Paterson v Paterson Panel Workz Pty Limited - [2018] NSWWCCPD 27

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Paterson v Paterson Panel Workz Pty Limited [2018] NSWWCCPD 27
APPELLANT:	Timothy Ewan Paterson
RESPONDENT:	Paterson Panel Workz Pty Limited
INSURER:	GIO General Limited
FILE NUMBER:	A1-10/18
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	26 March 2018
DATE OF APPEAL DECISION:	6 July 2018
SUBJECT MATTER OF DECISION:	Benefits payable to workers who reside outside the Commonwealth; s 53 of the Workers Compensation Act 1987; meaning of “award”; application of transitional provision cl 17 of Sch 8 to the Workers Compensation Regulation 2016; application of Lee v Bunnings Group Limited [2013] NSWWCCPD 54
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Lamrocks
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s Certificate of Determination of 26 March 2018 is confirmed.

INTRODUCTION

This appeal concerns the application of s 53 of the Workers Compensation Act 1987 (the 1987 Act) and the jurisdiction of the Commission to make an order under that section after the expiration of the second entitlement period for payments of weekly compensation. In particular, it concerns whether the Commission has jurisdiction to make a declaration with respect to the permanence of a worker’s incapacity and his entitlement to continue to receive weekly payments of compensation.

BACKGROUND

On 18 October 2013, Timothy Paterson, the worker, suffered an injury to his left ankle and foot in the course of his employment with the respondent, Paterson Panel Workz Pty Limited when he landed awkwardly and fell after jumping from the back of a ute. He suffered consequential conditions in his right knee and left hip.
Mr Paterson was paid weekly compensation for more than 205 weeks, in respect of the injury sustained on 18 October 2013.
On 13 December 2017, Mr Paterson moved from Australia to the Philippines to live.
On 2 January 2018, Mr Paterson filed an Application to Resolve a Dispute (the Application), seeking medical expenses and lump sum compensation in respect of the injury on 18 October 2013. He claimed that he “[i]njured left ankle and left lower leg and secondary injury to the right knee and left hip caused by altered gait.” He claimed that the injury occurred while “working in the back of a utility motor vehicle and he jumped from the back of the vehicle to the ground, slipped and fell awkwardly and damaged his left ankle and foot.”
On 19 January 2018, Mr Paterson’s legal representative wrote to the respondent’s legal representative advising that Mr Paterson will seek to remain on ongoing weekly compensation while he resides outside of Australia pursuant to s 53 of the 1987 Act.
On 1 February 2018, the respondent’s insurer GIO General Limited (GIO) issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied further entitlement to weekly compensation on the basis that Mr Paterson had not obtained the requisite certificate or determination pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Paterson v Paterson Panel Workz Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWWCCPD 27
Decision Date: 6 July 2018

CaseChat Overview and Summary

Paterson v Paterson Panel Workz Pty Limited was a matter before the NSW Civil and Administrative Tribunal. The dispute was between the worker, Mr Paterson, and the insurer, Paterson Panel Workz Pty Limited, concerning the cessation of weekly compensation payments to Mr Paterson, who had moved outside the Commonwealth. The case required the Tribunal to determine the meaning of “award” under s 53 of the Workers Compensation Act 1987, and the application of the transitional provision cl 17 of Sch 8 to the Workers Compensation Regulation 2016. This matter also involved the application of Lee v Bunnings Group Limited [2013] NSWWCCPD 54.

The Tribunal found that Mr Paterson had ceased to be entitled to weekly payments of compensation under s 53 of the 1987 Act, as he no longer resided in Australia. The Tribunal examined whether the incapacity for work resulting from the injury was likely to be of a permanent nature, as required by s 53(1). The Tribunal determined that the cessation of weekly payments was valid and in accordance with the legislative provisions. The Tribunal also found that cl 17 of Sch 8 did not apply to this case, as Mr Paterson had already been receiving weekly payments of compensation before the commencement of the 2016 Regulation. The Tribunal relied on the decision in Lee v Bunnings Group Limited [2013] NSWWCCPD 54, which held that cl 17 of Sch 8 applied only to existing recipients of weekly payments who had not undergone a work capacity assessment before 1 September 2015.

The Tribunal confirmed the Senior Arbitrator’s Certificate of Determination of 26 March 2018. The insurer was entitled to cease weekly payments of compensation to Mr Paterson, who had moved outside the Commonwealth. The Tribunal found that the cessation of weekly payments was valid under s 53 of the 1987 Act, and that cl 17 of Sch 8 did not apply to this case. The Tribunal also found that the decision to dispute liability for weekly payments of compensation was not a work capacity decision, and that the Commission did not have jurisdiction to determine any dispute about a work capacity decision of an insurer.

Orders

Orders of the court

1. The Senior Arbitrator’s Certificate of Determination of 26 March 2018 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 43 of the 1987 Act provides:“43 Work capacity decisions by insurers(1) The following decisions of an insurer (referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court:(a)a decision about a worker’s current work capacity,(b)a decision about what constitutes suitable employment for a worker,(c)a decision about the amount an injured worker is able to earn in suitable employment,(d)a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,(e)a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,(f)any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).(2) The following decisions are not work capacity decisions:(a)a decision to dispute liability for weekly payments of compensation,(b)a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.(3) The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.” Section 53 of the 1987 Act provides: “(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature. Clause 17 of Sch 8 to the Workers Compensation Regulation 2016 (the 2016 Regulation) (hereafter referred to as cl 17 of Sch 8) provides:“(1) On and from 1 September 2015, the weekly payments amendments apply to the compensation payable under Division 2 of Part 3 of the 1987 Act (in respect of any period of incapacity occurring on and after that date) to an existing recipient of weekly payments in respect of whom a work capacity assessment has not been conducted before that date. (2) For the purposes of the application under this clause of the weekly payments amendments to an existing recipient of weekly payments who is in receipt of weekly payments of compensation immediately before 1 September 2015, the worker is taken (until a work capacity assessment is conducted in respect of the worker) to have been assessed by the insurer as having no current work capacity.” Mr Stockley’s submissions conveniently provide a legislative history to the provisions relating to the payment of compensation to persons residing outside of the state, including the legislative predecessors to the provisions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.