Department of Education & Training v Mekhail
[2006] NSWWCCPD 1
•10 January 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Department of Education & Training v Mekhail [2006] NSWWCCPD 1
APPELLANT: Department of Education & Training
RESPONDENT: Essam Mekhail
INSURER:GIO Treasury Managed Fund Workers Compensation
FILE NUMBER: WCC 6180-04
DATE OF ARBITRATOR’S DECISION: 11 October 2004
DATE OF APPEAL DECISION: 10 January 2006
SUBJECT MATTER OF DECISION: Leave to file appeal out of time
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Hunt & Hunt, Lawyers
Respondent: McMahon Associates, Lawyers
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Arbitrator dated 11 October 2004 is refused.
The Appellant, the Department of Education and Training, is to pay the Respondent, Mr Mekhail’s costs in this appeal as agreed or assessed.
BACKGROUND TO THE APPEAL
On 11 November 2004, the Department of Education and Training (‘the Department’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 11 October 2004.
The Respondent to the Appeal is Essam Mekhail. Mr Mekhail was born on 13 March 1957 and is aged 48. He is married with three children aged 15, 11 and 8. Mr Mekhail was employed as an Arabic/ESL [English as a Second Language] teacher at Kogarah High School from September 1997. He alleges that he suffered anxiety and depression as a result of his treatment by senior staff at the School, and was unable to work because of this condition. Liability for Mr Mekhail’s workers compensation claim was initially accepted, but later denied with effect from 11 November 2003.
On 16 April 2004, the Commission registered Mr Mekhail’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation and for medical, hospital or related expenses. The Department’s ‘Reply’ was filed on 4 May 2004. On 28 July 2004, the Arbitrator conducted a teleconference with the parties. On 26 August 2004, conciliation having been proved unsuccessful, she conducted an arbitration hearing, following which, on 11 October 2004, she made the decision set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 11 October 2004, records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of $1,124.83 from 10.11.03 to 19.12.03 and at rate of $1,192.74 for the day 27.01.04 under s 36 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In her ‘Statement of Reasons for Decision’, the Arbitrator summarised the resolution of issues in dispute as follows:
“Weekly Benefits Claim:
• During a period from February 2001 culminating on 26 September 2003, Essam Mekhail sustained a psychiatric illness arising out of or in the course of his employment as a teacher with the Department of Education and Training.
• Essam Mekhail was totally incapacitated for work as a result of his injuries from 10.11.03 to 19.12.03 and on 27.01.04.
• Essam Mekhail’s probable weekly earnings, but for the injury, had he continued to be employed in the same or some comparable employment, are $1,124.80 per week for the first period and $1,192.74 for the period after 02.01.04.Medical Expenses Claim:
• Essam Mekhail’s reasonable medical and related expenses incurred as a result of treatment, services or assistance in relation to psychiatric, psychological and medical consultations and related medical expenses as evidenced by invoices or receipts are reasonably necessary for the compensable injury.”
The Arbitrator noted that, prior to the arbitration, the parties agreed that the closed period in respect of which weekly payments were claimed was from 10 November 2003 to 19 December 2003, and 27 January 2004. The medical expenses in issue amounted to approximately $2,000.
The Arbitrator found the medical evidence supported a finding that Mr Mekhail suffered a psychiatric injury – whether described as a major depressive disorder or an adjustment disorder – arising out of or in the course of his employment by the Department, and that employment was a “significant” contributing factor to that injury. Moreover, she found the psychiatric injury was not caused by reasonable action taken by the Department in relation to either performance appraisal or transfer.
ISSUES IN DISPUTE
The Department identifies the following grounds of appeal: first, the Arbitrator erred in the weight she accorded to Mr Mekhail’s evidence, without having proper regard to the Department’s evidence; second, she erred in finding that Mr Mekhail suffered an “injury”, and erred further in finding that employment was a contributing factor to any injury; third, she erred, on the weight of evidence, in finding that the Department’s actions in respect of (a) performance appraisal and, (b) the transfer, were not reasonable.
Mr Mekhail’s lawyers reject these submissions, pointing out that the appeal was lodged out of time, noting that the Department did not put “injury” in issue in its Reply, instead denying liability on the grounds of sections 9A and 11A of the Workers Compensation Act 1987 (‘the 1987 Act’). Moreover, the Arbitrator correctly applied the law and made no errors of fact in reaching her decision.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. Section 352(4) states that “[a]n appeal can only be made within 28 days after the making of the decision appealed against”. Rule 77(1) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that a decision is made when the Commission issues the Certificate of Determination. Thus, in Mr Mekhail’s case, the decision was made on 11 October 2004. The appeal therefore had to be lodged by 8 November 2004 - within 28 days after the date of the decision. The appeal was lodged on 11 November 2004, and therefore outside the required time for lodging an appeal.
Rule 77(8) provides that a Presidential Member may extend the time for making an appeal where the Appellant demonstrates that exceptional circumstances exist, and that they would suffer a substantial injustice if the right of appeal were lost. The onus of proving exceptional circumstances rests with the Appellant.
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, this issue has often been the subject of judicial consideration. A leading case is Gallo v Dawson (1990) 93 ALR 479 where Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (i) the history of the proceedings, (ii) the conduct of the parties, (iii) the nature of the litigation, (iv) the consequences for the parties of the grant or refusal of the application for extension of time, (v) the prospects of the applicant succeeding if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in Commission proceedings: see, for example, Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22, and Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54.
The Department submits the appeal should have been filed by 9 November 2004 and was given to the filing section of their lawyers on that day. However, “due to unforeseen error” the appeal was not filed until 11 November 2004. Moreover:
“the Appellant was not in a position to file its Appeal before 11 November 2004, given the complex issues involved which required considerable research before the development of submissions. Unfortunately, logistical problems incurred in the office of the legal representatives of the Appellant then led to further delay.”
The Department submits there would be demonstrable and substantial injustice should leave to appeal be refused because:
“the issues raised and relied upon by the Appellant in support of the appeal will remain undetermined which would clearly lead to substantial prejudice to the Appellant both in relation to the claim and future claims involving similar or the same issues.”
The Department submits the worker is not entitled to any compensation, and there is no prejudice to Mr Mekhail in granting the extension of time to the Department.
Mr Mekhail’s lawyers submit the Department would not suffer a demonstrable and substantial injustice if an extension of time is refused. The circumstances relating to the filing of the appeal are not exceptional, in the sense of either unusual or extraordinary.
In my view, the Department has failed to demonstrate that exceptional circumstances exist and that it would suffer a substantial injustice if the right of appeal were lost. Clearly, the main reason for the appeal being filed out of time was administrative error. I do not accept that the issues involved are of such a complex nature that would require extra time in developing submissions. Indeed, the submissions appear to resemble those made to the Arbitrator at the arbitration hearing.
With regard to the grounds of appeal, I note the Department’s submissions at the arbitration hearing focused primarily on the weight to be accorded to the evidence, whether Mr Mekhail’s employment was a substantial contributing factor to the injury (as required by section 9A of the 1987 Act), and the application of section 11A. Where what is challenged is the Arbitrator’s exercise of his or her discretionary judgement, the Presidential Member will not generally interfere on appeal unless is “it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully” (Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 40).
My review of the Arbitrator’s Statement of Reasons suggests she misdirected herself on the application of section 11A of the 1987 Act. Section 11A provides that no compensation is payable in respect of a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect, relevantly in Mr Mekhail’s case, to transfer or performance appraisal. The Arbitrator’s finding on reasonableness refers to the impact of the performance appraisal and transfer on Mr Mekhail rather than, as it should, the reasonableness of the Department’s actions. However, the Arbitrator’s discussion refers to a series of events that impacted on Mr Mekhail, not just those relating to performance appraisal and transfer, suggesting that the Arbitrator was of the view that the psychological injury was not wholly or predominantly caused by the Department’s actions in relation to performance appraisal and transfer, but rather was caused by the whole series of events. Thus, I doubt the Arbitrator would have come to a different conclusion had she properly addressed the application of section 11A in her findings.
A brief review suggests there was evidence before the Arbitrator on which she could draw to support her finding that Mr Mekhail suffered an injury arising out of or in the course of his employment, and that his employment was a substantial contributing factor to the injury. There was also evidence on which she could draw to support her findings with regard to section 11A. Thus, in terms of the Department’s prospects of success if leave is granted, these do not seem to be overly high. Moreover, in terms of any consequences for similar proceedings in the future, in the preceding paragraph, I have already drawn attention to where the Arbitrator misdirected herself on the law.
I also note the amount of compensation in dispute is relatively small. The Arbitrator awarded weekly compensation for a closed period, the total value of which, according to Mr Mekhails’s lawyers “is approximately $8,762.56 (being 5.8 weeks @ $1,124.83 pw and $238.55 for 27.1.04 and treatment expenses of approximately $2,000.00)”.
In conclusion, I am not satisfied the Department has demonstrated exceptional circumstances or that it would suffer a substantial injustice if the right of appeal were lost. Thus, the Department’s application for an extension of the time for lodging its appeal is denied, and leave to appeal is refused.
DECISION
Leave to appeal against the decision of the Arbitrator dated 11 October 2004 is refused.
COSTS
The Appellant, the Department of Education and Training, is to pay the Respondent, Mr Mekhail’s costs in this appeal as agreed or assessed.
Robin Handley
Acting Deputy President
10 January 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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