John & Dave Bricklaying Pty Ltd v Campbell

[2005] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:John & Dave Bricklaying Pty Ltd v Campbell [2005] NSW WCC PD 62

APPELLANT:  John & Dave Bricklaying Pty Ltd

RESPONDENT:  Glenn Perry Campbell

INSURER:GIO Australia Limited

FILE NUMBER:  WCC10699-03

DATE OF ARBITRATOR’S DECISION:          13 July 2004

DATE OF APPEAL DECISION:  5 July 2005

SUBJECT MATTER OF DECISION:                Whether appeal is competent; Appellant not a party to the proceedings.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers

REPRESENTATION:  Appellant:    Turks Legal

Respondent: Brydens Law Office

ORDERS MADE ON APPEAL:  The Commission has no jurisdiction to determine the appeal.

BACKGROUND TO THE APPEAL

1. While employed as a bricklayer by JD & PA Lowey, (now ‘John & Dave Bricklaying Pty Limited’, (‘the Appellant’)), Glenn Perry Campbell, (‘the Respondent Worker/Mr Campbell’) suffered injuries, originally said to be on 19 December 1999 but amended by the Arbitrator to, and acknowledged by the parties as, 12 December 1998.  Mr Campbell’s injuries were allegedly caused by a piece of hardwood timber weighing approximately 30 kg falling from where it had been leaning against a wall and striking his right calf while he was laying bricks.  Mr Campbell claims that he fell and landed on his coccyx and since then, he has had trouble with his lower back.  He says he was helped to his feet and continued working under threat of being fired.  He states that his boss, Mr John Lowey also told him that, “he had no insurance to cover any compensation claim.”  Mr Campbell’s treating doctor advised him that a muscle in his leg had torn, and that he was to strap it so that it could heal.  He was prescribed painkillers.  He then continued to work for a number of days after the accident before taking three weeks leave, during which time he claims that he was fired.  Mr Campbell was re-hired soon after, but says he was again fired after three months, and believes this occurred because he was struggling with his leg.

1. The Arbitrator found at paragraph 21 of his ‘Statement of Reasons for Decision’ (‘Reasons’) that JD & PA Lowey was notified of the claim “in some form (J D Lowey Statement 21 October 2003 – ‘Lowey statement’ – paragraph 7) in late 1999.” 

1. Mr Campbell no longer works for JD & PA Lowey, but continues to work as a bricklayer for other employers.  As a result of the injuries, he claims that his marriage has suffered due to the stress involved.  He says that his quality of life has also suffered as he is in constant pain; his leg will no longer support him when water-skiing, and he cannot ride either of his horses with his daughter due to pain in his calf muscle and lower back.  He also claims that he has suffered considerable financial hardship as a result of wage losses caused by the injury.

1. On 5 June 2003 Mr Campbell lodged an ‘Application to Resolve a Dispute’ in the Commission, against JD & PA Lowey, indicating that he had made a claim on his employer and workers compensation insurer, and that GIO disputes the permanent impairment claim in accordance with the assessment of Dr Parameswaren.  In his Application, this injury is described as: “Injury to calf muscle of right leg and back”.

1. A number of teleconferences have been held in this matter, commencing on 14 October 2003, when the parties were directed to file certain medical records and written statements.  A further teleconference was held on 12 November 2003, following which the Arbitrator issued a direction that the date of injury be amended to 12 December 1998.  A conciliation/arbitration conference was set down for 17 December 2003 to determine the issues of jurisdiction and all other issues in dispute.  On 17 December 2003, the Arbitrator issued a ‘Certificate of Determination’ following the conference, granting leave to amend the application to join as a Respondent, the company ‘John and Dave Bricklaying Pty Limited’.  A further ‘Certificate of Determination’ and ‘Statement of Reasons – Extempore Orders’ was issued on 27 February 2004, at which certain directions were given. Following a further teleconference on 28 April 2004 the Arbitrator decided that the partnership of JD & PA Lowey was in fact the correct Respondent as at the amended date of injury, in the proceedings before him, and that the matters of “jurisdiction” (the time period for making the claim), “injury” and “worker” were to be decided at a conciliation/arbitration.  The matter was set down for an arbitration hearing on 4 June 2004, and on 13 July 2004 the Arbitrator made the following decision, the subject of this appeal:

“The determination of the Commission in this matter is as follows:

1.   Order that the claim of the Applicant has been duly and properly made in accordance with the requirements of the Act.

