Junsay v The Uncle Toby's Company Ltd
[2009] NSWWCCPD 71
•26 June 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Junsay v The Uncle Toby’s Company Ltd [2009] NSWWCCPD 71 | ||||
| APPELLANT: | Felipe Tolentino Junsay | ||||
| RESPONDENT: | The Uncle Toby’s Company Ltd | ||||
| INSURER: | Allianz Australia Workers Compensation Ltd | ||||
| FILE NUMBER: | A1-5733/08 | ||||
| ARBITRATOR: | Mr J. Wynyard | ||||
| DATE OF ARBITRATOR’S DECISION: | 17 March 2009 | ||||
| DATE OF APPEAL DECISION: | 26 June 2009 | ||||
| SUBJECT MATTER OF DECISION: | Commission’s jurisdiction, and leave to appeal – threshold of work injury damages claim | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Michael Snell | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | PK Simpson & Co | |||
| Respondent: | Hicksons | ||||
| ORDERS MADE ON APPEAL: | (1) The Commission has no jurisdiction to determine the appeal, and the appeal is not successful. (2) No order as to costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
On 27 March 2009 Felipe Tolentino Junsay (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 March 2009.
The Respondent to the Appeal is the Uncle Toby’s Company Ltd (‘the Respondent Employer’).
The Appellant Worker was employed by the Respondent Employer as a machine operator from about March 1993 to 1 March 1999. He has consistently given histories to doctors that his duties were physically heavy, involving repeated heavy lifting.
The Respondent Worker completed a claim form dated 24 October 1995, describing injury on 28 September 1995. It says of the injury “I was performing my normal duties as a mixer (lifting and loading raw materials). The next day my neck and collarbone area was sore and swollen.” The nature of this injury is differently described in different medical histories. Dr Nash in a report dated 16 October 2002 recorded “On about 20 September 1995, he said that he developed pain suddenly in the right shoulder girdle and also pain in the left sterno clavicular joint region”. Dr Higgs, an approved medical specialist (‘AMS’), examined the Appellant Worker on 24 March 2004 and recorded “a specific injury to his neck and left collar bone region when lifting a 25 kg weight on 28/09/95”. Some other practitioners record histories of a more gradual onset of symptoms (for example Dr Walker and Dr Bedi).
The Respondent Employer apparently accepted liability voluntarily. The periods on and off work are not readily apparent from the material. It is recorded by Dr Nash, in his report dated 8 October 2007, that the Appellant Worker “remained on light duties for two years in the packaging department, until he was terminated on March 1, 1999.”
The Respondent Worker brought proceedings in the Compensation Court of NSW number 2073 of 1997 (‘the Court proceedings’). Terms of Settlement (but no other pleadings) from those proceedings are in evidence. These record awards pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of 20% permanent impairment of the neck, and 10% loss of use of each of the Appellant Worker’s arms at or above the elbow. There was also an award of $19,062.25 pursuant to section 67 for pain and suffering. Those terms formed the basis of consent awards dated 18 December 1997. It is unclear what allegations of injury these awards were based on.
The Appellant Worker then brought a claim for additional benefits pursuant to sections 66 and 67, in proceedings in the Commission number 14085-03 (‘the Commission proceedings’). The Appellant Worker was examined by two AMS’s, Professor Higgs and Dr Burke, on 24 March 2004 and 29 March 2004 respectively. A medical assessment certificate (‘MAC’) issued dated 10 May 2004. Dr Burke certified there was no relevant loss of use of the bowel. Professor Higgs certified the following losses and impairments:
· 10% of the neck, reduced by 2/3 pursuant to section 68A, resulting from nature and conditions of employment since 1993.
· 10% of the back, reduced by 2/3 pursuant to section 68A, resulting from nature and conditions of employment since 1993.
· 10% of the right arm at or above the elbow, reduced by 2/3 pursuant to section 68A, resulting from nature and conditions of employment since 1993.
