Kurrajong Holdings t/as The Gardeners Inn v Carrette
[2004] NSWWCCPD 8
•16 February 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSW WCC PD 8
APPELLANT: Kurrajong Holdings t/as The Gardeners Inn
RESPONDENT: Sharyn Carrette
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC8904-2003
DATE OF ARBITRATOR’S DECISION: 2 September 2003
DATE OF APPEAL DECISION: 16 February 2004
SUBJECT MATTER OF DECISION: Failure to file Reply before Arbitrator, Procedural fairness, Workers Compensation Commission Rules 2003.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION: Appellant: Leigh Virtue and Associates, Solicitors
Respondent: Adams and Partners Lawyers
ORDERS MADE ON APPEAL: The Arbitrator had no jurisdiction to determine the dispute.
BACKGROUND
On 30 September 2003 Kurrajong Holdings t/as The Gardeners Inn (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 2 September 2003.
The relevant Insurer is CGU Workers Compensation (NSW) Limited.
The Respondent to the Appeal is Sharyn Carrette (‘the Respondent Worker’).
The matter was referred to me on 5 February 2004, for review.
THE DECISION UNDER REVIEW
The determination appealed against is as follows:
(a)That the Respondent pay the Applicant weekly compensation at the rate the Applicant was being paid immediately prior to 21 March 2003 from 21 March 2003 and continuing under s38 of the Workers Compensation Act 1987. Such weekly payments to continue in accordance with the provisions of the Act.
(b)That the Respondent pay the Applicant’s costs as agreed or assessed.
ISSUES IN DISPUTE
The Arbitrator determined this matter in the absence of any documents or ‘Reply’ by the Employer. The issues in dispute may be summarised as follows:
· Was the Appellant Employer denied procedural fairness in the proceedings before the Arbitrator?
· Did the Arbitrator fail to exercise the obligation under section 355 of the Workplace Injury Management and Workers Compensation Act 1998, (‘the 1998 Act’) to bring the parties to a settlement of the dispute prior to making an award?
· Is the award ‘ultra vires’ and unenforceable because of an alleged failure by the worker to make a claim pursuant to section 65 of the 1998 Act?
· Is the award unenforceable because of an error in the description of the employer? The Appellant Insurer states that the correct description of it is Kurrajong Holdings t/as The Gardeners Inn (not Kurrajong Holdings Pty Ltd).
In each of the above matters the Appellant employer alleges the Arbitrator has made an error of law.
LEAVE TO HEAR THE APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
352Appeal 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.
(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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
There is no evidence before me, nor was there before the Arbitrator, of the rate of compensation by way of weekly payments to be paid to the worker. However, in this matter it is possible to determine whether the dispute meets the thresholds in section 352(2) (a) and (b) of the 1998 Act by reference to the minimum statutory rate of payment of weekly compensation. The Arbitrator found the Employer liable for payments of weekly compensation on and from 21 March 2003. The worker’s cumulative entitlement, calculated at the date of this appeal, must be in excess of $5000.
The whole of the award, i.e. 100% of the amount awarded, is in dispute.
Leave to appeal is granted.
NEW EVIDENCE
The Appellant Employer seeks leave to give new evidence on the appeal, in the form of a copy of a letter from the Respondent Worker’s legal representative, dated 31 July 2003. The Respondent Worker makes no submissions on this issue.
This letter concerns the telephone conference that was held in the Commission on 29 July 2003. It advises of the Arbitrator’s directions of that date and invites submissions on behalf of the employer.
There is nothing controversial about this correspondence. It is relevant to the appeal and assists in the determination of the issues. It relates to the issues referred to in the submissions of both parties. Leave is granted to tender this letter in evidence in the appeal.
The Respondent Worker seeks leave to tender two WorkCover Medical Certificates covering the period following the Arbitrator’s decision, i.e. they are dated 6 November 2003 and 4 December 2003. These certificates are not relevant to the appeal and leave is refused.
ON THE PAPERS REVIEW
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.
The parties both agree to the determination of this matter on the papers. Notwithstanding this, the Appellant employer states that it “would only propose to call further evidence in relation to the circumstances surrounding the failure by the Insurer to lodge a Reply or to reply to certain correspondence from the Applicant’s solicitor during the course of the proceedings”. This appears to misunderstand the meaning of determination ‘on the papers’. I am satisfied that this issue is adequately covered in the Appellant’s submissions and by the admission of the new evidence referred to above.
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.
EVIDENCE AND SUBMISSIONS
On 11 April 2003 an ‘Application to Resolve a Dispute’ was lodged in the Commission on behalf of Ms Carrette, seeking an award of weekly benefits compensation for total incapacity for work on and from 21 February 2003. Ms Carrette claimed to have suffered post-traumatic stress syndrome “on 21 February 2003 when [she] attended her place of work to collect her workers compensation payment in relation to an existing injury” (Arbitrator’s Statement of Reasons, paragraph 3). Ms Carette had been employed as a chef at the Gardeners Inn, operated by Kurrajong Holdings, since February 2002.
The application also sought ‘unknown’ medical expenses.
Attached to the application were the following documents:
· Copy of correspondence, dated 13 March 2003, from Ms Carrette’s solicitor to Kurrajong Holdings Pty Ltd at the Gardeners Inn, claiming compensation with respect to “post traumatic stress disorder” and attached Workcover medical certificate dated 3 March 2003 for the period 3 March 2003 – 17 March 2003.
· Copy of correspondence, dated 13 March 2003, from Ms Carrette’s solicitor to CGU Workers Compensation (NSW) Ltd advising of her claim.
· Statement of Ms Carrette, dated 21 February 2003, to NSW Police concerning an alleged incident whereby Ms Carrette was assaulted by Annalise Price at the Gardeners Inn on the same day.
· Copy of ‘Complaint and Summons - Apprehended Violence’ issued to Annalise Price, by Katoomba Local Court at the request of Ms Carrette.
· Copy of correspondence from CGU Workers Insurance to Kurrajong Holdings, dated 28 March 2003, advising of notification by Ms Carrette, dated 18 March 2003, of an injury on 3 March 2003, and advising that a decision had been made not to commence provisional payments on the ground that the “injury is not work related”. The letter advised that a claim for workers compensation could be made by way of completion of an ‘Employee Claim Form’ and a ‘WorkCover Medical Certificate for any period of incapacity for work’.
· Copies of Workcover Medical Certificates stating that Ms Carrette was unfit for work from 17 March 2003 to 14 April 2003 inclusive.
The above application and attached documents were served on the employer and insurer on 15 April 2003, by ordinary post.
Ms Carrette had applied to the Commission on 21 March 2003 for an ‘Interim Payment Direction’. This application was rejected on 7 April 2003.
The Appellant Employer did not file a ‘Reply’ to the Application to Resolve a Dispute, despite being required to do so by the Interim Workers Compensation Commission Rules 2001 (as they then were, now the Workers Compensation Commission Rules 2003).
A teleconference was listed for 29 July 2003. Despite the absence of a filed Reply, a Commission officer earlier contacted a representative of the insurer and advised her of the time and date of the telephone conference.
At the teleconference the Arbitrator directed that: the worker file further written submissions and medical evidence; the matter be determined on the papers on 15 August 2003 and, the “[A]pplicant to notify Respondent’s insurers in writing of the Directions on or before 1 August 2003.
The worker duly notified the insurer of the directions by letter dated 31 July 2003 and further advised that “[T]he Arbitrator instructed our firm to advise you that the conference proceeded in your absence and that the matter will be dealt with on the papers on or about 15 August 2003 provided written submissions are provided on or before 13 August 2003”.
On 14 August 2003 the worker filed further submissions, a statutory declaration of Ms Carrette, dated 13 August 2003, and a report of Ms Parasher, Clinical Counsellor/Psychotherapist, dated 8 August 2003.
The facts of the dispute, in evidence filed by the worker in the proceedings before the Arbitrator, are set out in the Arbitrator’s Statement of Reasons (at paragraph 16 –20) as follows:
“16.On 21 February 2003 [Ms Carrette] suffered shock and distress after being physically and verbally abused by the Respondent’s General Manager and his girlfriend. The Applicant alleges she had attended the premises to use an ATM machine and to check she had received her workers compensation payments. She notified the Respondent of the injury on 13 March 2003.
17.Following the incident the Applicant attended Katoomba Police station on 21 February 2003 and took out an apprehended violence order on 3 March 2003. The Applicant was due to return to work on 5 March 2003 on a rehabilitation programme after an earlier injury. As a result of the assault she did not return to work.
18. The Applicant did not provide evidence of her income at the time of the injury.
19.The Applicant was treated by Doctor Greg Cameron who referred her to Angela Parasher clinical counsellor and psychotherapist. She was diagnosed as suffering from Post Traumatic Stress Disorder.
20.The Applicant’s counsellor has recommended counselling and cognitive behaviour therapy. Her prognosis “in respect to mental and physical functioning is poor”. The Applicant complained of feelings of “hopelessness, depressed, anxious, anxiety attacks, chest pains, heart pounding and nightmares, as well as suicidal thoughts” (sic). Her condition, however is not restricted to this incident, but is also a result of the Applicant’s earlier two accidents with the same employer. The Applicant had previously suffered a right elbow injury and a lacerated left thumb.
