Fletcher International Exports Pty Ltd v Lee
[2023] NSWPICPD 67
•3 November 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | FLETCHER INTERNATIONAL EXPORTS PTY LTD V LEE [2023] NSWPICPD 67 |
APPELLANT: | Fletcher International Exports Pty Ltd |
RESPONDENT: | Eunsaem Lee |
INSURER: | Self-insured |
FILE NUMBER: | A3-W321/22 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 3 November 2023 |
ORDERS MADE ON APPEAL: | 1. The appeal is dismissed. 2. The Certificate of Determination dated 9 August 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – jurisdiction to determine a claim involving section 38 of the Workers Compensation Act 1987– Lee v Bunnings Group Pty Ltd [2013] NSWWCCPD 54 and Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4 distinguished – Roberts v University of Sydney [2021] NSWWCC 25 considered |
HEARING: | On the Papers |
REPRESENTATION: | Appellant: |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| Respondent: | |
| Mr J Beran, counsel | |
| Littles Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms R Homan |
DATE OF MEMBER’S DECISION: | 9 August 2023 |
INTRODUCTION
Ms Eunsaem Lee, the respondent to this appeal, was employed by the appellant, Fletcher International Exports Pty Ltd, as a process worker. The respondent suffered an injury in the course of her employment with the appellant on 27 October 2020 for which liability to pay weekly compensation and medical expenses was accepted by the appellant. Payments continued until 8 June 2021. By notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 27 October 2021,[1] further liability was declined by the appellant, which led to these proceedings being commenced on 19 January 2022.
[1] Application to Resolve a Dispute (ARD), pp 12–48.
The history of the matter before the Commission and the District Court is accurately recounted by Member Homan at paragraphs [6] to [16] of her decision dated 9 August 2023.[2] Much of the delay in this matter was occasioned by the appellant’s assertion, ultimately an unsuccessful assertion, that the matter was impacted by the federal diversity jurisdiction as the respondent was a resident of another state. This involved a decision by another member, an appeal to a Presidential member and an application to the District Court of New South Wales under s 26 of the Personal Injury Commission Act 2020 (the 2020 Act) which was determined by Andronos SC DCJ on 24 March 2023. I made orders on remitter from the District Court on 29 March 2023 as well as determining a Reconsideration Application on 6 April 2023. The matter was then referred to Member Homan and was heard on 8 June 2023, after a series of preliminary matters were dealt with. The Member, with commendable efficiency, issued a 52 page decision, some 292 paragraphs in total, on 9 August 2023 dealing with all matters in dispute. It is from this decision that this, relatively confined single ground appeal, is pursued.
[2] Lee v Fletcher International Exports Pty Ltd [2023] NSWPIC 399 (reasons).
ON THE PAPERS
Section 52(3) of 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 has requested an oral hearing in this matter. The stated reason for this request is the submission that the Member’s decision and two Presidential decisions on the issue raised on this appeal are in conflict.
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions of the parties, I am of the view 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. The single issue raised in this appeal is very confined. I have set out above the history of the lengthy litigation in this matter, and I note the Commission’s statutory mandate to resolve the real issues in dispute “justly, quickly, cost effectively and with as little formality as possible.”[3] I therefore intend to decide this appeal on the papers, consistent with those objects.
[3] Section 3(c) of the 2020 Act, “Objects of Act”.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
None of the factual findings made by the Member have been challenged on this appeal. Given the appeal is about a question of jurisdiction, it is not necessary for the efficient disposition of this appeal for the evidence to be traversed.
However there is one factual matter which does touch upon the issue which arises under s 38 of the Workers Compensation Act 1987 (the 1987 Act). At the time that these proceedings were commenced on 19 January 2022, this was during the second entitlement period for weekly compensation, pursuant to s 37 of the 1987 Act. The s 38 period, that is the period after the second entitlement period had ended (after week 130), only arose during the currency of the proceedings before the Commission. I would note that by this time, the appellant had denied all liability to the respondent, challenging injury and incapacity, including entitlement to weekly compensation and medical expenses. In the proceedings before the Member, the respondent sought and was granted leave to pursue the s 38 claim.