· 15% of the left arm at or above the elbow, reduced by 2/5 pursuant to section 68A. Of the 9% resulting from employment injury, 3% resulted from nature and conditions of employment since 1993, and 6% resulted from injury on 28 September 1995.
· 10% of the right leg as a whole, reduced by 2/3 pursuant to section 68A, resulting from nature and conditions of employment since 1993.
· 5% of the left leg as a whole, reduced by 2/3 pursuant to section 68A, resulting from nature and conditions of employment since 1993.
It is apparent that, in respect of the neck and arms (that had already been compensated) the certified losses resulting from employment injury were less than the awards previously entered in the Court proceedings. There was an Application for Registration of Agreement Under section 66A, which recorded a date of agreement of 31 May 2004. It provided for compensation pursuant to section 66 in respect of 3.33% of the back, 3.33% of the right leg at or above the knee, and 1.67% in respect of the left leg at or above the knee. These sums were consistent with the MAC. Additionally there was compensation pursuant to section 66 in respect of 35% loss of use of the sexual organs. There was a further sum of $6,000 pursuant to section 67. The agreement provided the date of injury was “28/9/1995 & nature & conditions 1/3/92 to 1/3/99”.
The Appellant Worker’s solicitors made a further claim for lump sum compensation on his behalf by letter dated 16 October 2007. The claim was for an additional 11% permanent impairment of the back, 4% loss of the left leg at or above the knee, 7.5% loss of the right leg at or above the knee, and 5% loss of the right arm at or above the elbow. A further sum of $15,000 was claimed pursuant to section 67. The letter claiming additional lump sum compensation nominated injury as “Industrial Accident: 28 September 1995”. It did not refer to any injury occasioned by the ‘nature and conditions’ of employment.
By letter dated 22 October 2007, the Appellant Worker’s solicitors also made a claim for work injury damages pursuant to Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The claim for damages nominated injuries as “Industrial Accident: 28 September 1995 and from 1 March 1993 to 1 March 1999”.
Attached to the Respondent Employer’s Reply was a letter from its insurer to the Appellant Worker care of his solicitors, dated 4 January 2008. It disputed the claim for further lump sum compensation on the basis that there has not been any additional impairment or loss, that the report of Dr Nash on which the further claim was based did not support the further claim, and the claim was inconsistent with the binding MAC dated 10 May 2004. The letter also denied there was any further entitlement pursuant to section 67.
There was also a notice pursuant to section 74 dated 18 January 2008, relating to the claim for work injury damages. That document referred to “our notice pursuant to section 74 dated 18 October 2007 disputing liabilities in regard to your further impairment”. The letter of 18 January 2008 said the insurer reviewed the earlier decision pursuant to section 287A of the 1998 Act. It disputed the Appellant Worker has suffered an impairment of at least 15% (section 151H). It asserted the Appellant Worker could not proceed with a claim for work injury damages, as he made an election when he recovered lump sum compensation in the Court proceedings (section 151A of the 1987 Act, in its previous form). It denied the Appellant Worker’s injuries were “sustained due to the negligence of the employer”. It confirmed the insurer’s decision to “dispute liability in connection with the further claim for permanent loss compensation”. The material before the Commission does not include the letter dated 18 October 2007.
The Application to Resolve a Dispute registered 25 July 2008 pleaded injury on 28 September 1995 “as a result of lifting heavy sacks of cake mix ingredients”. It also pleaded injury “From 1993 – 31 December 20021” (sic) “as a result of the nature and conditions of his employment”. It claimed further lump sums representing 11% of the back, 5% of the right arm, 4% of the left leg, and 7.5% of the right leg. It also claimed “a threshold dispute of 25.75% whole person impairment as assessed by Dr Thomas Nash in his report dated 8 October 2007.” This related to the Appellant Worker’s possible entitlement to claim work injury damages, if he had a whole person impairment of at least 15%. The Respondent Employer’s Reply disputed there had been any further losses or impairments, relied on the findings of Professor Higgs in the earlier MAC, and disputed the Appellant Worker suffered an impairment of at least 15% as required by section 151H of the 1987 Act.
A Certificate of Determination dated 11 September 2008 records consent orders, agreed between the parties at a teleconference, with an arbitrator, on that date. By agreement the Application was amended to plead the injury on 28 September 1995 caused injury to the neck and both arms, and the nature and conditions of employment from 1993 to March 1999 caused injury to the neck, both arms, the back and both legs. The Respondent Employer withdrew “any issue as to liability”. Paragraph [3] of the consent orders set out the confines of the dispute, as whether:
(a) impairment has resulted from injury to the neck on 28 September 1995;
(b)loss of use has resulted from injury to the right arm on 28 September 1995;
(c) further loss of use has resulted from injury to the right arm on 28 September 1995;
(d)further impairment and loss have resulted from injury to the neck, back, left arm at or above the elbow, and right arm at or above the elbow, owing to the nature and conditions of the Applicant’s employment with the Respondent from 1993 to March 1999;
(e) whole person impairment has resulted from injury to the cervical spine, left upper extremity, and right upper extremity, on 28 September 1995, for the purposes of a work injury damages threshold dispute;
(f) whole person impairment has resulted from injury to the cervical spine, lumbar spine, left upper extremity and right upper extremity, owing to the nature and conditions of the Applicant’s employment with the respondent from 1993 to March 1999, for the purposes of a work injury damages threshold dispute, and
(g)the Applicant has any further entitlement to compensation pursuant to section 67 of the Workers Compensation Act 1987.
The consent orders provided for referral of the dispute to Professor Higgs, the AMS “whom the parties have chosen to perform the assessments contemplated by paragraphs 3(a) to (f) above” (of the issues in dispute quoted in the preceding paragraph).
Pursuant to this referral, the Appellant Worker was examined by Professor Higgs on 12 November 2008. He issued a MAC dated 10 December 2008. In respect of the claim for additional lump sums pursuant to section 66, Professor Higgs certified that, after deduction for pre-existing injury, condition or abnormality pursuant to section 323 of the 1998 Act, the Appellant Worker suffered the following losses or impairments:
· Neck 10%
· Back 10%
· Right arm at or above elbow 10%
· Left arm at or above elbow 18%
In respect of the threshold dispute going to the level of whole person impairment, Professor Higgs certified the following impairments, resulting from the following injuries:
Body part Nature & conditions 28 September 1995 injury
· Cervical spine 1% 1%
· Lumbar spine 3% Nil
· Right upper extremity 2% 2%
· Left upper extremity 4% 4%
The above resulted in certification the worker suffered 7% whole person impairment resulting from the injury of 28 September 1995, and 10% whole person impairment resulting from the nature and conditions of his employment from 1993 to March 1999. Neither of these, separately, exceeded the threshold of 15% in section 151H of the 1987 Act.
Neither party sought to appeal the MAC pursuant to section 327 of the 1998 Act. However the Appellant Worker’s solicitors wrote to the Registrar on 6 January 2009 requesting the matter be referred back to the AMS to combine the impairments. Reference was made to section 322 of the 1998 Act. It was asserted the impairments resulted from one incident (described as “the alleged failure to provide a safe system of work during the course of the applicant’s employment which naturally includes the injury which occurred on 28 September 1995”). Alternatively it was asserted the injuries (if there were two) resulted in the same pathology. The Respondent Employer’s solicitors wrote to the Registrar’s delegate on 20 January 2009 arguing against this course, and submitting the issue should be determined by an arbitrator.
The matter was listed for teleconference before an arbitrator on 22 January 2009. Both parties were legally represented. A letter from the Respondent Employer’s solicitors dated 27 January 2009 stated that, at the teleconference, it was “indicated that the applicant was not pursuing the application for aggregation”. A letter from the Appellant Worker’s solicitors dated 29 January 2009 did not cavil with this assertion, and stated “The applicant did not pursue the application for combination of the AMS findings because we are of the view this is unnecessary.”
