Haidary v Wandella Pet Foods Pty Limited
[2004] NSWWCCPD 94
•23 December 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Haidary v Wandella Pet Foods Pty Limited [2004] NSWWCCPD 94
APPELLANT: Khodad Haidary
RESPONDENT: Wandella Pet Foods Pty Limited
INSURERCGU Workers Compensation (NSW) (No.2) Pty Limited
FILE NUMBER: WCC6253-04
DATE OF ARBITRATOR’S DECISION: 18 August 2004
DATE OF APPEAL DECISION: 23 December 2004
SUBJECT MATTER OF DECISION: Whether matter was correctly struck out; jurisdiction; section 289(1) of the Workplace Injury Management and Workers Compensation Act 1998; rule 6 of the Workers Compensation Commission Rules 2003; requisite finding of “nullity”.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator, of 18 August 2004, is revoked. The parties are to file and serve submissions on or before 27 January 2005, addressing the details of Mr Haidary’s alleged entitlement to weekly benefits compensation, including reference to all relevant statutory provisions, awards, and payments made.
Background To The Appeal
Khodad Haidary worked for Wandella Pet Foods Pty Limited in Young, in country NSW, as an abattoir labourer. He injured his back at work on 16 June 2003 and again on 15 July 2003.
Mr Haidary lodged a claim for workers compensation by way of weekly benefits. The Insurer, CGU Workers Compensation (NSW) (No.2) Pty Limited, accepted liability and commenced making weekly payments from 21 July 2003.
On 16 March 2004, Mr Haidary’s legal representative wrote to the Insurer claiming an entitlement to compensation at the statutory benefit rate applicable to a worker with a dependent wife and four dependent children from 8 January 2004 and continuing. Mr Haidary had not notified the Insurer of his dependents at the point of making the claim. No response was received from the Insurer by 8 April 2004, and on that day Mr Haidary lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission.
The matter went before an Arbitrator who, on 18 August 2004, decided to ‘strike out’ Mr Haidary’s application. This decision was made at a teleconference, which was not sound recorded. The Arbitrator’s brief reasons are noted on the Commission’s file as follows:
“The initial issue as raised by the Respondent and the critical factor is that of jurisdiction. It was conceded by the Applicant that there was in fact no issue in relation to the statutory claim for weekly workers compensation hence I had no alternative than to strike the Application out.”
On 1 September 2004 Mr Haidary sought leave to appeal against the Arbitrator’s decision.
The Respondent to the appeal is Wandella Pet Foods Pty Limited.
Mr Haidary wants the decision set aside and a new decision made, that the matter is not struck out.
The Insurer submits that the Arbitrator’s decision should be confirmed and that the appeal is unnecessary, as Mr Haidary retains the right to commence fresh proceedings.
I have before me all the documents filed in the original proceedings before the Arbitrator, and those filed in the appeal, including the written submissions from both parties. I am satisfied that I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
Leave to appeal is granted.
Did The Arbitrator Have Jurisdiction To Hear Mr Haidary’s Application?
The Insurer submits that the Arbitrator correctly struck out the matter. It argues that at the time the Application was registered in the Commission, there was no ‘dispute’ between the parties as required by Part 4 (section 289) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The Insurer argues that despite the Insurer having accepted that Mr Haidary had dependents, this would have no effect on the amount of weekly compensation to which he was entitled.
At the time of informing the Insurer of the claim for dependents (16 March 2004), and of lodging the ‘Application to Resolve a Dispute’ in the Commission (8 April 2004), Mr Haidary disputed the rate at which compensation was payable to him for the injuries he suffered at work in June and July 2003. The Insurer had not advised Mr Haidary of whether liability in relation to his claim to a different rate of weekly compensation was accepted or disputed, following the letter of 16 March 2004. The Insurer did not advise Mr Haidary of its view that his claim had no merit until 10 May 2004, when the Reply was filed in the Commission.
