Railcorp v Lam Luu

[2010] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rail Corporation NSW v Lam Luu [2010] NSWWCCPD 44
APPELLANT:		Rail Corporation NSW
RESPONDENT:		Lam Luu
INSURER:		Rail Corporation NSW
FILE NUMBER:		A1-5969/09
ARBITRATOR:	Mr Ross Bell
DATE OF ARBITRATOR’S DECISION:		27 October 2009
DATE OF APPEAL DECISION:		27 April 2010
SUBJECT MATTER OF DECISION:		Leave to appeal; definition of “compensation” and “any monetary benefit”; sections 4 and 352(2) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		Sparke Helmore Lawyers
Respondent:		John Peisley & Associates
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. The appellant, Rail Corporation NSW (‘RailCorp’), employed the respondent, Mr Luu, as a duty manager at Regents Park railway station.

1. On 29 April 2008, Mr Luu was informed that he was to be the subject of a disciplinary investigation into allegations of breaches of the RailCorp Code of Conduct. Four breaches were alleged, occurring between 22 January 2008 and 11 April 2008. The allegations concerned Mr Luu’s alleged inappropriate and offensive behaviour, and failing to carry out his duties in a professional manner.

1. On 5 August 2008, RailCorp notified Mr Luu that the investigation had been completed, and the result of the investigation was to be forwarded to the Disciplinary Review Panel for consideration.

1. On 13 October 2008, Mr Luu was notified that the alleged breaches had been substantiated. He was further informed that a preliminary view of the appropriate disciplinary action was dismissal. He was provided with a brief opportunity to provide further submissions.

1. Whether Mr Luu made any further submissions is not clear. However, on 24 November 2008, he was notified that, due to the serious nature of the breaches, he was to be dismissed effective 17 December 2008.

1. Mr Luu initiated proceedings in the Australian Industrial Relations Commission concerning his dismissal. The proceedings were resolved on terms, which, inter alia, permitted Mr Luu to resign effective from 17 December 2008.

1. On a date which is unspecified, but prior to 3 June 2009, Mr Luu made a claim for workers compensation benefits.  The evidence does not indicate the nature of the benefits claimed, but it may be inferred that Mr Luu made a claim for weekly compensation.

1. On 3 June 2009, RailCorp denied the claim. In a notice issued under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), the claim was denied pursuant to section 11A(1), section 33 of the Workers Compensation Act 1987 (‘the 1987 Act’), and section 65(1)(c) of the 1998 Act. Full particulars of the basis for the decision were provided, including the background leading to Mr Luu’s dismissal.

1. On 28 July 2009, Mr Luu lodged an Application to Resolve a Workplace Injury Management Dispute in the Commission. He alleged that he had suffered a psychological injury as a result of harassment and bullying in the workplace. The date of injury was notified as 29 October 2008. Under the heading “Dispute Details”, the dispute was described in the following terms:

“No current injury management plan in place – no return to work assessment. No suitable duties provided as insurer will not appoint rehab[ititation] provider to undertake chap[ter] 3 requirements.”

1. RailCorp filed a Reply to the Application. It listed the matters in dispute as:

“1.  The respondent submits that the applicant’s claim has not been duly made in accordance with Section 65(1)(c) of the Workplace Injury Management Act 1998.

2. The respondent submits that the applicant’s claim has been declined under Section 11A, Section 9A, Section 4 and Section 14 of the Workers Compensation Act 1987.

3.   The respondent denies that the applicant has suffered a significant workplace injury as defined in the Workplace Injury Management Act 1998.

4.   The respondent denies that it has an obligation to implement an injury management plan, return to work plan or provide suitable duties.

5. The respondent relies upon Section 61 of the Workplace Injury Management and Workers Compensation Act 1998.

6.   The applicant resigned from his employment prior to presenting his compensation claim form and WorkCover certificate.”