On 22 January 2009 (the day of the teleconference) the Appellant Worker’s solicitors wrote to the Respondent Employer’s insurer making a claim for work injury damages, in respect of “Industrial Accident: From 1 March 1993 to 1 March 1999”, resulting from the nature and conditions of employment. The letter of claim relied on the MAC dated 10 December 2008 as proof of assessment exceeding 15% whole person impairment. Further correspondence was exchanged, referred to in the preceding paragraph.
The arbitrator before whom the teleconference was conducted issued a certificate of determination dated 28 January 2009, recording consent orders agreed at the teleconference. There were awards pursuant to section 66 in respect of 6.67% further impairment of the back, and 8% further loss of the left arm at or above the elbow. These were the only body parts in respect of which the assessments in the MAC exceeded the losses or impairments for which the Appellant Worker had previously been compensated. There was also an additional award pursuant to section 67 in respect of further pain and suffering.
In light of the simmering dispute regarding whether the MAC assessments were sufficient to cross the 15% threshold for the purposes of a work injury damages claim, the Respondent Employer’s solicitors wrote to the Commission on 30 January 2009 requesting the matter be listed for teleconference, with a view to allocation of an arbitration date to deal with that issue. The Commission initially declined this request, but after further submissions from the Respondent Employer’s solicitors, the matter was listed for a conference, before a different arbitrator, on 16 March 2009. Both parties were represented by counsel at that conference.
The Respondent Employer’s essential argument was that the assessed impairments could not be aggregated, as the situation did not fall within the circumstances permitting this, under s 322 of the 1998 Act. Reference was made to the decision of Roche DP in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’). Two separate injuries had been found to be causative, and the pathologies resulting from these injuries were not the same.
The Appellant Worker conceded the pathologies found to have resulted from the two injuries were different (T6.40). The Appellant Worker argued the MAC, although conclusively presumed to be correct regarding the degree of impairment, was not conclusively presumed to be correct as regards causation. It was a matter for the Commission to determine issues of injury and causation, and reference was made to my decision in New South Wales Fire Brigades v Turton [2008] NSWWCCPD 66, which referred to a line of authority in Presidential decisions. The Appellant Worker argued the lay and medical evidence overall supported the proposition that all of the impairments certified in the MAC resulted solely from the nature and conditions of employment. It was submitted the arbitrator should make such a finding, with the consequence that all of the impairments certified to in the MAC would result from that single injury. The Respondent Employer argued the MAC was binding on the degree of permanent impairment “as a result of an injury” pursuant to section 326(1)(a) of the 1998 Act.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 March 2009 records the Arbitrator’s orders as follows:
“1. I find that the Medical Assessment Certificate issued on 10 December 2008 is conclusively presumed to be correct by virtue of s 326(1) 1998 Act.
2. I decline to aggregate the whole person impairment assessments found by the AMS in the said Medical Assessment Certificate.
3. No order as to costs.”
The arbitrator gave an ex tempore decision, and his reasons are to be found at 17.20 to 20.10 of the transcript. Whilst accepting issues going to ‘injury’, causation and ‘substantial contributing factor’ were matters for arbitral determination, the arbitrator said that determination had already occurred, in the consent orders of the earlier arbitrator (set out at [14] above). That being so, the certification in the MAC of the degree of permanent impairment resulting from those injuries was binding. In discussion at T21.20 the arbitrator said “The causation was fixed for him (the AMS) in arbitral hearing before it went to him, which is the proper place for it to be done.”
ON THE PAPERS REVIEW
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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.
DISCUSSION
The Arbitrator’s Jurisdiction
It is convenient at the outset to deal with the question of jurisdiction. The Appellant Worker raised this issue as his first ground of appeal. That ground asserted the arbitrator “misdirected himself as to law when he determined the Commission has the jurisdiction to determine matters relating to proceedings for modified common law damages.” The submissions in support state that, after the MAC of 10 December 2008 was issued, there was no longer a threshold dispute for determination by the Commission. It is sought that the determination dated 17 March 2009 be revoked for this reason. The Respondent Employer submitted, on this point, that the arbitrator did not determine matters relating to proceedings for modified common law damages. The issue before him was whether the impairments detailed in the MAC dated 10 December 2008 could be aggregated. Neither party cited any authority for its position on this issue.
This issue goes directly to the arbitrator’s jurisdiction to make the orders of 16 March 2009, and by extension to my power to deal with this appeal, pursuant to s 352 of the 1998 Act. It is also bound up with the question of whether, if I have jurisdiction to deal with the appeal, leave can be granted pursuant to section 352(2).
Section 352 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.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(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.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.
Note. Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
“Compensation” is defined in section 4 of the 1998 Act:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
Section 352 is contained in Chapter 7 of the 1998 Act. Section 250 of that Act (which is part of Chapter 7) includes the following definitions:
“damages has the same meaning as in Part 5 (Common law remedies) of the 1987 Act.”
“work injury damages means damages recoverable from a worker’s employer in respect of:
(a) an injury to the worker caused by the negligence or other tort of the employer, or
(b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,
whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.”
The definition of “damages” in Part 5 (Common law remedies) of the 1987 Act is in section 149:
“damages includes:
(a) any form of monetary compensation, and
(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),
but does not include:
(c) compensation under this Act, or
(d) additional or alternative compensation to which Division 8 of Part 3 applies, or
(e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or
(f) a sum required or authorised to be paid under a State industrial instrument, or
(g) any sum payable under a superannuation scheme or any life or other insurance policy, or
(h) any amount paid in respect of costs incurred in connection with legal proceedings, or
(i) damages of a class which is excluded by the regulations from this definition.”
It is apparent from the above definitions that the meaning of “compensation” in section 352 does not include work injury damages, or the possible value of a potential claim for work injury damages. The definition of “damages” contained in section 149, which is imported into Chapter 7, specifically excludes “compensation under this Act”. The definition of “compensation” in section 4 of the 1998 Act is compensation under the Workers Compensation Acts. The nature of a claim for damages against one’s employer was considered by the Court of Appeal in Grljac v Trivan Pty Limited (1994) 35 NSWLR 82. Mahoney JA said:
“It is therefore necessary to determine the nature of the right which, following the amendment of 1989, Mr Grljak had. In my opinion, that right was, in the relevant sense, the right which had previously existed under the common law. The effect of the 1989 amendment was to remove the abolition of that right and reinstate it… Such a right is, in my opinion, a right “to take proceedings independently of this Act”. The fact that some of the incidents of that right including the quantum of damages recoverable, are regulated by the statute does not mean that it is other than a right to sue at common law and independently of the Act.”
Whilst the above passage dealt with damages recoverable from an employer subsequent to the 1989 amendments, it remains applicable in my view to the recovery of work injury damages pursuant to the legislation in its current form. The recovery of such damages cannot be characterised as “compensation”, within the meaning in section 4.
The Commission’s jurisdiction is conferred by section 105 of the 1998 Act. Sub-sections (1) and (2) of section 105 provide:
“(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.
(2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act.”
Part 6 of Chapter 7 is headed ‘Special Provisions for Work Injury Damages’. Section 312 provides:
“Proceedings in respect of a claim for work injury damages may be taken in any court of competent jurisdiction, subject to this Part.”
The Commission is not a court: Orellana-Fuentes v Standard Knitting Mill Pty Ltd & Anor (2003) 57 NSWLR 282.
Section 314 sets out what constitutes a threshold dispute (in general terms, where it is not accepted that there is a fully ascertainable degree of permanent impairment of at least 15%). Section 313 provides:
“If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7”
Part 6 of Chapter 7 contains procedural provisions relating to work injury damages claims. These include provisions relating to mediation. Some of the provisions go to the powers of the Registrar of the Commission, for example section 317, section 318A, section 318F and section 318I. Certain specific powers are also conferred upon the President by section 318F.
Thus, pursuant to section 105 of the 1998 Act, the Commission does not have jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act, save for limited powers in Part 6 of Chapter 7. The constitution of the Commission is set out in section 375 of the 1998 Act:
“(1) For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section.
(2) The Registrar may give directions as to which Arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings.
(3) For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member.
(4) The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar’s power to exercise the functions of an Arbitrator).”
It has been held Part 6 of Chapter 7 gives the Commission jurisdiction to refer a question of permanent impairment to an AMS, this falling within the province of the Registrar: Ferraro v WGE Pty Limited [2005] NSWWCCPD 98 (‘Ferraro’) and Unique Concrete Pumping Pty Limited v Bayeh [2005] NSWWCCPD 153 (‘Bayeh’). It may well be that, in exercising this function, the Registrar does not constitute the Commission in any event.
The decision of Byron DP in Programmed Maintenance Services Limited v Barter [2005] NSWWCCPD 42 (‘Barter’) involved an application seeking resolution of a dispute relating to the 15% impairment threshold. An arbitrator made findings regarding whether a claim for damages had been validly made, and directed that, if the parties could not agree on the threshold issue, the matter be referred to an AMS. The employer sought to appeal to a Presidential member pursuant to section 352. Byron DP said:
“35. The Appellant Employer points out correctly, that there is no separate provision dealing with appeals at the early stage of claims for damages. However, this fact alone does not confer jurisdiction on a Presidential Member to determine an appeal of the nature of, and in the circumstances found in, the instant case. Moreover, it is fundamental that jurisdiction cannot be conferred even by the consent of the parties, if no jurisdiction is conferred by law. The Commission is a creature of statute and in the exercise of its role and functions it is restricted to the authority and powers conferred upon it, by or under the relevant legislation.”
After referring to the relevant statutory provisions the Deputy President concluded:
“44. It is clear that the ‘compensation at issue’ in section 352(2) of the 1998 Act, is not the same as, or a reference to, ‘damages’ at issue. Furthermore, section 352(1) does not apply to a dispute in connection with a claim for damages. It does apply to a dispute in connection with a claim for compensation. Consequently, section 352 does not enable a party to bring an appeal to the Commission, constituted by a Presidential Member, in relation to a claim for ‘damages’, nor does it empower the Commission, as so constituted, to deal with and determine such an appeal. As the Appellant Employer is not a party to a dispute in connection with a claim for compensation, I find that this appeal is not made in accordance with section 352(1) of the 1998 Act, and that I have no jurisdiction to proceed to determine the appeal, in accordance with section 352(1), (2) and (5) of the 1998 Act.”
The decisions of Moore ADP in Ferraro and Bayeh also deal with the nature of the Commission’s jurisdictions in such circumstances. In Ferraro a worker made application for determination of a threshold dispute going to whether he had permanent impairment of at least 15%. An arbitrator struck the matter out for want of readiness. On appeal Moore ADP concluded:
“26. The present case sought a determination of a “threshold” issue for the purposes of commencing common law proceedings. The Arbitrator, confined to determining “compensation” claims, had no jurisdiction to determine the matter. Accordingly, the Arbitrator had no power to strike out the proceedings such that her order to do so is null and void, and the proceedings ought to remain on foot. I do not know whether the Appellant has complied with the requirements of section 282 of the 1998 Act; certainly that has not been raised by the Respondent in its Reply. Similarly, in light of Barter’s case, I too have no jurisdiction to deal with the appeal. It appears that there has been an error by the Registry such that the application, when filed, ought to have been referred by the Registrar to an Approved Medical Specialist for determination.”
The Acting Deputy President reached a similar conclusion in Bayeh.