THE MEMBER’S REASONS
There is a single issue raised in this appeal and that is the Member’s approach to deciding whether the Commission has jurisdiction to make an order in favour of the respondent under s 38 of the 1987 Act. The Member’s reasoning on this point is set out below:
“280. The [appellant] relies on the decision in Lee v Bunnings[[4]] and the more recent Presidential decision of Ferro[[5]] to submit that the Commission cannot make the award for weekly compensation under s 38 of the 1987 Act sought by the [respondent]. In Ferro, Parker SC ADP commented in reference to Lee v Bunnings:
‘… the Member has no authority to make findings with respect to current work capacity for the purpose of s 38 of the 1987 Act. Section 38 requires the insurer to make a work capacity assessment. Therefore the Member’s function in the event of a contest is to determine whether the insurer has made an assessment and what is the assessment.’
281. I accept, however, the [respondent’s] submission that Lee v Bunnings was determined before the legislative amendments made by the Workers Compensation Legislation Amendment Act 2018 (the 2018 Amending Act). Those amendments removed from s 43(1) of the 1987 Act the provision that work capacity decisions are final and binding on the parties and not subject to appeal or review except under s 44BB or judicial review by the Supreme Court. Other amendments included the omission of the former s 43(3) and Part 3, Division 2, Subdivision 3A about review of work capacity decisions and repeal of the note in s 105 of the 1998 Act relating to the restriction of the Commission’s jurisdiction to determine any dispute about a work capacity decision.
282. The letter dated 27 October 2021 notified the [respondent] of decisions that she was not incapacitated, had a current capacity for work and was able to earn as much as or more than her pre-injury average weekly earnings in employment including suitable employment as defined. The letter relied, amongst other provisions, on s 38 of the 1987 Act. I find that the letter dated 27 October 2021 notified the [respondent] of a work capacity decision within the meaning of s 43 of the 1987 Act.
283. The 2018 Amending Act enacted s 78 of the 1998 Act which included in sub-s 2 a provision that an insurer’s decision notice can involve both a liability dispute and a discontinuation or reduction of weekly compensation. The 2018 Amending Act also inserted ss 81 and 83 in the 1998 Act to enable a stay of a work capacity decision where a dispute for determination is referred to the Commission. Those sections envisage jurisdiction for the Commission to determine disputes that have been referred to it about an insurer’s decision to discontinue or reduce weekly compensation payments.
284. None of these matters appear to have been raised for the Acting Deputy President’s consideration in Ferro, probably because the issue in that case was whether the Commission member had erred by making an award for the respondent pursuant to s 38 of the 1987 Act without making relevant findings as to the application of s 38 of the 1987 Act. The actual application of s 38 and the Commission’s role in determining a dispute about an insurer’s decision pursuant to s 38 were not matters the Acting Deputy President was called upon to determine as I am here.
285. I am satisfied in all the circumstances that the Commission has jurisdiction to determine the dispute about [the respondent’s] claim for weekly compensation pursuant to s 38 of the 1987 Act.”
[4] Lee v Bunnings Group Limited [2013] NSWWCCPD 54 (Lee v Bunnings).
[5] Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4 (Ferro).
The Certificate of Determination issued on 9 August 2023 records:
“The Commission determines:
1. The [respondent] sustained a personal psychological injury arising out of or in the course of her employment with the [appellant] pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) on 27 October 2020.
2. The [respondent’s] employment with the [appellant] was a substantial contributing factor to the personal psychological injury pursuant to s 9A of the 1987 Act.
3. The [respondent] has claimed compensation in relation to her personal psychological injury, and claimed weekly compensation, in accordance with s 260 of the Workplace Injury Management and Workers Compensation Act 1998.
4. Since 9 June 2021, the [respondent] has had no current work capacity as a result of the injury which she received on 27 October 2020.
5. The [respondent] is likely to continue indefinitely to have no current work capacity.
6. The [respondent’s] pre-injury average weekly earnings (PIAWE) figure is $1,043.19.
The Commission orders:
7. From 9 June 2021 until the end of the second entitlement period, the [appellant] to pay the [respondent] weekly compensation in accordance with s 37(1) of the 1987 Act at the rate of 80% of her PIAWE as periodically indexed pursuant to ss 82A and 82D of the 1987 Act.
8. After the second entitlement period to date and continuing, the [appellant] to pay the [respondent] weekly compensation in accordance with s 38(6) of the 1987 Act at the rate of 80% of her PIAWE as periodically indexed pursuant to ss 82A and 82D of the 1987 Act.
9. The [appellant] to pay the [respondent’s] reasonably necessary medical and related treatment expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare Notice of Charge.”
GROUNDS OF APPEAL
The appellant pursues a single ground of appeal which I set out below:
Ground One - “The ground of appeal relied on by the Appellant is an error of law in the determination of the jurisdiction of the Commission Member in regard to weekly payments of compensation in the period provided for in section 38 of the Workers Compensation Act 1987.”
LEGISLATION
Section 38 of the 1987 Act provides:
“38 Weekly payments after second entitlement period (after week 130)
(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note—
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(8) A worker’s entitlement to compensation under this section may be reassessed at any time.”
SUBMISSIONS
Ground One
The appellant’s submissions in support of this ground are brief. I set them out in full below:
“7. The Appellant submits, with respect, that the Commission Member was in error in considering that the Member had jurisdiction to determine any entitlement to weekly payments of compensation in respect of the period provided for in section 38 of the Workers Compensation Act 1987.
8. The issue of the Commission’s jurisdiction in respect of the section 38 period was firstly dealt with by President [Judge] Keating in the matter of Lee v Bunnings Group Limited ... This issue was considered by acting Deputy President Parker SC in Ferro ... The Appellant relies in particular on paragraph 38 of the decision in Ferro.
9. The Appellant submits, with respect, that the Commission Member in this case was obliged to follow the decision of acting Deputy President Parker SC and did not do so. The Appellant submits that this constitutes an error of law.”
The appellant seeks a single order, namely the revocation of Order [8] of the Certificate of Determination dated 9 August 2023 which I have reproduced above.
In reply, the respondent says the Member’s decision was made in accordance with law. Specifically, the respondent says in answer to this appeal:
“10. In more detail, however, the Respondent worker relies upon her submissions at first instance with respect to the fact that Lee v Bunnings is no longer good law on account of the provisions contained within the Workers Compensation Legislation Amendment Act 2018. This was further explored by the member at [281] of her reasons.
11. Secondly, and with respect to the Appellant’s submission that the decision of [ADP] Parker SC in Ferro is authority for the proposition that the member did not have jurisdiction to determine the entitlement pursuant to s 38, the Respondent worker submits that after a fair reading of Ferro one cannot reach this conclusion. By way of contrast, the Respondent submits that Ferro, at [37], was a determination that the learned Member who determined that case at first instance had failed to engage and provide reasons as to the specific provisions of s 38; it was not a case regarding whether the Commission had jurisdiction pursuant to s 38 and no such findings were made.
12. The circumstances in Ferro were contrary to the present matter where the learned Member determined that:
a. The Appellant self-insurer had made an assessment of the Respondent’s current work capacity.
b. The Appellant self-insurer had made the determination that the Respondent worker had a current capacity for work and was able to earn as much as or more than her pre-injury average weekly earnings in employment including suitable employment as defined.
c. The Respondent worker was likely to indefinitely have no current work capacity.
13. On this basis, the Respondent submits that the Learned Member has complied with her obligations under Ferro to give reasons for the award made pursuant to s 38 and the appeal must fail as there has been no error of law as alleged.
