Pinder v Jack & Kathleen Schlacter t/as Central Book Supplies
[2006] NSWWCCPD 219
•7 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Pinder v Jack & Kathleen Schlacter t/as Central Book Supplies [2006] NSWWCCPD 219
APPELLANT: Suzanne Pinder
RESPONDENT: Jack & Kathleen Schlacter t/as Central Book Supplies
INSURER:GIO General Ltd
FILE NUMBER: WCC21925-05
DATE OF ARBITRATOR’S DECISION: 20 April 2006
DATE OF APPEAL DECISION: 7 September 2006
SUBJECT MATTER OF DECISION: Leave to appeal; monetary threshold in section 352(2)(a) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Steve Walker & Associates
Respondent: Rankin & Nathan
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 16 May 2006 Suzanne Pinder (‘the Appellant Worker/Mrs Pinder’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 April 2006.
The Respondent to the Appeal is Jack & Kathleen Schlacter t/as Central Book Supplies (‘the Respondent Employer/Central Books’).
In 2000 Mrs Pinder started work for Central Books as a book distributor. Her job involved receiving, sorting, delivering and collecting book orders for schools. The work was heavy and demanding and required her to regularly lift cartons weighing up to 15 kilograms. As a result of her duties she developed back pain and ceased work because of that pain in May 2002 and has not resumed paid employment since that date.
Her claim was accepted and voluntary weekly compensation payments are continuing, but her claim for certain medical and hospital expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) was declined in or about August 2005. As a result an Application to Resolve a Dispute was registered in the Commission on 30 December 2005. By its Reply filed on 27 January 2006 the Respondent Employer denied that Mrs Pinder was entitled to an award for the payment of section 60 expenses on the grounds that the expenses were not incurred as a result of an injury received by her in the course of her employment and that the expenses were not reasonably necessary.
On 21 March 2006 the Appellant Worker filed a schedule listing nine items for which compensation was sought under section 60.
The matter came on for an Arbitration hearing on 18 April 2006 when the claim for seven items was settled. The remaining items related to the cost of psychological counselling and were the subject to a determination by the Arbitrator who found in favour of the Respondent Employer.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions 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.
LEAVE TO APPEAL
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
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 (‘the 1998 Act’). That section 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.”
It is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 it was held at [27] that:
“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”
The amounts in dispute on appeal were particularised before the Arbitrator as being $543.00 for counselling provided by Ms Bruckner, psychologist, and $396.00 for counselling from Relatewell, the Family Relationships Institute in Victoria, giving a total of $939.00. However, the Appellant Worker argues that the need for counselling is ongoing and the claim was made on that basis.
The Respondent Employer submits that the monetary threshold is not satisfied as it is not possible for the Commission to make a prospective order for the payment of section 60 expenses. It is correct that section 60 is an indemnity provision (New South Wales Sugar Milling Co-op Ltd v Manning (1998) 44 NSWLR 442) and does not provide for the payment of future expenses. However, because the Arbitrator made an award for the Respondent Employer in respect of psychological counselling in general, the award has the potential to put compensation of more than $5,000.00 at issue depending on the anticipated cost of future counselling. The test in section 352(2) is determined by reference to whether the compensation claimed or particularised is in excess of $5,000.00. The amount of compensation claimed is determined by reference to the Application and the evidence in support.
The cost of counselling was met voluntarily by the Respondent Employer until 2 August 2005. Since then Mrs Pinder has not been able to afford to continue the treatment and the “arrears value of the treatment in issue on appeal is small but the amount of future treatment in issue is substantial” (Appellant Worker’s submissions, paragraph three).
The evidence dealing with the need for continuing counselling is found in the reports of Ms Bruckner of 23 May 2005 and 14 November 2005. The May 2005 report records that Mrs Pinder was initially suffering from severe depression, anxiety and an inability to cope. Counselling sessions were provided weekly from 23 September 2002 until March 2005 when they were reduced to fortnightly. As at May 2005 Mrs Pinder continued on anti depressant medication though at a reduced level. Action by her employer in about May 2005 caused her psychological condition to regress. As a result Ms Bruckner recommended a resumption of weekly counselling sessions. She thought that the Appellant Worker would “continue to move towards satisfactory health, but when the injury is exacerbated, problems will occur” (Ms Bruckner’s report 23 May 2005, page two). She was hopeful that “the strategies that she learns will help her to get through them alone, with only occasional need for psychological input”. She then added:
“When this episode is over, Mrs Pinder will resume fortnightly sessions, and reduce thereafter, to monthly monitoring eventually. I would hope that is so by the end of 2005.”
In her report of 14 November 2005 Ms Bruckner stated:
“Psychologically she should continue counselling/therapy on a regular basis for at least six months, with a view to ceasing this as she improves from the deterioration she has recently experienced. Her physical and mental well being are closely allied.”
The cost of the treatment is unclear. In an account from Ms Bruckner dated 20 February 2006 the counselling sessions for 2 August, 18 August and 25 October 2005 were billed at $181.00 each. In the Appellant Worker’s statement dated 21 March 2006 she refers in paragraph six to getting “psychological counselling at $140.00 per week”.
The above evidence makes it difficult to determine with any precision if the threshold in section 352(2)(a) has been satisfied. There is no clarification of what Ms Bruckner means by “on a regular basis” in her November 2005 report. Doing the best I can on the available evidence, if you allow for counselling sessions every fortnight at $181.00 per session over six months the expense is $2,353.00. Adding this to the outstanding accounts of $939.00 gives a total of $3,292.00, well below the $5,000.00 threshold in section 352(2)(a). In respect of the need for counselling further into the future, Ms Bruckner was of the view that there would only be a need for “occasional” psychological input.
The unsatisfactory state of the evidence makes it impossible for me to determine if the threshold in section 352(2) is likely to be met. In these circumstances I am not satisfied that more than $5,000.00 is at issue in the appeal and leave to appeal is refused.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
7 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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