Murphy v Kalianna Enterprises Incorporated

Case [2006] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Murphy v Kalianna Enterprises Incorporated [2006] NSWWCCPD 35

APPELLANT:  Noel William Murphy

RESPONDENT:  Kalianna Enterprises Incorporated

INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd

FILE NUMBER:  WCC16284-03

DATE OF ARBITRATOR’S DECISION:          7 July 2004

DATE OF APPEAL DECISION:  2 March 2006

SUBJECT MATTER OF DECISION: Whether work was a substantial contributing factor pursuant to section 9A of the Workers Compensation Act 1987; discretion of the Arbitrator and whether the relevant case law was properly applied.

PRESIDENTIAL MEMBER:  Acting Deputy President Mary Walker

HEARING:On the Papers

REPRESENTATION:  Appellant: Nevin Lenne & Gross

Respondent: Arnold Lawyers

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

The decision of the Arbitrator dated 7 July 2004 is confirmed.

No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

  1. On 23 July 2004 Noel William Murphy (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 July 2004.

  2. The Respondent to the Appeal is Kalianna Enterprises Incorporated (‘the Respondent Employer’). 

  3. The Appellant Worker’s claim is that he suffered injuries to his left and right hips.  The Appellant Worker alleges that these injuries arose out of the nature and conditions of his employment and coincided with an injury to his back which occurred on 22 February 2003.

  4. The Appellant Worker claims medical and related expenses incurred as a result of the injuries sustained pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).

  5. The issues in dispute in relation to the claim for medical expenses before the Arbitrator were:

    “•Did the Applicant receive an injury arising out of or in the course of employment? (the 1987 Act)

    •Was the Applicant’s employment a substantial contributing factor to his injury? (the 1987 Act)

    •Are some or all of the Applicant’s medical and related expenses incurred as a result of treatment, services or assistance that was reasonably necessary for the compensable injury (the 1987 Act section 60).”

  6. A Certificate of Determination and attached Statement of Reasons were issued by the Workers Compensation Commission on 7 July 2004 and set out the decision of the Arbitrator as follows:

    “1.The Respondent Employer is not liable for the payment of the Applicant’s claim under s 60 of the Workers Compensation Act, 1987.

    2.        That each party pay its own costs.”

  7. The Appellant Worker seeks leave to appeal in order to have the decision of the Arbitrator revoked.

SUBMISSIONS ON LEAVE AND FRESH EVIDENCE

  1. The Appellant Worker submits the amount of compensation at issue in this appeal “is at least $15,000.00”.  Further, the Appellant Worker seeks leave to rely on new evidence.  The Appellant Worker seeks leave to rely on the report of Dr D. Conroy dated 20 July 2004 to establish that the cost of bilateral hip replacement surgery required by the Appellant Worker is more than $5,000.00.

  2. The Respondent…

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Murphy v Kalianna Enterprises Incorporated [2006] NSWWCCPD 35
Case
[2006] NSWWCCPD 35
Decision Date

CaseChat Overview and Summary

In the matter of Murphy v Kalianna Enterprises Incorporated, the appellant, Mr. Murphy, sought leave to appeal against a decision made by an arbitrator in a workers' compensation claim. The primary issue was whether the threshold requirements set out in section 352(2) of the Workers Compensation Act 1987 (NSW) were satisfied to grant leave for the appeal to proceed. Specifically, the dispute centred on whether the amount at stake met the statutory criteria of being at least $5,000 and 20% of the amount awarded in the decision appealed against. The appellant contended that the threshold requirements should be interpreted flexibly, while the respondent argued that the statutory language was clear and unambiguous.

The Commission examined the statutory language and relevant case law to determine whether the appellant's claim met the threshold criteria. The court considered previous decisions such as Mawson v Fletcher International Exports Pty Limited and Sheridan v Coles Supermarkets Australia Pty Limited, which established that the threshold requirements were to be applied strictly. The Commission concluded that the absence of an award for the cost of future surgery meant that the statutory threshold had not been met, as there was no amount awarded in the decision appealed against. Additionally, the appellant's claim for an amount that had not yet been incurred did not satisfy the requirement of having an awarded amount for the purposes of the appeal.

Based on the strict interpretation of the statutory language and the precedents set by previous cases, the Commission found that the appellant's application for leave to appeal did not meet the threshold requirements under section 352(2) of the 1998 Act. Therefore, the appeal was dismissed. The Commission emphasised the importance of adhering to the statutory criteria to ensure the finality of litigation and to maintain the integrity of the legislative scheme.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Practice Direction No. 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:“New EvidenceWhere a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.” The application of section 352(6) of the 1998 Act has been considered by the Commission in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7 (citing CDJ v VAJ [1998] HCA 67); Ian Sheridan v David Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 4 (‘Ian Sheridan’); Mitchell v NSW Department of Community Services [2004] NSW WCC PD 2; Rohloff v Diacut Pty Ltd [2005] NSW WCC PD 17; and Meltons Fertilisers Pty Ltd v Eddy [2005] NSW WCC PD 31. In Raisebore Pty Limited v Brendyn Wilson [2003] NSW WCC PD 40, at page 9, Deputy President Byron summarised the application of section 352(6) of the 1998 Act as follows:“The admission of new or fresh evidence in an appeal has been considered by the Commission in a number of appeals: (cf. Christopher Michael McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22; Shipman Pty Ltd v Matters [2003] NSW WCC PD 19, and Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7). In summary, the factors that weigh in favour of the exercise of a discretion to admit fresh evidence in an appeal include the following:•if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted: Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235;•the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings: Radnedge v Government Insurance Office of NSW (supra); Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80, and•the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case: Greater Wollongong City Council v Cowan (1955) 93 CLR 435; Warr v Santos [1973] 1 NSWLR 432; Harrison v Schipp (2002) 54 NSWLR 738, and Akins v National Australia Bank (1994) 34 NSWLR 155.” Deputy President Dr Fleming in Christopher Michael McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22 at page 4 outlined the factors weighing against the exercise of the discretion to admit fresh evidence:“•the interest in the finality of litigation and the importance of the ability of the successful party to rely on the outcome of the proceedings, Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287, •the prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and •the intention of the legislative scheme in relation to the nature of the proceedings.”

Decision

Reasons for decision

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 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. 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.” The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The issue raised by the Respondent Employer for consideration in respect to the Appellant Worker’s application for leave is that, as no amount was awarded in the decision appealed against and no amount is capable of being awarded pursuant to section 60 of the 1987 Act as the amount sought by the Appellant Worker has not yet been incurred, section 352(2) of the 1998 Act has no application. Also, as no award was made for the cost of future surgery the $5,000.00 threshold required by section 352(2) of the 1998 Act has not been met. Accordingly, the Respondent Employer submits that leave to appeal should be refused. The Application of the threshold requirements of section 352(2)(a) and (b) of the 1998 Act has been considered by the Commission in Mawson v Fletcher International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Ingram v Norco Co-Operative Limited [2003] NSW WCC PD 1; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3 (‘Sheridan’); Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5; Workcover Authority v Riordan [2003] NSW WCC PD 13 and in Grimson v Integral Energy [2003] NSW WCC PD 29.

Ratio Decidendi

Legal Principle Established

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