McMahon v Great Northern Consolidated Mines Limited
[2005] NSWWCCPD 95
•26 August 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:McMahon v Great Northern Consolidated Mines Limited [2005] NSWWCCPD 95
APPELLANT: Terry Wayne McMahon
RESPONDENT: Great Northern Consolidated Mines Limited
INSURER:NRMA Workers Compensation (NSW) Pty Limited
FILE NUMBER: WCC4282 - 04
DATE OF ARBITRATOR’S DECISION: 10 August 2004
DATE OF APPEAL DECISION: 26 August 2005
SUBJECT MATTER OF DECISION: Threshold issues on Leave to Appeal and Estoppel.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Abbott Pardy & Jenkins
Respondent: Rankin & Nathan
ORDERS MADE ON APPEAL: 1. Leave to appeal the decision of the
Commission constituted by an Arbitrator dated 10 August 2004 is refused.
2. No order as to costs of the Appeal.
BACKGROUND TO THE APPEAL
Terry Wayne McMahon (“the Appellant’) was employed by Great Northern Consolidated Mines Limited (‘the Respondent’) as a welder.
On 6 September 2000 whilst the Appellant was at work, hot metal sprayed and entered his left ear, as a consequence of which he claimed to have suffered conductive hearing loss in his left ear.
By way of Terms of Settlement dated 26 September 2002, the Appellant received compensation in the sum of $5,847.66 for 6.8% binaural hearing loss which he claimed resulted from noisy employment with the Respondent.
On 11 March 2004, the Appellant filed an Application to Resolve a Dispute claiming $1,240.00 in respect of 6.2% loss of hearing in the left ear as a consequence of the frank injury referred to in paragraph 2 above.
The Respondent filed a Reply on 5 May 2004 disputing the Appellant’s entitlements on the grounds that the Application for Determination filed by the Appellant in the former Compensation Court of New South Wales sought compensation both for industrial deafness resulting from noisy employment with the Respondent and for conductive deafness resulting from the injury on 6 September 2000.
The Appellant’s claim before the former Compensation Court was referred to a Medical Panel pursuant to section 122 of the Work Place Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’) in March 2002. A Medical Panel Certificate was issued on 31 July 2002. In answer to the question “does the Worker suffer from any hearing loss of either ear due to some condition or conditions other than the condition known as boiler maker’s deafness or any deafness of like origin?”, the Panel replied, “No”.
The Respondent claimed that the Medical Panel Certificate was binding pursuant to section 72(5) (now repealed but in force as at the date of the Appellant’s injury) of the Workers Compensation Act, 1987 (‘the 1987 Act’) and that the Appellant was therefore estopped from proceeding with his claim for hearing loss.
A Certificate of Determination with reasons was issued on 10 August 2004. The Arbitrator determined as follows:
“1.That the Applicant is estopped from claiming non-economic loss compensation from the Respondent up to the extent of the loss certified in Medical Panel Certificate number 17303/02.
2.That there be an award for the Respondent in respect of the Applicant’s claim for Permanent Impairment pursuant to section 66 of the 1987 Act”.
As at the date of the arbitration, any ‘medical dispute’ between the parties had not been referred to an Approved Medical Specialist such that the Arbitrator stated “this matter has not been referred to an AMS and this decision therefore relates only to whether the Applicant is estopped from bringing his claim”.
The Appellant filed an Appeal against Decision of Arbitrator on 3 September 2004 with accompanying submissions claiming that the Arbitrator erred in determining a question of law, namely estoppel, in that he incorrectly applied section 72 of the 1987 Act.
The Respondent filed submissions in reply on 24 September 2004 essentially re-affirming earlier submissions to the Arbitrator on the estoppel issue but in addition claiming that the Application for Leave to Appeal should be refused as the requirements of section 352 of the 1998 Act had not been met.
ON THE PAPERS REVIEW
Both parties have consented to the matter being determined ‘on the papers’. Having carefully read the Arbitrator’s Reasons, all the evidence before him, including both parties’ submissions, and the submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
Before proceeding to determine the appeal, the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
The Certificate of Determination was issued on 10 August 2004. The appeal was lodged on 3 September 2004. The appeal is therefore in time, in compliance with subsection 352(4) of the 1998 Act.
A further threshold issue arises, pursuant to subsection 352(2)(a) and (b), as to whether a determination concerning estoppel is a ‘decision’ that can properly be said to come within the threshold monetary limits.
The Appellant submits that the ‘decision’ of the Arbitrator is appellable on the basis that it comes within the definition of that term in subsection 352(8): no amount of compensation is at issue in the dispute therefore, subsection 352(2) does not apply (see Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
The Appellant cites the decision of Deputy President Fleming in Grimson v Integral Energy [2003] NSW WCC PD 29 (‘Grimson’) in support of this argument quoting this passage:
“16… There is, generally, a need to reconcile this section with the broad definition of ‘decision’ in subsection 352(8), which encompasses interim awards, rulings and directions. Consistent with this definition, it is possible to appeal against an interlocutory decision involving no monetary ‘award’”.
The Appellant further submits that “to the extent the whole of the Applicant’s entitlement to a section 66 lump sum pursuant to loss of hearing of the left ear equates to a maximum entitlement of $20,000.00, then there is a potential amount of compensation in excess of the $5,000.00 as referred to in section 352(2)…” and that the decision of the Arbitrator “… puts this amount of compensation in issue in this appeal”.
This argument does not stand in light of the decision of President Justice Sheahan in Miller v Anglican Retirement Village [2003] NSW WCC PD 33. The President said, “The Commission is only concerned with the substance of the claim before it and not unrelated claims which have not been made”. In the present case, the Appellant’s initial claim on the Respondent, by letter dated 25 June 2003, was in respect of $4,640.00 for 23.2% loss of hearing in the left ear. That was later amended in a letter dated 16 February 2004 wherein, the Appellant said, “Doctor Macarthur has now clarified the Applicant’s claim and we concede the claim is for 6.2% loss of hearing in the left ear, which equates to $1,240.00”. Accordingly, there is no evidence that the Appellant’s conductive hearing loss, if any, would reach the threshold requirements of section 352(2) of the 1998 Act. As the President said further: “The Commission is bound to determine the test [under s352 (2) of the 1998 Act] solely on the evidence before it”.
The Respondent submits that ‘Grimson’ does not assist the Appellant’s case citing paragraph 19 as follows:
“The amount of compensation at issue on the appeal must be determined by
reference to the amount of compensation at issue in the proceedings before the
Arbitrator at first instance. In Ingram v Norco Co-Operative Limited [2003] NSW
WCC PD 1, the argument that leave to appeal must be refused where a dispute
concerns a claim for lump sum compensation for permanent impairment and the
‘amount in issue’ has not been determined by reference to a report of an Approved
Medical Specialist was rejected. In circumstances where the Arbitrator’s decision
did not involve the making of a monetary award, but was nonetheless a ‘decision’
as defined in subsection 352(8) of the 1998 Act, it was possible to determine the
amount at issue by reference to the amount of the claim particularised in the
Application lodged in the Commission’s proceedings”.
The Respondent submits that, in the present case, the amount at issue, by reference to the amount claimed, is $1,040.00 [should read - $1240.00] and is therefore less than the amount prescribed by section 352(2) of the 1998 Act.
The ‘decision’ in Grimson involved an application for leave to appeal against a ‘decision’ relating only to costs. Leave to appeal was refused, essentially because a decision of ‘no order as to costs’ did not concern an “amount of compensation” either in the appeal or in the original claim. (The Employer, the Applicant in the original proceedings, discontinued the proceedings.) In refusing leave, Deputy President Fleming considered the meaning of “amount of compensation” then said this:
“30.The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against the decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000.00, and, if a monetary award has been made, (b) at least 20% of that award. The “…amount of compensation at issue on the appeal” is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularised by the Applicant”.
Deputy President Fleming also cited the decisions of Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5 (‘Mawson’) and Ingram v Norco Co-Operative Limited [2003] NSW WCC PD 1, the latter case being referred to in paragraph 20 above. Mawson involved the appeal of a “decision” to refuse to issue a ‘Direction to Produce Documents’. Deputy President Byron in that case, accepted the argument that such a claim had the potential to affect the Applicant’s ability to fully present his case and therefore affect the substantive issues, namely the whole of the compensation at issue in the Appeal. The amount “at issue” in that case exceeded $5,000.00.
CONCLUSION
Section 352 is a mandatory provision that must be met before leave is granted. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator, and be at least $5000.00. In this case, the amount of compensation at issue is $1240.00 in respect of 6.2% loss of hearing in the left ear.
For these reasons, the Application for Leave to Appeal the decision of the Arbitrator should be refused. It is therefore not necessary to address the other issue on appeal, namely whether the Arbitrator erred in his determination that the Appellant was estopped from claiming lump sum compensation.
DECISION
Leave to appeal the decision of the Commission constituted by an Arbitrator dated 10 August 2004 is refused.
COSTS
The Respondent submitted that the appeal was brought without proper justification and therefore the Appellant ought to pay the Respondent’s costs of the appeal.
I am satisfied that the Appellant had at least an arguable claim and in the circumstances I make no order as to costs.
Deborah Moore
Acting Deputy President
26 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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