GIO v Ivanovski
[2002] NSWWCCPD 1
•9 September 2002
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:GIO Workers Compensation (NSW) Ltd v Ivanovski [2002] NSW WCC PD 1
APPELLANT: GIO Workers Compensation (NSW) Ltd
RESPONDENT: Tony Ivanovski
EMPLOYER:Action Line Security Consultants Pty Ltd
DATE OF DECISION: 9 September 2002
FILE NO: WCC82-2002
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
Deputy President
DECISION UNDER APPEAL: Award of weekly compensation to Tony Ivanovski pursuant to sections 36 and 40 of the Workers Compensation Act 1987.
DATE OF DECISION UNDER APPEAL: 27 June 2002
HEARING: On the Papers
REPRESENTATION: Appellant:
P Nicolopoulos
Respondent:
Steve Masselos & Co
ORDERS MADE ON APPEAL: Leave To Appeal the Decision of the Commission constituted by an Arbitrator dated 27 June 2002 is Refused.
THE APPEAL
On 24 April 2002 Tony Ivanovski lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘the Commission’) seeking an order that he be paid weekly compensation by way of income support at the hourly rate payable under the relevant Australian Workplace Agreement for a period of total incapacity from 8 January 2002 to 24 April 2002 and for a period of partial incapacity from 24 April 2002 and continuing. Mr. Ivanovski’s employer is Action Line Security Consultants Pty Ltd and the relevant workers compensation insurer is GIO Workers Compensation (NSW) Ltd (‘GIO’).
The parties attended a conciliation conference and arbitration hearing on 11 June 2002. On 27 June 2002 the Commission constituted by an Arbitrator gave a decision, supported by a written statement of reasons, as follows:
1.I uphold the application.
2.I direct that the amount payable to the Applicant pursuant to s36 of the Workers Compensation Act is $16.90 per hour for the period 8 January 2002 to 23 April 2002.
3.I direct that the amount payable to the Applicant pursuant to s40 of the Act from 24 April 2002 to date and continuing is $280.80 per week.
4.I note that the Respondent is to have credit for all payments made to date by the Respondent to the Applicant.
Costs are awarded as follows: I order that the Respondent pay the Applicant’s costs of this application.
On 25 July 2002 GIO lodged an application to appeal against the above decision. The substantive issue in dispute in the appeal was set out in a letter accompanying the application to appeal as follows;
“ . . We hereby seek leave to appeal from the above decision on the grounds that [the Arbitrator] has erred at law, in his calculation of the moneys due and payable to the applicant pursuant to section 40 of the Workers Compensation Act. We specifically refer to paragraph three of the above decision. “
As to the substantive matters in the appeal GIO does not dispute Orders 1, 2 and 4 as set out above. It disputes Order 3 only in relation to the calculation of the Applicant’s entitlement to weekly payments during periods of partial incapacity from 24 April 2002 ‘and continuing’.
Both parties have consented to the determination of this matter ‘on the papers’ in accordance with section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’) and the President’s Practice Direction No 6 of 2002.
THE ISSUES IN DISPUTE
The Commission must first determine whether the application meets the requirements for a grant of leave to appeal a decision of an Arbitrator as set out in section 352 of the Act (see below).
JURISDICTION TO HEAR THE APPEAL
Section 352 of the Act provides for an ‘Appeal against a decision of [the] Commission as constituted by an Arbitrator’ as follows:
(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.
It is thus necessary first to consider the ‘threshold’ requirements in section 352(2) in regard to the amount of compensation at issue on the appeal.
SUBMISSIONS
GIO have not made any submissions on the issue of leave to appeal.
10. Mr. Ivanovski submits that the amount of compensation at issue in the appeal does not meet the requirements of section 352 (2) of the Act and therefore leave to appeal should not be granted. By letter of 9 August 2002 from his legal representative he submits,
“ . . .the Respondent’s complaint is that the Applicant has been awarded $37.80 per week in excess of his entitlements. This is calculated as being the difference between the Award of $280.80 per week and the Respondent’s calculation of $247.00 per week. On our calculations this amounts to only 13.46% of the decision appealed against. Nor is the amount of compensation at issue in this application in excess of $5000.00 as required by Section 352 of the Workplace Injury Management Act 1998”.
11. The Commission determined that Mr. Ivanovski’s entitlement be calculated on the basis that the ‘Collective Australian Workplace Agreement’ between Action Line Security Consultants Pty Ltd and its employees (‘the Agreement’) was the ‘award’ for the purpose of setting his ‘current weekly wage rate’ under section 42(6) (b) of the Workers Compensation Act 1987 (‘the Act’). The statement of reasons for the decision states that Mr. Ivanovski . . . was entitled to be paid whilst totally incapacitated the amount equal to his ordinary rate of pay under the Australian Workplace Agreement which is $16.90 per hour and a commensurate amount whilst partially incapacitated. (Statement of Reasons paragraph 40).
12. GIO has submitted that the Agreement provided for a 38-hour working week however the amount of $280.80 specified in Order 3 is based on a 40-hour week. It appears to have been common ground that the Mr. Ivanovski was in fact paid an amount of $10.40 per hour from his return to work on 23 April 2002. If Mr. Ivanovski is entitled to be paid at a comparable rate for a 38-hour week, GIO submit that his entitlement would be $247 per week (($16.90 - $10.40) x 38 = $247).
