point is whether the discretion to extend time is enlivened, by the party seeking the extension satisfying the Commission of the existence of ‘exceptional circumstances’. The current facts bear a similarity to those in Department of Education & Training v Mekhail [2006] NSWWCCPD 1. In that matter the applicant for leave filed its appeal approximately three days out of time. The stated reason for this was that the appeal had been given to the “filing section” of the appellant’s solicitors on what it perceived to be the last day for filing, but due to “unforeseen error” it was not filed until two days later. In refusing the application for leave to appeal out of time, Handley ADP described the main reason for the appeal being filed out of time as “administrative error”, and regarded the appellant as having failed to demonstrate the existence of ‘exceptional circumstances’.

10. An error by the solicitors for the Appellant Employer, in calculating the period during which any appeal needed to be filed, is the dominant, probably the only, reason for the appeal being out of time in the current matter. The circumstances of each case require consideration on their own facts. I am not obliged to take the same approach as Handley ADP, in forming a view regarding whether ‘exceptional circumstances’ are made out. I have however reached a similar view. I cannot see a simple error, in calculating the time in which an appeal could be brought, is sufficient to constitute ‘exceptional circumstances’. I am not satisfied ‘exceptional circumstances’ exist, so as to enliven the discretion in Rule 16.2(11). For this reason the application to extend the time for making the appeal should be refused.

11. Even if ‘exceptional circumstances’ existed, it would not be appropriate to exercise the discretion to extend time for making the appeal, as the appeal does not demonstrate reasonable prospects of success. It would be inappropriate to exercise the discretion to extend in such circumstances: Gallo, Howell v Stringvale Pty Limited [2004] NSWWCCPD 22). This requires some consideration of the merits of the appeal.

The Section 9A Concession

1. At [13] of his Reasons for Decision the arbitrator described “Issues Agreed”. One of the issues thus described is “that Ms Buxton’s employment was a substantial contributing factor to that injury”, being the psychological injury on 16 December 2002. This is a reference to whether the Respondent Worker’s injury occurred in circumstances which satisfied section 9A of the 1987 Act.

2. The Appellant Employer “submits that at no stage during the course of the Arbitration hearing on 30 June 2006 was any concession made that the Respondent’s employment was a substantial contributing factor for the manifestation of her ongoing condition”. It is accordingly submitted that the decision “must be revoked as he has failed to fully determine liability”.

3. The Appellant Employer points to a number of matters in the transcript, which are said to be consistent with its submission, that “substantial contributing factor” was not conceded, for the purposes of the arbitration hearing. The first is a statement by the arbitrator, at the commencement of the arbitration hearing, that “the issue as raised by the respondent in its reply in respect of sections 9A and 11A of the Workers Compensation Act has not been previously determined or conceded” (T1.30). I note in passing the arbitrator goes on to say “Today in discussion its been agreed that the principal issue is really that of section 11A and some issues as to ongoing causation” (T1.35). I also note the statement of counsel for the Appellant Employer, said to contain the concession, occurred at a later stage (at T23) of the arbitration hearing.

4. The second is submissions by the Respondent Worker’s counsel, which are quoted, in which the counsel refers to “substantial contributing factor”. This, it is said, is inconsistent with the issue having been conceded by the Appellant Employer.

5. The third is a number of quoted submissions by the Appellant Employer’s counsel, going to the issue of whether the Respondent Worker suffered from ongoing incapacity, and if so, whether it resulted from the injury of 16 December 2002. These are said to “clearly evidence that at no point during the Arbitration hearing was there ever a concession that the Respondent’s employment remained a substantial contributing factor responsible for the cause of worker’s current condition” (my emphasis).

1. Counsel for the Respondent Worker addressed before counsel for the Appellant Employer. Thus, as is put in the Respondent Worker’s submissions on the appeal, “her counsel spoke at large to the claims made”. His submissions could not be expected to take account of any concession made subsequently, by counsel for the Appellant Employer. The main passage of the transcript, where a concession on the section 9A issue is said to be made by the Appellant Employer’s counsel, occurred after the Respondent Worker’s counsel addressed. This being so, the point referred to at [31] above is of little assistance to the Appellant Employer’s argument.

2. Counsel for the Appellant Employer, near the commencement of his address, said:

   “Now, the question is: did she suffer an injury on that day (16 December 2002). The weight of medical evidence would suggest to you that she did suffer an injury that day. Another matter raised by the respondent is whether, in fact, work was a significant contributing factor to that injury – section 9 – and, again, on the weight of medical opinion from both sides the answer is yes.