The issue agitated by the parties before the arbitrator on 16 March 2009 arose under Part 5 (Common law remedies) of the 1987 Act. It went directly to the issue of whether the Appellant Worker could satisfy the threshold in section 151H of the 1987 Act, so that damages could be awarded consistent with Part 5 of that Act. There was nothing else it could go to. Other claims in the Application had already been dealt with by consent. Whether elements of whole person impairment could be aggregated was of no relevance to the Appellant Worker’s entitlement pursuant to sections 66 and 67, his alleged injuries having occurred prior to 1 January 2002. The issue was not one within the jurisdiction of the Commission; it fell outside the jurisdiction conferred by section 105.
It follows from the above that I am of the view the arbitrator did not have jurisdiction to make the orders in the Certificate of Determination dated 16 March 2009. This goes to the central issue of whether the orders in the Certificate of Determination are of any effect. In my conclusion they are not. In Barter Byron DP said:
“45. As stated at paragraph 35 above, the powers of the Commission, being a creature of statute, are limited to those powers expressly conferred upon it by the statute. Any attempted exercise of power beyond those conferred by the statute, would necessarily be of no legal effect (Commisioner of Police v Donlan, Commissioner of Police v Hanson, CA, 20 June 1995, unreported).”
Presidential Jurisdiction Pursuant to Section 352
A further issue arises however, going to whether I have power to dispose of the appeal, pursuant to section 352 of the 1998 Act. Section 352(1) provides the right to appeal resides in “a party to a dispute in connection with a claim for compensation”. For the reasons set out above, the dispute decided on 16 March 2009, and which it is now sought to bring before me by way of appeal, was not one in connection with a claim for compensation. It was one in connection with a claim for work injury damages. That being so, the Appellant Worker does not have a right of appeal pursuant to section 352, as he is not for relevant purposes “a party to a dispute in connection with a claim for compensation”. The appeal cannot be properly brought pursuant to section 352, and that is the only basis on which I would have power to deal with it.
Additionally, my jurisdiction, as the Commission constituted by a Presidential member, is found in section 105 of the 1998 Act. For the same reason the Commission constituted by an arbitrator did not have jurisdiction to deal with the current dispute, nor do I. This is consistent with the reasoning in Barter, Ferraro and Bayeh. In each of those decisions, the Presidential member involved found that he or she did not have jurisdiction to deal with the preliminary threshold dispute, going to whether there was an entitlement to recover work injury damages.
Leave to Appeal
If I am wrong in the foregoing, and I have jurisdiction to deal with the appeal pursuant to section 352, it would still be necessary that the Appellant Worker be given leave to appeal.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Appellant Worker submits the requirements of section 352(2) are satisfied, as the decision has the consequence “the (Appellant Worker) may be precluded from commencing proceedings for work injury damages” the extent of which “would substantially exceed $5,000”. The Respondent Employer’s Notice of Opposition adopts a similar approach, and says “the potential amount of compensation (damages) will exceed $5,000”. Neither party refers to any authority regarding the application of section 352(2) in the circumstances of the current matter.
All of the issues between the parties had been determined by consent, prior to the conference on 16 March 2009, save for the issue going to whether the Appellant Worker satisfied the 15% impairment threshold, necessary for a work injury damages claim. Consideration of whether that threshold could be reached, by aggregating various impairments certified in the MAC, was the sole issue dealt with at the conference on 16 March 2009, and in the Certificate of Determination of 17 March 2009.
Section 352(2) provides the Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both at least $5,000 (or such other amount as may be prescribed by the regulations), and at least 20% of the amount awarded in the decision appealed against. There was no amount of compensation awarded in the decision appealed against. For the reasons set out above, what was at issue was not “compensation” within the definition in s 4 of the 1998 Act. It follows that the monetary threshold in section 352(2)(a) cannot be met, and accordingly leave to appeal would be refused in any event.
Again, this conclusion is consistent with the earlier Presidential decisions of Barter, Ferraro and Bayeh.
DECISION
I will adopt the same approach as was adopted in the earlier Presidential decisions dealing with this issue. I find the Commission does not have jurisdiction to deal with this appeal. The appeal is unsuccessful.
COSTS
I make no order as to costs of the appeal.
Michael Snell
Acting Deputy President
26 June 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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