The Applicant’s treating doctor provided medical certificates for the period up to 14 April 2003. The counsellor’s report provides an up to date assessment but does not comment on fitness for employment. The counsellor does state that the Applicant is fearful of returning to her employment with the Respondent”.
The Appellant Employer submits that its failure to lodge a Reply to the application, to file evidence, and to respond to the Commission’s correspondence was due to three factors, namely: that the insurer was the subject of a take-over and restructure at the time and as a result a number of different claims officers had conduct of the matter; that the same parties were involved in two proceedings in the Commission and this led to confusion; and, that the particular claims officer responsible for the conduct of the teleconference was ill at the relevant time. The Appellant Employer submits that its failures would more appropriately be cured by ‘costs’ rather than the proceedings being determined in its absence.
The Respondent Worker submits that the Appellant Employer had “ample opportunity to prepare a reply or response to the Application for Compensation”.
The Appellant Employer submits that the Arbitrator did not use her ‘best endeavours’ to bring the parties to a settlement of the dispute as it did not participate in the proceedings.
The Appellant employer claims that no claim form has ever been submitted to it in relation to this claim in compliance with section 65 of the 1998 Act and the Regulations. The Respondent Worker states that “By way of our letter dated 4 April 2003 a claim form was requested. That letter was faxed to the insurer with no reply”. WorkCover Medical Certificates in relation to the injury were faxed to the insurer on 15 April 2003, 13 May 2003 and 1 July 2003.
The Appellant Employer also claims that it is wrongly identified as ‘Kurrajong Holdings Pty Ltd’ in the proceedings.
DISCUSSION AND FINDINGS
Procedural Fairness
The ‘Procedure before [the] Commission’ is set out in section 354 of the 1998 Act as follows:
354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.
The Commission has also issued a mandatory ‘Guideline for the Practice of the Conciliation/Arbitration Process in the WCC’, which is consistent with section 354 of the 1998 Act (and can be easily accessed on the Commission’s web page).
The Commission is bound by the principles of procedural fairness, a denial of which would be an error of law. Fundamental to those principles is that a person whose interests are likely to be affected by a decision must be given an opportunity to present his or her case. The content of procedural fairness will depend upon the nature of the decision under review (Kioa v West (1985) 159 CLR 550) and may be modified by the express words of the statute (Hill v Green [1999] NSWCA 477). Section 354 (6) and (7) clearly impact on the requirements of procedural fairness in the Commission.
While the Commission is bound to give the parties an opportunity to present his or her case, it cannot force a party to take that opportunity (Sullivan v Department of Transport (1978) 20 ALR 323). Where, for example, an Arbitrator is satisfied that a Respondent is on notice of the application and aware that the matter is to be heard or determined on a particular date, it is not a denial of procedural fairness to proceed to make a determination in the matter.
Whether or not an Arbitrator’s determination should be overturned on appeal will depend upon whether the Arbitrator made an error of law, fact or discretion in the determination (Sheridan v Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD9).
In this matter I am satisfied that the Appellant Employer was properly served with the application, was notified of the time and date of the telephone conference and was advised, in writing, of the directions that were made at that conference. The letter sent to the Insurer on 31 July, and apparently marked as received on 4 August 2003, gave the Insurer ample opportunity to either comply with the Arbitrator’s directions to file submissions or to seek to have the matter re-listed so that other directions could be made.
The submissions made by the Appellant, as to why it took no part in the proceedings before the Arbitrator, do not support a finding that it was denied procedural fairness.
Arbitrator’s ‘Best Endeavours’ to Settle
Section 355 of the 1998 Act provides as follows:
(1)The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.
The Appellant Employer’s submission on this issue is curious, in that it complains of the Arbitrator making a determination without “any participation whatsoever from the Respondent to the proceedings”. As noted above, the lack of participation by the Respondent was due to a lack of diligence on its part, not to the fault of the Arbitrator.
To suggest that, in these circumstances, the Arbitrator cannot proceed to determine the matter, is to misunderstand the role of the Arbitrator, in light of the overall objectives of the Commission. Taken to its logical conclusion, this argument would enable a Respondent to avoid the making of an award against it in all cases where it simply failed to appear. This is clearly not the intention of the legislation and is inconsistent with section 367 of the 1998 Act, which sets out the objectives of the Commission. In particular it provides that the Commission must provide “a timely service ensuring that workers’ entitlements are paid promptly” (section 367(c)).
