Parsons v BDS Recruit Regional Pty Ltd
[2006] NSWWCCPD 214
•31 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Parsons v BDS Recruit Regional Pty Ltd [2006] NSWWCCPD 214
APPELLANT: Guy Parsons
RESPONDENT: BDS Recruit Regional Pty Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC11161-05
DATE OF ARBITRATOR’S DECISION: 1 November 2005
DATE OF APPEAL DECISION: 31 August 2006
SUBJECT MATTER OF DECISION: Leave to Appeal, section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Slater & Gordon
Respondent: Turks Legal
ORDERS MADE ON APPEAL: 1. Leave to Appeal is refused.
2. No order as to costs.
BACKGROUND TO THE APPEAL
On 29 November 2005 Mr Guy Parsons (‘Mr Parsons/the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘Commission’) against a decision, dated 1 November 2005.
The Respondent to the Appeal is BDS Recruit Regional Pty Ltd (‘BDS/the Respondent Employer’). BDS employed Mr Parsons as a ‘Communications Officer’ when, on 29 October 2004, he alleges he was injured at work as a result of an assault on him. At the relevant time BDS was insured for workers compensation with CGU Workers Compensation (NSW) Ltd (‘the Insurer’). The Insurer acted for and on behalf of the BDS in the Commission proceedings and filed a ‘Notice of Opposition to the Appeal’ on 23 December 2005.
On 10 November 2004 Mr Parsons made a claim on BDS for weekly compensation payments from 29 October 2004 to 19 November 2004 (3 weeks) and for related medical expenses, including dentistry and physiotherapy. On 17 November 2004 the Insurer denied liability for the claim.
On 8 July 2005, Mr Parsons lodged an ‘Application to Resolve a Dispute’ in the Commission. The dispute was referred to an Arbitrator who, after unsuccessfully using her best endeavours to assist the parties to come to an agreed resolution of the dispute, proceeded to make a determination.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 November 2005, with an attached ‘Statement of Reasons’, records the Arbitrator’s orders as follows:
“1.Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2.Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987 [‘the 1987 Act’].
3.No Award as to costs.”
ON THE PAPERS REVIEW
Section 354(6) of 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.”
Both parties submit that the appeal may be determined on the papers. No fresh evidence is submitted.
I have before me all of the evidence and submissions that were before the Arbitrator, a transcript of the arbitration hearing and the submissions made on the appeal.
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 are set out in the Appellant Worker’s submission as follows (at [11] to [13]):
“11. The Appellant submits that the Arbitrator was in error as follows:
(i)The Arbitrator found at paragraph 33 of her decision that he Applicant’s injury occurred in the course of his employment. That is the whole of the time that the Applicant was at Narrabri was in the course of his employment. (sic)
Having found that the injury arose out of the worker’s employment then that employment must have been a substantial contributing factor to his injury
The Arbitrator was in error in not finding that if a worker receives injury arising out of their employment then employment must be a substantial contributing factor – per
·Mercer v ANZ Banking Group Limited (2000) 48 NSW LR 740; 20 NSWCCR 70;
·Farrelly v Qantas Airways Limited (2001) 22 NSW CCR 331 and 336 [2001] NSW CC1162;(sic) and
·Jabdoul v Qantas Airways Limited (2001) 22 NSW CCR 229.
12.Once the Arbitrator found the injury arose out of employment then she was in error in not finding that employment was a substantial contributing factor to the employment because of the level of causal link to make this finding (sic).
13.The Arbitrator was in error in not correctly applying Mercer, Farrelly and Jabdoul (sited above) correctly”(sic).
The Respondent Employer submits that the Arbitrator’s decision was correct and the appeal should be dismissed.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation 1998, 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 Appellant Worker submits that the amount of compensation in issue in the appeal is 100% of an amount of $5,216.37, which is made up of two amounts:
(a)Weekly compensation from 29 October – 19 November at the weekly rate of $1,192.74. Totalling $3,578.22.
(b)Medical expenses in the sum total of $1,638.15.