14. Finally, for the sake of completeness, if it is to be taken that the Appellant submits that the [Commission] does not have jurisdiction to make an award pursuant to s 38, the Respondent worker refers to and relies upon the reasons of, then, Arbitrator John Harris in Oliver Roberts v University of Sydney [2021] NSWWCC 25 at [53]–[67] as the basis for her submission that, consequent upon the Workers Compensation Legislation Amendment Act 2018 the Commission does indeed have jurisdiction to determine a dispute pursuant to s 38.”
Consideration
Before the Member, the appellant put its case on s 38 in the following manner:
“So section 38 is clear and Parliament was clear in 2012 that unless someone is totally incapacitated or is working the 15 hours a week minimum then they’re not entitled to any further compensation - weekly compensation beyond the 130-week period, 36 and 37 periods. So [the respondent’s counsel] faced an uphill battle, in my submission, convincing you that the [respondent] has no work - current work capacity against the effect of his own evidence.
Leaving all that aside though the initial decision regarding section 38, that is Presidential decision, because all the rest really don’t bind you in anyway, was Lee v Bunnings … where Judge Keating made it very clear that the assessment of current work capacity is in the realm of the insurer pursuant to section 38.
Of course, the Commission now has jurisdiction to review that, it used to go to [the Workers Compensation Independent Review Office] to review it but the Commission now has the jurisdiction to review it but until such time as the [respondent] triggers the sections or the subsections within section 38 you don’t have jurisdiction to determine that matter.”[6]
[6] Transcript (T) 8 June 2023, T 24.3–26.
The appellant also made reference to the Presidential decision in Ferro, paragraphs [32] to [38] in support of a submission that the Member had no jurisdiction, given that the insurer had itself made no assessment of work capacity.[7] This was a submission which relied upon the requirements of s 38(3) of the 1987 Act not being fulfilled.
[7] T 25.16–24.
The respondent conceded that the s 38(3) requirements had not been met, however the respondent’s claim was under s 38(2) of the 1987 Act, having no current work capacity, and the respondent said that no such decision was necessary in that circumstance.[8] The respondent pointed to the fact that the appellant (who is a self-insurer) has disputed that an injury had occurred at all, submitting as follows:
“Now, my learned friend referred to the case of Lee v Bunnings which is no longer good law. It has changed since then. [Work] capacity decisions, for example, were not able to [be] determined or reviewed by the Commission and, indeed, as I’ve said previously, the insurer or the [appellant], because they are one the same in this, has issued a decision saying the [respondent] simply doesn’t suffer from an injury, how could there be the issue of a work capacity decision in circumstances where they don’t even accept there was an injury.”[9]
[8] T 42.25–43.3.
[9] T 42.14–23.
As I have set out above, the appellant maintains that the Member was bound by two Presidential decisions, Lee v Bunnings in 2013 and Ferro in 2023 and failed to follow them and was thus in error. I would note that the Member dealt with the Workers Compensation Legislation Amendment Act 2018 (2018 Amendments) in the decision at reasons [281] to [283] and that no issue has been taken on appeal with regard to those paragraphs. Indeed, the appellant has made no submission at all on appeal about the effect of the 2018 Amendments. I would also note that in the passages from page 24 of the transcript I have extracted above, counsel for the appellant, whilst still placing reliance on Lee v Bunnings, acknowledged that since Lee v Bunnings, the Commission did have jurisdiction to review a work capacity decision. However no specific submission on the effect of the 2018 Amendments was made by the appellant.
At the time Lee v Bunnings was decided a different regime applied to work capacity decisions. A different entity, the former Workers Compensation Independent Review Office, had responsibility for reviewing work capacity decisions. This changed with the 2018 Amendments which the Member has set out in reasons [281] to [283] and which I have repeated above. The circumstances that were decided in Lee v Bunnings were clearly superseded by the 2018 Amendments and it is no longer to be followed. This was the effect of the Member’s reasoning at reasons [281]. No issue has been taken on appeal with this reasoning.
