Namsari Pty Ltd v Mithite Pty Ltd and Paton
[2005] NSWWCCPD 151
•12 December 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Namsari Pty Ltd v Mithite Pty Ltd and Paton [2005] NSWWCCPD 151
APPELLANT: Namsari Pty Ltd
INSURERAllianz Australia Workers Compensation (NSW) Ltd
FIRST RESPONDENT: Mithite Pty Ltd
INSURERGIO Treasury Managed Fund
SECOND RESPONDENT Lesley Paton
FILE NUMBER: WCC7772-2004
DATE OF ARBITRATOR’S DECISION: 21 September 2004
DATE OF APPEAL DECISION: 12 December 2005
SUBJECT MATTER OF DECISION: Section 47 of the Workers Compensation Act 1987; Apportionment Calculation of weekly benefits.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: Turks Legal
First Respondent: Hunt& Hunt, Solicitors
Second Respondent: Bell & Partners, Solicitors.
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 21 September 2004, is revoked and the following decision is made in its place:
1. Orders 1 and 2 of the decision of the Arbitrator, dated 21 September 2004, are revoked and the matter is remitted to the Arbitrator to determine Ms Paton’s entitlement to weekly benefits compensation, in accordance with these reasons.
2. The decision is otherwise confirmed.
3. No order as to costs of the appeal.
THE APPEAL
On 18 October 2004 Namsari Pty Ltd (‘Namsari’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 September 2004. Namsari’s workers compensation insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’).
There are two respondents to the appeal. The first respondent to the Appeal is Mithite Pty Ltd, whose workers compensation insurer is GIO Treasury Managed Fund (‘GIO’). The second respondent to the appeal is the worker, Lesley Paton.
Ms Paton was employed as a cleaner by Mithite Pty Ltd, t/as Tempo Cleaning Services (‘Mithite’) when, in November 2000, she suffered an injury to her left knee. Mastercare Property Services (NSW) Pty Ltd (‘Mastercare’) also employed her five hours per week as a cleaner, until June 2002. In October 2002 Ms Paton suffered an injury to her right knee in the course of her employment as a cleaner with Namsari, t/as Tempo Cleaning Services. She has made a claim on both Mithite and Namsari for weekly compensation, medical expenses and lump sum compensation for permanent impairment and pain and suffering.
There is no dispute that Ms Paton suffered injuries to her legs as claimed. However liability for her claim as between Mithite and Namsari is disputed, as is the amount of her entitlement to compensation.
On 14 May 2004 Ms Paton lodged an ‘Application to Resolve a Dispute’ in the Commission. Mithite filed a Reply to this application on 21 June 2004 and Namsari filed a Reply on 5 July 2004.
The Insurers acted for and on behalf of Namsari and Mithite in the appeal. The worker was legally represented.
The matter was determined by an Arbitrator following a conciliation and arbitration conference. The decision and reasons were given orally, recorded and transcribed. A copy of the transcript is before me. A ‘Certificate of Determination’ was issued on 21 September, which records the decision, as follows:
“1. The First Respondent Mithite Pty Ltd is liable to pay the applicant weekly benefits at the rate, of $77.50 per week from 18.12.2000 to 18.1.2001, at the rate of $86.50 per week from 1.7.2002 to 30.10.2002 and at the rate of $43.25 per week from 1.11.02 to date and continuing.
2.The Second Respondent Namsari Pty Ltd is liable to pay the applicant weekly benefits at the rate of $43.25 per week from 1.11.02 to date and continuing.
3.There will be a general award to the Applicant in relation to s60 expenses.
4.The Respondents are to pay the applicant’s costs as agreed or assessed-the costs to be apportioned equally as between the two respondents.
5.I certify that the matter is complex for the purposes of determining the maximum amount of costs recoverable pursuant to Schedule 6 of the Workers Compensation (General) Regulation 1995.”
The application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Leave to appeal is therefore granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“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.”
Namsari seeks an oral hearing in this matter on the basis that the transcript of the Arbitral proceedings is poor and defective and that matters of evidence will require clarification. Mithite agree with this submission. Mithite also argues that “it is in the interests of justice that each party be allowed to speak to submissions “made by it and by the other parties”.
Ms Paton does not object to the matter being dealt with on the papers.
The parties have all made lengthy written submissions. I also have before me all of the documents that were before the Arbitrator and the transcript of the arbitration. The defects in the transcript are not of such magnitude, given the written evidence filed in the matter, that they demand an oral hearing.
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.
ISSUES IN DISPUTE
The issues in dispute in the appeal may be summarised as follows:
·Did the Arbitrator err in the apportionment of liability between Namsari and Mithite?
·Did the Arbitrator err in applying section 42(7) of the Workers Compensation Act 1987 (‘the 1987 Act’) and calculating the amount of Ms Paton’s entitlement to weekly compensation?
·Did the Arbitrator err in failing to give adequate reasons for her decision?
The Appellant argues that the decision should be set aside and a decision substituted that Mithite Pty Ltd “was liable for all compensation relative to wage loss resulting from her inability to perform her second job with Mastercare”.
Ms Paton and Mithite submit that the Arbitrator’s decision was correct and should be confirmed.
Did the Arbitrator err in the apportionment of liability between Namsari and Mithite?
Namsara argues that the Arbitrator made a number of errors that led to an incorrect apportionment of liability. These were
·failing to consider whether Ms Paton suffered an economic incapacity as a result of her injuries.
·giving insufficient weight to evidence in relation to Ms Paton’s ability to earn in her employment with Mastercare.
·finding that the injury to Ms Paton’s left leg had “healed”.
Mithite seek leave to file fresh evidence relevant to these matters, in the appeal i.e. a report by Dr Sorrenti dated 1 October 2004. Leave to file fresh evidence is refused. The parties had a full opportunity to file their evidence in the proceedings before the Arbitrator.
In my view the Arbitrator had sufficient evidence upon which to base her decision. She did not fail to consider the ‘economic’ incapacity that was a result of the injury, nor err in giving weight to the evidence that was before her. The weight to be given to evidence is a matter for the discretion of the Arbitrator and there is nothing to indicate that this discretion was exercised unfairly or unlawfully. The Arbitrator considered Ms Paton’s evidence, the medical evidence of Dr Deveridge, Dr Dunstan, Dr Meacham and Dr Sorrenti.
This ground of appeal is not made out.
Did the Arbitrator err in applying section 42(7) of the Workers Compensation Act 1987 (‘the 1987 Act’) and calculating the amount of Ms Paton’s entitlement to weekly compensation?
Namsari dispute that at the time of Ms Paton’s injury to her right knee on 30 October 2002 she had:
“. . . concurrent employment within the meaning of Section 42(7) of the 1987 Act. It argued that for the purposes of her claim against [it Ms Paton’s] current weekly wage rate should be determined pursuant to Section 42(1) and 42(4), should be calculated by reference only to her earnings with [Namsari] and should not include any earnings with Mastercare.
. . .
The Arbitrator further misdirected herself as to law in the application of Section 42(7), and in particular by finding that [Ms Paton] was at the relevant time (namely, the date of the injury with [Namsari] “employed” under 2 or more contracts, as [Ms Paton’s] evidence was that she had not performed any work for Mastercare since about 1 July 2002. Furthermore, having misdirected herself as to the meaning of “employment”, she ignored the fact that Section 42(7) also requires a worker, at the time of the injury, to have “worked at one time for one employer and at another time for another employer”. There was no evidence that [Ms Paton} was working for 2 employers at the relevant time. Even if she was employed by Mastercare at the time of her injury with [Namsari] she was not working for Mastercare at that time. The result of the Arbitrator’s misdirection as to the law is that she has made [Namsari] liable to pay compensation at a rate greater than the current weekly wage.”Ms Paton and Mithite argue that this submission must fail on a plain reading of the section. They argue that the section is directed to the existence of two or more contracts of service, concurrent at the time of injury, regardless of whether the worker was actually carrying out her duties under the contract at the time of injury.
The submissions by Namsari on appeal should be rejected. I accept the arguments of Mithite and Ms Paton that Namsari’s submissions do not accord with a plain reading of the section.
It was open to the Arbitrator to find, as a question of fact, that Ms Paton was employed under a contract of service with both Mastercare and Namsari at the time of the second injury. The Arbitrator has not erred in making this finding and in the application of section 42(7) of the 1987 Act to the facts.
Ms Paton has sought to file fresh evidence on appeal, being a supplementary statement and schedule of earnings, in relation to the correct calculation of her entitlement to weekly benefits. She concedes that the award “for some periods from 12 March 2004 to date of arbitration and continuing, results in the combined payments exceeding the relevant statutory rate”.
The decision of the Arbitrator in relation to weekly compensation should therefore be revoked and the matter referred back to the Arbitrator as soon as possible, in order that the correct entitlement be determined in accordance with these reasons and the fresh evidence filed on appeal.
I note that as a result of these proceedings there has been considerable delay in the correct calculation of Ms Paton’s entitlement. I have the whole of the Commission file before me and have read the transcript of the proceedings before the Arbitrator. It is clear that the parties submitted to her there was no disagreement on the quantum of the claim nor on the amount of weekly payments for the relevant periods. All parties presented the dispute to the Arbitrator as an argument over apportionment for the period following 30 October 2002. It seems that only on appeal have the parties turned their minds to a more considered assessment of exactly what Ms Paton’s correct statutory entitlement to weekly benefits compensation is. The parties are now urged to reach agreement on the correct entitlement, failing which the Arbitrator will determine it.
Did the Arbitrator err in failing to give adequate reasons for her decision?
The Arbitrator gave her reasons orally at the conclusion of the arbitration. They set out the evidence she considered persuasive and her findings on the facts. The reasons also set out her interpretation of section 47, which was in issue. While there is a certain looseness of language in the reasons (which might be expected in an oral decision) they were adequate to address the facts and issues in dispute.
DECISION
Order 1 and 2 of the decision of the Arbitrator, dated 21 September 2004, is revoked and the matter is remitted to the Arbitrator to determine Ms Paton’s entitlement to weekly benefits compensation, in accordance with these reasons.
The decision is otherwise confirmed.
COSTS
I make ‘No order as to Costs of the Appeal’.
Dr Gabriel Fleming
Deputy President
12 December 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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