Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats v Merritt (No 2)
[2020] NSWWCCPD 67
•2 April 2019
| DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A PRESIDENTIAL DECISION ON AN APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats v Merritt (No 2) [2020] NSWWCCPD 67 |
| APPELLANT: | Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats |
| RESPONDENT: | Linda Merritt |
| INSURER: | AAI Ltd trading as GIO – Agent for Insurance for NSW |
| FILE NUMBER: | A1-239/19 |
| ARBITRATOR: | Mr P Sweeney |
| DATE OF ARBITRATOR’S DECISION: | 2 April 2019 |
| DATE OF ORIGINAL APPEAL DECISION: | 12 September 2019 |
| DATE OF RECONSIDERATION DECISION: | 25 November 2020 |
| SUBJECT MATTER OF DECISION: | Reconsideration pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; s 39 of the Workers Compensation Act 1987; application of Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr T Tancred, solicitor | |
| Respondent: | |
| Ms E Angwin, solicitor | |
| Rankin Ellison Lawyers | |
| ORDERS MADE ON RECONSIDERATION OF THE APPEAL: | 1. The Orders made in the Determination of Appeal Against a Decision of the Commission Constituted by an Arbitrator dated 12 September 2019 are revoked. 2. The Orders in the Certificate of Determination – Ex Tempore Orders dated 2 April 2019 are confirmed. Additionally, a further Order is added to those there appearing: “4. Liberty to apply to the Arbitrator in respect of the description of the respondent’s identity.” |
INTRODUCTION AND BACKGROUND
The factual background is uncontroversial. Linda Merritt (the worker) suffered a series of injuries from 1990 to 1994, whilst in the course of her employment with Lachley Meats (the employer) working as a labourer at the Forbes Abattoir. She was described as having a deemed date of injury of 10 January 1994.[1] She ceased working there in 1998 and has not worked since.[2] She was paid compensation on a voluntary basis.
[1] Application to Resolve a Dispute (ARD), p 5.
[2] Dr Anderson’s MAC, 11/1/18, Reply, p 11.
In general terms, s 39(1) of the Workers Compensation Act 1987 (the 1987 Act), as amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act), limits weekly payments of compensation to an aggregate period of 260 weeks. Clause 13 of Div 2 of Sch 6 to the 1987 Act provides that the application of s 39 is to have no regard to periods of compensation paid prior to commencement of the 2012 Amending Act. The respondent’s insurer ceased paying the worker weekly benefits on 25 December 2017, at the expiration of 260 weeks of relevant payments. Section 39(2) provides that the section does not apply to a worker whose injury results in permanent impairment of more than 20 per cent.
The worker was assessed by Dr Anderson, an Approved Medical Specialist (AMS) who in a medical assessment certificate (MAC) dated 1 November 2018 certified that she suffered whole person impairment (WPI) of 24 per cent.[3] The employer’s insurer recommenced the payment of weekly payments from 1 November 2018. At issue in the current proceedings is the weekly entitlement from 26 December 2017 to 1 November 2018. There is an issue regarding whether, in the case of such an injured worker, who is ultimately certified as having WPI of more than 20 per cent, there is a weekly entitlement during periods before the certification occurs. The matter was heard initially by Arbitrator Sweeney on 2 April 2019. He delivered an ex tempore decision in which he made a weekly award at the rate of $814 per week as adjusted from 26 December 2017 to 1 November 2018.
[3] Reply, pp 11–20.
This decision was appealed by the employer pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). There was an oral hearing before the President Phillips DCJ. The State Insurance Regulatory Authority (the Authority) also appeared through counsel at the hearing, it having intervened pursuant to s 106 of the 1998 Act. The issue, in similar terms, had previously been the subject of Presidential decisions in RSM Building Services Pty Ltd v Hochbaum[4] and Technical and Further Education Commission trading as TAFE NSW v Whitton.[5]
[4] [2019] NSWWCCPD 15 (Hochbaum No. 1).
[5] [2019] NSWWCCPD 27 (Whitton).
His Honour issued a decision on 12 September 2019.[6] His Honour followed his earlier decisions in Hochbaum No. 1 and Whitton, upheld the appeal, and an award in favour of the employer, on the closed period, was substituted for the award made by the Arbitrator.
[6] Lachley Meats (Forbes) Pty Ltd and M C Meats (Lachley) Pty Ltd trading as Lachley Meats v Merritt [2019] NSWWCCPD 49.
LEGISLATION
Section 39 of the 1987 Act provides:
“39 Cessation of weekly payments after 5 years
(1) Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2) This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note— For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3) For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
Section 350(3) of the 1998 Act provides:
“(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
THE COURT OF APPEAL DECISION IN HOCHBAUM
The Presidential decision in Hochbaum was appealed to the Court of Appeal, which delivered a decision upholding the appeal on 17 June 2020.[7] It was held:
“… on the proper construction of s 39, the 260-week limit never applies to a worker whose degree of permanent impairment resulting from the relevant injury exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed.”[8]
[7] Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (Hochbaum No. 2).
[8] Hochbaum No. 2, (per Brereton JA, White JA agreeing), [42].
THE RECONSIDERATION APPLICATION
On 5 November 2020 the worker’s solicitor wrote to the Registrar, seeking a reconsideration pursuant to s 350(3) of the 1998 Act of the Presidential decision dated 12 September 2019. The letter submits that the Presidential decision in the current matter cannot stand in the light of the decision in Hochbaum No. 2. It is submitted that the decision of the Arbitrator should be reinstated. The worker submits that reconsideration provides a just, quick and cheap outcome, now that the Court of Appeal has clarified the legal principles to be applied.
The employer’s solicitors responded in an email dated 8 November 2020. The employer advised that it will not be filing submissions in response to the application.
ON THE PAPERS
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.”
Neither party submits that an oral hearing is appropriate. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
DISCUSSION
The principles that govern exercise of the discretion pursuant to s 350(3) of the 1998 Act were reviewed by Roche ADP in Samuel v Sebel Furniture Limited,[9] in a passage that has been repeatedly applied in such applications in the Commission. The discretion is a wide one, although there is a public interest that litigation should not proceed indefinitely. I have previously applied these principles in reconsidering a Presidential decision in circumstances where, shortly after the decision was issued, a subsequent decision of the Court of Appeal was issued dealing with the construction and interpretation of the relevant provisions of the workers compensation legislation, and a regulation was promulgated which clarified the relevant law (dealing with common law election).[10]
[9] [2006] NSWWCCPD 141, [58].
[10] Bluescope Logistics Co Pty Limited (formerly BHP Transport & Logistics Pty Limited) v Finlow [2006] NSWWCCPD 338R, [31]–[34], [38]–[39].
I accept that the reasoning and conclusions of the Court of Appeal in Hochbaum No. 2 are inconsistent with the Presidential decision in the current matter. I accept that it is appropriate to exercise the reconsideration power in the circumstances to do justice between the parties. The worker submits that the decision of the Arbitrator should be reinstated. I note that the employer, quite properly, does not make submissions contrary to that course.
I note that the employer’s identity was described in the Certificate of Determination dated 2 April 2019, issued by the Arbitrator, in a fashion consistent with what appears in the Presidential decision dated 12 April 2019 (and in this decision). I note the employer was described in the Application to Appeal and the Notice of Opposition as the ‘Workers Compensation Nominal Insurer’. It was suggested by the employer’s counsel at the hearing of the appeal that the correct identity may well be the ‘Workers Compensation Nominal Insurer’.[11] There appears to have been some uncertainty. I note the Arbitrator gave the parties liberty to apply in respect of the calculations regarding the weekly entitlement from 26 December 2017 to 1 November 2018. It is, in my view, appropriate to grant liberty for the parties to apply to the Arbitrator in respect of both of these matters, should it prove necessary.
[11] Transcript 5/8/19 (T), T 1.39–44.
DECISION
In the exercise of its discretion pursuant to s 350(3) of the 1998 Act the Commission orders:
1. The Orders made in the Determination of Appeal Against a Decision of the Commission Constituted by an Arbitrator dated 12 September 2019 are revoked.
2. The Orders in the Certificate of Determination – Ex Tempore Orders dated 2 April 2019 are confirmed. Additionally, a further Order is added to those appearing:
“4. Liberty to apply to the Arbitrator in respect of the description of the respondent’s identity.”
Michael Snell
DEPUTY PRESIDENT
25 November 2020
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