The provisions of the 1998 Act must be read together in such a way as to give effect to its intention. It is intended that the Commission operate flexibly and informally, and that parties be given every opportunity to come to an agreed settlement of their dispute. The teleconference held in this matter on 29 July 2003 provided an opportunity, early in the proceedings, for the parties to meet with the Arbitrator and to canvass settlement of their dispute. This opportunity was afforded to the Appellant Employer and was not taken. I am satisfied that, in the circumstances, the provision of this opportunity amounted to the ‘best endeavours’ of the Arbitrator to ‘ bring the parties to the dispute to a settlement acceptable to all of them’ (section 355(1)).
The requirements of section 355 of the 1998 Act have been met and the Arbitrator did not err in proceeding to determine the matter ‘on the papers’.
Failure to make a Claim
The statutory requirements in relation to the making of a claim for compensation for an injury that occurred after 1 January 2002 are set out in Chapter 7 of the 1998 Act. Section 65, referred to by the Appellant Employer, is not relevant to this claim.
The parties appear to be in agreement as to certain facts relevant to this issue.
The worker notified the insurer of the injury on 13 March 2003 (Section 254 of the 1998 requires notice to the employer).
On 20 March 2003 the Insurer advised the worker that it declined to commence provisional payments in relation to the claim on the basis that it had a “reasonable excuse” for not doing so (section 269 of the 1998 Act), namely that “the injury was not work related” (WorkCover Provisional Liability and Claims Guidelines (‘the Guidelines’), December 2001, at 16.5). Correspondence from the insurer to the worker does not detail which, of the ‘Acceptable forms of evidence’ to support this refusal (Guidelines 16.5.1, 16.5.2 or 16.5.3) were relied upon.
A ‘Workers Compensation Employee Claim Form’ was attached to the correspondence of 20 March 2003 and the worker was advised that she was entitled to make a claim for workers compensation (in accordance with section 268 of the 1998 Act and Guideline 15).
On 24 March 2003 the worker lodged an ‘Application for Interim Payment Direction’. This was refused by the Commission on 7 April 2003, on the ground that the insurer had a ‘reasonable excuse’ for non-payment.
The workers legal representative submits that the insurer did not reply to a request for a claim form, faxed on 4 April 2003.
There is no evidence that a claim for compensation was subsequently made on the employer/insurer by Ms Carrette. Ms Carrette relied upon the submission of WorkCover medical certificates to the insurer relating to the injury and the subsequent filing of the ‘Application to Resolve a Dispute’ in the Commission.
Section 260 of the 1998 Act provides that a “claim must be made in accordance with the applicable requirements of the Workcover Guidelines”. This reference is to the ‘WorkCover Provisional Liability and Claims Guidelines’, December 2001.
The Guidelines provide that a worker who wishes to press a claim for weekly benefits or medical expenses compensation must make a claim, in the prescribed form, if provisional payments are not made or the insurer requests that a claim be made (Guidelines Part 2, 1.1). The information that must be provided on a claim, and the requirements for the making of a claim are extensive and are set out in the Guidelines.
The Act and the Guidelines do not provide for the lodgement of an application to resolve a dispute in the Commission in the absence of the making and determination of a claim by the worker on the relevant employer and insurer. This is the case regardless of the fact that the Commission may have determined an application for an Interim Payment Direction.
On the documents before me on the appeal, and the submissions of the parties, I am satisfied that the Appellant Employer’s submission, that no claim has ever been properly made in this matter, is correct. The Arbitrator therefore did not have jurisdiction to determine the dispute.
This means that the orders are a nullity. If the Respondent Worker seeks to claim compensation from the employer a claim must now be made in accordance with the provisions of the 1998 Act and the Guidelines.
Identification of the Respondent
The Appellant Employer, correctly, submits that the ‘Respondent’ in the Arbitrator’s decision is incorrectly identified as ‘Kurrajong Holdings Pty Ltd’ instead of ‘Kurrajong Holdings t/as The Gardeners Inn’.
There is no dispute that the persons and workplace identified in the proceedings were, in fact, involved in the alleged events.
The error arose on the original ‘Application to Resolve [a] Dispute’ and, as the Appellant Employer did not take part in the proceedings before the Arbitrator, it went undetected and uncorrected.
The Commission must “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).
This is not an error that, on its own, merits the revocation of the Arbitrator’s decision. It is a matter that could be corrected by the Registrar, and has now been corrected on appeal.
DECISION
The Arbitrator had no jurisdiction to determine the dispute.
Dr Gabriel Fleming
Deputy President
16 February 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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