Hunter Area Health Service v Gilbey
[2006] NSWWCCPD 136
•3 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hunter Area Health Service v Gilbey [2006] NSWWCCPD 136
APPELLANT: Hunter Area Health Service
RESPONDENT: Janice Mary Gilbey
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC19859-04
DATE OF ARBITRATOR’S DECISION: 29 July 2005
DATE OF APPEAL DECISION: 3 July 2006
SUBJECT MATTER OF DECISION: Leave to appeal; section 352(2) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore
Respondent: Bale Boshev
ORDERS MADE ON APPEAL: Leave to appeal the Arbitrator’s decision of 29 July 2005 is refused.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 August 2005 Hunter Area Health Service (‘the Appellant Employer/Hunter Area Health Service’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 29 July 2005.
The Respondent to the Appeal is Janice Mary Gilbey (‘the Respondent Worker/Mrs Gilbey’).
Mrs Gilbey qualified as a Registered Nurse in 1976 and has worked for the Hunter Area Health Service since about 1982, initially full time and then reducing to three days per week in 1987. In the course of her employment with the Appellant Employer she has had a number of compensable accidents for which she has claimed and been paid and continues to be paid compensation under the Workers Compensation Act 1987 (‘the 1987’)
As a result of her injuries she was provided with suitable duties by the Appellant Employer from about November 2003 until they were withdrawn on or about 15 April 2004. On 7 October 2004 the Mrs Gilbey’s solicitors wrote to the Appellant Employer requesting that suitable duties be provided to their client. None have been provided.
On 2 December 2004 an Application to Resolve a Workplace Injury Management Dispute (‘the Application’) was filed in the Commission describing the reason for the Application as “No suitable duties have been provided” and “The worker’s capacity to perform work is disputed”. In its Reply to Application to Resolve a Workplace Injury Management Dispute (‘the Reply’) the Appellant Employer identified the issue in dispute as “Whether it is reasonably practicable for the employer to provide suitable duties for the worker”.
The matter was determined in favour of the Respondent Worker on 29 July 2005 and the Appellant Employer seeks leave to appeal that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 29 July 2005 records the Arbitrator’s orders as follows:
“1.The Applicant is to be reinstated and offered suitable duties in accordance with her medical restrictions.
2.An injury management plan, incorporating a graduated return to work, be implemented in accordance with medical guidelines and supervised by a suitably qualified Rehabilitation Provider.
3.The Applicant’s capacity for work must be fully tested and the Applicant and her treating medical practitioners involved in any consideration of a medical retirement.
4.Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to give adequate reasons for her decision;
(b)failing to properly consider the evidence;
(c)finding that suitable duties were available for the Respondent Worker with the Appellant Employer;
(d)failing to identify the suitable duties that are allegedly available for the Respondent Worker;
(e)failing to consider if it was reasonably practical to provide the Respondent Worker with suitable employment under section 49(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’);
(f)finding that the Respondent Worker was fully engaged for the 18 hours she was at work;
(g)finding that Dr Harrington’s certificate of 17 February 2004 was a progress certificate;
(h)failing to consider that the employer is the Upper Hunter Community Health Services in Muswellbrook, a small country medical service;
(i)failing to take into account the Respondent Worker’s travel restrictions;
(j)failing to take into account the Appellant Employer’s obligations under the Occupational Health and Safety Legislation, and
(k)finding that the Respondent Worker was at no greater risk of injury than any other employee.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Employer submits that an oral hearing is necessary. The Respondent Worker opposes an oral hearing and points to the fact that three two hour teleconferences have already been held.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the Respondent Worker that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. That section provides:
“352 Appeal 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.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”.
The term “compensation” is defined in section 4 of the 1998 Act as follows:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
In the present case the Application did not seek an order for the payment of “compensation” but merely noted that “No suitable duties have been provided” and “The worker’s capacity to perform work is disputed”. Therefore, no “compensation” is “at issue” on appeal and the appeal does not meet the thresholds in section 352(2).
The Appellant Employer argues that because the Respondent Worker is currently in receipt of weekly compensation at the maximum statutory rate then, if the Arbitrator's decision is enforced, the Respondent Worker will return to work and her entitlement to compensation will either cease or be greatly reduced. For the reasons set out below, I reject that submission.
The Respondent Worker submits, correctly in my view, that “the amount of compensation at issue on the appeal” must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. Reference is made to Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] where Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The “ . . amount of compensation at issue on the appeal” is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
It is possible to appeal against an interlocutory decision where no monetary compensation has been awarded but only where the decision or order has a real capacity to put the award of compensation in issue in the appeal. In Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 at [27] it was noted:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCC PD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).” (emphasis added)
In the present case as no ‘amount of compensation’ was claimed in the Application before the Arbitrator the thresholds in section 352 of the 1998 Act have not been met and leave to appeal is refused.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
3 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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