Miller v Anglican Retirement Village
[2003] NSWWCCPD 33
•12 November 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
CITATION: | Geoffrey Miller v Anglican Retirement Villages |
| APPELLANT: | Geoffrey Miller |
| RESPONDENT: | Anglican Retirement Villages |
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited |
| FILE NO: | WCC 9472-2003 |
DATE OF ARBITRATOR’S DECISION: | 14 August 2003 |
| DATE OF APPEAL DECISION: | 12 November 2003 |
| SUBJECT MATTER OF THE DECISION: PRESIDENTIAL MEMBER: | Application for Leave to appeal against a decision of an Arbitrator dismissing the Applicant’s claim for medical expenses on the basis that employment was not a substantial contributing factor to the injury. President Justice Terry Sheahan |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: McDonnell Schroder |
| Respondent: A O Ellison & Co | |
| ORDERS MADE ON APPEAL: | Leave to appeal is Refused. |
THE APPEAL
On 4 September 2003 Geoffrey Miller, (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 August 2003. The appeal is against a decision by the Arbitrator to dismiss the Applicant’s claim for medical expenses on the basis that employment was not a substantial contributing factor to the injury.
The parties attended a conciliation conference and arbitration hearing on 8 August 2003. At the conclusion of the arbitration hearing the Arbitrator gave her decision to the parties orally and a Certificate of Determination listing the orders made as “1. That the Application be dismissed. 2. No order as to costs” was issued by the Commission on 14 August 2003.
The Arbitrator’s decision as explained at the conclusion of the arbitration hearing was that:
“…employment was not a substantial contributing factor to the worker’s current medical condition, being the pain in respect of the left thumb and the degenerative arthritis requiring a surgical procedure and, consequently, there is no entitlement to the medical expenses pursuant to section 60 of the Workers Compensation Act. The application is, therefore, dismissed, and there is no order as to costs.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), provides:
“354 Procedure before Commission
(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.”
Having regard to Practice Direction Number 1, the documents that are before me, and the submissions by the parties that the issue of leave 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.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352 Appeal 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.”
It is therefore necessary to consider the ‘threshold’ requirements in section 352(2) in regard to the amount of compensation at issue on the appeal.
SUBMISSIONS ON THE ISSUE OF LEAVE
On the threshold requirements of section 352 of the 1998 Act in regard to the amount of compensation at issue on the appeal, the Appellant Worker submitted:
“In this matter the worker seeks the cost of a suspension arthroplasty of the left thumb and the associated hospital costs and the associated anaesthetists fees and assistant surgeon’s fees. As such the amount to be appealed cannot be quantified in accordance with [section 352(2)(a) of the 1998 Act]. It is submitted that the condition of the appeal being at least $5,000.00 should not be applicable to this matter as this matter is effectively the threshold dispute. As such if the Applicant is successful in this Appeal, then in addition to achieving the payment of the surgery and associated fees, the worker would then presumably have some time off work recovering from the surgery which would be the subject of weekly payments entitlements and then potentially a claim under section 66 [of the Workers Compensation Act 1987]. In those circumstances it is submitted that the $5,000.00 threshold should not be applied in this application.
…
There is no fresh evidence sought to be introduced and it is noted that the Commission had been provided with all the Applicant’s medical evidence, written submissions and oral submissions made at the Arbitration on 8 August 2003.”The Respondent, however, submitted that:
“The only evidence before the Commission of the amount of compensation subject to the claim is in the report of Dr Yee of 15 January 2003 which states in the penultimate paragraph:
‘The operative procedure required is a suspension arthroplasty of the thumb. The approximate hospital cost is $1,500.00 for a two day stay in hospital. Surgical fees are approximately $2,000.00 plus fees of the assistant and anaesthetist.’
There is no evidence before the Commission that the amount of compensation in issue is at least $5,000.00. The only evidence before the Commission which assists is that of Dr Yee which prima facie estimate the costs at $3,500.00 plus the fees of an assistant and anaesthetist. There is no evidence of the amount that would be charged by an assistant or anaesthetist.
At point three in the Application for Leave to Appeal the Applicant submits that the $5,000.00 threshold should not be applied in this application. This is based upon the submission that the amount cannot be quantified and therefore should not be applicable and further that if successful then in addition to the payment of surgery and associated costs the worker would be entitled to bring a claim for weekly compensation and potentially a claim under Section 66.
The Commission will reject this submission. The Commission is only concerned with the substance of the claim before it and not unrelated claims which have not been made. It is speculation at best that the worker would be entitled to bring claims for weekly compensation and/or Section 66. There were no proceedings before the Commission dealing with weekly compensation or Seciton 66 claims and no evidence before the Commission in relation to weekly compensation or Section 66 claims.
The Commission is bound to determine the test under [section 352(2) of the 1998 Act] solely on the evidence before it. The worker may apply to adduce fresh evidence pursuant to [section 352(6) of the 1998 Act]. Such an application has not been made…”
EVIDENCE
In its ‘Application to Resolve a Dispute’, filed with the Commission on 1 May 2003, the Appellant in Section 2 headed ‘Medical Expenses’ stated that the amount he sought was “All costs including hospital stay, surgical fees, fees of assistant, anaesthetist fees etc…” and that the treatment or care he wanted was “Dr Yee to perform suspension arthrosplasty (sic) of left thumb.”
“N/A” was written beside Section 1 of that Application, entitled ‘Weekly benefits compensation’, and Section 3, entitled ‘Permanent impairment/pain and suffering’.
DETERMINATION OF LEAVE TO APPEAL
The appeal was properly made within 28 days of the making of the decision appealed against.
The Appellant Worker has made clear that he has no wish to make an application to admit fresh evidence. The only expenses quantified in the original ‘Application to Resolve a Dispute with the Commission’ consisted of $3,500.00 worth of surgical and hospital fees. The anaesthetist and assistant fees noted were not quantified. I, therefore, have no evidence before me that the claim could reach the threshold in regard to the amount of compensation at issue on the appeal, as required by section 352(2) of the 1998 Act.
It is clear from the above that the Appellant has not met the statutory requirements for leave to appeal the decision. The amount of compensation at issue on the appeal is less than $5000. In the circumstances leave to appeal cannot be granted.
DECISION
Leave to appeal the decision of the Commission constituted by an Arbitrator dated 14 August 2003 is refused.
COSTS
I make no order as to costs.
Justice Terry Sheahan
President
I certify that that this is a true and accurate record of the reasons for decision of President, Justice Terry Sheahan, Workers Compensation Commission
Registrar Date:
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