Jim Robinson v Dunlop

[2008] NSWWCCPD 75

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Jim Robinson v Dunlop and anor [2008] NSWWCCPD 75
APPELLANT:			Jim Robinson
FIRST RESPONDENT:			James Dunlop
SECOND RESPONDENT:		JE & J Robinson Pty Ltd
APPELLANT INSURER:			Cambridge Integrated Services Australia Pty Limited
SECOND RESPONDENT INSURER:			QBE Workers Compensation (NSW) Limited
FILE NUMBER:			WCC8156-07
DATE OF ARBITRATOR’S DECISION:			28 March 2008
DATE OF APPEAL DECISION:			18 July 2008
SUBJECT MATTER OF DECISION:			Leave to appeal; sub-sections (2) and (4) of section 352 of the Workplace Injury Management and Workers Compensation Act 1998; calculating time to appeal when the 28th day falls on a public holiday; monetary thresholds; whether at least 20% of the amount of compensation awarded is at issue.
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			On the papers
REPRESENTATION:			Appellant:			Hicksons Lawyers
First Respondent:			Fishburn Watson O’Brien
Second Respondent:			Goldbergs Lawyers
ORDERS MADE ON APPEAL:			Leave to appeal is refused.
The Appellant Employer (the Second Respondent before the Arbitrator) is to pay the First Respondent’s (the Applicant Worker before the Arbitrator) costs of the appeal.
The Second Respondent to the appeal (the Third Respondent before the Arbitrator) is to pay its own costs of the appeal.

BACKGROUND TO THE APPEAL

1. This appeal does not challenge the worker’s entitlement to his continuing award for weekly compensation, but seeks to raise an issue as to the quantification of the award from 9 March 2007 until 14 September 2007.  Jim Robinson, the Appellant Employer, seeks leave to challenge the Arbitrator’s determination on the ground that it is inconsistent with his findings and the evidence. 

1. The Arbitrator found the worker’s probable earnings but for his injury to be $1,200.00 per week and his ability to earn to be $720.00 per week and therefore made an award at the maximum statutory rate for a single worker with no dependants from 9 June 2006 to date and continuing.  However, the Arbitrator made no allowance, it is argued, for the wages allegedly earned by the worker from 9 March 2007 to 14 September 2007.

1. The First Respondent to the appeal, James Dunlop, the applicant worker in the proceedings before the Arbitrator, opposes the granting of leave to appeal because, he submits, the appeal is out of time and, even if it is in time, it does not meet the monetary threshold in section 352(2)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). He makes no submissions as to the merits of the appeal.

1. The Second Respondent to the appeal, JE & J Robinson Pty Ltd, makes no submissions on any of the substantive issues identified by the Appellant Employer and Mr Dunlop.

1. The Arbitrator’s determination of this matter is contained in a Certificate of Determination issued on 28 March 2008.  By an appeal filed on 28 April 2008, the Appellant Employer seeks leave to appeal that determination.

ON THE PAPERS

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties 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

1. The position in respect of calculating time in which to appeal in section 352 is as follows:

(a)an appeal against an Arbitrator’s decision must be made within 28 days “after the making of the decision appealed against” (section 352(4));

(b)an Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act” (Part 16 Rule 16.2(2) of the Workers Compensation Commission Rules 2006);

(c)the Commission issued a certificate under section 294 (the ‘Certificate of Determination’) on 28 March 2008 and time under section 352 runs from that date;

(d)however, applying section 36(1) of the Interpretation Act 1987 the “given date” for the reckoning of time under section 352 is 28 March 2008 and time to appeal is calculated “exclusive of that day” (emphasis added);

(e)the 28^th day after 29 March 2008 (counting 29 March) was Friday 25 April 2008, Anzac Day, a public holiday in New South Wales;

(f)when the last day for the “doing of any thing” falls on a public holiday, section 36(2) of Interpretation Act 1987 provides that “the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be”;

(g)in this case, the first day following 25 April 2008 that was not a Saturday or Sunday or a public holiday was Monday 28 April 2008, and

(h)therefore, the appeal is in time.

Monetary Threshold

1. In respect of the monetary thresholds, section 352(2) provides:

   “(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.” (emphasis added)

1. The First Respondent concedes that the quantum at issue on appeal is $6,297.80 and that the first limb of section 352(2) is satisfied. In respect of the second limb, it submits that the “amount awarded in the decision appealed against” is $33,633.00 (calculated up to 28 March 2008) and 20% of that amount is $6,726.60. That being so, the amount of compensation “at issue” on appeal ($6,297.80) is less than 20% of the amount awarded ($6,726.60) and the second limb of section 352(2) is not satisfied. As both thresholds must be satisfied before leave to appeal can be granted, leave to appeal must be refused.

1. By my calculations the “compensation at issue” on appeal is only $6,086.40 but using this figure makes no difference to the result, as the 20% threshold is not reached on either figure. Given that the Appellant Employer raises no other issue on appeal and has made no submission about the 20% threshold, the First Respondent’s submission is correct and the Commission “is not to grant leave to appeal”, because less than 20% of the amount awarded in the decision appealed is “at issue” on appeal. The sub-section does not give a discretion to grant leave to appeal in the event that the monetary thresholds are not satisfied, but prohibits the granting of leave to appeal unless both thresholds in section 352(2) are satisfied.

1. The monetary threshold in section 352(2)(b) is not satisfied in the present matter and leave to appeal must be and is refused.

DECISION

1. Leave to appeal is refused.

COSTS

1. The Appellant Employer (the Second Respondent before the Arbitrator) is to pay the First Respondent’s (the Applicant Worker before the Arbitrator) costs of the appeal.

1. The Second Respondent to the appeal (the Third Respondent before the Arbitrator) is to pay its own costs of the appeal.

Bill Roche
Deputy President

18 July 2008

I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE