Kay v Wollongong City Council
[2009] NSWWCCPD 96
•12 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Kay v Wollongong City Council [2009] NSWWCCPD 96 | |||||
| APPELLANT: | John Francis Kay | |||||
| RESPONDENT: | Wollongong City Council | |||||
| INSURER: | Self insurer | |||||
| FILE NUMBER: | A1-10213/08 | |||||
| ARBITRATOR: | Ms R Gurr | |||||
| DATE OF ARBITRATOR’S DECISION: | 28 April 2009 | |||||
| DATE OF APPEAL DECISION: | 12 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 352(2) of the Workplace InjuryManagement and Workers Compensation Act 1998; monetary threshold; leave to appeal. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | White Barnes Solicitors | ||||
| Respondent: | Sparke Helmore Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. Leave to appeal the decision of the Arbitrator dated 28 April 2009 is refused 2. No order as to costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 21 May 2009 John Francis Kay (‘the Appellant/Mr Kay’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 28 April 2009.
The Respondent to the Appeal is Wollongong City Council (‘the Respondent/Employer’).
Mr Kay was employed by the Respondent as a Cemetery Technician at various cemeteries and at the Wollongong Crematorium. He claimed that he suffered a psychological injury in the course of his employment as a result of viewing a promotional video at a training meeting on 16 June 2007. In the alternative, he claimed that this incident aggravated a pre-existing psychological condition.
The Respondent denied liability on the grounds that:
i. Mr Kay did not receive an injury within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’);
ii. employment was not a substantial contributing factor to any injury;
iii. Mr Kay’s condition was pre-existing and due to constitutional factors;
iv. if Mr Kay did have a psychological injury, it resulted from reasonable action taken by the Respondent pursuant to section 11A of the 1987 Act;
v. Mr Kay was not incapacitated.
In his ‘Application to Resolve a Dispute’ filed in the Commission on 19 December 2008, Mr Kay sought weekly payments of $158.90 per week from 1 August 2007 to date and continuing together with certain medical expenses. He claimed that since 1 August 2007 he had been employed on alternate duties in the “parks and gardens division” earning less than in his previous job.
At the hearing before the Arbitrator on 25 March 2009 the weekly payments claim was amended to cover the period from 1 August 2007 to 30 June 2008 at an agreed rate of $50.00 per week, a total of $2,200.00. Medical expenses claimed totalled $1,420.00 together with an unquantified HIC charge.
In a reserved decision delivered on 28 April 2009, the Arbitrator found in favour of the Respondent on all issues.
It is from this decision that Mr Kay seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 28 April 2009 records the Arbitrator’s orders as follows:
“1. There is to be an award for the Respondent in relation to all claims.”
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.”
Mr Kay requests “…an opportunity to make oral submissions in relation to the interpretation and weight given to evidence.” The Respondent submits that the matter is suitable for a determination on the papers. For reasons that will become apparent, 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 of this particular case.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
However, the amount at issue on appeal does not satisfy the threshold requirements set out in section 352(2).
Mr Kay accepts that “the weekly claim as quantified to date…” was agreed to total $2,200.00. Outstanding medical expenses he says are $1,120.00, and any HIC charge remains unquantified. He makes the following submissions:
“All threshold issues have been met other than a potential suggestion that Mr Kay’s entitlements to compensation are less than $5,000.
Mr Kay remains certified on a continuing basis as incapable of returning to his pre-injury duties.
The Arbitrator did not accept an injury occurred.
The significance of the Arbitrator’s findings is that the worker will potentially be returned to pre-injury duties which he can no longer perform and as a result will lose his employment. If terminated, the worker will have an ongoing incapacity on the open labour market.
The effect of an ongoing award for the Respondent would be that any future entitlement to weekly compensation would be withdrawn.
Consequently the likely cost to the worker could be substantially greater than the amount claimed in the present proceedings as an ongoing loss is likely irrespective of whether the worker is terminated or remains employed with the Respondent. On this basis, it is submitted the claim will in all likelihood exceed the $5,000.00 jurisdiction threshold.”
Section 352 (2) of the 1998 Act makes it clear that leave to appeal is not to be granted unless the amount at issue on appeal is at least $5,000.00.
Mr Kay’s claim totalled, on his calculations, $3,320.00, or, if the Arbitrator’s statement of outstanding medical expenses is correct, $3,620.00. He concedes that the HIC charge remains “unquantified.” As the Respondent correctly points out, “the existence and quantum of a HIC charge is not the subject of the application to admit fresh evidence…” Even if it were, a right to appeal must first exist before any application to admit fresh evidence can be considered.
