Peter J Davis (Newcastle) Pty Ltd v McLeod

[2009] NSWWCCPD 122

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Peter J Davis (Newcastle) Pty Ltd v McLeod [2009] NSWWCCPD 122
APPELLANT:			Peter J Davis (Newcastle) Pty Ltd
RESPONDENT:			Wayne Anthony McLeod
INSURER:			GIO General Limited
FILE NUMBER:			A1-7629/08
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:			26 May 2009
DATE OF APPEAL DECISION:			1 October 2009
SUBJECT MATTER OF DECISION:			Leave to appeal – application of section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:			Acting Deputy President Michael Snell
HEARING:			On the papers
REPRESENTATION:			Appellant:	Rankin Nathan
Respondent:	Bale Boshev
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

1. On 22 June 2009 Peter J Davis (Newcastle) Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 May 2009.

1. The Respondent to the Appeal is Wayne Anthony McLeod (‘the Respondent Worker’).

1. The proceedings relate to an injury to the left leg sustained by the Respondent Worker on 15 December 2005, when he fell whilst working as a bricklayer with the Appellant Employer. He had about four months off work, resumed, ultimately got back to full hours, but ceased in November 2006. He has not worked since that time.

1. The Respondent Worker was examined at his solicitors’ request by Professor Ghabriel on 31 July 2006. That doctor noted ongoing complaints in the left knee and ankle, considered maximum medical improvement had been achieved, and assessed whole person impairment at 9%. The Respondent Worker made a claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) on 25 September 2006. The Appellant Employer met this claim. The parties executed an Application for Registration of Agreement Under section 66A dated 8 December 2006. That document provided for payment of a sum of $11,250.00 pursuant to section 66. There was no issue between the parties, at the arbitration hearing in the current proceedings, that this sum was other than consistent with the assessed impairment of 9%.

1. The Respondent Worker was reassessed by Professor Ghabriel on 30 April 2008. He reported the left knee and ankle complaints remained as they had been on his earlier assessment. On this occasion there were also complaints of left hip pain. Professor Ghabrial maintained his assessment of 9% impairment in respect of the left knee and ankle complaints. He assessed an additional 3% impairment in respect of the left hip symptoms. The Appellant Employer did not accept this claim voluntarily, and relied on a report of Dr Bets dated 25 September 2008 that assessed 8% impairment resulting from the injury.

1. An Application to Resolve a Dispute was registered on 25 September 2008, claiming pursuant to section 66 for a “Further 3%” impairment, together with $25,000.00 pursuant to section 67 in respect of pain and suffering.

1. The Respondent Worker was examined by an Approved Medical Specialist (‘AMS’), Dr Ostinga, on 13 January 2009, and an amended Medical Assessment Certificate (‘MAC’) was issued dated 6 February 2009. The MAC certified an impairment of 3%, associated with complaints of scarring and numbness. There was an issue regarding whether this assessed impairment represented an additional 3%, or whether its effect was that the Respondent Worker had 3% whole person impairment in total, resulting from his injury.

1. The matter proceeded to an arbitration hearing on 5 May 2009. Both parties were represented by counsel. No oral evidence was adduced. The arbitrator heard submissions, and reserved his decision.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 26 May 2009 records the Arbitrator’s orders as follows:

“1. The Respondent is to pay the Applicant the sum of $3,750.00 in respect of the 3% whole person impairment of the Applicant’s left lower extremity in respect of the Applicant’s injury of 15^th December 2005, in accordance with the Amended Medical Assessment Certificate of Dr Ostinga of 6^th February 2009;

2. Award for the Respondent in respect of the Applicant’s claim pursuant to Section 67;

3. Respondent is to pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

1. The Appellant Employer argues the MAC, on a proper reading, certified a total impairment resulting from the injury of 3%. On this basis, it is submitted the Respondent Worker was not entitled to additional lump sum compensation in these proceedings, as his impairment, as assessed by a binding MAC, was less than the lump sum compensation he had previously received. The Respondent Worker resists the appeal.

ON THE PAPERS REVIEW

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with

   section 352(4) of the 1998 Act.

1. Section 352(2) of the 1998 Act provides:

“(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.”

1. The Respondent Worker argues the amount of compensation at issue on the appeal is not at least $5,000.00, and therefore leave to appeal cannot be granted. On its face this is correct, as the total compensation awarded in the decision was $3,750.00. 

1. The Appellant Employer submits that a sum of $25,000.00 was claimed pursuant to section 67 of the 1987 Act. It submits the failure of the Arbitrator to award a sum pursuant to section 67 (there was an award for the employer on this head of claim) “must be erroneous and may at any time be the subject of a review application by the worker in the Commission which in the event that the current award made by the arbitrator in respect of lump sum compensation under section 66 stands, would entitle the worker to compensation in respect of pain and suffering”.

1. The Respondent Worker’s submissions have responded to this by stating “The respondent worker does not seek to appeal from the determination of the Arbitrator.”

1. I do not accept the Appellant Employer’s submission on this point. The only sum awarded in the decision appealed against was $3,750.00. If the appeal succeeded, this is the sum the Appellant Employer would be relieved of liability to pay. The phrase used in section 352(2) is “compensation at issue on the appeal” (emphasis added). The only such compensation is $3,750.00. Even if there is a possibility that the Respondent Worker may take some other proceedings in the future (and the precise basis of this suggestion is unclear) this does not change the fact that the compensation at issue on this appeal is $3,750.00. It does not meet the statutory threshold contained in section 352(2)(a). This simple application of the statute is sufficient to dispose of the Application to Appeal.

1. Out of deference to the Appellant Employer’s submissions, I should add that the Respondent Worker is now out of time to appeal the award against him, on his claim pursuant to section 67. Any appeal by him would now require an extension of time pursuant to Rule 16.2(11) of the Workers Compensation Commission Rules 2006. Such extensions are discretionary. It is apparent, from the Respondent Worker’s Notice of Opposition to the appeal, a deliberate decision was taken by him not to appeal. This would be likely to represent a powerful factor against the success of any application to extend time to appeal, that theoretically could be made by the Respondent Worker in the future (in a different statutory context see Itek Graphix Pty Ltd v Elliott (2002) NSWCA 104, 54 NSWLR 207). In the absence of a successful appeal by the Respondent Worker on the point, his claim for compensation pursuant to section 67 in respect of his compensated impairment resulting from the relevant injury, has resulted in an award in the Appellant Employer’s favour.

DECISION

1. Leave to appeal is refused.

COSTS

1. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

Michael Snell

Acting Deputy President  

1 October 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE