PCR Plaster Setting Pty Ltd v De Brito
[2007] NSWWCCPD 159
•18 July 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:PCR Plaster Setting Pty Limited v De Brito [2007] NSWWCCPD 159
APPELLANT: PCR Plaster Setting Pty Limited
RESPONDENT: Manuel De Brito
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC15597-06
DATE OF ARBITRATOR’S DECISION: 23 February 2007
DATE OF APPEAL DECISION: 18 July 2007
SUBJECT MATTER OF DECISION: Application of section 52A of the Workers Compensation Act 1987 where weekly payments made pursuant to section 53 of the 1987 Act; sections 54 and 55 of the 1987 Act.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Edwards Michael Moroney
Respondent: Joseph Capogreco & Associates
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 23 February 2007 is revoked.
2.The matter is remitted to another Arbitrator for redetermination in accordance with these reasons.
3.No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 22 March 2007 PCR Plaster Setting Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 23 February 2007.
The Respondent to the Appeal is Manuel De Brito (‘the Respondent’).
The Respondent is presently 50 years of age. On 2 September 2000, whilst working for the Appellant at a building site at Lidcombe, he sustained an injury to his left leg when a circular saw he was operating slipped and cut his left thigh.
On 4 February 2004, the Respondent received an award from the District Court (exercising the residual jurisdiction of the Compensation Court) pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the rate of $150.00 per week from 12 September 2002 to date and continuing.
In the same proceedings, the court determined that the Respondent’s incapacity was likely to be of a permanent nature and that, in accordance with the provisions of section 53 of the 1987 Act, he was entitled to receive the award notwithstanding that he had left Australia and returned to his native Portugal.
On 20 April 2005, the Appellant, by its insurer, Employers Mutual Indemnity (Workers Compensation) Limited (‘EMI’) served on the Respondent a Notice pursuant to section 54 of the 1987 Act advising him that the award of weekly payments would be discontinued as from 1 June 2005 pursuant to section 52A of the 1987 Act on the grounds that weekly payments of compensation had been made in excess of 104 weeks and that the Respondent was not suitably employed nor seeking suitable employment at the time the Section 54 Notice was given.
On 3 October 2006 the Respondent filed an ‘Application to Resolve a Dispute’ in the Commission seeking reinstatement of weekly payments.
The parties attended a conciliation/arbitration hearing on 1 February 2007. On 23 February 2007 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1.That the Respondent pay the Applicant weekly compensation in accordance with the District Court Award of 4 February 2004 at the rate of $150.00 per week from 1 June 2005 to date and continuing under section 40 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”
It is against that decision that the Appellant now seeks leave to appeal.
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 Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act. The appeal was filed in time in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
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.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. Given the fairly limited issues on appeal, and both parties’ detailed submissions, and having regard to Practice Directions numbers 1 and 6, 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.
THE ISSUES IN DISPUTE
The Appellant appeals the Arbitrator’s decision on the grounds that the Arbitrator erred in law in the following respects:
“1.In failing to give any or any adequate reasons for finding that an insurer is precluded from issuing a notice and terminating payments under s.52A of the 1987 Act in circumstances where payments are being made pursuant to an award;
2.In failing to give any or any adequate reasons for finding (if such a finding was made) that an insurer is precluded from issuing a notice and terminating payments under s.52A of the 1987 Act in circumstances where an order/declaration under s.53 of that Act has been made;
3.In finding that an insurer is precluded from issuing a notice and terminating payments under s.52A of the 1987 Act in circumstances where weekly payments are made pursuant to an award;
4.In finding (if such a finding was made) that an insurer is precluded from issuing a notice and terminating payments under s.52A of the 1987 Act in circumstances where an order/declaration has been made under s.53 of that Act.”
In its ‘Notice of Opposition to Appeal’ filed on 20 April 2007, the Respondent concedes that:
“In circumstances where there is an award, but there is no order under s.53, … an award does not preclude termination under s.52A.”
It is the Respondent’s submission however that section 52A has no application in circumstances where payment of an award is made pursuant to section 53 of the 1997 Act.
In addition, the Respondent submits that the Arbitrator’s reasons, although “brief”, were adequate in the circumstances.
THE ARBITRATOR’S DETERMINATION AND REASONS
At paragraph 7 of the ‘Statement of Reasons’ the Arbitrator identified “agreed issues” between the parties as follows:
·“At all relevant times Mr De Brito has been partially incapacitated.
·That as at April 2005 Mr De Brito had received weekly compensation in excess of 104 weeks.
·That Employer’s Mutual stopped paying weekly compensation payments on 1 June 2005.
·That since 4 February 2004 Mr De Brito has not been suitably employed.”
At paragraph 8 the Arbitrator identified the issues in dispute in relation to the claim for weekly payments as follows:
·“Does Section 52A apply to a worker receiving payment pursuant to a determination under Section 53 of the 1997 Act?
·Was the Section 54 Notice properly served on the Applicant?
·Was the Section 54 Notice defective?
·Was Mr De Brito seeking suitable employment ‘at the relevant time’ pursuant to Section 52A?”
The Arbitrator then summarised the submissions made by counsel for both parties, and her “findings and reasons” were contained at paragraphs 20 to 26 inclusive. The Arbitrator concluded as follows:
“24.It is my opinion that given that an ongoing award for weekly compensation pursuant to section 40 of the 1987 Act was made by the District Court in 2004, with findings made pursuant to section 53, I am of the view that Employers Mutual was required to apply to the Commission for a review under section 55 of the 1987 Act if it was of the opinion and had evidence to demonstrate that there had been a change in circumstances warranting the cessation of Mr De Brito’s weekly compensation payments.
25.The decision that the provisions of section 52A of the Act could be applied despite the existence of an award in Mr De Brito’s favour was in my view misconceived from the outset. For this reason I find that Mr De Brito’s payments of weekly compensation of $150.00 per week were incorrectly terminated and should be reinstated from the date on which payments ceased, 1 June 2005, to date and continuing in accordance with the existing Award.
26.In view of my finding above, it is not necessary for me to consider the parties’ submissions concerning the other issues raised.”
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Section 52A and Section 53 Issue
Section 52A of the 1987 Act provides as follows:
“52A (1) Weekly payments of compensation in respect of partial incapacity
for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:
(a) The worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),
(b) The worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40(2)(B)),
(c) The worker has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).
(2)The relevant time for the purposes of this section is the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.”
The Arbitrator noted these provisions (para 20 of the Statement of Reasons) but appears to have concluded that the provisions of that section did not apply where there was in existence an award in the Respondent’s favour. Accordingly, the Arbitrator concluded that the Appellant’s ‘adoption’ of the provisions of section 52A was “… misconceived from the outset.”
The operation of Section 52A was considered in some detail by Burke J (as he then was) in Sippel v Carey’s (Tamworth) Pty Limited (2000) 19 NSWCCR 275 (‘Sippel’) as his Honour said (para 99):
“If the employer has, or asserts, a right to cease payments by virtue of s 52A, gives the requisite notice and otherwise complies with the section then he is entitled to discontinue payments. It is the obverse of the usual situation coming before the Court where the worker asserts a right to weekly payments by virtue of injury, incapacity and relevant nexus; the employer is unconvinced and declines to accede to the claim for weekly payments. It is the worker who is then aggrieved, as presumably he would be by a discontinuance under s 52A, and it is he who applies to the Court for relief. Under s 52A I think the employer asserts a right, existing award or not, acts accordingly and the ball is in the worker's court just as much as if the employer had rejected an initial claim for weekly payments. In that situation the Court can determine the factual, and legal, issues that arise as it always has”.
As I said earlier, the Respondent concedes that the existence of an award does not preclude termination of payment pursuant to section 52A of the 1997 Act.
I agree. There is simply nothing in the provisions of that section that would indicate that it has no application to an ‘award’, as opposed to voluntary payments. The section simply refers to “weekly payments of compensation”, and the Arbitrator has erred in her determination of this issue.
The principal issue in dispute between the parties is whether or not the provisions for termination of weekly benefits contained in section 52A apply in circumstances where a worker is in receipt of an award pursuant to the provisions of section 53 of the 1987 Act.
Section 53 is in the following terms:
“53(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.
(2)If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect to which the weekly payment is payable.”
The Respondent submits as follows:
“Section 53 is a special provision concerning workers who have left the jurisdiction. The worker has a statutory entitlement on compliance with that section. There is no requirement that a worker must establish that the three special provisions in s.52A(1) do not apply to the worker. The intention of Parliament is clear that s.53 deals exclusively as to rights of a worker where he is outside the jurisdiction. Put another way, if the Act applies to a worker whether within or outside the jurisdiction, what is the purpose of s.53?”
The purpose of section 53 is simply to provide a mechanism whereby a worker, in receipt of an award, and provided that certain conditions are met, can continue to receive such an award if he or she ceases to reside in the jurisdiction.
There is nothing in section 53 to suggest that its operation entitles a beneficiary of an award to avoid other provisions of the 1987 Act.
It is worth noting, as the Appellant points out, that sections 52, 52A and 53 “… appear sequentially in the Act, thus representing a ‘class’ of situations”. Section 53, like sections 52 and 52A of the 1987 Act is a ‘disentitling’ provisions. Payment of weekly benefits may be terminated in certain circumstances and only when certain conditions are met.
As the Appellant submits, and in my view, quite rightly:
“… There is nothing in s.53 to suggest that a worker becomes exempt from the operations of the legislation as a whole merely because he or she ceases to reside in Australia and that it would be an absurd and unjust situation if a worker living outside the jurisdiction were able to enjoy rights not extended to those living within the jurisdiction. Clearly, if a worker living overseas obtains suitable employment, having the consequence that his or her economic incapacity ceased or was reduced, it would be open to the employer to seek a review under s.55. Logically, there is no reason why such a worker would [be] excused the obligation to seek suitable work or the consequences of failing to do so.”
It is not at all clear from the Arbitrator’s determination what finding, if any, was made on this issue. In essence, it seems that the Arbitrator considered that where an award existed, with “findings” made pursuant to section 53, then the appropriate course for the insurer to adopt was to seek a review pursuant to the provisions of section 55 of the 1987 Act.
In other words, the insurer in seeking to terminate the award, should have pursued the “review” process contained in section 55 of the 1987 Act, rather than utilise the provisions of section 52A.
Having determined that the Arbitrator erred in her determination in relation to the provisions of section 52A of the 1987, I am also of the view that she has similarly erred in her purported determination that that section could have no operation where an award was being paid pursuant to section 53 of the 1987 Act.
In short, the Arbitrator has failed to determine the issues raised by the parties and simply concluded, for no apparent reason other than her own “view”, that the Appellant ought to have sought review or termination of the award pursuant to the provisions of Section 55 of the 1987 Act.
The ‘Adequacy of Reasons’ Issue
As I said previously, the Arbitrator’s determination appears to be based on her own “view” that the Appellant ought to have proceeded with a “review” pursuant to section 55 of the 1987 Act, and that its decision to implement the provisions of section 52A of the 1987 Act was “misconceived”.
No reasons have been given by the Arbitrator for this “view” nor has she addressed or considered detailed submissions made by counsel for the Appellant at the arbitration hearing as to the application of Sections 52A, 53 and 54 of the 1987 Act to the circumstances of this case.
As the Appellant points out, “… It is not even clear whether the fact that an order/declaration under s.53 had been made was germane to the Arbitrator’s decision, or whether the decision was based solely on the ‘opinion’ that the insurer’s invocation of s.52A ‘despite the existence of an award … was misconceived from the outset’”.
It is now well established that it is not necessary for an Arbitrator to give lengthy reasons for a decision (see Liverpool City Council v Trovato [2004] NSWWCCPD 15). Nonetheless, Commission Arbitrators have a statutory obligation to provide adequate reasons for a decision. A failure to provide adequate reasons constitutes an error of law (see Soulemezis v Dudley (Holdings) Pty Limited [1987] 10 NSWLR 247).
Reasons must be capable of unveiling clearly to the parties the grounds upon which a determination was made. As Deane J (as he then was) said in Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321:
“If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or nature justice) excludes the right to decide arbitrarily, irrationally or unreasonably … when the process of decision making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision”.
In the present case, the Arbitrator appears to have arbitrarily determined that the proper course to be adopted by the Appellant was to seek a review pursuant to section 55 of the 1987 Act. No reasons are provided for this “view”, nor are reasons provided as to why the Appellants reliance upon section 52A of the 1987 Act was rejected.
The Arbitrator has failed to exercise her statutory obligation in this respect, and has thus erred in law.
CONCLUSION
Section 52A of the 1987 Act is applicable where an award of compensation exists (see Sippel).
Section 52A may be invoked where an award of compensation is being paid pursuant to the provisions of section 53 of the 1987 Act.
Having made a determination as to the applicability of sections 52A and 53 of the 1987 Act, it is clear that there are a number of other issues which were not determined by the Arbitrator. Indeed, at paragraph 26 of her ‘Statement of Reasons’, she stated:
“In view of my finding above it is not necessary for me to consider the parties’ submissions concerning the other issues raised”.
Both the Appellant and Respondent agree that there remain other issues raised in the proceedings which require determination, for example, the validity of the notice given by the Appellant pursuant to section 54 of the 1987 Act, together with issues such as whether the Respondent was in fact seeking suitable employment at the “relevant time” within the meaning of section 52A of the 1987 Act.
In these circumstances, the appropriate course is to remit these outstanding issues to another Arbitrator for determination.
DECISION
The decision of the Arbitrator dated 23 February 2007 is revoked.
The matter is remitted to another Arbitrator for redetermination in accordance with these reasons.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
18 July 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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