Howell v Stringvale Pty Ltd - [2004] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22
APPELLANT:  Wayne David Howell
RESPONDENT:  Stringvale Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC9397-2003
DATE OF ARBITRATOR’S DECISION:          3 October 2003
DATE OF APPEAL DECISION:  30 April 2004
SUBJECT MATTER OF DECISION:                Leave to file late Appeal Application. Factors relevant to an extension of time to file appeal.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION:  Appellant: Higgins & Higgins Lawyers
Respondent: Moray & Agnew Solicitors

ORDERS MADE ON APPEAL: Leave to appeal the decision of the Commission constituted by an Arbitrator dated 3 October 2003 is refused.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 December 2003 Wayne David Howell (‘the Appellant/Mr Howell’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 3 October 2003.

The Respondent to the Appeal is Stringvale Pty Ltd (‘the Respondent/Employer’). The Respondent filed a Reply to the Appeal on 13 January 2004.

The relevant insurer is QBE Workers Compensation (NSW) Limited (‘the Insurer’).

The appeal relates to a claim by Mr Howell for workers compensation by way of weekly payments from 5 May 1992 and continuing; lump sum compensation for permanent impairment, pain and suffering, and payment of associated medical expenses. He claims to have suffered physical and psychological injuries due to the nature and conditions of his employment, working for the Respondent as a ‘General Hand’ in the crematorium.

Mr Howell had previously obtained monetary award as the result of a consent judgment of the Supreme Court of New South Wales. He alleges that his present claim relates to a different injury to that of the previous proceedings.

The matter was referred to me for review on 6 April 2004.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 3 October 2003 and a brief ‘Statement of Reasons’ (‘the Reasons’) records the Arbitrator’s orders as follows:

1. “The claim for physical and psychological injuries as a result of the nature and conditions of the employment of the Applicant by the Respondent is resolved in favour of the Respondent.
2. That I make no order as to costs.”

The Appellant seeks to have the Arbitrator’s decision set aside. The Appellant filed written submissions with the original application and further submissions on 17 December 2003.

The Respondent filed submissions in reply on 13 January 2004.

ISSUES IN DISPUTE

There are two threshold issues that must be determined in this appeal. The first is whether or not leave should be granted to extend the time for filing of the appeal. The second is whether or not the Appellant should be permitted to give fresh evidence on the appeal.

The grounds of appeal submitted by the Appellant are:
1. The Arbitrator erred in that his decision was against the medical evidence that proved the pre-existence of the Applicant’s work related back injury.
2. The Arbitrator failed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWWCCPD 22
Decision Date: 30 April 2004

CaseChat Overview and Summary

The matter in Howell v Stringvale Pty Ltd involved a dispute concerning the compensation claim of Mr Howell, who was appealing against a decision made by the Commission constituted by an Arbitrator. The dispute arose from a workers' compensation claim under the relevant legislation, specifically section 352 of the 1998 Act. The primary issue for the court was whether the Commission should grant leave for an appeal that was lodged beyond the stipulated 28-day period as per section 352(4) of the 1998 Act. Additionally, the court needed to consider whether the extension of time to lodge the appeal was justified under exceptional circumstances as per Rule 77(8) of the Workers Compensation Rules 2003.

The court examined the timeline of events and the procedural history of the case. It noted that the appeal was lodged 66 days after the decision was made, which exceeded the statutory 28-day limit. However, the court also considered the exceptional circumstances under which the Commission could extend the time for making an appeal. The court weighed the factors presented by Mr Howell and the insurer, including the complexity of the medical evidence and the timing of the correspondence and submissions made by both parties. The court ultimately determined that the circumstances did not meet the threshold for an exceptional extension of time. Consequently, the appeal was dismissed due to the failure to comply with the statutory time limit for lodging the appeal.

The court's reasoning was based on a strict interpretation of the statutory and regulatory provisions. The court concluded that the procedural requirements were not satisfied, and therefore, the appeal was not valid. The court's decision underscored the importance of adhering to the prescribed timelines for lodging appeals in workers' compensation matters. The final orders of the court dismissed the appeal and confirmed the original decision of the Commission constituted by the Arbitrator.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application must meet the requirements of section 352 of the 1998 Act, which provides: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 Arbitrator’s orders were issued to the parties in a Certificate of Determination dated 3 October 2003. The appeal was not lodged within 28 days of that decision, i.e. on or before 31 October 2003, in compliance with section 352(4) of the 1998 Act. The appeal was lodged 66 days after the decision was made. Rule 77(8) of the Workers Compensation Rules 2003 (‘the Rules’) effective from 1 July 2003, relevantly provides that:“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.” The following sets out the progress of this matter in the Commission:·On 30 April 2003, Mr Howell filed an Application to Resolve a Dispute.·On 22 May 2003, the employer filed the Reply.·On 17 June 2003, the Insurer sent a letter to the solicitors for the Appellant submitting that Mr Howell had exercised his election to pursue the matter as a common law claim in the Court and requesting that proceedings be discontinued without delay.·On 11 August 2003, a telephone conference was held with the parties unable to resolve the dispute. The Arbitrator issued a direction for the Appellant and Respondent to file and serve the medical reports of Dr Parmegiani dated 3 October 2002 and Dr Bodel within 7 days respectively. These reports were duly filed. ·On 11 September 2003, a conciliation conference and arbitration hearing was held with the Arbitrator making a further direction for the Appellant to produce various medical reports, being reports that were prepared for the Supreme Court proceedings in 1996. ·In a letter dated 12 September 2003, the Respondent filed further submissions together with the following medical reports: Dr Cameron dated 20/8/92, Dr Clift dated 14/1/93, Dr Goulston dated 26/2/93, Dr Fathers dated 23/3/93 and 8/2/94 and Dr Slezak dated 4/6/93.

Ratio Decidendi

Legal Principle Established

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