Emeli Taeiloa v Forstaff Personnel

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

CITATION:	Emeli Taeiloa v Forstaff Personnel [2003] NSWWCCPD 8
APPELLANT:	Emeli Taeiloa
RESPONDENT:	Forstaff Personnel
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NO:	WCC967-2002
DATE OF DECISION:	21  March, 2003
DATE OF COSTS DECISION:	24 July, 2003
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
DECISION UNDER APPEAL:	Award for the Respondent
DATE OF DECISION UNDER APPEAL:	21 October, 2002
HEARING:	Telephone Conference, 25 February, 2003
REPRESENTATION:	Appellant: MBP Legal
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL:	The Appeal is not allowed.  The decision appealed against is confirmed.  No order is made as to costs.

THE APPEAL

1. On 5 November, 2002 Ms Emeli Taeiloa, the Applicant in this dispute (‘the Appellant’) lodged an appeal against the decision of the Commission constituted by an Arbitrator, that Forstaff Personnel (‘the Respondent’) is not liable for the Appellant’s claim for workers compensation.  The decision was made by the Arbitrator on 21 October, 2002 and the Determination was issued on 22 October, 2002.  The insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘the Insurer’).  Directions regarding the appeal against the decision of the Arbitrator were issued to the Appellant on 6 December, 2002 by the Deputy Registrar, by delegation of the Registrar.  The Appellant’s Solicitor responded by letter of 10 December, 2002 in compliance with the Directions advising that service had been effected on the Respondent.  However, the response to the appeal lodged by the Respondent with the Commission, was dated 8 January, 2003 and faxed on 10 January, 2003.  It was not apparent by reference to the file whether the response lodged by the Respondent had been served on the Appellant.  On 5 February, 2003 the Solicitors for both parties were contacted by email and confirmation was sought as to whether this had been done.  In any event, the Solicitor for the Appellant was asked to provide further submissions on the Respondent’s response.  At 3.27pm on the same day, the Solicitor for the Appellant provided by email a copy of the submission that had  been lodged with the Commisson under the covering letter of 10 January, 2003.   On 7 February, 2003 the Solicitor for the Respondent confirmed by telephone and by facsimile transmission that the Respondent’s submission was provided to the Appellant’s Solicitor on 8 January, 2003 and that a response to those submissions was received in a document dated 5 February, 2003. 

2. By way of background, the Appellant lodged an Application to Resolve a Dispute (‘the Application’) in the Workers Compensation Commission (‘the Commission’) on 22 July, 2002.  The Appellant claimed that she suffered a total incapacity for work as a consequence of an injury that arose out of and in the course of her employment with the Respondent, as a packer.  She claimed that she suffered injuries to her back and her neck on 15 October, 2001 when she fell over backwards onto a pallet.  The Appellant notified the Respondent of the injury on 16 November, 2001.  The Appellant further…