13. There are no further details in the decision or in the documents in the Commission’s file that indicate how the amount of $280.80 specified in Order 3 was arrived at. Nor is it evident from a simple calculation based on the Agreement rate over a 40-hour week (($16.90 – $10.40) x 40 = $260). It is unfortunate that the arbitration phase of the proceedings was not sound recorded in accordance with the ‘Registrar’s Guideline for the Conciliation/Arbitration Process’. A record of the proceedings would have assisted in understanding how the terms of the orders were arrived at. The legal representative of Mr. Ivanovski refers to the factual material that was subject to agreement between the parties at the Arbitration and recorded by the Arbitrator and recorded in his notes. Neither appear on the Commission file.
14. GIO’s appeal application also indicates (although not clearly) that the terms of Order 3 are also in dispute in that they provide for a payment from 24 April 2002 to date and continuing. GIO submit that Mr. Ivanovski is entitled to be paid the amount of $247 per week from 24 April until 8 July 2002, being the statutory period of 26 weeks (section 36 of the Act). Thereafter he is entitled to the ‘statutory rate’ (calculated in accordance with section 37 of the Act) until 24 July when he ‘stopped work’.
15. Mr. Ivanovski, through his legal representative, submitted that the appeal is misconceived in that all factual matters were canvassed by the Arbitrator prior to the determination. No error is admitted and the use of an application to appeal in order to address an alleged error in the mathematical calculation in the award is questioned.
DETERMINATION OF LEAVE TO APPEAL
16. The appeal was properly made within 28 days of the making of the decision appealed against.
17. In order to determine the ‘amount of compensation at issue on the appeal’ (section 352(1)) it is first necessary to determine the ‘amount awarded in the decision appealed against’. Given the continuing nature of the orders made by the Arbitrator this calculation is not as straight forward as it may at first appear.
18. GIO have only put at issue in the appeal the amount ordered pursuant to Order 3 which provides that Mr. Ivanovski be paid $280.80 for the period 24 April 2002 ‘and continuing’. This is determined to be Mr. Ivanovski’s entitlement pursuant to section 40 of the Act.
19. The facts submitted to the Arbitrator indicate that Mr. Ivanovski had periods of ‘total and partial incapacity’ from 8 January 2002 until and continuing at the date of the determination on 27 June 2002. While the expression ‘and continuing’ is used in the order of the Commission, at the expiration of the first 26 weeks of Mr. Ivanovski’s incapacity his entitlement to compensation is subject to section 37 of the Act.
20. The amount in issue in the appeal is the alleged overpayment of $33.80 per week. Even were this alleged overpayment to be calculated over the entirety of the 26-week period (rather than as at the date of the order) it does not amount to $5000. The total entitlement under Order 3 equals $878.80.
21. GIO also object to the ‘ongoing nature of the award’. As noted above the expression of the award as ‘continuing’ refers to the ongoing section 40 rate for weekly payments during Mr. Ivanovski’s period of partial incapacity as at the date the order was made. An order of the Commission cannot override the statutory limits on the Applicants entitlements. The provisions of Part 3 Division 2 of the Act apply to his ‘ongoing’ entitlements, should he continue to be incapacitated as a result of his injury.
22. It is clear from the above that GIO have not met the statutory requirements for leave to appeal the decision. The amount of compensation at issue on the appeal is less than $5000. In the circumstances leave to appeal cannot be granted.
DECISION
23. Leave to appeal the decision of the Commission constituted by an Arbitrator dated 27 June 2002 is refused.
COSTS
24. The GIO is to pay Mr. Ivanovski’s costs in accordance with the Workers Compensation (General) Regulation 1995.
OTHER ISSUES
25. Mr. Ivanovski’s legal representative submitted that GIO were misguided in their application to appeal and, as the matter ‘related solely to mathematical calculation’ it could more easily have been resolved by an application under section 350(3) of the Act. That section provides that “ the Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission”. Alternatively, it was submitted that GIO could have sought amendment of the Order by way of application of the President’s Practice Direction No 4, relating to ‘obvious error’.
26. While a ‘mathematical calculation’ was at issue in the appeal, the application raised issues that went beyond a mere ‘slip’ in the framing of the Order. The basis of Mr. Ivanovski’s entitlement relative to his ‘normal working hours’ under the Australian Workplace Agreement and the nature of the evidence given at the conciliation and arbitration hearing were in dispute. These issues are not matters appropriate for the application of the ‘slip rule’ or correction for ‘obvious error’.
27. Mr. Ivanovski’s legal representative also objects to GIO’s form of appeal. It appears from the appeal documents before the Commission that the representative of GIO is not aware of the requirements of the President’s Practice Direction No 6, which sets out the procedure for the filing of an appeal to a Presidential Member. It is to be expected that as the Commission is a relatively ‘new’ body there it may take some time for representatives to familiarize themselves with its practices and procedures. However these practices and procedures are now clearly set out in the President’s practice directions and it is expected that parties will follow them in the future. It is not acceptable for an appeal to be served without a copy of the decision appealed against and a statement addressing whether the matter is capable of determination on the papers. To do so imposes unnecessary inconvenience on the other parties and unnecessary administrative follow up on the part of the Commission.
Dr Gabriel Fleming
Deputy President
I certify that this is a true and accurate record of the reasons for decision of Deputy President Gabriel Fleming, Workers Compensation Commission
Registrar
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