Georgandas v Qantas Flight Catering
[2003] NSWWCCPD 20
•26 August 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Nick Georgandas v Qantas Flight Catering [2003] NSW WCC PD 20 |
| APPELLANT: | Nick Georgandas |
| RESPONDENT: | Qantas Flight Catering |
| INSURER: | Allianz Australia Workers Compensation |
| FILE NO: | WCC 4288-2002 |
| DATE OF DECISION: | 26 August, 2003 |
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron |
| DECISION UNDER APPEAL: | Application for Leave to appeal against a decision of an Arbitrator; no injury arose out of or in the course of employment; medical evidence of the Respondent preferred to the medical evidence of the Appellant; refusal to make an order under section 60 of 1987 Act. |
| DATE OF DECISION UNDER APPEAL: | 8 May, 2003 |
| HEARING: | Determined on the Papers |
| REPRESENTATION: | Appellant: Slattery Thompson Solicitors |
| Respondent: Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | Leave to Appeal is refused. No order is made as to costs. |
THE APPEAL
On 12 May, 2003 Nick Georgandas, (‘the Appellant Worker’), lodged in the Workers Compensation Commission (‘the Commission’) an ‘Application for Appeal Against a Decision of an Arbitrator’, dated 9 May, 2003. The decision of the Arbitrator was dated 8 May, 2003. The Respondent to the appeal is Qantas Flight Catering, (‘the Respondent Employer’) and the Insurer is Allianz Australia Workers Compensation, (‘the Insurer’).
The issues in dispute before the Arbitrator were summarized in the Arbitrator’s Statement of Reasons, as follows:
·Did the Applicant receive an injury related to his wrist arising out of or in the course of employment (WCA s9)?
·Was the Applicant’s employment a substantial contributing factor to his injury? (WCA s9A).
·Are some or all of the Applicant’s medical and related expenses incurred as a result of treatment, services or assistance that was [sic] reasonably necessary for the compensable injury?
·Is the Applicant estopped from pursuing a further claim for an injury to the same limb or following a settlement related to the same limb?
THE DECISION UNDER REVIEW
The Certificate of Determination issued by the Commission on 8 May, 2003, to which the Arbitrator’s Statement of Reasons for Decision was attached, was issued in the following terms:
“(i)The Commission declines to make an Order under s 60 in favour of the Applicant.
(ii)I make no order in respect of costs.”
THE ISSUES IN DISPUTE
The issues in dispute, as set out in the grounds of appeal, may be summarized as follows:
(1) The Arbitrator erred in finding that “no act of injury” occurred arising out of or in the course of employment;
(2) The Arbitrator erred in accepting the Respondent Employer’s medical evidence in preference to the report of Dr. Maniam, submitted by the Appellant Worker, and
(3) A further report from Dr. Maniam should be allowed in evidence to “clarify his comment on ‘positive ulnar variance’ and to comment on the possible genesis of degenerative osteoarthritis in the Applicant’s [sic] left wrist.”
The Respondent Employer’s response, dated 7 July, 2003, is as follows:
“The respondent objects to any appeal against the Arbitrator’s decision on the following grounds:
1.The amount of compensation at issue is less than $5,000.
2.There are no arguments attached to the Application to appeal against a decision of an Arbitrator in contravention of Rule 77(3)(a).
3.The Application was not served on the respondent’s insurer within 7 days in contravention of Rule 77(4).”
The Appellant Worker, by letter dated 23 July, 2003, wrote to the Commission in response to correspondence from the Commission, as follows:
“We refer to the abovementioned [sic] and we refer to your letter dated 19th June 2003 and we now reply as follows:
1.copy of decision is enclosed
2.the applicant claims payment of physiotherapy fees of $700
3.we refer to our letter dated 13th May 2003, a copy of which is enclosed
4.noted, we refer to our previous letter dated 13th May 2003 forwarded to you
5.noted
We request that you allow a further fourteen days to complete our submissions as we are awaiting a report from Dr. Maniam to clarify the medical issue raised in Dr. Maniam’s report dated 28th May 2002 in respect of the issue of ‘positive ulnar variance’ to the left wrist.”
No further correspondence in this regard, has been received from the Appellant Worker to date, and no submission as to the question of leave to admit fresh evidence on appeal, pursuant to section 352 (6) of the Workplace Injury Management and Workers Compensation Act 1998 Act, (‘the 1998 Act’) has been made.
JURISDICTION TO HEAR THE APPEAL
Both of the parties have agreed that this matter (including the issue of leave to appeal) may be determined by me on the papers, pursuant to section 354(6) of the 1998 Act, and I consider that this is the appropriate course to adopt. However, before proceeding with an appeal, the Commission must determine whether the requirements of section 352 of the 1998 Act are satisfied. Section 352 provides as follows:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(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.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days after the making of the decision appealed against.
DETERMINATION OF LEAVE TO APPEAL
The Appellant Worker stated in “Part 2 – Details of the Decision Appealed Against” of the “Application – Appeal Against Decision of Arbitrator”, dated 9 May, 2003 and lodged 12 May, 2003, that the amount of compensation at issue on appeal is “$540 in respect of reimbursement for section 60 expenses.” In his letter of 23 July, 2003 a further claim for “payment of physiotherapy fees of $700” is made. No other amount of compensation at issue is stipulated in relation to this appeal and no submission in relation to the question of leave to appeal, in particular the threshold to be met as provided in section 352(2) of the 1998 Act as set out above, has been made. On the other hand, the Respondent Employer has submitted that the amount of compensation at issue is less than $5,000. That is so, in the absence of any submission or argument to the contrary, and consequently, the requirements of section 352(2) have not been met. In the circumstances, leave to appeal may not be granted and I am unable to proceed to determine the substantive appeal. Further findings in relation to the lodging of the appeal, or the substantive issues in the appeal, are not required.
Leave to appeal is refused.
COSTS
No order is made as to costs.
Gary Byron
Deputy President
I certify that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission.
Registrar
26 August, 2003.
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