In so far as the appellant’s submissions rest on the authority of Lee v Bunnings, such a submission cannot be accepted. The appellant has failed to grapple with the effects of the 2018 Amendments and more importantly the Member’s construction of them. Intervention on appeal depends upon the identification and correction of error.[10] This aspect of the appeal ground is rejected.
[10] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.
I would also add the following remarks for the sake of completeness, given the manner in which the appellant has attempted to circumscribe the Commission’s power with respect to work capacity decisions since the 2018 Amendments. The respondent has made reference to the decision of Roberts v University of Sydney,[11] dated 21 January 2021. The appellant makes no submission in response to the respondent’s reliance on this decision. In that case Arbitrator Harris, as he then was, said as follows:
“58. Section 289B provides that the referral of a dispute to the Commission of a work capacity decision that discontinues or reduces the amount of weekly compensation is ‘stayed’. The section clearly contemplates that the Commission will ‘determine’ a dispute about a work capacity decision. It would be nonsensical that the Commission has jurisdiction within the first and second entitlement period where a work capacity decision had been made but had no such power after the second entitlement period.
59. The respondent in its reply accepted that the Commission had jurisdiction to review a work capacity decision in the ss 36 and s 37 period but not thereafter.
60. Whilst the wording of s 38 refers to an insurer deciding the matter, the issue is whether a worker can contest the insurer’s decision before the Commission. Despite the reference to the matters in s 38 being decided by an insurer, in my view, the broad jurisdiction of the Commission under s 105 of the 1998 Act to ‘hear and determine all matters arising under’ the 1987 Act and the 1998 Act encompass jurisdiction and power within the Commission to hear disputes regarding a worker’s entitlement under s 38.”
[11] [2021] NSWWCC 25 (Roberts).
I endorse these remarks as constituting the proper approach to s 38 disputes and the Commission’s power to deal with them. This was effectively the approach taken by the Member in this matter.
To this point, I would refer to the Member’s factual finding at reasons [282] that the “letter dated 27 October 2021 notified the [respondent] of a work capacity decision within the meaning of s 43 of the 1987 Act.” This finding has not been challenged in this appeal. Consequently, it is this work capacity decision that the Commission is appropriately seized of power to determine.
This leaves the matter of Ferro. The appellant asserts that Ferro stands for the proposition that the Commission lacks jurisdiction to hear a work capacity dispute.[12] Reference is made to Ferro at [38]. The Member dealt with the appellant’s submissions about Ferro at reasons [284] and no issue is taken with those remarks on this appeal. The Member distinguished the circumstances in Ferro from those which the Member was confronting in this matter. The appellant has not said how this approach was wrong.
[12] Appellant’s submissions, [7]–[9], set out at [13] above.
In the passages referred to from Ferro by the appellant, the Acting Deputy President was grappling with an appeal ground which alleged the Member below erred in the inadequacy of reasoning in making a s 38 order. The issue was not whether the Member in Ferro was possessed of the jurisdiction to entertain the s 38 application, although I accept that Acting Deputy President Parker’s reasons at [34] of Ferro may have this colour. I would note though, that no submissions regarding the effect of 2018 Amendments and the matters I have extracted from Roberts were made to the Acting Deputy President. Ferro is not authority for the proposition advanced by the appellant in this matter that the Commission lacks jurisdiction to determine a s 38 application. This point advanced by the appellant was simply not decided in Ferro and that case is therefore not authority for this proposition. There is therefore no inconsistency between the Member’s decision in this matter and Ferro.
This aspect of the ground of appeal, based on Ferro, fails.
The appeal is dismissed.
DECISION
The Member has, in a methodical and meticulous manner, dealt with the old authority of Lee v Bunnings and assessed the effect of the 2018 Amendments on the Commission’s power to hear and determine s 38 disputes.
The appeal is dismissed.
The Certificate of Determination dated 9 August 2023 is confirmed.
Judge Phillips
PRESIDENT
3 November 2023
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