Programmed Maintenance Services Limited v Barter
[2005] NSWWCCPD 42
•24 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Programmed Maintenance Services Limited v Barter [2005] NSW WCC PD 42
APPELLANT: Programmed Maintenance Services Limited
RESPONDENT: Scott Barter
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 2012-04
DATE OF ARBITRATOR’S DECISION: 5 July 2004
DATE OF APPEAL DECISION: 24 May 2005
SUBJECT MATTER OF DECISION: Jurisdiction of the Commission to determine appeal in relation to work injury damages dispute; whether ‘damages’ is the same as ‘compensation’ for the purposes of section 352 of the Workplace Injury Management and Workers Compensation Act 1998; whether claim for ‘damages’ duly made; whether proceedings invalidly commenced in the Commission; whether the Arbitrator had jurisdiction to determine the application, and whether Arbitrator erred in finding that the claim existed ‘in substance’.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Taylor & Scott Solicitors
ORDERS MADE ON APPEAL: The Commission has no jurisdiction to determine the appeal.
The Appellant Employer is ordered to pay the costs of the appeal, as agreed or assessed.
BACKGROUND TO THE APPEAL
On 2 August 2004 Programmed Maintenance Services Limited, the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision dated 5 July 2004.
The Respondent to the Appeal is Scott Barter, who was the Applicant in the proceedings before the Arbitrator.
The Insurer is Allianz Australia Workers Compensation (NSW) Ltd.
Mr Barter was employed by the Appellant Employer and was working at the Hunter Institute of Technology on 25 May 2001. He was the acting foreman of his crew. He and two co-workers were undertaking maintenance work and in that process, were using a metal scaffold that was mounted on wheels. They were moving the scaffold from one side of the building to the other when it came into contact with overhead power lines carrying approximately 11,000 volts of electricity. Mr Barter suffered a severe electrical shock, but was resuscitated and taken to hospital. He has no memory of this incident. Sadly, one of his colleagues was killed while the other co-worker survived, as he was not holding the scaffold at the time.
Mr Barter ultimately lodged an ‘Application to Resolve a Dispute’ in the Commission in relation to a threshold dispute for work injury damages or commutation. The nature of the injury involved is psychological injury, and the date of injury is stated to be 25 May 2001.
Mr Barter made an earlier claim for lump sum compensation for non-economic loss under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in relation to orthopaedic injuries to his back and both legs, sustained in the incident of 25 May 2001. That claim was settled between the parties.
In relation to the current disputed claim, the Arbitrator noted the following at paragraph 4 of her ‘Direction’:
“On 18 February 2004 the Respondent lodged a Reply to that Application. Under ‘Issues in Dispute’ the Respondent claimed as follows:
·The Applicant is not entitled to a whole person impairment (WPI) amount pursuant to Section 66 for psychological injury because the date of injury was prior to 1 January 2002;
·If the Applicant has commenced proceedings not to obtain Section 66 compensation but on the basis that the 15% common law threshold needs to be determined, the Respondent submits that there is no ‘dispute’ pursuant to Section 314 of the Act. The proceedings have therefore been commenced invalidly and must be struck out;
·The Respondent has never received a claim for work injury damages by the Applicant. The Respondent therefore has not had to ‘determine’ the claim pursuant to section 281 of the 1998 Act.”
The Arbitrator was not satisfied that an immediate referral to an Approved Medical Specialist was the “correct pathway” and was not satisfied that such a referral would not cause undue prejudice to the Respondent [Employer].
The Arbitrator also found that Mr Barter failed in the original claim letter to set out sufficiently the particulars of the claim as required by the legislation, “see Section 282(1)(d) of the 1998 Act, Rule 79, and Part 2 Rule 6.11.4 of the WorkCover Guidelines.” She went on to say that while subsequent correspondence between the parties (especially Mr Barter’s letter of 8 January 2004) went some way to clarifying and rectifying the situation, full particulars of the claim were not provided to the Appellant Employer until after the teleconference, which was held on 14 May 2004.
The Arbitrator stated that she was satisfied that in substance a threshold dispute exists for the purposes of section 314(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). She stated, “I am also conscious that this is beneficial legislation and I am of the view that it is possible to proceed with this matter in a manner that protects the rights and interests of both the Respondent and the Applicant.”
The Arbitrator directed that the letter from Mr Barter to the Appellant Employer, dated 18 May 2004, setting out the particulars of the claim, which was served on the Appellant Employer and filed with the Commission on the same date, be taken as served again on the Appellant Employer, on the date of receipt of her Direction. She granted leave for that document to be accepted into evidence as a late document. She further directed that the Appellant Employer respond to and determine that claim as re-served within the time period outlined in section 281 of the 1998 Act. She stated that she was of the view that this would allow the Appellant Employer a proper opportunity to meet and respond to the claim against it.
Finally, the Arbitrator directed that in the event that the parties were unable to reach an agreement on the threshold issue in dispute, the matter was to be referred to an Approved Medical Specialist on terms agreed at the teleconference on 14 May 2004, but with the inclusion of any further, relevant medical evidence submitted by the Appellant Employer. She further stated that if there were additional matters, which the parties wish to draw to the attention of the Arbitrator prior to referral to the Approved Medical Specialist, she would expect that such matters could be addressed by discussion between the parties and in writing to the Commission.
ISSUES IN DISPUTE
The issues in dispute in this appeal, as put forward by the parties, are summarised as follows:
1.The Appellant Employer submits that the Arbitrator has erred in finding that, “in substance a threshold dispute exists for the purposes of Section 314(1)(a) of the 1998 Act”, and submits that a claim for common law damages was not duly made, that proceedings were commenced invalidly and that the Arbitrator therefore did not have jurisdiction to determine the matter.
2.In the alternative, the Appellant Employer submits that the Arbitrator erred in finding that, despite an earlier finding that Mr Barter failed in the original claim letter to set out sufficiently the particulars of the claim as required by the legislation, it was nevertheless possible to proceed with the matter as a claim existed in substance.
3.Mr Barter submits that the Commission has no jurisdiction to determine this appeal, because the monetary threshold provisions of section 352(2) of the 1998 Act are not satisfied.
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.”
The Appellant Employer submits that this appeal may be determined on the papers. Mr Barter makes no submissions on this issue. 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.
JURISDICTION/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 1998 Act, which provides:
“352Appeal 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 parties are in dispute as to whether the Commission has jurisdiction to determine this appeal. Mr Barter submits that the Commission lacks jurisdiction, because the monetary threshold provisions of section 352(2) of the 1998 Act are not satisfied.
The Appellant Employer submits that the Commission does have jurisdiction to determine the appeal.
Appellant Employer’s submissions as to whether the Commission, constituted by a Presidential Member, has jurisdiction to determine this appeal.
The Appellant Employer submits, and it is not in dispute, that the appeal was filed within 28 days of the decision appealed against, in accordance with section 352(4) of the 1998 Act (see paragraph 17).
It is further submitted that the monetary threshold requirements of section 352(2) of the 1998 Act have been considered in a number of Commission appeal decisions. Mr Barter’s purported claim is in relation to damages and involves a threshold dispute. Subsection 2 of the section needs to be reconciled with the broad definition of “decision” in section 352(8) of the 1998 Act, “which encompasses interim awards, rulings and directions”. The Appellant Employer submits that it is possible to appeal against interlocutory decisions, involving no monetary award (Grimson v Integral Energy [2003] NSW WCC PD 29; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7, “and others”).
The Appellant Employer contends that this claim involves a purported threshold dispute, which, if successful, will ultimately result in an award of damages in excess of the amount set out in section 352(2)(a) of the 1998 Act. It is further submitted that ‘compensation’ and ‘damages’ are one and the same as there is no separate provision dealing with appeals at the early stage of claims for damages.
It is further submitted that the amount of compensation/damages at issue on appeal is at least $5,000.
Alternatively, it is submitted that the only decision of the Commission that will be made ultimately, will be a finding in relation to the common law threshold for “whole permanent” [sic] impairment, rather than an award of compensation or damages. Any damages will not be awarded by the Commission but by a court of competent jurisdiction and consequently, this must be reconciled with the broader definition of ‘decision’ in section 352(8) of the 1998 Act.
The Appellant Employer also submits that no amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
Mr Barter’s submissions as to whether the Commission, constituted by a Presidential Member, has jurisdiction to determine this appeal.
Mr Barter submits that the Commission does not have jurisdiction to hear or determine this appeal. Leave of the Commission is required before an appeal can proceed to be determined.
The matter before the Arbitrator was confined to the resolution of a threshold question, “i.e. ‘whether a threshold dispute existed in relation to the degree of impairment, if any, sustained by the worker’.”
Mr Barter submits that the provisions of section 352 of the 1998 Act are mandatory, and the application for leave to appeal by the Appellant Employer does not satisfy the conditions in either section 352(2)(a) or (b). He contends that it must satisfy both.
He states that the determination by the Arbitrator did not relate to either damages or compensation. Accordingly, he submits, there is ‘no amount of compensation at issue’ in the appeal. The issue before the Arbitrator was limited to whether a dispute existed for the purposes of section 314(1)(a) of the 1998 Act.
Mr Barter submits that, “it is by legislative design” that appeals are not permitted against what “is best described as an interlocutory decision.” He contends that it is the intention of the legislation that technical challenges to interlocutory matters be removed and appeals to a Presidential Member be confined to substantive decisions.
Mr Barter relies on the submissions made before the Arbitrator, dated 18 May 2004, and further, adopts the reasons and the practical approach contained in the determination of the Arbitrator. He submits, “that this approach is consistent with the philosophical approach to resolution of claims contained in the scheme of the legislation.”
Finally, Mr Barter submits, “The respondent [Mr Barter] adopts the reasons of the arbitrator (16) and submits that the approach adopted was not only consistent with the legislation but was exercised in a manner that protected the rights and interests both of the respondent and the applicant. Indeed it is not suggested or submitted by the appellant/employer that it has been disadvantaged or prejudiced in any way.”
DISCUSSION AND FINDINGS ON JURISDICTION TO DETERMINE THE APPEAL
There are three principal issues in dispute in relation to jurisdiction on appeal, in this matter. First, whether there is any amount of compensation at issue on appeal, as required by section 352(2)(a) and (b) of the 1998 Act; second, whether the determination of the Arbitrator related at all, to either damages or compensation, as the issue before the Arbitrator was only whether a dispute existed for the purposes of section 314(1)(a) of the 1998 Act, and third, whether or not the legislation allows appeals against interlocutory as opposed to substantive decisions.
However, while Mr Barter claims, for the reasons outlined, that there is no jurisdiction for the Commission to determine this appeal, he has not disputed the Appellant Employer’s preliminary contention that for the purposes of section 352 (2) of the 1998 Act, ‘damages’ and ‘compensation’ “are one and the same” (see paragraph 21, above). This is germane to the question of jurisdiction of the Commission, constituted by a Presidential Member, to determine this appeal.
The Appellant Employer points out correctly, that there is no separate provision dealing with appeals at the early stage of claims for damages. However, this fact alone does not confer jurisdiction on a Presidential Member to determine an appeal of the nature of, and in the circumstances found in, the instant case. Moreover, it is fundamental that jurisdiction cannot be conferred even by the consent of the parties, if no jurisdiction is conferred by law. The Commission is a creature of statute and in the exercise of its role and functions it is restricted to the authority and powers conferred upon it, by or under the relevant legislation.
The Appellant Employer also states that the only decision of the Commission that will be made ultimately will be a finding in relation to the common law damages threshold for “whole permanent” [sic] impairment, rather than an award of compensation or damages. “Any damages ultimately awarded will not be awarded by the Commission but by a court of competent jurisdiction and so, this must be reconciled with the broader definition of ‘decision’ in subsection 352(8).” I agree that the Commission has no power to make an award of work injury damages. Moreover, the Arbitrator’s decision not to refer the matter to an Approved Medical Specialist at this point in time is not an issue in dispute in this appeal.
Section 352(1) of the 1998 Act provides that 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 against a decision in respect of the dispute, made by the Commission constituted by an Arbitrator. Section 352(2) of the 1998 Act provides that the Commission, constituted by a Presidential member, “is not to grant leave to appeal unless the amount of ‘compensation’ at issue on appeal” meets the monetary threshold set out in subsection 2(a) and (b) of that section. There is no reference to ‘work injury damages’ in section 352 of the 1998 Act.
Section 250 (1) of the 1998 Act provides in part, “in this Chapter” [Chapter 7 New Claims Procedures]:
“damages has the same meaning as in Part 5 (Common law remedies) of the 1987 Act…
work injury damages means damages recoverable from a worker’s employer in respect of:
(a)an injury to the worker caused by the negligence or other tort of the employer, or
(b)the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,
whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.”
Section 4 of the 1998 Act provides certain definitions for the purposes of the Act, including:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
Section 149 of Division 1 of “Part 5 Common Law Remedies” of the 1987 Act provides in part:
“(1)In this Part:
damages includes:
(a)any form of monetary compensation, and
(b)without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),
but does not include:
(a)compensation under this Act, or
(b)additional or alternative compensation to which Division 8 or Part 3 applies, or …
(2)A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made.”
Section 2A of “Part 1 Preliminary” of the 1987 Act provides, in part:
“(2)This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.”
By reason of the statutory provisions outlined above, ‘damages’ (including ‘work injury damages’) does not include, nor is it the same as, ‘compensation’ awarded under or by reason of the Workers Compensation Acts. Consequently, ‘damages’ and ‘compensation’ are not “one and the same”, as submitted by the Appellant Employer, notwithstanding that there is no separate provision in the 1998 Act conferring power on the Commission constituted by a Presidential Member, to determine appeals at the early stages of claims for ‘work injury damages’ disputes.
As correctly stated by the Appellant Employer, the disputed claim for damages, if it proceeds, will be determined in a court of competent jurisdiction, and not the Commission. This includes the disputed issue as to whether the claim has been duly made or not. The statutory power conferred upon the Commission, merely provides a ‘threshold, administrative and mediation framework’, which is preliminary to any substantive proceedings that may take place in a court of competent jurisdiction. The Commission is not a court of competent jurisdiction. It is not a court at all (Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited t/as Ascot Freightlines & Anor [2003] NSWCA 146).
It is clear that the ‘compensation at issue’ in section 352(2) of the 1998 Act, is not the same as, or a reference to, ‘damages’ at issue. Furthermore, section 352(1) does not apply to a dispute in connection with a claim for damages. It does apply to a dispute in connection with a claim for compensation. Consequently, section 352 does not enable a party to bring an appeal to the Commission, constituted by a Presidential Member, in relation to a claim for ‘damages’, nor does it empower the Commission, as so constituted, to deal with and determine such an appeal. As the Appellant Employer is not a party to a dispute in connection with a claim for compensation, I find that this appeal is not made in accordance with section 352(1) of the 1998 Act, and that I have no jurisdiction to proceed to determine the appeal, in accordance with section 352(1), (2) and (5) of the 1998 Act.
As stated at paragraph 35 above, the powers of the Commission, being a creature of statute, are limited to those powers expressly conferred upon it by the statute. Any attempted exercise of power beyond those conferred by the statute, would necessarily be of no legal effect (Commisioner of Police v Donlan, Commissioner of Police v Hanson, CA, 20 June 1995, unreported).
The consequence of my finding that the Commission lacks jurisdiction to determine this appeal, obviously, is that I have no power to proceed to deal with the substantive issues in dispute, in the appeal.
DECISION
The Commission has no jurisdiction to determine the appeal. The appeal is not successful.
COSTS
The fact that the Commission has no jurisdiction to determine a matter does not prevent it from dealing with the costs of the proceedings in which its absence of jurisdiction is established (Pezet v Pezet (1946) 47 SR (NSW) 45, see also Gazebo Hotels Pty Ltd v Sydney City Council (1980) 41 LGRA 91).
The Appellant Employer is ordered to pay the costs of the appeal, as agreed or assessed.
Gary Byron
Deputy President
24 May 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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