   What was clearly delineated at the commencement of these proceedings before you, Arbitrator, was whether the conduct of Mr Schubert that day in his 15-minute discussion with the worker was reasonable. If it was reasonable, she loses. If it was found not to be reasonable, she wins. And the question is then, what flows from it by way of a continuance of partial incapacity? Was there a change in the last three and a half years, is one of the areas of your assessment, Arbitrator, in (sic) assuming you find Mr Schubert’s conduct wasn’t reasonable. How long do the events of that 15 minutes three and a half years ago continue to have an incapacity or, in essence, today, in reality, is there, in fact, another agenda of this woman to bring about the best possible result employment-wise and financially-wise for what she believes is her entitlement.” (at T23)

3. This amounted to a clear concession by the Appellant Employer, through its counsel, that “injury” and “substantial contributing factor” were not live issues, and the real issues were whether section 11A of the 1987 Act gave the Appellant Employer a defence, whether there was ongoing incapacity, and whether incapacity resulted from the pleaded injury. It is also consistent with the remarks made by the arbitrator at T1.35, regarding the principal issues as agreed in discussion. Consistent with this, the issue pursuant to section 11A was the dominant topic on which counsel for the Appellant Employer addressed.

4. The Appellant Employer’s counsel took the arbitrator through lay and medical evidence, leading to a submission (at T27) that if the arbitrator accepted the evidence of Mr Schubert (the Respondent Worker’s superior who counselled her on 16 December 2002), the Respondent Worker would fail in her claim. In context, it is clear this submission is one based upon the Appellant Employer’s alleged defence pursuant to section 11A.

5. Counsel for the Appellant Employer then continued:

   “In my respectful submission, if you are against me, there comes a time somewhere in the last three years where the effects or what results from – which is the law – what results from the events of three and a half years ago ceases and what then comes into play is her own determination relative to industrial issues, but her incapacity really is nothing more than a self-determination not to go back to work until she gets her own way, and that doesn’t equal workers compensation in my respectful submission.” (at T27)

6. The content of the Appellant Employer’s submissions before the arbitrator was entirely consistent with the concessions made at their commencement, that the issues requiring determination were the section 11A defence, and whether there was ongoing incapacity resulting from the injury.

7. The Respondent Worker’s counsel, in reply, said “He’s conceded that there is injury, there is substantial contributing factor and the issue arises now as to reasonableness under section 11A” (at T28.15). It was not then suggested, on the Appellant Employer’s behalf, that such concessions had not been made. The arbitrator’s Reasons for Decision largely involve a careful analysis of the evidence and submissions going to the section 11A issue. It was an issue on which his decision was in favour of the Respondent Worker, and which is not the subject of challenge in this appeal.

8. The second of the Appellant Employer’s arguments, mentioned at paragraph [10] above, is related to the first. It is said to “further support” the first argument. It is that various submissions of the Appellant Employer’s counsel indicated “substantial continuing factor” had not been conceded, notwithstanding any apparent concessions to the contrary. The submissions relied upon in this regard are quoted at paragraphs [9] to [12] of the Appellant Employer’s submissions on this appeal. The submissions quoted go to how long the effects of the incident of 16 December 2002 would continue, whether any genuine incapacity resulting from the psychological injury had ceased, and whether any failure by the Respondent Worker to resume work with the Appellant Employer was a wilful stance taken by the Respondent Worker, for her own ends, rather than a reflection of genuine incapacity.

9. None of these submissions before the arbitrator, in my view, are inconsistent with the Appellant Employer having conceded section 9A was no longer in issue between the parties. The submissions of the Respondent Worker on this appeal describe this argument as misconceived, with some justification.

10. The issues being raised by counsel for the Appellant Employer were whether there was ongoing incapacity, and if so, whether it resulted from the injury. Section 9A concerns itself with a different question, being the relationship between injury, and the work activity being carried out when the injury is sustained, “it is the strength of the causal linkage that is in question”: Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 (‘Mercer’) at [17]. In Mercer Mason P said:

    “The worker correctly submits that the words ‘employment concerned’ in s 9A reinforces the view that it is the work activity in which the worker was engaged at the time of the injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of a ‘substantial contributing factor to an injury’ is exegeted in subss (2) and (3) of s 9A.” (at [22])

11. This passage was quoted with approval in Workcover Authority v Walsh[2004] NSWCA 186 at [91], and in Murray v Shillingsworth [2006] NSWCA 367 at [56]. If the strength of this causal linkage is sufficient to satisfy section 9A, then compensation is payable in respect of the injury. It remains necessary for a worker to demonstrate (in a weekly compensation claim) that incapacity for which compensation is sought exists, and results from the injury. However these are questions separate from the operation of section 9A. Accordingly, the submissions quoted at paragraphs [9] to [12] are not inconsistent with the employer having conceded the section 9A issue, and do not lend support to the argument that such concession had not been made.

12. The first two arguments on the appeal, as referred to at paragraph [10] above, must fail. Any issue based upon section 9A of the 1987 Act had been abandoned by the Appellant Employer, as was correctly recognised by the arbitrator.

The Partial Incapacity Concession

1. The Appellant Employer’s third argument on this appeal, is that the arbitrator erroneously took the Appellant Employer to have conceded the existence of ongoing partial incapacity, when it had not. This is based upon the arbitrator’s statement, at paragraph [57] of his Reasons for Decision, that the Appellant Employer’s counsel “submitted that this is really a case of partial incapacity for work”. When taken in the context of the transcript as a whole, the statement does not betray the error alleged.

2. Having regard to the various submissions put on the Appellant Employer’s behalf, particularly those quoted at paragraphs [9] to [12] of the Appellant Employer’s submissions on this appeal, it is clear the Appellant Employer maintained throughout that the effects of the injury had ceased, and that the Respondent Worker was maintaining a pretence of incapacity for “industrial” reasons of her own. This is made particularly clear in the passage quoted at [37] above.

3. It is clear, however, the arbitrator was overall not under the misapprehension the Appellant Employer had conceded the existence of compensable partial incapacity.

4. At the opening of the arbitration hearing, at T1.35, the arbitrator, after “discussion”, described the existence of “some issues as to ongoing causation”. At [13] of his Statement of Reasons the arbitrator described those issues he understood to no longer be in dispute. The existence of ‘incapacity’ was not in this category. At [14] and [15] of his Statement of Reasons, the arbitrator described the issues he understood to be in dispute. Included in these were the following:

   “Whether Ms Buxton was totally or partially incapacitated for work as a result of her injuries? (the 1987 Act s 33)
   For what period was the Applicant totally incapacitated? (the 1987 Act ss 36 and 37)
   For what period was the Applicant partially incapacitated? (the 1987 Act s 40)”

5. The arbitrator dealt with ‘incapacity’ at [55] to [59] of his Statement of Reasons. At the outset, he said “An examination of the medical reports before the Commission reveals a consistent view among those who have examined her that Ms Buxton has since July 2004 been and remains unfit for her pre-injury duties, but fit for other suitable duties.” The arbitrator then quoted from the medical evidence, and summarised relevant views from the medical practitioners in the case, going to incapacity. He then made the reference to the Appellant Employer’s submission on partial incapacity quoted at [45] above. He also referred to the Respondent Worker’s counsel as having “made submissions based upon partial incapacity”. He then made the following finding on incapacity:

   “Given the evidence as to the extent of Ms Buxton’s incapacity, and the concurrence as to partial incapacity since she commenced work, I am of the view, on balance, that the evidence justifies the conclusion that Ms Buxton was totally incapacitated from the date of injury until 24 July 2004, when Mr Davidson thought her fit for some suitable work.”

6. It is clear from the arbitrator’s analysis of the issue of incapacity, that he dealt with the issue relying upon the evidence, rather than upon any concession made by the Appellant Employer. It is clear, from the arbitrator’s description of the issues in dispute (described at [48] above), that he did not proceed on the basis the Appellant Employer had conceded the issue of ‘incapacity’.

7. In addressing on ‘incapacity’ the Appellant Employer’s counsel, after making the submission quoted at [37] above, said:

   “As far as the areas of discretion are concerned, Arbitrator, here is a woman who says she’s at home looking after the kids. Here is a woman who has determined that she won’t go back to work until she gets her own way. If you are to be against me, in my respectful submission, in the exercise of discretion, this is an appropriate case for a $100 a week award.”

8. Clearly what counsel for the Appellant Employer is doing, in a ‘short form’ way, is making submissions in the alternative. He has submitted the Respondent Worker is unwilling to return to work such as she was undertaking with the Appellant Employer, for reasons unrelated to any genuine incapacity. He then in the alternative submitted she should receive only a relatively modest award. This submission had to based upon an award pursuant to section 40, on the basis of partial (rather than total) incapacity. Any ongoing award based upon total incapacity would have been of greater quantum. To this extent, the Appellant Employer, through its counsel, made the submission identified at [57] of the arbitrator’s Statement of Reasons. It is a reference to nothing more than that.

9. Addressing in reply, counsel for the Respondent Worker said “I agree when my friend says it’s a partial incapacity case” (at T30.55). The Appellant Employer did not take issue with this, although clearly this represented the position of the Appellant Employer only in the alternative.

10. It is clear, from the reasons overall, the arbitrator was not under the misapprehension the Appellant Employer had conceded the existence of partial incapacity.

11. It follows from the above the appeal would have failed. Accordingly it does not have reasonable prospects of success, and it would be inappropriate to grant the extension of time sought, even if I had found the existence of ‘exceptional circumstances’ which would enliven the discretion in Rule 16.2(11).

DECISION

1. For the foregoing reasons, I decline to grant leave to appeal

COSTS

1. The Appellant Employer is to pay the costs of the appeal.

Michael Snell

Acting Deputy President  

19 February 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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