Harding v Westpac Banking Corporation (No 2)

[2018] NSWWCCPD 8

DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:	Harding v Westpac Banking Corporation (No 2) [2018] NSWWCCPD 8
APPELLANT:	Lester Harding
RESPONDENT:	Westpac Banking Corporation
INSURER:	Self-insured
FILE NUMBER:	A1-3925/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	17 November 2017
DATE OF APPEAL DECISION: DATE OF RECONSIDERATION DECISION:	28 February 2018 7 March 2018
SUBJECT MATTER OF DECISION:	Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	McNally Jones Staff
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1.    The decision of Harding v Westpac Banking Corporation [2018] NSWWCCPD 7 is reconsidered pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. Order [2] of that decision is revoked and substituted with the following: ”2. Sub-paragraph [1(c)] of the Certificate of Determination dated 17 November 2017 is revoked, and the following order is made in its place: ‘(c) From 4 April 2017 to 30 November 2017, at the rate of $919.92 pursuant to s 37.’”

BACKGROUND

1. The orders in this appeal were made on 28 February 2018. The appeal succeeded, and orders were made substituting a weekly award from 4 April 2017 to date and continuing, for the closed period award from 4 April 2017 to 30 August 2017, entered by the Arbitrator.

2. On 1 March 2018, the Commission received an email from Mr Harding’s solicitor. It stated that Mr Harding, discussing the outcome of the appeal on that day, gave instructions that he had been “certified to return to work 3 days a week as from 1.12.17.” Mr Harding’s solicitor advised that “the S.37 formula provides that his entitlement to weekly compensation ceased on 30.11.17.” Mr Harding’s solicitor forwarded a further email to the Commission on 1 March 2018, requesting that the email be treated as “a S.350(3) application to amend the decision in order [2] so that Mr Harding’s entitlement to weekly compensation ceases on 30.11.17”. Westpac’s solicitor was “cc’d” in to the email, and asked to indicate his consent to this course.

3. Westpac’s solicitor, in an email dated 6 March 2018 to the Commission and Mr Harding’s solicitor, said:

   “Reserving our client’s rights concerning the decision more generally, as we have not received instructions in relation to it, we consent to the application to amend the orders.”

4. The above email chain, from 1 March 2018 to 6 March 2018, has been printed and attached to the Commission file.

DECISION

1. Consistent with the request of the parties, I will treat the emails referred to as an application to reconsider the decision dated 28 February 2018, pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. In the particular circumstances of this matter, and given the consent of the parties, I make the following order:

   “1. The decision of Harding v Westpac Banking Corporation [2018] NSWWCCPD 7 is reconsidered pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. Order [2] of that decision is revoked and substituted with the following:

   ‘2. Sub-paragraph [1(c)] of the Certificate of Determination dated 17 November 2017 is revoked, and the following order is made in its place:

   (c)From 4 April 2017 to 30 November 2017, at the rate of $919.92 pursuant to s 37.’”

Michael Snell

Deputy President

7 March 2018