Fairfield City Council v Comlekci
[2023] NSWPICPD 6
•8 February 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Fairfield City Council v Comlekci [2023] NSWPICPD 6 |
APPELLANT: | Fairfield City Council |
RESPONDENT: | Naciye Comlekci |
INSURER: | Self-insured |
FILE NUMBER: | A1-W6635/21 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 8 February 2023 |
ORDERS MADE ON APPEAL: | 1. The application for leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. The matter is remitted to the same non-Presidential Member for determination of the remaining issues in dispute. |
CATCHWORDS: | WORKERS COMPENSATION – application for leave to appeal an interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| Respondent: | |
| Mr Andrew Parker, counsel | |
| Carroll & O’Dea Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr G Whiffin |
DATE OF Member’s DECISION: | 21 April 2022 |
INTRODUCTION AND BACKGROUND
Ms Naciye Comlekci (the respondent) was employed by Fairfield City Council (the appellant) as a childcare worker. Initially she worked full time at Bonnyrigg Heights Early Learning Centre. On 25 October 2019, she tripped and fell onto her knees and both hands, suffering an injury to her right hand, which caused her to go off work. She then returned to work, performing administrative duties for a period before she returned to her pre-injury duties. Her claim for workers compensation was accepted.
At the beginning of 2020, the respondent was transferred to the Wetherill Park Early Learning Centre. On 10 September 2020, the respondent was minding a child with high needs, who was attempting to get over a low height fence which separated the Early Learning Centre from an occasional care facility. The child, who had been trying to get hold of a bicycle that was in the adjoining property, eventually gave up and turned to the respondent and “head butted” her. In the process of defending herself, the respondent put her hands up, but her right hand was suddenly pushed downwards, causing her pain. The respondent ceased work and sought medical treatment.
The respondent had a short period off work, before returning two days per week for several months, until she returned to full time hours performing her role with children for half of those hours and spending the other half of her hours doing administrative duties. The respondent continued to experience symptoms in her right hand, was unable to perform some tasks such as chopping food and was certified by her medical practitioner to have a lifting limit of 5 kilograms.
On 13 April 2021, the appellant issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying ongoing liability for workers compensation payments.[1] The reasons for denial were said to be that the respondent had not suffered an injury, or, if she had suffered an injury, her employment was not the main contributing factor to the injury. In the alternative, the appellant asserted that the effects of the injury had ceased. The appellant further asserted that the respondent was able to earn in suitable employment as much or more than her pre-injury earnings and was thus not entitled to weekly payments of compensation.
[1] Application to Resolve a Dispute (ARD), pp 3–5.
On 5 August 2021, the appellant contacted the respondent and advised that, unless she provided a medical clearance to return to full duties, she was not to attend for work. The respondent ceased work and lodged a claim for weekly payments of compensation and treatment expenses, which the appellant denied.
The respondent commenced proceedings in the Personal Injury Commission (the Commission), seeking weekly payments at the rate of $1,282.50 per week from 5 August 2021, as well as treatment expenses. She alleged that her pre-injury average weekly earnings figure was $1,350.00.
The appellant maintained its denial of liability and asserted that the respondent’s pre-injury average weekly earnings figure was $878.00 per week and the respondent’s ability to earn was $1,500.00 per week.
The matter was listed for conciliation and arbitration on 22 March 2022. On that day, the respondent sought to have admitted financial documents which she had emailed to the Commission that day. The documents included the respondent’s income statements for the years 2019, 2020, 2021 and 2022, issued by the Australian Taxation Office, and the respondent’s payslip dated 3 February 2022. The Member admitted the 2022 income statement and the payslip, but declined to admit the remaining income statements. The respondent made further oral applications, firstly seeking an order that the appellant produce the material the appellant relied upon to calculate the respondent’s pre-injury average weekly earnings and secondly, asking the Member to defer his consideration of the weekly payments claim until after the liability issues had been determined. The Member declined both applications.
The Member issued a Certificate of Determination on 21 April 2022, in which he determined:
“The Commission determines:
1. The [respondent] sustained a personal injury arising out of or in the course of her employment with the [appellant].
2. The [respondent’s] employment with the [appellant] was a substantial contributing factor to the personal injury.
3. The [respondent] was incapacitated for work as a result of the personal injury between 5 August 2021 and 28 February 2022.
4. The [respondent] was able to earn $772.60 per week in suitable employment between 5 August 2021 and 28 February 2022.
5. The [respondent] requires medical treatment, and the [appellant] is liable to pay reasonably necessary treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act)”.
The Member ordered the appellant to pay the respondent’s treatment expenses, then ordered the appellant to file a wages schedule by 6 May 2022, with the respondent’s payslips and other wage material annexed covering the period from 10 September 2019 to 10 September 2020. The respondent was ordered to lodge her wages schedule by 13 May 2022, and both parties were given a timeframe within which to file written submissions in relation to the wages schedules. The time for filing the submissions expired on 25 May 2022.
The appellant lodged the appeal from the Member’s decision on 16 May 2022, prior to the expiration of the above timetable.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
The appellant submits that it is appropriate for the matter to be given an oral hearing. The reasons put forward by the appellant are that:
(a) the transcript was not available at the time the appeal was lodged, and was necessary in order to allow the appellant to finalise its submissions, and
(b) the grounds of appeal upon which it relies are “such as require the opportunity for an oral hearing.”[2]
[2] Appellant’s appeal submissions, [3].
The respondent indicates that the appeal can be determined on the basis of the documents lodged and the written submissions.
The transcript was made available to the parties on 23 May 2022 and the appellant was given the opportunity to file further submissions in respect of the transcript following its receipt. The appellant was also given time within which to lodge further submissions in reply to the respondent’s submissions on appeal. I have read the appeal grounds and submissions and I consider that the appellant has had ample opportunity to make whatever submissions it chooses to make in support of its grounds of appeal.
I have had regard to Procedural Directions PIC2 (Determination of matters ‘on the papers’) and WC3 (Presidential appeals and questions of law), and the documents and submissions that are before me. 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.
THRESHOLD MATTERS
Whether leave should be granted to bring the appeal
The grounds of appeal
The appellant brings four grounds of appeal as follows:
(a) Ground A: Error of law in determining the matter on a basis not put by or to the parties;
(b) Ground B: Error of fact in relation to current work capacity and ability to earn;
(c) Ground C: Denial of procedural fairness, and
(d) Ground D: Error of discretion in relation to the admission of evidence.
The submissions as to whether leave should be granted
The respondent asserts, and the appellant concedes, that the Member’s decision is interlocutory in nature. Subsection 352(1) of the 1998 Act provides for an appeal “against a decision in respect of the dispute by the Commission constituted by a non-presidential member.” A “decision” is defined in subs 352(8) to include “an award, interim award, order, determination, ruling and direction”. Subsection 352(3A) provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The respondent submits that leave to appeal should be refused because:
(a) the appeal does not satisfy the monetary threshold;
(b) the granting of leave to appeal will not resolve the whole dispute;
(c) the appeal does not raise any important issue or an issue of principle;
(d) the appeal is without merit, and
(e) the appellant would have the opportunity to appeal at the conclusion of the matter in any event.
The appellant submits that leave to appeal should be granted as it is necessary for the proper and effective determination of the dispute. The appellant submits that if Ground B of the appeal succeeds and a “more appropriate” assessment is made, then the matter will resolve. The appellant adds that both Ground A and Ground C, which assert a failure to provide procedural fairness, raise important matters of principle so that it is desirable for the proper and effective resolution of the dispute to grant leave to appeal.
Consideration
The granting of leave under s 352(3A) requires that I be satisfied that it is “necessary or desirable for the proper and effective determination of the dispute”.
The respondent contends that leave should not be granted because the monetary threshold required by s 352(3) of the 1998 Act has not been met because no amount of compensation has been awarded. I do not accept that submission. Subsection 352(3) provides that:
“(3) There is no appeal under this section 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.”
In O’Callaghan v Energy World Corporation Limited[3] Roche AP said:
“It follows that where, as in the present matter, the Commission has made no order for the payment of compensation, 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 [Member].”
[3] [2016] NSWWCCPD 1, [48].
The pleadings disclose that the respondent sought weekly payments of compensation from 5 August 2021 at a rate of $1,282.50 on an ongoing basis. The amount claimed of arrears alone clearly meets the required monetary threshold.
The appellant asserts that Grounds A and C, which raise issues of procedural fairness, raise important issues of principle. I accept the respondent’s submission that the appeal does not raise any important issue or any outstanding issue of principle. The appellant does not allude to any characteristic of the principles of procedural fairness that establishes that it would be of greater benefit if the issues raised were determined at this stage.
Section 42 of the 2020 Act provides that the Commission’s objective is the timely disposition of disputes. The lodgment of this appeal at the interlocutory stage has already caused a significant delay in the resolution of the dispute. I consider that it would be no more efficient to determine the issues raised in the appeal now than it would be when the proceedings have concluded.
The appellant asserts that if a more appropriate assessment is made of the respondent’s ability to earn, the matter will resolve. That would indicate that on the contrary, if the question of the respondent’s capacity to earn was determined with a result that was more favourable to the respondent, then that would not assist in the resolution of the matter. I do not accept that the appellant’s submission is a proper basis upon which to grant leave to appeal.
The potential consequence of not granting leave is not significant. The appellant retains the right to lodge an appeal at the conclusion of the proceedings before the non-Presidential Member. In those circumstances, I do not consider it appropriate to comment upon the merits, if any, of the appeal.
The proceedings before the Member have not concluded. The Member is part way through a determination of the respondent’s entitlement to weekly compensation. At the end of the day, one or the other party may be aggrieved or satisfied with the result. I do not consider that it is in the interests of justice that the appeal process intervenes at this interlocutory stage. For that reason, together with the reasons expressed above, I do not consider that it is necessary or desirable for the proper determination of the dispute to grant leave to appeal the interlocutory decision.
DECISION
The application for leave to appeal pursuant to s 352(3A) of the 1998 Act is refused.
The matter is remitted to the same non-Presidential Member for determination of the remaining issues in dispute.
Elizabeth Wood
Deputy President
8 February 2023
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