Mthethwa v Buena Vista (Australia) Pty Limited
[2006] NSWWCCPD 18
•13 February 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mthethwa v Buena Vista (Australia) Pty Limited [2006] NSWWCCPD 18
APPELLANT: Mungisi Mthethwa
RESPONDENT: Buena Vista (Australia) Pty Limited
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC16279-04
DATE OF ARBITRATOR’S DECISION: 3 February 2005
DATE OF APPEAL DECISION: 13 February 2006
SUBJECT MATTER OF DECISION: Jurisdiction of Commission to determine dispute for weekly payments of compensation; section 289 Workplace Injury Management and Workers Compensation Act 1998; entitlement of claimant resident outside Commonwealth of Australia (section 53 Workers Compensation Act 1987).
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Beilby Poulden Costello,
Lawyers
Respondent: Abbott Tout, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 3 February 2005, is confirmed.
No order is made as to costs of this appeal.
BACKGROUND TO THE APPEAL
The Appellant Mr Mungisi Mthethwa, was born in Durban, South Africa on 14 June 1978. In 2003 he successfully auditioned in South Africa for a role in the Disney Theatre production, The Lion King, which was to be performed in Australia. He was employed by the Respondent, Buena Vista (Australia) Pty Limited (‘Buena Vista’) as a performing artist (singer and dancer).
Mr Mthethwa was granted a visa to travel to Australia and arrived in August 2003. He commenced rehearsals with Buena Vista on 3 August 2003. The Lion King opened in October 2003. Mr Mthethwa was required to perform six days per week in a total of eight performances per week, with each performance lasting approximately three hours.
Mr Mthethwa first experienced the development of low back pain at the end of each of his performances in or about January 2004. As part of the performance he was required to wear heavy and awkward costumes, in particular a large flower. The costume was difficult to manoeuvre, and required him to wear a harness in order to support it. Initially, Mr Mthethwa did not seek medical attention. However, when his symptoms increased he consulted Dr Ryan, a treating doctor, in February 2004. Dr Ryan recommended that he take two weeks off work and undergo osteopathic treatment.
On 10 February 2004 Mr Mthethwa lodged a claim for workers compensation. Liability was not declined by GIO Workers Compensation (NSW) Ltd (‘GIO’).
Mr Mthethwa’s back condition continued to deteriorate. Dr Ryan referred Mr Mthethwa to Dr Crichton, orthopaedic specialist, who referred him for an MRI scan. In June 2004 his back condition had deteriorated to the point that he was certified by Dr Crichton as being unfit for work from 4 June 2004 to 25 June 2004. He then returned to work on restricted duties.
Mr Mthethwa’s contract with Buena Vista came up for renewal on 4 October 2004. His contract was not renewed at that time because of his back injury. The non-renewal of his contract led to the expiration of his visa on 18 October 2004.
On 8 October 2004 Mr Mthethwa’s solicitor lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘Commission’). The application was registered in the Commission on 11 October 2004. The basis of the claim is that he suffered injuries to his back, knees and ankles arising from the “nature and conditions” of his employment, as a performing artist with Buena Vista from August 2003. He claims weekly benefits of compensation pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) for the period 17 October 2004 to date and continuing. In essence Mr Mthethwa sought a declaration pursuant to section 53 of the 1987 Act to entitle him to receive compensation outside of the Commonwealth of Australia jurisdiction.
The Insurer had not made compensation payments to Mr Mthethwa for the period 4 October 2004 and 17 October 2004, but ultimately paid the amount in question to him on 11 November 2004, without question.
Mr Mthethwa left Australia on 17 October 2004, as required by his visa conditions.
Mr Mthethwa has not received weekly compensation payments for any period after 17 October 2004.
The matter was listed for arbitration on 3 February 2005. Mr Mthethwa did not attend at the hearing, as he no longer resides in Australia. He was represented by his solicitor.
The Arbitrator delivered an extempore decision in the matter at the conclusion of the proceedings, in the presence of the legal representatives of the parties, on the same day.
On 11 March 2005 Mr Mthethwa’s Solicitors lodged in the Commission, an ‘Appeal Against Decision of Arbitrator’ against that decision.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 3 February 2005 records the Arbitrator’s orders as follows:
“1.There be an award in favour of the Respondent.
2.Each party is to pay its own costs.”
