Lee v Bunnings Group Limited
[2013] NSWWCCPD 54
•14 October 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Lee v Bunnings Group Limited [2013] NSWWCCPD 54 | ||
| APPELLANT: | Sharan Lee | ||
| RESPONDENT: | Bunnings Group Limited | ||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||
| FILE NUMBER: | A1-5998/12 | ||
| ARBITRATOR: | Mr W Dalley | ||
| DATE OF ARBITRATOR’S DECISION: | 14 June 2013 | ||
| DATE OF THE APPEAL HEARING: | 4 October 2013 | ||
| DATE OF APPEAL DECISION: | 14 October 2013 | ||
| SUBJECT MATTER OF DECISION: | Jurisdiction of the Commission to determine entitlements under s 38 of the Workers Compensation Act 1987 (as amended by the Workers Compensation Legislation Amendment Act 2012); s 105 of the Workplace Injury Management and Workers Compensation Act 1998 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr P Stockley, instructed by Carroll & O’Dea Lawyers | |
| Respondent: | Mr G Niven, instructed by McCulloch & Buggy Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Paragraph [1] of the Arbitrator’s determination of 14 June 2013 is revoked. 2. Paragraph [2] of the Arbitrator’s determination of 14 June 2013 is confirmed. 3. The respondent employer is to pay Mrs Lee’s costs of the appeal. | ||
INTRODUCTION
This appeal concerns the jurisdiction of the Commission to make an award for the respondent employer in respect of a claim for compensation under s 38 of the Workers Compensation Act 1987 (the 1987 Act), as amended by the Workers Compensation Legislation Amendment Act 2012 (the Amending Act). Unless otherwise stated, all reference to the legislation in this decision is to the legislation as amended by the Amending Act.
BACKGROUND
The appellant Sharan Lee (Mrs Lee) was employed by the respondent Bunnings Group Limited (Bunnings) as a sales assistant at Bunnings warehouse in South Nowra.
On 2 June 2010 she suffered an injury to her respiratory system when she inhaled fumes from airborne particles from a spillage of a lawn care product she was handling in the course of her duties.
Mrs Lee attempted to return to work however she suffered another episode of respiratory distress on 22 June 2010, and has not worked since. Bunnings, through its insurer CGU Workers Compensation (NSW) Ltd (CGU), initially accepted liability for weekly compensation benefits, in respect of the injuries sustained on 2 June 2010.
On 30 April 2012 CGU issued a notice under s 54 of the 1987 Act, informing Mrs Lee that her payments of weekly compensation would cease from 12 June 2012. CGU determined that pursuant to s 40 of the 1987 Act, Mrs Lee retained a capacity to earn equal to or greater than the amount she would have earned had she remained employed by Bunnings.
On 20 June 2012 Mrs Lee’s solicitors filed an Application to Resolve a Dispute in the Commission seeking an order for the reinstatement of weekly payments.
On 12 July 2012 Bunnings filed a Reply to the Application citing the matters in dispute were those referred to in the s 54 notice.
The matter was listed for an arbitration hearing on 19 December 2012, before Arbitrator Mr W Dalley. No oral evidence was called. It was agreed that the only issue in dispute before the Arbitrator concerned Mrs Lee’s capacity to earn in the open labour market reasonably available to her. After hearing submissions from the parties’ legal representatives, the Arbitrator reserved his decision.
On 13 February 2013, the Arbitrator issued a Certificate of Determination and a Statement of Reasons. He found that Mrs Lee was effectively totally incapacitated for employment within the labour market reasonably available to her by reason of the injury she sustained on 2 June 2012. He ordered the payment of weekly compensation from 12 June 2012 to 31 December 2012.
The Arbitrator noted that no submissions had been made by the parties concerning Mrs Lee’s entitlement to weekly compensation from 1 January 2013.
If Mrs Lee was an existing recipient of weekly compensation (as defined in Sch 6 Pt 19H cl 1 of the 1987 Act) immediately before the commencement of the weekly payments amendments on 1 October 2012, then, pursuant to Sch 6 Pt 19H cl 6 of the 1987 Act, her entitlements from 1 January 2013 would continue to be determined as if the weekly payments amendments had not been made (at least until the amendments applied to her in accordance with Div 1of Pt 19H).
However, if Mrs Lee was found not to be an existing recipient of weekly compensation, as at 1 October 2012, her entitlements from 1 January 2013, would be assessed pursuant to the weekly payments provisions as amended (Sch 8 cl 3 of the Workers Compensation Regulation 2010).
Mrs Lee conceded at the arbitration that, if the Arbitrator found that she was not an existing recipient of weekly compensation immediately before 1 October 2012, she had no entitlement to weekly compensation beyond 31 December 2012 because she had exhausted her entitlements under ss 36 and 37. That being so, she was not entitled to further weekly compensation unless she could satisfy the provisions in s 38, which are discussed in detail below.
After receiving and considering further submissions Arbitrator Dalley issued a further Certificate of Determination and Statement of Reasons on 14 June 2013. The Arbitrator held the Mrs Lee was not an existing recipient of weekly compensation immediately before the commencement of the weekly payments amendments on 1 October 2012.
Having found Mrs Lee was not an existing recipient, and having accepted the concession that she had exhausted her entitlement to weekly compensation under ss 36 and 37, and that she could not (currently) satisfy the provisions in s 38, the Arbitrator made an award for the respondent in respect of the claim for weekly compensation from 1 January 2013.
Mrs Lee has appealed Arbitrator Dalley’s determination of 14 June 2013.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 14 June 2013 records the Arbitrator’s orders as follows:
“The Commission determines further to the award and orders made on 13 February 2013:
1. Award for the respondent in respect of the claim for weekly payments from 1 January 2013 to date.
2. The award and orders made on 13 February 2013 are otherwise confirmed.”
PRELIMINARY MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time, as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), have been met.
The issues initially raised on this appeal involved potentially significant matters of interpretation and application of the weekly payment provisions of the 1987 Act, following the amendments introduced by the Amending Act. Whilst both parties invited me to hear the appeal ‘on the papers’ I declined to do so, because of the inadequacy of the submissions filed by the appellant and because of the general importance of the issues raised in the grounds of appeal. Those issues concerned whether the Commission had jurisdiction to make orders beyond 31 December 2012, and whether immediately before 1 October 2012, Mrs Lee was an “existing recipient” of weekly compensation.
On 30 August 2013, I presided over a teleconference between the parties and their legal representatives, convened at my request, at which time I identified the deficiencies in the submissions and directed the parties’ attention to recent authorities on the issues raised, including the recent decision of Deputy President O’Grady in Inghams Enterprises Pty Ltd v Sok & anor [2013] NSWWCCPD 39 (Sok). I directed that amended submissions be filed and ordered the matter proceed by way of oral hearing.
ISSUES IN DISPUTE
The issues pleaded in the appellant’s original grounds of appeal were:
(a) whether the Arbitrator erred in finding that the appellant was not an existing recipient of weekly compensation, and
(b) in the alternative, whether the Arbitrator had jurisdiction to make an award for the respondent on the appellant’s claim for weekly compensation from 1 January 2013 and whether the Arbitrator erred in making an award for the respondent from that date.
However, at the hearing of the appeal, Mrs Lee’s counsel, Mr Stockley, abandoned the challenge to the Arbitrator’s findings that Mrs Lee was not an existing recipient of weekly compensation and the only ground of appeal pressed concerned the alleged error relating to the Commission’s jurisdiction.
Therefore the issue ultimately pressed on appeal concerns the jurisdiction of the Commission to enter an award, either in favour of or against a worker, in respect of a claim for weekly compensation under s 38 of the 1987 Act.
THE ARBITRATOR’S REASONS
In terms of the application of the weekly payments provisions after 1 January 2013, there was no dispute that the applicant had exceeded the second entitlement period, as defined in s 32A of the 1987 Act. As I indicated, Mrs Lee conceded that unless she could be found to be an existing recipient of weekly payments as at 1 October 2012, she could not satisfy the requirements to recover compensation under s 38.
It was accepted that Mrs Lee was not in receipt of weekly payments of compensation immediately prior to 1 October 2012. The Arbitrator focused on the question of whether Mrs Lee satisfied the definition of “existing recipient” of weekly payments of compensation, in the particular circumstance of this case. His reasons for decision are primarily directed to that issue.
Having concluded that Mrs Lee was not an existing recipient of weekly compensation, and having regard to Mrs Lee’s concession that she had no current entitlement to weekly compensation from 1 January 2013 if so found, the Arbitrator entered an award for the respondent in relation to the claim for weekly compensation from 1 January 2013.
The Commission’s jurisdiction to make any orders beyond 1 January 2013 was not argued before the Arbitrator and his reasons do not deal with that issue. However, the issue of the worker’s entitlement to compensation from 1 January 2013 was certainly before him.
LEGISLATION
Section 32A of the 1987 Act provides the following definitions:
“‘first entitlement period’, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.
…
‘second entitlement period’, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.”
Schedule 6 Pt 19H cl 1 of the 1987 Act provides:
“‘existing recipient of weekly payments’ means an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments.
‘weekly payments amendments’ means the amendments made by the 2012 amending Act to Division 2 (Weekly compensation by way of income support) of Part 3 of the 1987 Act, other than the amendment made to section 52 (Termination of weekly payments on retiring age) of the 1987 Act.”
