Dundullimal Holdings trading as Western Parcel Express v Minett - [2007] NSWWCCPD 175

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Dundullimal Holdings t/as Western Parcel Express v Minett [2007] NSWWCCPD 175
APPELLANT:  Dundullimal Holdings t/as Western Parcel Express
RESPONDENT:  Mark Minett
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC16012-2006
DATE OF ARBITRATOR’S DECISION:          20 February 2007
DATE OF APPEAL DECISION:  9 August 2007
SUBJECT MATTER OF DECISION: Leave to appeal - no sum claimed by way of compensation; jurisdiction of the Commission where section 289 of the Workplace Injury Management and Workers Compensation Act 1998 not satisfied.
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant: Leigh Virtue & Associates
Respondent: Adams Leyland

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 23 February 2007 Dundullimal Holdings t/as Western Parcel Express (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 February 2007.

The Respondent to the Appeal is Mark Minett (‘the Respondent Worker’).

The Respondent Worker commenced employment with the Appellant Employer on about 23 August 2004, as a truck driver. He lodged a claim form dated 24 March 2005 with the Appellant Employer. That document described an injury to the left hip and lower back on 9 March 2005, “While climbing out of truck”. It said the Respondent Worker gave notice of the injury on 9 March 2005, and stopped work on 17 March 2005. It said the part was normal before the accident, and the Respondent Worker had not previously suffered similar or related injuries or conditions.

The Respondent Worker underwent a lumbar laminectomy in September 2005. It was said, without objection or contradiction, on the arbitration hearing, that the insurer of the Appellant Employer, CGU Workers Compensation (NSW) Limited (‘CGU’), paid compensation benefits (T1.45), and such payments included all “entitlements to date, including sections 66 and 67” (T4.30). It was not suggested there was any compensation claimed by the Respondent Worker, which remained outstanding.

The Application to Resolve a Dispute (‘the ARD’) was registered on 11 October 2006. The ARD was filed by the Appellant Employer. It described the weekly compensation in dispute as $500.00 per week from 17 March 2005 to date and continuing (in Part 4 Claim Details). The “Reason for Dispute” nominated in that part of the ARD was “The insurer has not made a correct decision within 21 days of the claim being lodged or the period of provisional liability”. The word “correct” was inserted in handwriting in this line of the printed form.

The ARD was served by the Appellant Employer on CGU, which lodged a Reply (through its solicitors, Bartier Perry) on 1 November 2006. Bartier Perry wrote to the Registrar of the Commission on 21 November 2006, confirming they acted for CGU, the Appellant Employer’s insurer, and stating they were instructed to withdraw the Reply,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Dundullimal Holdings trading as Western Parcel Express v Minett [2007] NSWWCCPD 175
Case: [2007] NSWWCCPD 175
Decision Date: 9 August 2007

CaseChat Overview and Summary

Dundullimal Holdings trading as Western Parcel Express, the appellant employer, sought leave to appeal against a decision of the Workers Compensation Commission made by an arbitrator. The decision dismissed an Application to Resolve a Dispute lodged by the appellant employer against Mark Minett, the respondent worker, on the basis it was misconceived. The respondent worker had been paid all compensation benefits to which he was entitled. The appeal was brought by the appellant employer against the decision of the arbitrator, and was heard on the papers by Acting Deputy President Michael Snell. The issues in the appeal were whether the arbitrator erred in his characterisation of the dispute, in dismissing the proceedings, and in failing to give adequate reasons and afford procedural fairness. The appeal was dismissed, with the appellant employer ordered to pay the respondent worker’s costs of the appeal. In the view of the Acting Deputy President, the appeal did not satisfy the jurisdictional threshold in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998, as there was no sum of compensation at issue in the proceedings. In any event, the Commission did not have jurisdiction to determine the dispute, as it was between the appellant employer and its insurer, not between the appellant employer and the respondent worker. The appellant employer’s insurer had accepted liability to pay compensation, and it was not open to the appellant employer to continue with the proceedings. The Acting Deputy President found no error in the reasons given by the arbitrator, or in the order made to dismiss the proceedings. The appeal was therefore dismissed, with the appellant employer ordered to pay the respondent worker’s costs of the appeal.

Orders