The Respondent has referred to the decision of Acting President Byron in Hamilton vSydney Water Corporation [2008] NSWWCCPD 5 (‘Hamilton’) where he said at [40]:
“In any event, Section 352(6) of the 1998 Act provides that 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. Leave to admit such fresh, additional, or substituted evidence may be given if the substantive appeal proceeds. However, if as in this case, the monetary threshold requirements are not first met, the Commission cannot grant leave to appeal. If the appeal does not proceed, a consideration of the admission of such evidence cannot take place. Leave to admit fresh, additional or substituted evidence in this case is not a threshold matter, but is a step in the substantive proceedings that would have followed upon the granting of leave to appeal, had the monetary threshold been met.”
The onus is on Mr Kay to prove that the threshold requirements of section 352(2) have been met (Archbold v Toll Pty Ltd [2007] NSWWCCPD 211 at [36]).
As the Respondent points out, Mr Kay has attempted to circumvent the provisions of section 352(2) by citing the “potential” value of his claim. That is not an appropriate interpretation of the legislation. As Deputy President Fleming said in WorkCover Authority v LeonardPatrick Riordan [2003] NSWWCCPD 13 at [34]:
“The amount at issue must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3). The section specifies an ‘amount’ and I do not accept the submission that this amount is virtually at large, depending upon the totality of a claim that may or may not ever be made, or indeed met. To adopt the construction suggested by the Appellant would be to effectively deprive the threshold criteria in section 352(2) of any import. The section does not allow for the consideration of matters such as the extent of the prejudice to the Appellant who is denied the right of appeal. “
A similar argument was mounted in Hamilton. In that case, the worker argued that potential medical expenses such as consultations and medication would satisfy the threshold in section 352(2) and further, that since he was performing suitable duties, if they were withdrawn, he would be entitled to weekly payments pursuant to section 38 of the 1987 Act. Acting President Byron said at [38]:
“Mr Hamilton also submits that should this appeal succeed, he will be entitled to weekly payments of compensation should Sydney Water withdraw suitable duties from him in the future. No evidence or submissions are before me that would suggest that suitable duties are to be, or have been, withdrawn from Mr. Hamilton. That this could occur remains in the realm of the possible, but is not a factor upon which a decision can be made, simply because it has not happened, and therefore there exists no entitlement to compensation on this basis. In any event, to suggest that the monetary threshold, which must be met before the appeal can proceed, may be fixed by reference to what might flow from a possible outcome of the very appeal for which leave is sought, is misconceived. The substantive appeal cannot proceed without leave, and leave may not be given unless the monetary threshold is first met.”
In the present case, Mr Kay has attached to his appeal application a statement dated 14 May 2009 wherein he states that:
“Notwithstanding the possibility of alternate employment with Wollongong City Council, it remains my view that in all likelihood my employment will be finalised…
Even in the unlikely scenario that my employer were to continue to provide me with temporary suitable duties on an ongoing basis, I believe that I will continue to experience an earnings loss.”
Such a statement is similarly simply “ in the realm of the possible” and does not assist Mr Kay in satisfying the requirements of section 352(2). Moreover, I do not consider that statement admissible on appeal for the reasons stated in Hamilton referred to in [18] above.
Similar issues were recently considered by his Honour Judge Keating in Druett v TheSmith’s Snack Food Company [2009] NSWWCCPD 39 where he said at [21]:
“Section 352 is a mandatory provision that must be met before leave is granted. The amount of compensation at issue on appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator and be at least $5,000.00. In this case the amount of compensation at issue is significantly less than $5,000.00. For these reasons, the application for leave to appeal the decision of the Arbitrator must be refused.”
CONCLUSION
Mr Kay’s submissions focus on the potential value of his claim as the basis for establishing the threshold requirements in section 352(2) of the 1998 Act. This is contrary to the meaning and intention of the section, and is contrary to the decisions to which I have referred.
For the reasons stated, leave to appeal must be refused.
DECISION
Leave to appeal the decision of the Arbitrator dated 28 April 2009 is refused.
COSTS
The Respondent makes the following submission:
“…the appeal has been brought without proper justification. Section 354 of the Legal Profession Act 2004 requires a legal practice not to provide legal services unless there are reasonable prospects of success. The appellant has not advanced any reasonable argument …to persuade the Commission that the appellant has a right to leave to appeal. In those circumstances, the appellant should be ordered to pay the opponent’s costs of the appeal”.
There is some merit in this argument. Moreover, it is clear that the Respondent has gone to considerable effort to prepare detailed and well researched submissions not only as to threshold issues but also as to the substantive grounds of appeal, which I have found to be of great assistance.
Section 341 of the 1998 Act provides that costs are in the discretion of the Commission. I have carefully considered the Respondent’s submissions but in all the circumstances, I decline the order sought by it.
I make no order as to costs.
Deborah Moore
Acting Deputy President
12 August 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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