Schedule 6 Pt 19H cl 6 of the 1987 Act provides:
“An existing recipient of weekly payments remains entitled to compensation under Division 2 of Part 3 of the 1987 Act as if the weekly payments amendments had not been made, but only until the weekly payments amendments apply to the compensation payable to the person as provided by this Division.”
Section 105(1) of the 1998 Act provides:
“(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.
Note: The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer. See section 43 of the 1987 Act.”
Section 38 of the 1987 Act states:
“(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted:
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note: An insurer can conduct a work capacity assessment of a worker at any time. The WorkCover Guidelines can also require a work capacity assessment to be conducted.
(5) An insurer is not to conduct a work capacity assessment of a seriously injured worker unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a seriously injured worker without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(8) A worker’s entitlement to compensation under this section may be reassessed at any time.”
Section 43(3) of the 1987 Act states:
“(3) The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.”
Section 44 (5) of the 1987 Act states:
“(5) The Commission is not to make a decision in proceedings concerning a dispute about weekly payments of compensation payable to a worker while a work capacity decision by an insurer about those weekly payments is the subject of a review under this section.”
SUBMISSIONS
The jurisdiction of the Commission
Mrs Lee’s submissions
Mr Stockley conceded that the decision of Deputy President O’Grady in the matter of Sok was correctly decided and reflected the approach taken by Senior Arbitrator Snell in Komljenovic v Facility Management Solutions Pty Ltd [2013] NSWWCC 69. Having regard to that concession it is no longer necessary to deal with those authorities, however neither of those matters dealt with the question of the application of s 38 as it arises before me.
Mr Stockley submitted that in both instances the determination was in respect of the worker’s rights within the second entitlement period, that is, between weeks 14 and 130 within the meaning of s 32A of the 1987 Act. Therefore, in each instance, the decision maker had found, as a question of jurisdictional fact, in favour of the Commission being able to make a decision. In each instance, the Arbitrator had gone on to make a determination of the worker’s weekly entitlement.
However, in the instant case the Arbitrator made a finding of jurisdictional fact, namely that Mrs Lee was not an existing recipient and, implicitly, and adverse to his ability to decide the matter, she was outside the first 130 weeks of entitlement. Mr Stockley submitted that Mrs Lee had conceded at the arbitration that, if the Arbitrator made that finding, her entitlement to weekly compensation beyond 31 December 2012 could not be determined.
In similar circumstances, the Commission has declined to make any award beyond 31 December 2012 (see Jameson v Combined Communications Network Ltd t/as Taxis Combined [2013] NSWWCC 224).
Having decided that Mrs Lee was not an existing recipient, the Arbitrator should simply have confirmed the existing orders and made no order in respect of entitlement or otherwise beyond 31 December 2013 because he had no power to do so.
The order, as recorded, has the legal or practical potential to deprive Mrs Lee of obtaining a work capacity decision, or from recovering compensation from the relevant insurer, or both, and should accordingly be set aside.
Mr Stockley accepted that by reason of the Amending Act, the Commission’s exclusive jurisdiction to hear and determine all mattes arising under the 1987 and 1998 Acts, by virtue of s 105 of the 1998 Act, was qualified only by the express limitations of s 43(3) and s 44(5) of the 1987 Act.
In essence, his complaint was not that the Commission was deprived of jurisdiction in the current circumstances; rather, the Arbitrator exceeded his jurisdiction by entering an award for the respondent in relation to the claim for benefits from 1 January 2013. That order effectively precludes Mrs Lee from an assessment of any further entitlement as may exist under s 38 of the 1987 Act, before any of the pre-conditions for an entitlement to compensation under that provision have been triggered.
Bunnings’s submissions
Bunnings submitted that, neither party throughout the proceedings before the Arbitrator made any submissions concerning the Commission’s jurisdiction to hear and determine the claim for weekly compensation from 1 January 2013.
Having previously confirmed that Mrs Lee had exhausted her entitlement to weekly compensation under the second entitlement period, as defined in s 32A of the 1987 Act, the Arbitrator was correct to conclude that she was no longer entitled to weekly payments of compensation.
In its supplementary submissions dated 27 September 2013, Bunnings submitted that, in terms of the Commission’s jurisdiction to determine disputes concerning weekly compensation, it is of no consequence whether the worker is in the first, second or third entitlement period. That is only relevant to determine the quantum of any entitlement.
At the hearing of the appeal, counsel for Bunnings, Mr Niven conceded that the question of what order should be made in the circumstances of the present case, where a worker may have additional entitlements under s 38 of the 1987 Act, but where the pre-conditions for an entitlement under that provision have not been triggered, was not addressed in submissions before the Arbitrator.
As the matter ultimately unfolded at the hearing of the appeal, whilst Mr Niven relied on the written submissions lodged with the Commission, he did not argue with any conviction against the proposition advanced by Mr Stockley.
CONSIDERATION
As I indicated at the outset, the issue for determination on this appeal concerns the jurisdiction of the Commission to enter an award in respect of a claim for weekly compensation, under s 38 of the 1987 Act. That issue was not argued before the Arbitrator.
A party is normally bound by the conduct of his or her case at first instance (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at 71). A point may be raised for the first time on appeal where the point could not possibly have been met by evidence led at the trial below (Suttor v Gundowda Pty Ltd[1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe[1986] HCA 33; 162 CLR 1 at 6–7), or where it is in the interests of justice and would not cause prejudice to the respondent (Water Board v Moustakas[1988] HCA 12; 180 CLR 491 at 498).
The issue of the application of s 38, and the Commission’s jurisdiction is one of general importance and it is therefore in the interests of justice that it be argued and determined on appeal. In addition, given that the issue is not one on which the respondent needs to call evidence, and there is no prejudice to the respondent, it is appropriate that, in the exceptional circumstances of this case, it be argued and determined on appeal notwithstanding that it was not argued before the Arbitrator.
The Commission is a statutory tribunal. It may only exercise the powers and functions that are granted to it by statute. Section 105 of the 1998 Act sets out the jurisdiction of the Commission. It can be seen from the provisions of s 105, that the Commission has been vested with very broad powers to hear and determine all matters arising under both the 1987 and 1998 Acts.
The “exclusive jurisdiction” granted to the Commission pursuant to s 105(1) is qualified by express statutory provisions in s 43(3) and s 44(5) of the 1998 Act. These provisions remove the Commission’s jurisdiction to determine any dispute about a work capacity decision of an insurer and prevent the Commission making a decision in respect of a dispute before it that is inconsistent with a work capacity decision of an insurer (s 43(3)).
Section 44(5) prohibits the Commission from making a decision in proceedings concerning a dispute about weekly payments of compensation payable to a worker while a work capacity decision by an insurer is the subject of a review under that section.
There is no dispute in the present case that Mrs Lee had exhausted her entitlement to compensation under ss 36 and 37 of the 1987 Act. The remaining dispute, which was the subject of the Arbitrator’s determination of 14 June 2013, concerned her entitlement to compensation under s 38. Pursuant to s 38(1) a worker’s entitlement to compensation ceases upon the expiration of the second entitlement period unless the worker is entitled to compensation after that period as assessed under s 38.
Under s 38(2), a worker who is assessed by the insurer as having no current work capacity is entitled to ongoing payments, provided the incapacity is likely to continue indefinitely.
Under s 38(3), the continuation of payments to a worker who is assessed by the insurer as having a current work capacity is entitled to additional payments “only if”:
(a) the worker has applied to the insurer in writing for the continuation of payments;
(b) the worker has returned to work for a period of not less than 15 hours per week and is in receipt of current weekly earnings of at least $155 per week; and
(c) the worker is assessed by the insurer as being likely to continue indefinitely of being incapable of undertaking further or additional employment or work that would increase the worker’s current weekly earnings.
It is clear from the unambiguous terms of s 38 that an entitlement to compensation under that section must be assessed by the insurer, not by the Commission.
The complaint in this case is that the assessment of the entitlement under s 38 was effectively undertaken by the Arbitrator when he concluded that the worker had no entitlement under s 38 and thus entered an award for the respondent.
It is common ground that the insurer has not undertaken a work capacity assessment of Mrs Lee’s residual capacity for work following the expiration of the second entitlement period. In those circumstances, the Arbitrator erred by concluding that Mrs Lee had no ongoing entitlement to weekly compensation in the absence of such an assessment. Those rights have not yet been determined. In the circumstances, the Arbitrator should have declined to make any order in respect of the period from 1 January 2013. It follows that this award entered in favour of the respondent must be revoked.
CONCLUSION
As the preconditions to the assessment of an entitlement under s 38 had not been satisfied, in the circumstances of this case, the Arbitrator erred by entering an award for the respondent from 1 January 2013.
In the absence of jurisdiction to determine the worker’s entitlement under s 38 the appropriate approach is to decline to make any order with respect to the worker’s entitlements from 1 January 2013. Thus, it is open to Mrs Lee to pursue her rights, if any, under s 38 in the manner provided in that section.
DECISION
Paragraph [1] of the Arbitrator’s determination of 14 June 2013 is revoked.
Paragraph [2] of the Arbitrator’s determination of 14 June 2013 is confirmed.
COSTS
The respondent employer is to pay Mrs Lee’s costs of the appeal.
Judge Keating
President
14 October 2013
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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