Integral Energy v Ohmsen
[2004] NSWWCCPD 51
•11 August 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Integral Energy v Ohmsen [2004] NSW WCC PD 51
APPELLANT: Integral Energy
RESPONDENT: Barbara Dianne Ohmsen
INSURER:Integral Energy
FILE NUMBER: WCC75-2004
DATE OF ARBITRATOR’S DECISION: 11 May 2004
DATE OF APPEAL DECISION: 11 August 2004
SUBJECT MATTER OF DECISION: Leave to Appeal, Section 352 (2) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Leigh Virtue & Associates, Solicitors.
Respondent: White Barnes Solicitors.
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Arbitrator is refused.
THE APPEAL
On 1 June 2004 Integral Energy (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 May 2004.
The Respondent to the Appeal is Barbara Dianne Ohmsen (‘the Respondent Worker’).
The appeal was referred to me for review on 10 August 2004.
I am satisfied that I have sufficient information to proceed ‘on the papers’, pursuant to Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The Arbitrator made three Orders, which were reduced to writing and issued in the Certificate of Determination dated 19 May 2004. The orders were:
1. “Strike Out the claim for partial weekly compensation (s40) as the information provided in response to my Direction at teleconference in regard to partial incapacity and other evidence, did not provide sufficient/probative evidence for me to decide this matter. There is no impediment to the Applicant reviving this matter (Rule 6) and was the course of action recommended to me by the Respondent [sic].
2. Award reasonable medical expenses s60 including those set out in the attached Table and on provision of invoices or receipts for treatment provided by Dr Goh referred to below the Table.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.”
No ‘table’ was attached to the Certificate of Determination, however it is clear from a reading of the transcript and review of the evidence that the Table referred to is the one entitled ‘Current As at 14/4/04’ filed by the Worker in the proceedings before the Arbitrator. This Table details the medical expenses claimed, which total $1894.24, plus an amount of approximately $1000.00 to cover consultations with Dr Goh.
The first issue in dispute is whether or not the Appellant Employer can meet the threshold test for leave to appeal to be granted.
LEAVE
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides as follows:
“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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with subsection 352(4) of the 1998 Act.
The Appellant Employer submits that the amount in issue in the appeal is greater than $5000 and is in respect of 100% of the amount awarded. The Appellant Employer submits that the Arbitrator erred in awarding the worker any amount of compensation and in ordering that it pay costs.
The Respondent Worker argues that leave should be refused because the amount in dispute is less than $5000. The Respondent Worker submits that, as the overtime claim was struck out, the only amount at issue in the appeal is the amount of medical and related expenses pursuant to section 60, which does not exceed $4000.
The Appellant Employer does not challenge the Arbitrator’s decision to strike out the claim for overtime. The only matter before the Arbitrator was the determination of the claim for medical expenses, which was largely quantified. Allowing for an additional amount to be paid to Dr Goh, I am not satisfied that the threshold test in section 352(2) of the 1998 Act is met.
I note that the order for costs does not concern an amount of compensation either in the appeal or in the original claim (Grimson v Integral Energy [2003] NSW WCC PD 29; Borg v Garnville Pty Limited [2003] NSW WCC PD 30; Benson v Integral Energy [2003] WCC PD 37; Stevan Milnar v Goninan & Co Limited t/as Maintrain [2003] NSW WCC PD 39).
DECISION
Leave to appeal against the decision of the Arbitrator is refused.
Dr Gabriel Fleming
Deputy President
11 August 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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