Konza v Burkes Transport (Services) Pty Limited
[2022] NSWPIC 512
•15 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Konza v Burkes Transport (Services) Pty Limited [2022] NSWPIC 512 |
| APPLICANT: | Michael Andrew Konza |
| RESPONDENT: | Burke’s Transport (Services) Pty Ltd |
| Member: | Elizabeth Beilby |
| DATE OF DECISION: | 15 September 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Purported appeal from a decision of the delegate; Held – there is no jurisdiction to hear matter. |
| determinations made: | 1. The Workers Compensation Commission lacks jurisdiction to determine the filed claim. |
STATEMENT OF REASONS
BACKGROUND
Mr Konza was employed as a truck driver. There is no dispute that he suffered an injury to his left arm due to heavy lifting largely associated with moving “gates” on the truck he was driving. His left shoulder is described as having “gross dysfunction”.
On 30 November 2021 a work capacity decision was issued by Burke’s Transport (Services) Pty Ltd (the respondent) insurer. The effect of the decision was to reduce weekly payments made pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from $1,144.00 to $681.40 per week. An underpinning finding in the decision was that the applicant could work as a school crossing supervisor for 20 hours per week.
The applicant disputed the determination and issued proceedings which were determined by a delegate to the President by way of decision dated 28 March 2022. The delegate determined that the work capacity decision was appropriately made and correct and accordingly there should be an award for the respondent.
An appeal was filed disputing the delegate’s decision with proceedings commenced on 29 April 2022.[1] Further evidence has been filed, that directly address material as to why it was not reasonable for the applicant to work as a school crossing supervisor. This included the applicants criminal record and further material as to his capacity to work and personal predisposition to children (which was not favourable).
[1] Purportedly by a Form 1b.
The applicant therefore sought, in effect, a reconsideration of the delegates decision and also an Appeal as they submitted that the delegate had fallen into error.
The appeal is as contemplated by s 352 of the Workplace Injury and Management Act 1998 (the 1998 Act)[2].
[2] See applicant’s submissions page 3.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) is there jurisdiction to determine the present dispute.
(b) If so, is the delegates decision affected by error;
(c) Can the dispute be heard by way of a de novo hearing.
Jurisdiction question
A preliminary issue arose between the parties, that is whether there was jurisdiction to determine the claim.
The power to revoke an interim payment direction is found at s 299 of the 1998 Act which provides:
“299 REVOCATION OF INTERIM PAYMENT DIRECTION
(1) The President can revoke an interim payment direction at any time
(2) When an interim payment direction is revoked, the obligation to make payments under the direction ceases.
(3) The revocation of an interim payment direction does not affect the requirement to make payments before the revocation.
PIC Procedural Direction WC2 – Interim Payment Direction states:
“The President may revoke an interim payment direction on application of a party or on the President’s own motion (s 299 of the 1998 Act). An application to revoke an interim payment direction is made by filing an application to revoke an interim payment direction through the Commission’s online portal.
If an interim payment direction is revoked, the obligation to make payments under the direction ceases, but this does not affect the requirement to make payments due before the revocation. The President may also amend or re-issue an interim payment direction.”
The respondent points out that in order to engage s 299(1), the grounds upon which “the President can revoke an interim payment direction” need to be identified. This quite clearly has not been done.
The application by the worker appears to be as contemplated by s 352 of the 1998 Act. The present ‘appeal’ appears to rely on three grounds[3], namely:
(a) The delegate failed to properly engage the applicant’s submission that the respondent had not discharged its onus to prove that the work of a school crossing supervisor was suitable employment for the purposes of s 37 and s 32A of the 1998 Act in making the work capacity decision on 30 November 2021.
(b) The delegate erred when reversing the onus of proof by misdirecting himself that it was the appellant’s onus to provide evidence providing that the role of a school crossing supervisor would not be suitable duties for him when as a preliminary it was the respondent’s onus to prove that such were suitable duties within s 32A when it made its work capacity decision on 30 November 2021.
(c) The delegate erred when in the face of no evidence from the respondent that the appellant would pass the three preliminary clearances (see below in evidence) and necessary for working as a school crossing supervisor, he determined that such work was suitable employment as defined by s 32(a) working with children check, (b) a police check, (c) a health assessment/clearance.
[3] As clearly identified by the respondent in its submissions
Section 296 of the 1998 Act provides:
“Exercise of functions of President
(1) The President may exercise functions under this Part with respect to a dispute on the basis of the documents and information provided to the President when the dispute was referred for determination by the Commission.
(2) Except as provided by this Part, the exercise of any function of the President under Division 2 or 3 of this Part is not subject to appeal or review.”
One of the vexed issues was whether there was jurisdiction to determine the dispute or not. Mr Grimes of counsel who appeared for the respondent pointed out that the application before me is not an application to revoke or amend an interim payment direction because there has been no interim payment direction made. That is, in this case there is simply an award for the respondent (as made by the delegate). There is no direction that the respondent or anyone else who has made the claim must pay compensation and as such it is not defined as an interim payment direction. I agree with that description.
My attention was directed to sub-s (2) and given that this is not an interim payment direction, sub-s (2) specifically prohibits appeal or review which is effectively what the applicant was seeking by way of hearing de novo. In those circumstances I cannot see how I have jurisdiction to determine any issue between the parties as identified.
FINDINGS AND REASONS
I cannot see how I can assist the parties in having any disputed issues determined. I am unable to hear the matter by way of de novo hearing. It is a matter for the applicant whether they wish to seek judicial review of the delegates determination.
Because I have found that I do not have jurisdiction to determine the dispute, It is inappropriate for me to make findings on any issue regarding the applicant’s capacity to earn.
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