1. On 11 August 2009, the Registrar by her delegate issued a “Recommendation” and “Statement of Reasons”. The Registrar recommended the following:

1.  That the Respondent appoint OIH as the Applicant’s rehabilitation provider.

2.  That the Respondent pay the Applicant’s costs as agreed or assessed.

1. The estimated cost of the occupational rehabilitation the subject of the dispute is said to be $5,700.00. The components of the service are:

Vocational assessment – including labour market research	$1232.00
Psychological assessment and report	$620.00
Training for job seeking skills / interview technique / resume development	$924.00
Job seeking assistance 6 months (including pursuing Job Placement Program and Work Trial)	$2000.00
Additional case management services (monthly reports, liaison with treating professionals and employer as per WorkCover guidelines)	$924.00
Total cost including GST	$5700.00

1. On 20 August 2009, Sparke Helmore Lawyers, representing RailCorp, requested the proceedings be referred to the Commission for determination by way of a hearing before an arbitrator pursuant to section 308 of the 1998 Act.

1. On 1 October 2009, the matter was listed for an arbitration hearing before Arbitrator Mr Ross Bell. Both parties were represented and made submissions before the Arbitrator. The decision was reserved.

1. On 27 October 2009, the Arbitrator issued a Statement of Reasons for Decision and a Certificate of Determination. The Commission determined:

“1.  That pursuant to section 310 of the 1998 Act the Commission orders that the Respondent comply with the recommendations of the Registrar dated 11 August 2008.

2.  That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. It is from this decision that the appellant now seeks leave to appeal.

ON THE PAPERS REVIEW

1. 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.”

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

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Other Threshold Issues

1. The parties either failed to address, or failed to adequately address, two further threshold issues. The first is whether the amount of compensation at issue on the appeal satisfies the monetary threshold in section 352(2). The second, is whether the decision the subject of the appeal is interlocutory, in which case, leave must be refused pursuant to section 352(8).

1. On 19 March 2010, I caused the matter to be listed for a telephone conference. Mr Peisley, solicitor, represented the worker, and Mr Rowles of counsel represented RailCorp. During the course of the telephone discussion, I raised concerns about the adequacy of the submissions on the issues identified above. After general discussion and a reference to relevant authorities, I issued a direction in the following terms:

“The parties were invited to make submissions on:

(a) the threshold issues in relation to the granting of leave under section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998, and

(b)   whether the decision is an interlocutory decision under section 352(8) of the 1998 Act and clause 200B of the Workers Compensation Regulation 2003.

Direction

1.   The Appellant is to file and serve submissions, on the matters listed above, on or before 4.00 pm on 9 April 2010.

2.   The Respondent is to file and serve submissions, on the matters listed above, on or before 4.00 pm on 23 April 2010.”

1. Both parties filed further submissions in accordance with the directions given on 19 March 2010.

Is the Monetary Threshold Satisfied?

1. Section 352 of the 1998 Act in relevant terms provides as follows:

“352(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 $5,000.00 (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. During the course of the teleconference, I referred the parties to two decisions of this Commission where leave had been refused in similar circumstances to the present appeal.

1. In Sydney Opera House Trust v Sykes [2006] NSWWCCPD 227 (‘Sykes’), Ms Sykes was employed as a rehabilitation co-ordinator. She was involved in a motor vehicle accident on her way home from work, and sustained injury. Liability was accepted for the claim and her entitlements to hospital and medical expenses and weekly payments were paid voluntarily. A dispute arose in relation to the worker’s demand for suitable duties. An Application to Resolve a Workplace Injury Management Dispute was filed. The Registrar, through her delegate, declined to make the recommendations sought, namely, that the worker be provided with suitable duties. The worker sought to have the matter referred to a Commission arbitrator for determination. The arbitrator also declined to make a recommendation pursuant to section 307 of the 1998 Act. The worker appealed under section 352. Roche DP, after considering relevant authorities, refused leave on the basis that no “amount of compensation” was claimed in the Application before the arbitrator, therefore there was no amount of “compensation at issue on the appeal”, and therefore the threshold in section 352 of the 1998 Act had not been satisfied.

1. The reasoning in Sykes was followed in Department of Community Services v Hickey [2006] NSWWCCPD 320 (‘Hickey’). The facts are not dissimilar to the instant case. Ms Hickey alleged that she had been harassed and bullied at work. Liability for her claim had been denied, on the grounds that her employment was not a substantial contributing factor to the injury. In an Application to Resolve a Workplace Injury Management Dispute, she alleged that:

· no injury management plan had been established or maintained as required under section 43 of the 1998 Act;

·     no return to work plan had been established as required under section 52 of the 1998 Act, and

·     no suitable duties had been provided.

1. The arbitrator made orders in favour of Ms Hickey, requiring the insurer to establish a return to work plan, and requiring it to immediately approve the services of a rehabilitation provider for assistance with the development of a return to work plan. On appeal, the employer argued that the cost of the service to be provided by the rehabilitation provider would provide a “monetary benefit” under the Workers Compensation Acts (the 1987 Act and the 1998 Act), and that the cost of the service was the “compensation at issue on the appeal”. That argument was rejected. The Commission determined that the worker did not seek compensation, but sought the appointment of a rehabilitation provider to implement an injury management plan and a return to work plan. The Commission held that, whilst “the appointment of a rehabilitation provider will involve a cost does not make that cost a ‘monetary benefit’ under the legislation”.

RailCorp’s Submissions

1. RailCorp submits:

·        The Commission’s decisions in Hickey and Sykes were both wrongly decided.

·        RailCorp relies upon an earlier Commission decision in Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 (‘Mawson’), where the Commission held that the qualification in section 352(2)(b) applies a qualification or condition that must be met before leave to appeal is granted against a decision in which an award is made, but that particular qualification or condition does not and cannot meaningfully apply to a decision where this is not the case.

·        Mawson was distinguished in Sykes on the basis that there was no dispute that the weekly compensation in issue amounted to more than $5,000.00. RailCorp submits that this is an incorrect basis for distinguishing Mawson. Section 352(2) of the 1998 Act refers to the amount of compensation at issue on the appeal. It is submitted that Mawson is a correct statement of the law and its reasoning ought to be followed without qualification. RailCorp submits that the rehabilitation training service the subject of the invoice from Injury and Occupational Health Management (‘IOH’) is both a “monetary benefit” and compensation under the 1987 Act.

· The definition of “compensation” in section 4 of the 1998 Act means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.

·        The word “compensation” ought not be limited to a monetary benefit (as found in Hickey), but has much wider import, particularly given the definition of the word “compensation” in section 4 of the 1998 Act.

·        The provision of rehabilitation and like services to an injured worker at the expense of the employer constitutes a real benefit to the injured worker, which would otherwise be at his or her own expense. It would be a curious result if the provision of such services authorised and required to be provided by the 1998 Act was not categorised as “compensation”, particularly given the long-held line of authority that compensation statutes are to be liberally and beneficially interpreted.

·        In Hickey, the Deputy President quoted with approval a passage from the judgment of Deputy President Fleming (as she then was) in Grimson v Integral Energy [2003] NSWWCCPD 29 (‘Grimson’), where the Deputy President said:

“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 when no monetary award is made the amount of the claim as particularised by the Applicant.”

· RailCorp does not take issue with the remarks of the Deputy President, but submits that the statement is not authority for the proposition that, if no monetary award, nor any amount, is particularised in the application, there is no monetary amount at issue. RailCorp submits that, in these circumstances, it is perfectly proper to look at the cost to the employer of the provision of the service to ascertain whether the monetary threshold prescribed in section 352(2) of the 1998 Act has been satisfied.

· To seek a construction that something an employer is required to perform for the benefit of a worker as not being compensation is in direct conflict with the definition of “compensation” in the “Workers Compensation Acts” as defined in section 4 of the 1998 Act, and offends the most basic principle of statutory construction that a court is bound to construe an Act so as to give effect to each and every part of it (Director of Public Prosecutions v Serratore (1995) 132 ALR 461). Accordingly, RailCorp submits that the Determination of the Commission, properly construed, is an order for the payment of compensation in excess of $5,000.00 and, accordingly, the threshold provisions in section 352 of the 1998 Act are satisfied.

Mr Luu’s Submissions

1. Mr Luu submits:

·        The reasoning in both Hickey and Sykes is correct and provides a basis for examining the issue raised in this appeal.

·        The estimated expense for the rehabilitation services Mr Luu seeks have not yet been incurred, and therefore, in accordance with the decision in Widdup v Hamilton [2006] NSWWCCPD 258 (‘Widdup’), the expenses are not recoverable as a claim under section 60, as section 60 is an indemnity provision and no amount can be ordered to be paid under that section until the cost has been incurred. Thus, it is submitted that the amount in issue is merely an estimate for work to be undertaken and is not an expense that has been incurred. This is illustrated by the title to the document, headed “Quote No T117”.

Discussion on the Monetary Threshold

1. The term “compensation” is defined in section 4 of the 1998 Act as follows:

“compensation means compensation under the Workers Compensation Acts and includes any monetary benefit under those Acts”. (emphasis added)

1. Compensation is only payable if an entitlement is established under sections 9 and 9A of the 1987 Act. Section 9 provides:

“9 Liability of employers for injuries received by workers – general
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.

(2)  Compensation is payable whether the injury is received by the worker at or away from his place of employment.”

1. The term “injury” is defined in section 4 of the 1987 Act and the 1998 Act as follows:

“4  Definition of ‘injury’

(a)    means personal injury arising out of or in the course of employment,

(b)    includes:

(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and

(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and

(c)    does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

1. The entitlement to compensation in this matter has not been established; indeed, it is in dispute for the reasons specified in the section 74 notice, and no determination has been made by the Commission on the liability issues.

1. RailCorp submits that “compensation” as defined in section 4 of the 1998 Act means compensation under the Workers Compensation Acts and includes any monetary benefit under those Acts. However, the word “compensation” ought not be limited to a monetary benefit, but has much wider import. No authority is advanced in support of the proposition.

1. As Deputy President Roche correctly observed in Hickey, the word “benefit” must be read in the context of the legislation. The legislation provides, among other things, that “a worker who has received an injury (and, in the case of the death of the work, his or her dependants) shall receive compensation” (section 9 of 1987 Act). Part 3 of the 1987 Act sets out the “compensation – benefits” that are payable. They include weekly compensation during total or partial incapacity for work (section 33), lump sum compensation in the event that the injury has resulted in permanent impairment (sections 66 and 67), death benefit compensation (sections 25, 26 and 27), compensation for the cost of hospital, medical and rehabilitation treatment (section 60), and compensation for domestic assistance (section 66AA).

1. As Deputy President Roche also observed in Hickey, the reference to “occupational rehabilitation service” in section 60 needs to be considered in the context of that section. Section 60 provides for the payment of those expenses “if, as a result of an injury received by a worker, it is reasonably necessary” for such services to be provided. I do not accept that the quote from IOH comes within the terms of section 60, for several reasons. First, it has not been determined that the cost is reasonably necessary as a result of an injury. Second, section 60 is an indemnity provision, which only applies as and when the cost of the treatment has been incurred (New South Wales Sugar Milling Co-operative v Manning (1998) 44 NSWLR 442; Widdup; and Roads & Traffic Authority of NSW v Harwood [2010] NSWWCCPD 24). Third, if a cost is incurred, it will be incurred as a result of an order of the Commission pursuant to Chapter 3 of the 1998 Act, which deals with Workplace Injury Management and not section 60 of the 1987 Act.

1. As also noted in Hickey, the object of Chapter 3 is to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries (section 41(1) of the 1998 Act). It applies even when there is a dispute as to liability (section 41A) (see Divertie v Startrack Express Pty Limited (formerly Neilsen Brame Pty Limited) [2008] NSWWCCPD 45(‘Divertie’)).

1. RailCorp’s reliance on the observations of Deputy President Byron in Mawson are misplaced. The dispute in Mawson concerned a claim for weekly payments, which were well in excess of the statutory threshold. That is not the case in this appeal. The dispute here is limited to the claim for occupational rehabilitation.

1. For the reasons that I have given, I agree with the reasoning in both Hickey and Sykes, and I reject the submission that those cases were wrongly decided.

1. “Injury management” is defined in section 42 of the 1998 Act to mean “the processes that comprises activities and procedures that are undertaken or established for the purposes of achieving a timely, safe and durable return to work for workers following workplace injuries”.

1. “Workplace injury” is defined in section 52 of the 1998 Act to mean “an injury to a worker in respect of which compensation is or may be payable under the Act”. Thus, it is clearly contemplated that the provision of injury management under Chapter 3 is to be undertaken as a policy objective whether or not liability is in dispute (Divertie).

1. The services and procedures contemplated by the IOH quote are best illustrated by reference to the document itself. The components of the total cost of the service, which is described as “occupational rehabilitation” include: a vocational assessment – including labour market research, psychological assessment and report, training for job-seeking skills, interview technique, resume development, job-seeking for six months (including pursuing job placement program and work trial), and additional case management services (monthly reports, liaison with treating professionals and employer as per WorkCover guidelines). No persuasive reason has been advanced as to why any or all of these activities should be regarded as “compensation” rather than being more correctly categorised as “injury management” activities under Chapter 3 of the 1998 Act.

1. RailCorp contends that the word “compensation” should be a given a broad and beneficial interpretation not limited to a monetary benefit. For the reasons I have given, I do not accept that those activities should be construed as being either a “monetary benefit” or “compensation”, even though their provision involves a cost to the employer.

1. It seems to me that the processes and procedures identified by IOH satisfy the definition of “injury management” in section 42 of the 1998 Act, being activities and procedures that are undertaken or established for the purpose of achieving a timely, safe and durable return to work.

1. For these reasons, the quote by IOH in respect of the proposed occupational rehabilitation does not come within the definition of “compensation” within the 1998 Act and, for that reason, there is no compensation at issue on the appeal, and leave to appeal must be, and is, refused.

1. Having regard to the findings in regard to the monetary threshold, it is unnecessary to consider whether the provisions of section 352(8) are satisfied.

DECISION

1. Leave to appeal is refused.

COSTS

1. RailCorp submits that the Commission raised the issue of the competency of the appeal, not the worker. As the issue goes to the jurisdiction of the Commission to hear and determine the appeal, it is appropriate that the matter be raised. The worker, in his objection to the appeal, did not raise any objection to jurisdiction based on section 352 of the 1998 Act, or indeed any objection to jurisdiction. RailCorp submits that, if the appeal is determined adverse to the appellant on jurisdictional grounds, the worker ought not to have any costs of the appeal if he succeeds on the basis that was never properly raised as a defence.

1. The respondent submits that the appellant filed the appeal without reasonable prospects of success.

1. The respondent further submits that it should be entitled to an order for costs due to the appellant maintaining the appeal, notwithstanding the Commission having raised substantive issues that should have caused the appellant to reconsider the appeal.

1. As I said at the outset, neither party adequately dealt with the threshold issues; hence, the need for a further telephone conference and supplementary submissions on those issues. RailCorp has failed in its application for leave to appeal. The jurisdictional impediments to leave being granted have been well traversed in previous decisions of the Commission. The worker’s failure to adequately articulate those issues should not deprive him of an order for costs in his favour arising from the unsuccessful appeal.

1. The appellant employer is to pay the respondent worker’s costs of the appeal.

His Hon Judge G Keating

President

27 April 2010

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON JUDGE G KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE