Druett v The Smiths Snack Food Company Ltd
[2009] NSWWCCPD 39
•3 April 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Druett v The Smiths Snack Food Company Ltd [2009] NSWWCCPD 39 | |||||
| APPELLANT: | Garry Keith Druett | |||||
| RESPONDENT: | The Smiths Snack Food Company Ltd | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-007759/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 17 December 2008 | |||||
| DATE OF APPEAL DECISION: | 3 April 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998; monetary threshold and leave to appeal. | |||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | In person | ||||
| Respondent: | Sparke Helmore | |||||
| ORDERS MADE ON APPEAL: | Leave to appeal the decision the Arbitrator dated 17 December 2008 is refused. No order as to costs. | |||||
BACKGROUND TO THE APPEAL
On 27 January 2009 Garry Keith Druett (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers compensation Commission (‘the Commission’) against a decision, dated 17 December 2008.
The Respondent to the Appeal is The Smiths Snack Food Company Ltd (‘the Respondent’).
Mr Druett was employed as a warehouse operator, earning $22.08 per hour. He alleged he suffered a psychological injury as a result of conflict with his fellow workers and management. He claimed total incapacity for a period of two days namely 8 and 9 July 2008. The claim for compensation was denied.
On 29 September 2008, an Application to Resolve a Dispute was filed with the Commission. The Appellant did not specify the compensation claimed.
On 20 October 2008, the Respondent filed a Reply denying that the Appellant suffered a psychological injury. The Respondent alleged that, to the extent that any psychological injury was found to exist, the Appellant’s employment was not a substantial contributing factor pursuant to section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). The Respondent also relied on the provisions of section 11A of the 1987 Act. It submitted that if any psychological injury was suffered by the Appellant it was caused by reasonable action taken by the employer in relation to disciplinary matters.
A teleconference was held on 3 November 2008 before a Commission Arbitrator. At the teleconference Mr Druett confirmed to the Arbitrator that his claim for compensation was confined to an allegation of total incapacity for two days, namely 8 and 9 July 2008.
The Appellant’s claim was listed for conciliation and arbitration on 9 December 2008, the parties were unable to resolve the claim and the matter proceeded to arbitration. A Certificate of Determination together with a written statement of reasons (‘the Reasons’) was issued on 17 December 2008.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 December 2008 records the Arbitrator’s orders as follows:
“1. Award for the Respondent.”
The Arbitrator found that Mr Druett, on his own evidence, did not suffer an injury (Reasons at [15]). He found at [16]:
“The Applicant did not describe symptoms which would lead to a conclusion that there was a psychological injury. The most that he said was that he was ‘stressed’. That description is a description of no more that an emotional impulse or mere anxiety state.”
ISSUE IN DISPUTE
The Application to Appeal Against the Decision of the Arbitrator fails to articulate in any coherent way any alleged error or any proper basis for a review of the Arbitrator’s decision.
The appeal documentation filed by Mr Druett, consists largely of transcripts of proceedings in various Local Courts, the District Court of NSW, the Federal Court and the High Court of Australia in which the Appellant has been involved, concerning various matters that are irrelevant to the issues in dispute in these proceedings.
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 submission 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.
LEAVE TO APPEAL
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.
Section 352(2) provides as follows:
“(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.”
The threshold of 20% does not apply when no amount of compensation is awarded in the decision appealed against (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
In Kate Louise Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, in determining whether the monetary threshold under section 352(2)(a) of the 1998 Act was met, Deputy President Fleming, (as she then was) held at [16]:
“16.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…”
The transcript of the teleconference before the Arbitrator and the Reasons confirm that the claim was limited to two days of weekly compensation in respect of a period of total incapacity pursuant to section 36 of the 1987 Act.
The Respondent’s offer of employment dated 30 September 2005 confirms the Appellant was employed as a warehouse operator earning $22.08 per hour.
The Respondent submits, and I accept, that compensation for the two days in issue does not reach the $5,000.00 threshold in section 352(2)(a).
CONCLUSION
Section 352 is a mandatory provision that must be met before leave is granted. The amount of compensation at issue on appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator and be at least $5,000.00. In this case the amount of compensation at issue is significantly less than $5,000.00.
For these reasons the application for leave to appeal the decision of the Arbitrator must be refused.
The Respondent submits the appeal was lodged out of time and failed to comply with the provisions of section 352(4) of the 1998 Act. In view of my decision to refuse leave to appeal, for the reasons in this decision, it is unnecessary to determine whether the Appellant complied with the provisions of section 352(4).
DECISION
Leave to appeal the decision of the Commission constituted by the Arbitrator dated 17 December 2008 is refused.
COSTS
No order as to costs.
His Hon. Judge Greg Keating
President
3 April 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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