Lettoof v Ku-Ring-Gai Bushland & Environment Society

[2005] NSWWCCPD 41

`WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Lettoof v Ku-Ring-Gai Bushland & Environment Society

[2005] NSWWCCPD 41

APPELLANT:  Richard Lettoof

RESPONDENT:  Ku-Ring-Gai Bushland & Environment Society

INSURER:GIO Australia Ltd

FILE NUMBER:  WCC 12119 - 03

DATE OF ARBITRATOR’S DECISION:          23 December 2003

DATE OF APPEAL DECISION:  20 May 2005

SUBJECT MATTER OF DECISION:                Application for leave to appeal against a decision in relation to costs and compensation for medical or other treatment or services; section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: McClellands Lawyers

Respondent: Phillips Fox Lawyers

ORDERS MADE ON APPEAL:  Leave to appeal against the decision of the Arbitrator is refused.

No order is made as to the costs of this leave application.

BACKGROUND TO THE APPEAL

1. On 23 January 2004, the Appellant, Richard Lettoof, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 23 December 2003.

1. The Respondent to the Appeal is Ku-Ring-Gai Bushland and Environment Society (“the Respondent’).

1. Mr Lettoof, who was born on 23 January 1967 and is aged 38, injured his back while working for the Respondent in the late 1980s. He underwent back surgery in about January 1988 and June 1993. On 16 June 1995, he obtained judgment in the Compensation Court of New South Wales for the payment of medical expenses and weekly compensation for partial incapacity.

1. On 11 July 2003, the Respondent lodged an ‘Application to Resolve a Dispute’ seeking orders, first, that Mr Lettoof’s award entitlement of $180 per week for partial incapacity, pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) be terminated or, in the alternative, reduced and, second, a termination of the Court’s order that the Respondent pay Mr Lettoof’s expenses for medical or other treatment or services pursuant to section 60 of the 1987 Act.

1. After a teleconference with the parties on 13 November 2003, the Arbitrator recorded that it was agreed “the s 60 order should remain undisturbed (worker not on medication, but wanting gym subscription fees to remain covered)”. On 4 December 2003, after a conciliation proved unsuccessful, the Arbitrator conducted a hearing in relation to the issue of weekly payments for partial incapacity.

1. On 23 December 2003, a ‘Certificate of Determination’ was issued which contained the Arbitrator’s orders as follows:

“(1) That the Applicant [Employer] pay the Respondent [Worker] weekly compensation at the reduced rate of $110 from 1 January 2004 under s 40 of the Workers Compensation Act 1987, such weekly payments to continue in accordance with the provisions of the Act.
(2) No order as to costs.”

1. The Arbitrator stated in paragraph 2 of the ‘Statement of Reasons for Decision’:

“Initially the Applicant was also seeking an order terminating the Compensation Court’s further award for medical expenses in favour of the Respondent. However, at the initial telephone conference in this matter the Applicant abandoned that second aspect of its claim, agreeing instead to fund the Respondent’s gym subscription fees. (It was noted then that the Respondent is not on any medication.)”

1. Initially, in a letter attached to the ‘Appeal Against Decision of Arbitrator’ dated 21 January 2004, Mr Lettoof’s solicitors stated, “we are appealing the decision of the Arbitrator only as far as it relates to legal costs”. In a later letter dated 10 February 2004, they stated:

“This is an appeal in relation to, firstly, an order by the Arbitrator that no section 60 expenses be paid, and secondly, an order that no legal costs be paid.”

1. On 9 February 2004, Mr Lettoof lodged an ‘Application for Leave to Refer a Question of Law’. By letter dated 15 March 2004, a delegate of the Registrar of the Commission referred the Appellant to Rule 76(1) of the Workers Compensation Commission Rules 2003 which states that a question of law can only be referred for the opinion of the Commission constituted by the President “if a certificate of determination has not been issued in respect of the proceedings”. Because such a certificate was issued on 23 December 2003, the delegate said the Commission was unable to process the application and, accordingly, returned it.