The Arbitrator did not immediately provide a ‘Statement of Reasons for Decision’ (‘Reasons’). However the transcript of the arbitral proceedings, dated 3 February 2005, identifies the issues in dispute as concerning the application of section 289 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and section 53 of the 1987 Act. The Arbitrator discussed the effect of Hickey v Ram Roofing Pty Limited (1997) 15 NSWCCR 616 (‘Hickey’) and an earlier decision of his own, Ciara Merriman v Anaco Holdings Pty Limited Matter No. 19187 of 2003 (‘Merriman’). In the instant case, the Arbitrator decided that the Commission had no jurisdiction to hear Mr Mthethwa’s application because no dispute was on foot between the parties at the time his application was lodged with the Commission, and that a dispute did not arise until after he left Australia and his weekly payments had ceased.
I note that on 24 January 2006, Acting Deputy President Handley revoked the Arbitrator’s decision in Merriman and he remitted the matter to the Registrar for referral to a different Arbitrator for determination of Mrs Merriman’s application.
ISSUES IN DISPUTE
The essential issues in dispute before the Arbitrator and in the appeal are:
(1)Whether the Commission has jurisdiction to determine the matter, having regard to section 289 of the 1998 Act, and if so
(2)whether Mr Mthethwa ceased to be entitled to weekly compensation when he left Australia to return home to South Africa on 17 October 2004, pursuant to section 53 of the 1987 Act.
ON THE PAPERS REVIEW
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.”
The Appellant Worker submits that the appeal may be determined on the papers and the Respondent Employer has offered no objections. Having regard to the submissions, evidence and 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal exceeds $5,000, but the Arbitrator made no award of compensation in the decision appealed against. Consequently, section 352(2)(a) of the 1998 Act is satisfied and section 352(2)(b) has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7).
The appeal was lodged initially on 11 March 2005. The ‘Certificate of Determination’ issued pursuant to section 294 of the 1998 Act is dated 3 February 2005, being the date on which the Arbitrator delivered his extempore decision. Subsequently, a separate ‘Statement of Reasons – Extempore Orders’ dated 11 February 2005 was issued by the Commission. This document contains a statement from the Arbitrator indicating that the orders set out therein, were in fact made on 3 February 2005, at the conclusion of the proceedings before him. There is no apparent reason why the two documents were issued separately, particularly having regard to the provisions of section 294(2) of the 1998 Act which require that a brief statement of reasons is to be attached to the ‘Certificate of Determination’. On the face of it, this did not happen. While, strictly speaking, the Appellant may not have complied with section 352(4) of the 1998 Act, it would appear that he has been misled by reference to the different dates, and has mistakenly regarded 11 February 2005 as the date on which the Arbitrator’s decision was formally made, and from which date, the time for lodging the appeal would run. Having regard to these exceptional circumstances, and for the avoidance of injustice, I am satisfied that I should extend the time for making the appeal, pursuant to Rule 77(8) of the Workers Compensation Rules 2003 (‘the Rules’). I do so, accordingly.
On 15 March 2005 the Commission rejected the application on the basis of failure to attach submissions detailing the arguments in favour of review of the decision to be appealed against and submissions as to whether the leave application and appeal could be determined ‘on the papers’.
Mr Mthethwa’s solicitors contacted the Commission and were informed that they were required to re-lodge the appeal and seek leave for an extension of time to appeal. A compact disc of the arbitral proceedings was provided to Mr Mthethwa’s solicitors, by the Commission, on 31 March 2005.
On 6 April 2005 Mr Mthethwa’s Solicitors lodged an ‘Application to Admit Late Documents’ which included an ‘Appeal Against Decision of Arbitrator’, grounds of appeal and submissions. The submissions seeking an extension of time to apply included the fact that, due to the Arbitrator not providing written Reasons for judgment and in light of the complexity of the issues involved; time was required to obtain a transcript of the proceedings to adequately address these issues. It was also submitted that Mr Mthethwa would be extremely prejudiced by the refusal to grant an extension of time.
Ultimately, the application to ‘Appeal Against Decision of Arbitrator’ was registered by the Commission on 20 April 2005.
I have considered and had regard to the ‘Application to Admit Late Documents’, but as I have already extended the time for making the appeal, for the reasons set out in paragraph 22, above, no further formal finding or order is required.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The submissions on appeal made by Mr Mthethwa, dated 5 April 2005, may be summarised as follows:
· The Arbitrator erred in finding that a dispute did not exist by reason of section 289 of the 1998 Act. Section 289 of the 1998 Act provides:
“ (1)A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a)disputes liability for the claim (wholly or in part) or
(b)fails to determine the claim as and when required by this Act.”
It was submitted that at the time of filing the appeal application, Mr Mthethwa had provided Buena Vista with a Workcover Certificate certifying him fit for suitable duties. Until that time, liability had been accepted for Mr Mthethwa’s claim and he continued to be in receipt of weekly payments of compensation. For reasons unexplained, Buena Vista ceased weekly benefits effective from 4 October 2004 and accordingly there had been a failure to ‘determine the claim as and when required by the Act’, pursuant to s289 (1)(b).
· In response to Buena Vista’s submission, which was accepted by the Arbitrator, that there was merely a delay in payment and not a declinature, it is submitted that the provision of the Workcover certificate is taken to be a further claim by Mr Mthethwa. Section 66(2B) of the 1998 Act defines a further claim to include:
“(a)Any claim by the person for compensation of a different kind from that claimed in respect of the injury or death by the initial claim; or
(b)Any claim that is supplementary to or associated with the initial claim.”
In addition, section 74(a) of the 1998 Act stipulates:
“(i)An insurer who admits liability to pay compensation must pay that compensation promptly following the admission of liability.”
Accordingly, it is submitted that Buena Vista erred in failing to determine the claim as required by section 289 of the 1998 Act.
· The Arbitrator erred in finding that Mr Mthethwa’s claim was a nullity by virtue of the fact that he filed proceedings in breach of section 289 of the 1998 Act.
· The Arbitrator erred in refusing Mr Mthethwa’s application to amend the ‘Application to Resolve a Dispute’.
· The Arbitrator erred in finding that Mr Mthethwa is required to obtain an award prior to the cessation of his residence in Australia. It is submitted that there is no provision in either the 1987 or 1998 Acts, which required Mr Mthethwa to be a resident in Australia for the determination of his claim. This is especially so given the fact that the Commission refused to list the matter for hearing prior to Mr Mthethwa’s departure from Australia.
The submissions made by Buena Vista may be summarised as follows:
· Mr Mthethwa ceased to be entitled to weekly benefits on 17 October 2004 as his visa expired on 18 October 2004 and he was required to depart Australia prior to that date.
· The Insurer was compelled to cease payment of weekly benefits by operation of section 53 of the 1987 Act which states:
“(1)If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.”
· Section 289(1) of the 1998 Act provides the Commission with jurisdiction to deal with a dispute about claims for weekly benefits in circumstances where liability is disputed or the insurer fails to determine the claim as and when required by the Act. In this case there is no “dispute” and the Insurer ceased payments in accordance with section 53 of the 1987 Act.
· There is no provision in the 1998 Act that would enable Mr Mthethwa to bring this application. Sections 101(5) and 106D(3) of the 1998 Act “were not carried forward” into section 289(1) of the 1998 Act. “Those sections apply only to existing claims. Therefore the Commission does not have jurisdiction to deal with ‘new claims’.”
· The Commission lacks jurisdiction to entertain Mr Mthethwa’s claim pursuant to section 289 of the 1998 Act. The cessation of the payment of weekly benefits coincided with the termination of Mr Mthethwa’s employment contract as a consequence of the expiration of his visa, requiring him to leave the country.
· Reliance is placed upon the determination of the Arbitrator in the matter of Merriman.
DISCUSSION AND FINDINGS
Did the Arbitrator err in finding that the Commission does not have jurisdiction to determine the matter, having regard to section 289 of the 1998 Act?
The Arbitrator concluded in the instant case that the Commission did not have jurisdiction to determine Mr Mthethwa’s application because there was no dispute on foot between the parties at the time his application was lodged with the Commission, on 8 October 2004.
Mr Mthethwa submits that at the time of lodgement of the application, he had provided Buena Vista with a Workcover certificate and that until that time, liability had been accepted by GIO for his claim. Mr Mthethwa submits that the Insurer ceased weekly payments effective 4 October 2004, giving no reasons for this at the time.
Mr Mthethwa was not actually receiving compensation payments at the time of lodgement of his application. However, Buena Vista submits, and the Arbitrator agrees, that there was merely a delay in payment and not a declinature. Furthermore, there was no correspondence from the Insurer to Mr Mthethwa at that time disputing liability. Payment of the weekly compensation for the period covering 4 October to 17 October was made in full by the Insurer to Mr Mthethwa on 11 November 2004. (I note that on page 4 of the transcript of the proceedings before the Arbitrator, there is some confusion in relation to dates. It was agreed that the date of lodgement of the application was 8 November 2004, when in fact 8 October is correct. The error is not repeated in the transcript).
In reply Mr Mthethwa submits that the dispute arose as a result of a failure under section 270 of the 1998 Act. Section 270 provides:
“(1)An insurer who commences weekly payments of compensation under this Division may require the worker to provide the insurer with:
(a)a medical certificate certifying as to the worker’s incapacity for work, and
(b)a form of authority signed by the worker authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the worker in connection with the injury to give the insurer information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the injury.
(2)The insurer may discontinue weekly payments of compensation under this Division if the worker fails to comply with a requirement under this section within 7 days after it is communicated to the worker by the insurer.”
It is established that Mr Mthethwa provided Buena Vista with a WorkCover medical certificate on 1 September 2004 covering the period from 1 September 2004 to 4 October 2004.
Mr Mthethwa submits that Buena Vista was obliged to continue to pay weekly benefits of compensation when a WorkCover certificate was given and that the only circumstances in which weekly payments may be discontinued is if the worker fails to comply with the legal requirements. Even so, he submits, Buena Vista would then be required to give notice under section 54 of the 1998 Act. Therefore, there was a failure to comply with section 270 of the 1998 Act and consequently, under section 289(1)(b), Buena Vista had failed to ‘determine the claim’. On this basis it is argued by Mr Mthethwa that a dispute does in fact exist and that the Commission may determine it.
On page 27 of the transcript of the proceedings before him, the Arbitrator states, in relation to the delay in payment of compensation for the period 4 October to 17 October 2004:
“I think that this is a sufficiently specialist Tribunal for me to take notice of the fact that there is sometimes, or usually, a hiatus in payment of compensation where compensation has been paid through the employer whilst there’s a partial incapacity and then when the employment ceases, there’s an administrative changeover, so moneys are paid directly to the applicant. As I said, payment was in fact, made on 11 November for that period of 4 to 17 October.”
The Arbitrator therefore determined that the delay in payment of weekly compensation between 4 October 2004 and 17 October 2004, was a delay for those reasons rather than a failure to consider the claim, and that the fact Buena Vista did not issue a notice under section 54 of the 1987 Act amounted to evidence that there was no intention to cease payment.
Buena Vista also argued that Mr Mthethwa’s application has claimed only weekly payments from 17 October 2004, which suggests that at the time of filing the application, the Insurer was not disputing the compensation payments between 4 October and 17 October 2004, that is to say, there was no dispute in existence between the parties, at that time.
Mr Mthethwa, proposes a second basis for founding jurisdiction, being that Buena Vista “disputed liability for the claim ex post facto, if you like, by virtue of the contents of the reply”. Buena Vista lodged a reply on 1 November 2004, after Mr Mthethwa had left the jurisdiction. It was noted by the Arbitrator at pages 25-26 of the transcript, that the reply did not raise the jurisdictional question that has arisen for determination, but rather, that an “allegation” the Solicitors for Mr Mthethwa made, “created” a dispute.
At the arbitration proceedings, Mr Mthethwa sought to amend his ‘Application to Resolve a Dispute’ in which he claimed compensation from 17 October 2004 onwards, on the basis that Buena Vista’s reply is a document, which clearly disputes the rights of their client to receive compensation. The Arbitrator refused this request on the basis of futility. At page 28 of the transcript the Arbitrator states:
“And the reason it is futile is because it comes back to the law regarding section 53 of the Workers Compensation Act 1987 and, as I perceive it, a lacuna in the Act that deprives people in the situation of Mr Mthethwa of the right to obtain an award, which is an essential prerequisite for obtaining the certificate under section 53 before they leave the jurisdiction. See Ciara Merriman v Anaco Holdings Pty Limited, Matter No. 19187 of 2003, a decision of mine dated 28 April 2004.”
In relation to the first point, on the evidence the Arbitrator was entitled to arrive at the conclusion that there was never a dispute as to the payment of weekly compensation for the period 4 October to 17 October 2004. There was, as he says, a delay in making the payment for that period, but there is no evidence to support a conclusion that the Insurer had declined to make the voluntary payments that gave rise to a dispute between the parties. Mr Mthethwa’s submission that Buena Vista had failed to determine the claim is also incorrect, as weekly payments were made for the whole of the relevant period. In any event, the claim for weekly payments of compensation in the instant case, is set out in the ‘Application to Resolve a Dispute’ lodged in the Commission. It states that the period of weekly compensation in dispute is “17.10.2004 to Date and continuing.” At the time of bringing the matter to the Commission, no dispute as to payment of compensation from 17 October 2004, had arisen.