The Respondent Employer submits the appeal does not meet the threshold in section 352(2)(a) and that leave to appeal should therefore be refused. It argues that:
“On the basis of the particulars of the claim as set out in Part 4.1 and 4.2 of the ARD [Application to Resolve a Dispute], the amount of compensation at issue on the appeal is less than $5,000. The ARD claimed $1,000 per week for 3 weeks and $1,036 plus the HIC [Health Insurance Commission] Charge in medical expenses. At the hearing those expenses totalled $1,440.15 (paragraph 17 of the judgement). Based on the claim as set out in the ARD, the amount at issue on the appeal is less than $5,000 and accordingly, leave should not be given to proceed with the appeal.”
The ‘Application to Resolve a Dispute’ annexed a statement of Mr Parsons dated 29 June 2005. In that statement he said, relevantly, “[m]y normal hours were between 7 am to 4 pm” and “ I was paid at hourly rate of $27.40. I earned approximately $1,000.00 per week. I also earned bonuses/overtime, of about $600.00 per week”. There was considerable discussion about Mr Parsons’ ‘current weekly wage rate’ at the arbitration hearing. The transcript records the submissions made at pages 43 to 46. These submissions demonstrate that the legal representatives of both parties had not adequately turned their mind to the calculation of Mr Parsons’ entitlement to weekly benefits. Doing the best I can to make sense of the submissions in the transcript, it seems there was agreement that Mr Parsons worked 38 hours per week, was ‘permanent part-time’, was not paid subject to an award and received $27.40 per hour. There also appeared to be agreement that section 42(1)(d) of the 1987 Act governed the calculation of Mr Parsons’ ‘current weekly wage’ for the purpose of the assessment of any weekly entitlement to compensation pursuant to section 36 of the 1987 Act. The ultimate response of his counsel following discussion and submissions to this effect was “Okay” (transcript at [14], page 46). It appears that the Arbitrator took this to mean that it was agreed that Mr Parsons was earning a guaranteed amount of $1,041.20 [38 x $27.40] per week. On this basis I accept that the claim was for $1,041.20 for three weeks, and not $1,192.74 as reasserted on appeal. This comes to a total of $3,123.60 in weekly compensation.
The ‘Application to Resolve a Dispute’ identified an amount of “$1036.00 + HIC. Treatment care or related expenses incurred or needed. Dental and Dr’s consultation” claimed as ‘Medical, hospital or related expenses’. Mr Parsons’ legal representatives confirmed at the arbitration that he sought a general section 60 order.
Receipts were in evidence for Bultje Street Medical Centre ($178.00), Orana Radiology ($125.45), Dr Brown, Dentist ($900) and Physiotherapy ($60.00). The Arbitrator identified the sum of $1, 440.15 as the claim for medical expenses. On my calculation of the receipts provided, this should have been $1,550.15. (a figure that is also referred to at page 4 of the transcript of the arbitration by Mr Parsons’ legal representatives). The figure of $1,638.15 submitted by Mr Parsons’ legal representatives on appeal includes $88.00 for the Bultje Street Medical Centre for which a receipt was not in evidence before the Arbitrator.
The Appellant asserts that:
“In addition an award was sought for ongoing section 60 expenses. It was the Plaintiff’s intention to have ongoing physiotherapy from Active Physiotherapy at $60.00 per session plus further dental treatment from the dentist at $100.00 per session.”
A general order may be made in relation to future medical and related expenses, however section 60 is an indemnity provision and it will remain for the Respondent Employer to assess the reasonableness of each section 60 claim if, and when, it is submitted in the future. It is difficult to determine, where a ‘future’, general order is sought, whether the amount at issue will exceed $5,000. The only guidance is the evidence and submissions made by the parties to the dispute. In this matter, there was no evidence of the likely cost of future medical expenses. The need for further physiotherapy or General Practitioner visits was not supported by the most recent report of the Mr Parsons’ treating Doctor, Dr Beange, who reported on 1 March 2005 that “[a]s per notes full recovery 18/11/04. No long-term sequelae expected. Fit & well, no restrictions”. There was no evidence of likely future dental expenses relative to the injury.
Accepting the Appellant’s submitted claim for medical expenses, on appeal, as $1,638.15, the total of the claim would not reach $5,000.00 ($3,123.60 plus $1,638.15 = $4,761.75). The threshold in section 352(2) is not met and therefore leave to appeal must be refused.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs.
Dr Gabriel Fleming
Deputy President
31 August 2006
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.
ASSOCIATE
0