NSW Department of Education and Communities v Colefax
[2012] NSWWCCPD 63
•31 October 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63 | ||||
| APPELLANT: | NSW Department of Education and Communities | ||||
| RESPONDENT: | Margaritte Joanne Colefax | ||||
| INSURER: | Allianz Australia Insurance Limited as agent for TMF | ||||
| FILE NUMBER: | A1-3295/12 | ||||
| ARBITRATOR: | Senior Arbitrator Mr M Snell | ||||
| DATE OF ARBITRATOR’S DECISION: | 9 August 2012 | ||||
| DATE OF APPEAL DECISION: | 31 October 2012 | ||||
| SUBJECT MATTER OF DECISION: | Leave to appeal; s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |||
| Respondent: | Maurice Blackburn Lawyers | ||||
ORDERS MADE ON APPEAL: | 1. The monetary threshold requirements of s 352(3) are not satisfied and as such there is no right of appeal. 2. The appellant employer is to pay the respondent worker’s costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
Margaritte Joanne Colefax was employed by the Department of Education and Communities (the appellant) as a teacher of English as a Second Language (ESL). She suffered a psychological injury due to bullying in about August 2008 whilst working at the John Purchase Public School. It is accepted that Mrs Colefax suffered an injury in the course of her employment and weekly compensation from time to time was paid on a voluntary basis. Mrs Colefax was certified as being partially incapacitated and was placed on selected duties at various schools from about December 2008.
In early October 2009, Mrs Colefax developed symptoms in her back and legs which were diagnosed as resulting from transverse myelitis. It is accepted that the condition does not result from the employment injury. This condition restricts Mrs Colefax’s mobility. She is affected by sitting in one place for more than 25-30 minutes by pain and increasing lower limb dysfunction.
The applicant resides at Normanhurst in the northern suburbs of Sydney. As at 21 December 2010, Dr Watson, Mrs Colefax’s treating neurologist, recommended that she should be looking for work within a distance-based radius of 25-30 minutes average drive from her home. Dr Lam, a rehabilitation physician who is also treating Mrs Colefax, agreed with Dr Watson’s recommendations.
Mrs Colefax was placed in suitable duties at schools within a 30 minute drive of her home up until late 2010. On 24 December 2010, she was transferred to work at Willoughby Public School which it is accepted is beyond a 30 minute drive from her home. Mrs Colefax did not attend to teach at Willoughby Public School and she was given a temporary placement at Asquith Public School, but this work ceased to be available to her in late 2011.
Mrs Colefax has not attended for duty at Willoughby school, notwithstanding the employer’s insistence. The Department of Education and Communities maintains that the driving restriction is not by reason of the work related injury but is due to the non work related injury of transverse myelitis, and therefore it is not required to provide suitable duties that comply with the driving restriction.
On 5 April 2012, Mrs Colefax lodged an Application to Resolve a Workplace Injury Management Dispute. She alleged that no suitable duties had been provided due to the Department’s non-compliance with the 30 minute driving restriction.
The Application came before Ms J Robichaud, a delegate of the Registrar, on 30 April 2012. Both parties were legally represented.
After hearing submissions from the parties, the Registrar’s delegate recommended as follows:
“The Registrar, with the consent of the parties, recommends the following:
1 That an independent Rehabilitation Provider of the applicant’s choice be appointed immediately.
2 That a valid Injury Management Plan and Return to Work Plan be established with consultation and consent of the employer, the applicant and the applicant’s Nominated Treating Doctor.
3 That the Rehabilitation Provider assist in locating suitable duties, not limited to but including Willoughby, West Epping and Turramurra with an assessment of OH&S issues for all potential work sites.
4 That the respondent pay the applicant’s costs as agreed or assessed.”
On 7 May 2012 Sparke Helmore, acting on behalf of the Department of Education and Communities, notified the Registrar that, pursuant to s 308 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), their client disputes the recommendation and reasons for it made by the Registrar’s delegate. They requested that the Registrar refer the matter to the Commission for determination.
On 4 June 2012, the matter came before a Commission Senior Arbitrator, Mr M Snell. After receiving further written submissions from the parties the Senior Arbitrator issued a Certificate of Determination on 7 August 2012 and an Amended Certificate of Determination on 9 August 2012.
The Amended Certificate of Determination states:
“The Commission determines:
1. The respondent is to provide suitable duties to the applicant, pursuant to Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998, at a school not more than 30 minutes drive to and from the applicant’s residence at Normanhurst. The suitable duties should be consistent with the certificates from time to time of the applicant’s nominated treating doctor, and should take account of the condition of transverse myelitis from which the applicant suffers.
2. The respondent is to pay the applicant’s costs of the proceedings, as agreed or assessed.”
The Department of Education and Communities appeals the Senior Arbitrator’s decision.
ISSUES ON APPEAL
The issues in dispute in the appeal are:
(a) whether the worker’s non work related medical condition is to be taken into account in determining the question of suitable duties pursuant to s 43A of the Workers Compensation Act 1987 (the 1987 Act), and
(b) whether the obligation to have regard to “other relevant circumstances” within the meaning of s 43A of the 1987 Act, namely the transverse myelitis condition, is an ongoing obligation or one that is limited in time to the point at which the worker has recovered from the work related injury.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal 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.
Time
The appeal was lodged within 28 days of the Senior Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
Monetary threshold
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of s 352(3) of the 1998 Act. That section provides:
“(3) There is no appeal under this section 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.”
The appellant submits that the issues the subject of this appeal could potentially involve monetary amounts greater than $5,000 in that the respondent worker has not performed suitable duties since 2011 as a result of the appellant’s alleged failure to provide her with suitable duties and as such, has not been able to derive her pre-injury income of approximately $900 per week as an ESL teacher.
Mrs Colefax submits that the subject of this appeal does not involve monetary amounts of greater than $5,000 in that the respondent worker is seeking an order that her employer provide suitable duties within 30 minutes of travel from her place of abode. Accordingly, the provisions of s 352(3) are not satisfied and the appeal should be rejected in its entirety.
The term “compensation” is defined in s 4 of the 1998 Act as follows:
“Compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”.
In the proceedings before the Senior Arbitrator the applicant did not seek an order for the payment of “compensation”. The application before the Commission was an Application to Resolve a Workplace Injury Management Dispute. In particular, the reason stated for the Application was in these terms:
“No suitable duties have been provided as the Department has not complied with the 30 minute restriction”.
The appellant submission that the issues the subject of this appeal could potentially involve monetary amounts greater than $5,000 because Mrs Colefax has not been able to derive her pre-injury income of approximately $900 per week as an ESL teacher is rejected. The application before the Commission does not involve a dispute as to the worker’s entitlement to weekly compensation and there has been no determination made by the Commission on that issue.
In circumstances where there is no monetary award made by the Senior Arbitrator the threshold question is to be determined by reference to the amount of the claim as particularised by the applicant: Grimson v Intergral Energy [2003] NSWWCCPD 29 at [30]. For the reasons that I have indicated in this case there was no amount of compensation claimed in the Application, hence there is no amount of compensation “at issue” on the appeal and the thresholds in s 352 of the 1998 Act have not been met.
This reasoning has been consistently applied in the Commission in: Sullivan v Illawarra Newspapers Holdings Pty Ltd [2006] NSWWCCPD 135; Hunter Area Health Service v Gilbey [2006] NSWWCCPD 136; Department of Community Services v Hickey [2006] NSWCCPD 320, and Railcorp v Lam Luu [2010] NSWWCCPD 44.
DECISION
The monetary threshold requirements of s 352(3) are not satisfied and as such there is no right of appeal.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal.
Judge Keating
President
31 October 2012
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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