NSW Police Service v Azimi
[2007] NSWWCCPD 125
•30 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:NSW Police Service v Azimi [2007] NSWWCCPD 125
APPELLANT: NSW Police Service
RESPONDENT: Zabiullah Azimi
INSURER:GIO General Limited
FILE NUMBER: WCC10029-06
DATE OF ARBITRATOR’S DECISION: 13 October 2006
DATE OF APPEAL DECISION: 30 May 2007
SUBJECT MATTER OF DECISION: Fresh evidence on appeal; sick leave; holiday pay; sections 49 and 50 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: DLA Phillips Fox
Respondent: Oates & Smith
ORDERS MADE ON APPEAL: Leave to appeal is refused.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 8 November 2006 NSW Police Service (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 October 2006.
The Respondent to the Appeal is Zabiullah Azimi (‘the Respondent Worker/Mr Azimi’).
On 4 July 2006 Mr Azimi’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission. In it he sought weekly compensation from 15 May 2002 until 9 September 2003 as a result of a psychological injury allegedly suffered by him as a result of the Appellant Employer’s delay in confirming him as a Constable of Police.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 27 September 2006 (Arbitrator’s Statement of Reasons for Decision (‘Reasons’) paragraph nine) and the transcript reference to 16 October 2006 appears to be incorrect.
In its Reply filed on 25 July 2006 the Appellant Employer did not admit that the comparable earnings were as alleged by the Respondent Worker, but no issue was raised as to sick leave or any other leave allegedly paid to Mr Azimi. At the hearing the Arbitrator identified the issues as “injury, substantial contributing factor, section 11A and capacity” (T1.25). The Arbitrator confirmed these issues at page one of his Reasons published on 13 October 2006. Counsel for the Appellant Employer did not suggest that any other matters were in issue.
In a reserved decision delivered on 13 October 2006 the Arbitrator made the following award in favour of Mr Azimi:
“(a)The Respondent to pay the Applicant weekly benefits as follows:-
i)The amount of $881.79 per week pursuant to Section 36 of the Act for the period between 15 May 2002 and 14 November 2002 and totalling $22,926.54
ii)The amount of $443.93 per week pursuant to Section 37 of the Act between 15 November 2002 and 31 March 2003 and totalling $10,654.32;
iii)The amount of $451.50 per week pursuant to Section 37 of the Act between 1 April 2003 and 3 September 2003 and totalling $10,062.00.
(b)The Respondent to pay the Applicant’s reasonable medical expenses pursuant to Section 60 of the Act upon production of accounts or receipts.
(c)The Respondent to pay the Applicant’s costs as agreed or assessed.”
The Appellant Employer seeks leave to appeal the Arbitrator’s award.
PRELIMINARY MATTERS
On The Papers
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 Numbers 1 and 6, the documents that are before me, and the submission 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.
Fresh Evidence
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
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 Evidence
Where 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.” (emphasis added)
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.” (emphasis added)
The Appellant Employer’s solicitor seeks to rely on wage material said to have been received from her client after the Certificate of Determination was issued. Though the material was said to be attached to the Appellant Employer’s appeal, no documents were attached. The material is said to indicate that Mr Azimi received sick leave, other leave and his ‘salary’ for various periods covered by the Arbitrator’s award. It is not disclosed when that material was received or what steps were taken to obtain the material before the arbitration on 27 September 2006. Mr Azimi filed a wage schedule on 30 June 2006. The Appellant Employer did not file a wage schedule and counsel for the Appellant Employer stated at the hearing that his client had no “demur with the applicant’s allegations as contained in his wage schedule” (T10.9).
It is always important to draw a distinction between ‘fresh evidence’ and ‘more evidence’. For the following reasons, the application to rely on ‘fresh evidence’ on appeal is refused:
a) the material was not only in existence at the time of the arbitration but was in the Appellant Employer’s possession;
b) no application was made to the Arbitrator for an adjournment to obtain evidence as to wages or leave payments;
c) no explanation has been offered as to why the evidence was not obtained and tendered before the Arbitrator;
d) with basic preparation, the evidence could and should have been obtained and tendered before the Arbitrator, and
e) it has not been demonstrated that a refusal to admit the evidence on appeal will result in any, let alone a substantial injustice.
The Appellant Employer was legally represented at the Arbitration and had every opportunity to present its case. If it was thought that the wage material was relevant, it could and should have been tendered at the arbitration. In the absence of any attempt to explain why that was not done, the application to rely on the wage material as ‘fresh evidence’ on appeal is without merit and baseless.
Further, an appeal to a Presidential member is by way of a review. It is not a second hearing. An Arbitration is not a trial run where matters omitted due to oversight or incompetence can be argued on review at the whim of the unsuccessful party. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
To allow additional wage material into evidence would be to embark on a fresh hearing and that is not the purpose of a review under section 352 (see Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 [39]).
The application to rely on fresh evidence is refused.
Leave to Appeal
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Neither party has made any submissions as to whether the thresholds in section 352(2) are satisfied. The Appellant Employer’s argument is entirely dependent upon the admission into evidence on appeal of wage material that was in existence well before the date of the arbitration. The application to rely on that wage material as fresh evidence is refused. As a result there is no evidentiary or other basis for the Appellant Employer’s argument. It has made no submission that the Arbitrator’s decision discloses any error of fact, law or discretion. Its argument depends solely on additional wage material that is not in evidence.
In these circumstances no amount of compensation is “at issue” on appeal and, whilst the appeal has been filed within the time limit set in section 352(4), leave to appeal is refused.
ALTERNATIVE
If I am wrong on the leave to appeal issue it is appropriate that I make some observations about the merits of the appeal in general.
Sick Leave
The Appellant Employer argues that under section 50 of the Workers Compensation Act 1987 (‘the 1987 Act’) Mr Azimi is not entitled to both his sick leave and weekly compensation and, “as such, the Respondent [employer] seeks an adjustment to the Arbitrator’s current determination such that the Respondent [employer] receive credit for the sick leave payments already made to the Applicant for the period from 8 July 2002 until 23 August 2002”.
Section 50 of the 1987 Act provides:
“50 Weekly compensation and sick leave
(1) Compensation is payable to a worker in respect of a period of incapacity for work even though the worker has received or is entitled to receive in respect of that period any wages for sick leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.
(2) If a worker is paid compensation by the employer in respect of any period of incapacity for work in respect of which the employer is, or but for this section would be, liable under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment to pay to the worker any wages for sick leave:
(a) that liability shall, to the extent of the compensation so paid, be deemed to have been satisfied by that payment notwithstanding the terms of that Act, award, agreement or contract, and
(b) the amount of that compensation shall, for the purposes of subsections (4) and (5), be deemed to have been paid as compensation and not as wages.
(3) If a worker, in respect of any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, is paid wages for sick leave by the employer and either an award is made afterwards for the payment of compensation to the worker in respect of that period or the employer agrees afterwards that compensation be paid to the worker in respect of that period:
(a) the employer’s liability to pay compensation in respect of that period shall, to the extent of the wages paid, be deemed to have been satisfied by that payment, and
(b) the wages shall, to the extent of the compensation, be deemed for the purposes of subsections (4) and (5) to have been paid as compensation and not as wages.
(4) If a worker is paid any compensation in respect of a period of incapacity for work, the worker shall, in respect of any entitlement to sick leave, or wages for sick leave, accruing after the expiration of that period:
(a) if the worker has not also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or to have received, any sick leave or wages for sick leave in respect of that period, or
(b) if the worker has also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or not to have received, sick leave or wages for sick leave in respect of the whole of that period, but only in respect of a lesser period calculated as provided by subsection (5).
(5) The lesser period referred to in subsection (4) is a period which bears to the period of incapacity of the worker the same proportion as the wages paid to the worker in respect of the period of incapacity bear to the total amount of the wages and compensation paid to the worker in respect of the period of incapacity.
(6) In this section:
‘compensation’ means weekly payments of compensation under this Division.
‘wages’ means wages, salary, allowance or other payment.” (emphasis added)
In the present matter the relevant subsection is 50(3). Under that subsection, if an employer pays a worker wages for sick leave during a period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, those wages are deemed to satisfy, to the extent of the wages paid, the employer’s liability to pay compensation for that period (see Bellamy v Albury City Council (1997) 15 NSWCCR 534). The provision does not mean that the worker is not entitled to an award in respect of the period when the employer paid sick leave. Section 50(1) makes it clear that compensation is payable “even though the worker has received or is entitled to receive…wages for sick leave”.
Therefore, the Appellant Employer’s point is misguided. If Mr Azimi received sick leave in the relevant period, that does not mean that his award should be altered in the manner suggested by the Appellant Employer. That part of the award affected by the sick leave is deemed to have been satisfied and does not have to be paid again and Mr Azimi is entitled to have his sick leave re-credited. This is exactly the point made in the Respondent Worker’s submissions on appeal filed on 28 November 2006 and in its email and letter to the Appellant Employer’s solicitor dated 1 November and 14 November 2006 respectively.
Recreation and Other Leave
The Appellant Employer’s second point is that from 2 September 2002 to 7 November 2002 Mr Azimi took “recreation, additional and study leave”. Holiday pay is dealt with in Section 49 of the 1987 Act, which provides:
“49 Weekly compensation payable despite holiday pay etc
(1) Compensation is payable under this Division to a worker in respect of any period of incapacity for work even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.
(2) The amount of compensation so payable is the amount which would have been payable to the worker had the worker not received or been entitled to receive in respect of the period any such payment, allowance or benefit.” (emphasis added)
It is submitted that leave taken by Mr Azimi in this period did not come within the terms of section 49 which is restricted to “any payment, allowance or benefit for holidays, annual holidays or long service leave”. In my opinion, recreation leave comes within the terms of section 49 and Mr Azimi is entitled to recover both compensation and any payment for holidays or recreation leave in the same period. If he wishes his holiday leave entitlement to be reinstated, he may forego his compensation or refund his holiday pay.
In respect of other forms of leave, Mr Azimi is not entitled to retain both compensation and any payments made that do not come within sections 49 or 50. However, the mere fact that he took other forms of leave in the period of the award does not disentitle him to compensation in that period and the award does not need to be amended in the manner argued by the Appellant Employer.
The Respondent Worker submits that he has never denied he has received “other types of pay” and does not now, nor has he ever, disputed that the Appellant Employer is entitled to credit in respect of other payments already made by it.
Salary Received
In addition, it is claimed that in the period from 30 August 2002 to 7 November 2002 Mr Azimi was paid his salary in the following amounts:
30.08.02 –12.09.02 $1,624.26
13.09.02 – 26.09.02 $1,552.47
27.09.02 – 10.10.02 $1,552.47
11.10.02 – 24.10.02 $1,552.47
25.10.02 – 07.11.02 $1,552.47
If that is in fact the case then evidence should have been called to that effect before the Arbitrator. For reasons that have not been explained, that was not done. The Arbitrator’s award discloses no error. It seems most unusual that Mr Azimi would have been paid his ‘salary’ between 30 August and 7 November 2002, a period when he was not working and his claim for workers compensation had been denied. However, if he was paid his ‘salary’ in that period he may well be required to refund the amount said to have been paid as ‘salary’, but he is entitled to retain his award of compensation. In the alternative, he could, with the agreement of the Appellant Employer, refund the amount by which his ‘salary’ exceeded his workers compensation payments in the period concerned with the balance being retained in satisfaction of the Commission’s award for the relevant period. Either way Mr Azimi is entitled to retain the award made in his favour.
The practical question in this matter is: what is the most efficient and practical way for the award to be paid? The Respondent Worker’s solicitor has openly conceded (both in letters to the Appellant Employer’s solicitor and in submissions on appeal) that their client’s entitlement under the award is substantially less than the total of the award ($43,640.86). In a ‘without prejudice’ letter from Oates & Smith to Phillips Fox dated 14 November 2006 it was stated that the figure due to Mr Azimi was, after adjustments, $13,343.81, but only on condition that his leave entitlements for the whole period be re-credited.
CONCLUSION
The end result is that this appeal is ill conceived and totally without merit. The award in this matter was entered on 13 October 2006 and has still not been satisfied at the end of May 2007. This is a totally unacceptable situation. An appeal under section 352 of the 1998 Act does not act as a stay of the award. Mr Azimi is entitled to be paid and I intend to refer this matter to the WorkCover of NSW to investigate why the award has not been satisfied.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
30 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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