Norris v Frank Whiddon Masonic Homes Foundation

[2004] NSWWCCPD 68

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Norris v Frank Whiddon Masonic Homes Foundation Limited t/as Narraburra Lodge & Ors [2004] NSW WCC PD 68

APPELLANT:  Sandra Norris

RESPONDENT:  Frank Whiddon Masonic Homes Foundation Limited t/as Narraburra Lodge;

Frank Whiddon Nominees Pty Limited t/as Narraburra Lodge;

Frank Whiddon Nominees Pty Limited t/as Noel Warren Masonic Village, and

Frank Whiddon Masonic Homes NSW t/as Noel Warren Masonic Village.

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC19226-03

DATE OF ARBITRATOR’S DECISION:          29 April 2004

DATE OF APPEAL DECISION:  27 September 2004

SUBJECT MATTER OF DECISION:                Decision of Arbitrator that for the purpose of the proceedings, the Respondent is “Frank Whiddon Masonic Homes of New South Wales.”

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Telephone hearing 21 September 2004

REPRESENTATION:  Appellant:  Mr Robert Taylor instructed by McCabe Partners Lawyers

Respondent:  Mr Glenn Capel, Hicksons Lawyers

ORDERS MADE ON APPEAL:  Leave to appeal is refused.

THE APPEAL

1. On 6 May 2004 Sandra Norris sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (the Commission) against a decision, dated 29 April 2004.

1. The Respondents to the Appeal are:

Frank Whiddon Masonic Homes Foundation Limited t/as Narraburra Lodge (First Respondent);
Frank Whiddon Nominees Pty Limited t/as Narraburra Lodge (Second Respondent);
Frank Whiddon Nominees Pty Limited t/as Noel Warren Masonic Village (Third Respondent), and
Frank Whiddon Masonic Homes NSW t/as Noel Warren Masonic Village (Fourth Respondent).

1. The dispute before the Arbitrator related to a claim for weekly benefits compensation for the period 1 July 2001 to 30 June 2002, medical, hospital or related expenses and permanent impairment/pain and suffering compensation.

1. At the telephone conference on 29 April 2004 the Arbitrator made a determination that “The Respondent for the purpose of these proceedings and for the relevant period is ‘Frank Whiddon Masonic Homes of New South Wales’.”  Sandra Norris has appealed this decision.

1. The file contains a handwritten note apparently made by the Arbitrator, indicating that he accepted the Respondent’s submissions in relation to this matter.  There is no record of the submissions made by either party or the Arbitrator’s reasons for his decision.  The teleconference was not recorded and consequently, there is no transcript available.  It is Commission policy to record only arbitral proceedings and not telephone conferences.

1. By letter of 30 July 2004 the Solicitors for Sandra Norris wrote to the Registrar of the Commission, informing her that agreement had been reached to settle the matter for the sum of $27,500, and requesting that appointments with the Approved Medical Specialists be cancelled. 

1. On 9 September 2004 the Solicitors for Sandra Norris wrote again to the Registrar, confirming that she was prepared to accept the offer made by the Respondent in the sum of $27,500  “for her section 66 and section 67 entitlements”.  The Solicitors further advised that

   Ms Norris was prepared to accept an award in relation to compensation and “section 60 expenses including HIC charges up until the date of settlement”.  However, the Solicitors stated that she was not prepared to accept the offer made by the Respondent to be liable for her costs as against the fourth Respondent only.  The Solicitors indicated that the matter had not settled and until a decision was made about the other three Respondents, the matter could not settle.

1. A telephone hearing was held with the parties and their legal representatives on 21 September 2004. Submissions were made concerning the issue that is the subject of this appeal, and also as to the statutory threshold provisions in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The parties took the opportunity to enter into discussions at the telephone hearing in an attempt to settle the issue in this appeal, but were unable to reach agreement.

1. All documents that were before the Arbitrator at the telephone conference of 29 April 2004 and the transcript of the telephone hearing before me on 21 September 2004 are before me in this appeal.

JURISDICTION

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. I am satisfied that the appeal was filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).

1. Section 352(2) of the 1998 Act provides that the Commission constituted by a Presidential member is not to grant leave to appeal unless the amount of compensation at issue on appeal is both at least $5,000 (section 352(2)(a)), and at least 20% of the amount awarded in the decision appealed against (section 352(2)(b)). As no amount was awarded in the decision appealed against I find that section 352(2)(b) of the 1998 Act has no application in any event (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).

1. The parties were specifically requested to make submissions on the question of leave to appeal and the threshold provisions of section 352(2), first in the directions dated and issued by me on 1 September 2004 and then in the course of the telephone hearing.

1. Mr Taylor for Sandra Norris, submitted at the telephone hearing that the proceedings between the parties had not yet settled because the determination made by the Arbitrator as to the Respondents in the matter, remained in dispute.  He said that there could be no settlement of the whole dispute until the matter on appeal is determined.  While indicating that the amount claimed is still in issue he stated that there had been a “tentative agreement, I think, for $27,500”.   However, in addressing the requirement of section 352(2)(a) he went on to say “…clearly there’s more than $5,000 at issue because, really, it [the issue in dispute] comes down to who is the award to be made against.”  The two items of correspondence referred to earlier make no reference to a “tentative” agreement between the parties as to the amount of compensation.  On my reading of the correspondence from the Solicitors for Ms Norris, each letter is clear and unequivocal about the amount agreed between the parties, notwithstanding that the dispute between them has not settled in its entirety.  

1. The Respondents submitted that section 352(2) of the 1998 Act was not satisfied because there was no amount of compensation in issue and consequently, leave to appeal should not be granted.

2. I find that the parties have agreed upon the sum of $27,500 as the amount of compensation to be paid; that this agreement is still on foot, and that the issue that is the subject of this appeal is the only outstanding issue in dispute between the parties. In the circumstances it is clear that notwithstanding that the proceedings between the parties have not yet concluded, there is no amount of compensation at issue in this appeal. The amount of compensation payable has been agreed. The only issue in this appeal is who is liable to pay the $27,500. Consequently, I am precluded by section 352(2) of the 1998 Act from granting leave to appeal.

DECISION

1. Leave to appeal against the decision of the Arbitrator is refused.

THE FUTURE CONDUCT OF THE MATTER

1. The Application to Resolve a Dispute has not been discontinued and is therefore, still on foot.  The parties will need to assess where it proceeds from here.  The current stale mate is obviously unsatisfactory to all parties, given that they have reached agreement as to the nature and amount of compensation to be paid.  If the parties are still unable to resolve the particular issue that is the subject of this appeal, and if the Arbitrator is to be requested to reconsider his decision as provided by section 350(3) of the 1998 Act, it is essential that all submissions made to him should be either reduced to writing or if oral, they should be recorded.   Should the Arbitrator agree to reconsider his decision, in the event that such a request is made, he should ensure that an adequate record of his reasons for decision is made. 

Gary Byron

Deputy President  

27 September 2004

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