I accept Mr Haidary’s submission that the letter he sent to the Insurer on 16 March 2004 was sufficient notice of the claim, to which there was no response before proceedings were lodged. Whether or not Mr Haidary had been paid his correct entitlements was in issue and the subject of a claim prior to the filing of proceedings in the Commission. The fact that it may subsequently be found that Mr Haidary was properly compensated under the workers compensation acts does not retrospectively nullify any dispute.
In my view the Arbitrator erred in finding that the Commission had no jurisdiction.
Was The Arbitrator Wrong To Strike Out Mr Haidary’s Claim?
Having decided that he had no jurisdiction to hear Mr Haidary’s claim, it was not necessary or appropriate for the Arbitrator to ‘strike out’ the matter pursuant to the Workers Compensation Commission Rules 2003. The exercise of the power to strike out a claim is dependent upon non-compliance with the Rules. Rule 6(4) provides that:
“If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.”
The Arbitrator has not identified any failure to comply with the Commission’s Rules. It is also not clear from the brief statement by the Arbitrator whether he made a determination that the proceedings are a nullity, in accordance with Rule 6(4). Such a determination is a prerequisite to striking out the claim (see Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSW WCC PD 83; Forman v Moree Plains Shire Council [2004] NSW WCC PD 85). In the absence of such a determination, a failure to comply with the Rules is to be treated only as an irregularity.
The Decision On Review
I have proceeded to review the evidence that was before the Arbitrator and is before me on appeal.
Liability is not in issue in this matter; it is solely concerned with the quantum of weekly benefits compensation Mr Haidary may be entitled to. From a reading of the recent correspondence between the parties (attached to the application to appeal) it appears that the payments now allegedly in dispute relate to a closed period between 24 September 2003 and 8 May 2004 (letter of 29 July 2004 from Mr Haidary’s legal representative to the Insurer), although I note that the application to appeal specifies the closed period as ending on 13 April 2004.
The Insurer submits that Mr Haidary has received weekly compensation under sections 36 and 37(2) of the Workers Compensation Act 1987 (the 1987 Act) at his current weekly wage rate. I accept the Insurer’s submission that he is not entitled, during this period, to receive the statutory rate for having dependents, where this would exceed his current weekly wage.
Mr Haidary has submitted a schedule of his alleged wage loss under cover of a letter to the Insurer dated 29 July 2004 (Annexure N to the application to appeal). This schedule is expressed to be subject to the Insurer providing “the information a [sic] continuing weekly wage claim from the 14.04.2004 up until the date of the operation being 8.05.2004. During this period, the Applicant is entitled to receive the difference between the amount he was earning and his award”.
In correspondence between the parties, the Insurer has disputed any underpayment during this period and submitted a wages schedule under cover of a letter to Mr Haidary’s legal representative dated 18 August 2004.
Unfortunately it is not clear from the evidence and submissions before me on the appeal, exactly what provisions of the 1987 Act Mr Haidary’s legal representative relies upon to allege an underpayment to Mr Haidary between 24 September 2003 and 8 May 2004. The wages schedules provided do not at first instance appear to disclose an underpayment. Nor is there evidence before me in relation to Mr Haidary’s entitlement, if any, to compensation pursuant to section 40 of the 1987 Act as suggested in some of the correspondence between the parties. In the circumstances I am not in a position to substitute a decision for that of the Arbitrator.
I propose to direct the parties to file written submissions addressing the details of Mr Haidary’s alleged entitlement, including reference to all relevant statutory provisions, awards, and payments made. The parties are also invited to make submissions on costs if they wish. Following this I will proceed to finalise the appeal, including the issue of costs.
DECISION
The decision of the Arbitrator, of 18 August 2004, is revoked. The parties are to file and serve submissions on or before 27 January 2005, addressing the details of Mr Haidary’s alleged entitlement to weekly benefits compensation, including reference to all relevant statutory provisions, awards, and payments made.
Dr Gabriel Fleming
Deputy President
23December 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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