In Merriman vAnaco Holdings Pty Ltd t/as Paddington Fresh Foods & Broadway [2006] NSWWCCPD 5, Acting Deputy President Handley revoked the Arbitrator’s decision based upon the conclusion that the Commission did not have jurisdiction to determine Ms Merriman’s application because no dispute was on foot between the parties at the time her application was lodged with the Commission. However, in that case, the Insurer had expressed an intention to cease making payments to Ms Merriman if she departed from Australia. Acting Deputy President Handley said:
“In my view, CGU, in its letter dated 1 December 2003, clearly disputed liability for ongoing payments of weekly compensation if Ms Merriman departed Australia. There was therefore ‘a dispute in connection with a claim for compensation’ (section 287(1)). Such a finding is, in my view, in line with the beneficial nature of this legislation, to which Ms Merriman’s solicitor drew attention in his submissions. In relation to section 289(1), CGU disputed Ms Merriman’s claim in part, in so far as it clearly stated, having become aware that Ms Merriman was proposing to depart from Australia, that it would cease payments if she departed Australia. This dispute already existed at the time Ms Merriman’s application was registered by the commission on 9 December 2003.”
That is not so in the instant case. While I concur in the reasoning and analysis of the Acting Deputy President and his application of the law in Merriman, the facts are quite different in this critical aspect. No such indication of a dispute or potential dispute was given in the instant case, prior to Mr Mthethwa's departure from Australia. A dispute if any, that may have arisen could only have arisen after the ‘Application to Resolve a Dispute’ was lodged in the Commission.
Further, I do not agree with Mr Mthethwa that the provision of a WorkCover medical certificate in relation to a claim should be regarded routinely, in effect, as a further claim within the meaning of section 66 (2A) and (2B). In any event, no basis for a dispute arose until after the lodging of the ‘Application to Resolve a Dispute’ on 8 October 2004, when Buena Vista declined to make further payments of compensation upon Mr Mthethwa leaving Australia, because of the expiration of his visa on 18 October 2004.
Turning to the second issue, I agree with the Arbitrator in disallowing an amendment to the ‘Application to Resolve a Dispute’, but not necessarily for the reason cited at paragraph 41, above. Section 23 of the 1987 Act provides that a person may institute proceedings to recover compensation even though that person resides, or at any time resided, outside New South Wales. Nevertheless, if the dispute in the instant matter cannot be referred to the Commission in the first place by reason of the operation of section 289, a subsequent step, that is the filing of Buena Vista’s “Reply”, in proceedings in which the Commission has no jurisdiction from the outset, cannot itself confer jurisdiction. For the same reason, the Arbitrator having found that there was no jurisdiction by virtue of section 289 of the 1998 Act, could not in my view, thereafter purport to confer jurisdiction upon the Commission by allowing the ‘Application to Resolve a Dispute’ to be amended, on the basis of a subsequent step taken in proceedings in which the Commission has no jurisdiction. The Section contains a prohibition against referring the dispute for determination by the Commission, subject to the circumstances stated, in the first place.
In the circumstances, I find that the Arbitrator did not err in finding that the Commission did not have jurisdiction to determine the matter, having regard to section 289 of the 1998 Act. Accordingly, this ground of appeal fails.
Did the Arbitrator err in finding that Mr Mthethwa ceased to be entitled to weekly compensation when he left Australia to return home to South Africa on 17 October 2004, pursuant to section 53 of the 1987 Act?
Buena Vista submitted to the Arbitrator that Mr Mthethwa was not entitled to compensation by virtue of the provisions of section 53 (1) of the 1987 Act. It submits that Mr Mthethwa ceased to reside in Australia and therefore, ceased to be entitled to receive weekly payments.
Mr Mthethwa submits that section 53 of the 1987 Act is not a bar to the receipt of compensation because the words “entitled to receive” mean that there is no necessity for an award extant before the applicant left the jurisdiction.
However, given that I have found that the Arbitrator did not err in concluding that the Commission had no jurisdiction, by reason of the provisions of section 289 of the 1998 Act, the matter is taken no further. It is now for Mr Mthethwa to pursue this matter at first instance, if he wishes, in relation to any dispute that may arise, or that he says has arisen, between the parties, after the ‘Application to Resolve a Dispute’ in the instant matter, was lodged in the Commission.
DECISION
The decision of the Arbitrator dated 3 February 2005 is confirmed.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
13 February 2006.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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