1. In further submissions on appeal dated 8 June 2004, Mr Lettoof’s solicitors stated that they did not have the opportunity of referring the matter to the President:

“as the decision made by the Arbitrator was delayed and no indication was given at the hearing as to the lack of orders in respect of section 60 and also the order that no costs be paid to the respondent. We believe that in the circumstances we should be allowed to rely on submissions in relation to breach of natural justice and in the light of that we make the following submissions …”

1. The Respondent’s submissions to the appeal were received by the Commission on 29 June 2004.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are:

(1) Whether the Commission has jurisdiction to hear an appeal against the decision of the Arbitrator to make ‘No order as to costs’.
(2) Whether the Commission failed to deal or deal adequately with the Respondent’s application to terminate or reduce Mr Lettoof’s entitlement to future compensation for medical or other treatment or services pursuant to section 60 of the 1987 Act.

ON THE PAPERS REVIEW

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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. 

1. Neither party sought to adduce fresh evidence.

JURISDICTION TO HEAR THE APPEAL

1. 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 states:

“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.

Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.

(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. With regard to section 352(2) of the 1998 Act, a threshold question is whether there is a dispute before the Commission about an “amount of compensation”. Following previous decisions of the Commission (for example, Grimson v Integral Energy [2003] NSW WCC PD 29), the President of the Commission held in Tran v AP Facilities Pty Ltd [2004] NSW WCC PD 3, at paragraph 12, that “[a]n order for costs does not concern an ‘amount of compensation’”, and thus the Commission did not have jurisdiction to hear the appeal brought. So too in Mr Lettoof’s case, his application in relation to the Arbitrator’s costs order does not establish any jurisdiction in the Commission to hear the appeal. I note also that the transcript for the hearing on 4 December 2003 shows that no application was made by the parties for costs.

1. The second issue in dispute also affects the section 352(2) threshold, being whether the Commission failed to deal or deal adequately with the Respondent’s application to terminate or reduce Mr Lettoof’s entitlement to expenses pursuant to section 60 of the 1987 Act. The matter of section 60 expenses was not initially raised by Mr Lettoof’s solicitors in their ‘Appeal Against Decision of Arbitrator’ lodged on 23 January 2004. They submitted: “we are appealing the decision of the Arbitrator only so far as it relates to legal costs”. However, in their subsequent letter dated 10 February 2004, they stated:

“This is an appeal in relation to, firstly, an order by the Arbitrator that no section 60 expenses be paid, and secondly, an order that no legal costs be paid. We maintain that the applicant is relatively young [sic] the order that no section 60’s [sic] be paid or an order not allowing section 60’s [sic] would result in at least $5,000.00 or at least 20% of the amount awarded in the decision appealed against.”

1. Mr Lettoof’s solicitors also submitted in their letter dated 8 June 2004, that because the Arbitrator did not indicate his intentions with regard to the issue of section 60 expenses at the hearing, Mr Lettoof had been denied the opportunity of arguing that section 60 expenses should be awarded. The Respondent’s solicitors, in their reply dated 28 June 2004, submitted that “the Employer’s application to terminate or reduce the Worker’s entitlement to future section 60 (medical) expenses … was abandoned during the teleconference on 13 November 2003”, and referred the Commission to paragraph 2 of the Arbitrator’s ‘Statement of Reasons for Decision’, quoted in paragraph 7 above. Moreover, I note that the transcript of the hearing on 4 December 2003 shows that no mention was made of medical or other expenses during the course of the hearing.

1. My conclusion with respect to Mr Lettoof’s appeal in relation to the issue of section 60 expenses is that it is misconceived. It is clear that the Arbitrator and the Respondent believed that this issue was no longer in contention, the Respondent having abandoned its application to terminate or reduce the payment of section 60 expenses during the course of the teleconference on 13 November 2003. Furthermore, the issue of section 60 expenses was not raised by Mr Lettoof’s solicitors at the hearing. Thus, the Commission did not fail to deal with this issue because section 60 expenses were not in contention at the hearing on 4 December 2003, the order of the Compensation Court in that regard remaining undisturbed. Mr Lettoof was not, therefore, denied any opportunity in relation to section 60 expenses.

1. The wording of section 352(2) of the 1998 Act states that the “Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal” is both at least $5000 and at least 20% of the amount awarded “in the decision appealed against”. No amount of section 60 compensation was awarded in the decision appealed against because section 60 expenses were not in dispute. There was no ‘decision’ of the Commission on the payment of compensation pursuant to section 60. Thus, the Commission has no jurisdiction to consider the issue of section 60 expenses.

DECISION

1. Leave to appeal against the decision of the Arbitrator is refused.

COSTS

1. No order is made as to the costs of this leave application.

Robin Handley

Acting Deputy President  

20 May 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE