Queanbeyan Rigging Services Pty Limited v McKenzie
[2005] NSWWCCPD 104
•5 September 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Queanbeyan Rigging Services Pty Limited v McKenzie [2005] NSW WCC PD 104
APPELLANT: Queanbeyan Rigging Services Pty Limited
RESPONDENT: David McKenzie
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC11232-2003
DATE OF ARBITRATOR’S DECISION: 5 October 2004
DATE OF APPEAL DECISION: 5 September 2005
SUBJECT MATTER OF DECISION: Leave to appeal; section 352 threshold not met, no ‘amount of compensation at issue on the appeal’.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Vandervords, Solicitors
Respondent: McDonald M J Johnson Lawyers
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator is refused.
The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 September 2004 Employers Mutual Indemnity (Workers Compensation) Limited sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 5 October 2004. The Insurer acts for and on behalf of Queanbeyan Rigging Services Pty Limited in relation to a workers compensation dispute with David McKenzie, a former employee. Queanbeyan Rigging Services Pty Limited as a corporation has ceased to exist.
Mr McKenzie suffered an injury to his back and knees at work on 18 November 1991. He has received weekly benefits compensation since that date. On 22 February 1995 the Compensation Court of NSW awarded him lump sum compensation for his injuries.
On 14 May 2003, the Insurer issued Mr McKenzie a ‘Notice of Discontinuance of Compensation Payments Pursuant to section 52A (section 54 Workers Compensation Act 1987, clause 15 Workers Compensation (General) Regulation 1995)’. Payments stopped on 26 June 2003. Prior to this Mr McKenzie had been in receipt of weekly compensation payments at the maximum statutory rate for a single person.
This matter has a long history in the Commission. It went before an Arbitrator for a telephone conference on 6 February 2004 and a conciliation and arbitration hearing on 27 February 2004. The Arbitrator issued a decision on 25 March 2004. This decision was later amended, purportedly pursuant to the ‘slip rule’ as the parties had been wrongly identified in the orders. The Insurer sought a reconsideration of the decision and on 5 October 2004 the Arbitrator issued a new ‘Certificate of Determination’ with a ‘Statement of Reasons-Extempore Orders’. This decision substantively affirmed the orders made previously but was expressed differently. Both parties have since made further submissions, on the basis of this latest determination. Although technically the appeal was filed (September 2004) prior to the formal decision being issued (October 2004) I propose to treat the appeal as relating to both the decision of 25 March 2004 (as amended) and 5 October 2004.
The Arbitrator made a number of orders on 5 October 2004. The following orders were purportedly made “with the consent of the parties”:
“(3)The Notice issued pursuant to section 54 of the Workers Compensation Act 1987 dated 14 May 2003 was not valid.
(4)The Respondent is to resume weekly payments of compensation to the Applicant at the maximum rate on the basis of partial incapacity pursuant to section 40 Workers Compensation Act 1987 as adjusted from 26 June 2003.”
The Arbitrator also ordered:
“(5)Award in favour of the Applicant in respect of the Applicant’s claim for weekly payments of compensation to take effect on and from 26 June 2003.”
A previous order in relation to a claim for medical expenses (pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’)) was rescinded and this aspect of the dispute is not in issue in the appeal.
ISSUES IN DISPUTE
The Insurer submits that the Arbitrator had no jurisdiction to make the orders that he did. The dispute, argues the Insurer, concerned only the validity of the ‘Notice of Discontinuance’ issued pursuant to section 52A of the 1987 Act. The Arbitrator thus erred in proceeding to make an award that Mr McKenzie was entitled to weekly compensation pursuant to section 40 of the 1987 Act.
The Insurer seeks the following orders on appeal:
“1. Appeal upheld
2.A determination that the Notice issued by the Appellant/Respondent pursuant to section 52A was invalid.
3. Award in favour of the Applicant pursuant to section 40 be set aside.”
It is important to note that the Insurer has not sought to challenge the Arbitrator’s finding in regard to the invalidity of the ‘Notice of Discontinuance’. The appeal on its face, and Mr McKenzie in his written submissions, raises a threshold issue, namely: What, if any, is the ‘amount of compensation at issue on the appeal’? This is a jurisdictional issue.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the1998 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 have agreed that the appeal is suitable for determination on the papers.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.
JURISDICTION
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 as follows:
“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.”
The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).
Mr McKenzie submits that the application for leave to appeal does not meet the threshold requirements of section 352(2) of the 1998 Act. He argues that “. . . the Appellant/Respondent is only appealing on whether the Commission should have made an Award against it. It is not appealing in regard to the amount of compensation, which it concedes it would have paid in the event. This means that the monetary value of the dispute which was sought to be appealed is nil”. (Submissions of 7 October 2004).
In my view Mr McKenzie’s suggested conclusion is inescapable on the submissions that have been made by both parties. The Insurer has clearly stated that it seeks an order that “the Notice issued by the Appellant/Respondent pursuant to section 52A was invalid.” It correctly argues that the result of this is that Mr McKenzie’s entitlement reverts to what he was receiving at the time of the issue of the invalid notice and the termination of his weekly benefits. There does not appear to be any dispute that this was the maximum statutory rate of weekly compensation for a single person. There is therefore no ‘amount of compensation at issue on the appeal’ and the threshold in section 352(2) is not met. Leave should therefore be refused.
I note that the Insurer also argues, in the submission dated 8 October 2004 that the Arbitrator lacked jurisdiction to make any award, as there was no ‘dispute’ before it for resolution. This is not a tenable argument. There clearly was a dispute between the parties about Mr McKenzie’s entitlement. It arose as a result of the service of the ‘Notice of Discontinuance’ issued under section 52A of the 1987 Act. I note that the argument that there is no ‘dispute’ in the Commission does not assist the Insurer’s argument on appeal, as it would logically lead to a lack of jurisdiction on appeal, pursuant to section 352(1) of the 1998 Act.
I also note that some of the Insurer’s difficulties with the Arbitrator’s orders were resolved by the reconsideration of the matter and the issue of a fresh ‘Certificate of Determination’, dated 5 October 2004. The Insurer continues to dispute the Arbitrator’s jurisdiction to make an award of compensation, where the dispute arose only over the validity of the section 52A notice. Ultimately this argument has no substantive effect on the amount of compensation to which Mr McKenzie is entitled upon the finding of the invalidity of the notice, a finding not challenged by the Insurer.
In this matter I am not satisfied that:
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act), and
·At least 20% of the amount awarded in the decision appealed against (352(2)(b) of the 1998 Act).
DECISION
Leave to appeal the decision of the Arbitrator is refused.
COSTS
The Insurer has been unsuccessful in the ‘Application for Leave to Appeal’. Mr McKenzie seeks his costs and in my view there is no reason why an order for costs in his favour should not be made.
The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
5 September 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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