2.   Order that the Applicant was a worker or a deemed worker within the meaning of the Act.

3.   Order that the Applicant as at the date of injury was employed and engaged by the Respondent.

4.   That the Applicant did suffer injury as at the claimed date of injury including for the purposes of these proceedings and that such injury arose out of and in the course of his employment with the Respondent.

5.   Order that the Applicant did give notice of injury or incapacity and made a claim for compensation including pursuant to the Orders made above.

6.   Order that the Respondent meet the Applicant’s costs of the Arbitration on 4 June 2004 as agreed or assessed. Costs in the proceedings otherwise are reserved.

7.   Order that this matter be scheduled for Teleconference with the Arbitrator for Wednesday 4 August 2004 at 11.00am.”

1. On 3 August 2004 John & Dave Bricklaying Pty Ltd lodged in the Commission, an ‘Application to Appeal Against Decision of [an] Arbitrator’. 

1. The Appellant submits that the Arbitrator erred in finding the claim had been duly made and that the Respondent Worker was a ‘worker’ or a ‘deemed worker’ as defined in the Workers Compensation Act 1987 (‘the 1987 Act’). The Appellant also states that the Arbitrator erred in finding that the Respondent Worker suffered an injury as defined in the 1987 Act. The Appellant seeks the following orders:

“(a) That the decision of the Arbitrator be revoked.

(b) That there be an award for the Appellant Employer against the worker.”

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.

2. The Appellant submits that the appeal is suitable for determination on the papers, while Mr Campbell makes no submissions in this regard.  Having carefully read all of the documents before me, including the transcript of proceedings before the Arbitrator and the evidence that was before him in those proceedings, and taking into account the submissions made by the Appellant, 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

1. The amount of compensation at issue on appeal in this matter exceeds $5,000 and consequently, section 352(2)(a) of the 1998 Act is satisfied.  Section 352(2)(b) of the 1998 Act has no application as no amount of compensation was awarded by the Arbitrator (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; Adco Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21).

1. This appeal was made within 28 days of the decision appealed against, and therefore, section 352(4) of the 1998 Act is satisfied.

1. Mr Campbell lodged an ‘Application to Admit Late Documents’, being a late Reply accompanied by supporting submissions, dated 25 August 2004.  However, these documents were filed in the Commission and served on the Appellant Employer in compliance with a Direction issued by the Registrar, dated 4 August 2004.  It is not necessary to admit them as late documents, given that there has been due compliance with the Registrar’s Direction.

1. Mr Campbell submits that leave to appeal ought not be granted for three reasons.  He submits that, the appeal is incompetent having been lodged by a legal entity that is not a party to the proceedings; the appeal takes the matter no further than the Arbitrator’s decision, and the Arbitrator’s decision is correct and was properly made.

1. In terms of the first issue, Mr Campbell submits:

“The appeal was incompetent, having been lodged by a legal entity (John & Dave Bricklaying Pty Limited) which was not a legal entity before the Commission when the decision of the Arbitrator was given on 13 July 2004.  Relevantly, the parties to that decision were the Respondent and an entity, being a partnership, JD & PA Lowey.”

1. As stated at paragraph 5 above, the issues of ‘date of injury’ and ‘correct entity’ were resolved by the Arbitrator, to the satisfaction of the parties, as set out in his decision of 13 July 2004.  Paragraph 1 of his Reasons is as follows:

“On June 2003 Glenn Perry Campbell (‘the Applicant’) lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’).  The Applicant named in the Application as Employer and Respondent was [sic] ‘J D & P A Lowey’ (‘the Respondent’).  The Insurer at the relevant time for that named Respondent was GIO Australia Limited (‘the Insurer’).  These factors are mentioned briefly for the reason that several earlier telephone conferences, the last being on 28 April 2004, and a prior Conciliation and Arbitration date before the Commission on 17 December 2003, traversed what was then a contested issue raised on behalf of the respondent that it, apart from other contentions, was not the relevant Employer at the time.  Illustratively, one assertion was that ‘John and Dave Bricklaying Pty Limited’ was or may have been the correct entity, and had, or may have had, a quite different insurer.  These contentions and issues occupied the bulk of a number of the interim processes and are mentioned for completeness.  Ultimately, including perforce of a Company search precluding ‘John and Dave Bricklaying Pty Limited; from being the pertinent Employer at the time, the Respondent has now conceded that the partnership ‘J D & P A Lowey’, at least in terms of being named in the Application, is now in fact the correctly named Respondent, and also concedes that the pertinent Insurer with reference to the partnership entity is GIO Australia Limited.  Some of this debate also surrounded, indeed hinged upon, the correct identification of the claimed Date of Injury.  The Application initially pleaded the Date of Injury as 19 December 1999.  As matters and investigations further turned out, including during the telephone conferences and other processes before the Commission, and as the Applicant has since conceded, the correct date should have been pleaded as ‘12 December 1998’, as acknowledged by the solicitors for the Applicant in a letter of 29 October 2003 to the Commission.  These important crux matters were rectified in certain interim Orders and Directions including Orders made by me on 17 December 2003.” 

1. The Appeal has in fact, as Mr Campbell submits, been brought by ‘John & Dave Bricklaying Pty Ltd’, a legal entity that is not a party to the proceedings.  The entity ‘JD & PA Lowey’ is the correct employer, this not being an issue in dispute between the parties.

1. ‘John & Dave Bricklaying Pty Ltd’ not being a party to the dispute, may not bring an appeal against the decision of the Arbitrator, pursuant to section 352(1) of the 1998 Act and consequently, I have no jurisdiction to determine this appeal.

1. The entity, JD & PA Lowey is at liberty to lodge a fresh ‘Application – Appeal Against Decision of Arbitrator’, in this matter.  Such Application must be supported by an application for an extension of time for making an appeal, beyond the 28 days prescribed in section 352(4) of the 1998 Act, together with supporting submissions.  In this regard, Rule 77(8) – (9) of the Workers Compensation Rules 2003, set out hereunder, applies:

“(8)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.

(9)A party who seeks an extension of time as referred to in subrule (8) must:

(a)   as soon as practicable give notice to the other parties of the intention to seek the extension, and

(b)   lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”               

1. If the entity JD & PA Lowey lodges a fresh ‘Application – Appeal Against Decision of Arbitrator’, neither party is required to resubmit any further documents as to the substantive grounds of appeal.  Should JD & PA Lowey wish to appeal, it must lodge in the Commission, and serve on Mr Campbell, a copy of all documents prescribed by Rule 77(9), together with any fresh ‘Application – Appeal Against Decision of Arbitrator’, on or before 19 July 2005.  In that event, Mr Campbell should lodge in the Commission, and serve on JD & PA Lowey, a copy of any objections and submissions made in response to any application for an extension of time to make the appeal, on or before 2 August 2005.

1. In the circumstances, it is not necessary to deal with the two remaining objections to the grant of leave to appeal.

DECISION

1. The Commission has no jurisdiction to determine this appeal.

1. The entity JD & PA Lowey is at liberty to lodge a fresh ‘Application –Appeal Against Decision of Arbitrator’ and the Respondent Worker is at liberty to respond, in accordance with the Directions given at paragraph 19.

OTHER

1. If a fresh ‘Application – Appeal Against Decision of Arbitrator’ is lodged in the Commission in this matter, it is to be referred to me for determination.

Gary Byron

Deputy President  

5 July 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE