Scott v Secretary, Department of Education and Communities - [2016] NSWWCCPD 21

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Scott v Secretary, Department of Education and Communities [2016] NSWWCCPD 21
APPELLANT:	Belinda Scott
RESPONDENT:	Secretary, Department of Education and Communities
INSURER:	Allianz Australia Ltd as agent for NSW Self Insurance Corporation
FILE NUMBER:	A1-5624/15
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	8 December 2015
DATE OF APPEAL DECISION:	14 April 2016
SUBJECT MATTER OF DECISION:	Monetary threshold requirements for an appeal under s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; whether an appeal from a decision of an Arbitrator in relation to a workplace injury management dispute can satisfy the monetary threshold
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Self-represented
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The respondent employer’s name is amended to be Secretary, Department of Education and Communities. 2. The appeal is not to proceed as the threshold requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied.

INTRODUCTION

This appeal concerns a decision of an Arbitrator to dismiss an Application to Resolve a Workplace Injury Management Dispute pursuant to s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).The Arbitrator dismissed the worker’s application, seeking orders in relation to a return to work plan, because the worker was in employment, albeit of a casual nature, at the time the orders were sought.
For the reasons discussed below the appeal is not to proceed because the monetary threshold requirements under s 352(3) of the 1998 Act cannot be satisfied.

BACKGROUND

Ms Scott was employed by the respondent as a teacher. She alleges that on 13 February 2012 she sustained a psychological injury after being physically assaulted by a student.
On 21 November 2014, Ms Scott lodged an Application to Resolve a Workplace Injury Management Dispute (matter number 6310/14). She alleged that the respondent employer had not participated in a return to work plan and had not developed an injury management plan. After several telephone conferences a delegate of the Registrar issued a recommendation noting that a return to work plan had been agreed and was to be implemented. On or about 30 March 2015, Ms Scott sought to have the matter referred to an Arbitrator because the employer had allegedly not complied with the return to work plan.
The dispute subsequently came before Arbitrator Bell. After several attempts to resolve the dispute by way of further telephone conferences, on 20 July 2015 Arbitrator Bell ordered that the employer appoint a rehabilitation provider to develop a rehabilitation plan with the objective of the worker’s return to work on suitable duties.
On 1 October 2015, Ms Scott lodged a further Application to Resolve a Workplace Injury Management Dispute (matter number 5624/15). She alleged that the employer had not provided suitable employment and did not comply with the previous recommendations of the Commission.
On 8 October 2015, the employer filed a Reply titled “Reply to Application for Expedited Assessment”. The employer stated that it had complied with all recommendations of the Commission, that suitable employment had been identified for Ms Scott in accordance with s 49 of the 1998 Act. The employer specifically noted that Ms Scott was currently working for the employer, albeit in a casual capacity. Further it submitted that it was continuing to explore further opportunities to enable Ms Scott to return to a permanent position. It submitted that the application should be struck out as an abuse of process.
On 28 October 2015, Stephen Paterson, by delegation of the Registrar, issued a recommendation. On the same day, the recommendation was amended to correct a typographical error. The Amended Consent Recommendation states:
“The Registrar recommends with the consent of the parties the following:
1.       That the Rehabilitation Provider (Interact Injury Management), employer[’]s Injury Management Advisor, Nominated Treating Doctor (‘NTD’), and the worker, develop and implement a new Return to Work plan.
2.       That the Rehabilitation Provider be actively involved and seek a meeting with the Injury Management Advisor (Rik Hoole), and the Senior Manager School Recruitment (Clauida Ranieri). The aim of the meeting is to examine whether there are any teaching roles available at Southern Cross School or any other school in the district that accommodates the worker[’]s restrictions, in light of the worker[’]s recently upgraded capacity.
3.       That the NTD is to provide an updated Certificate of Capacity which clearly details any restrictions.
4.       In accordance with the WorkCover return to work hierarchy, that in the absence of any suitable teaching roles that accommodates the worker[’]s restrictions being identified, that consideration be then given to non-teaching roles or non-face to face teaching roles, if available. The Rehabilitation Provider, Injury Management Advisor, and Senior Manager School Recruitment are to be involved in investigating the availability of such positions.
5.       That the new Return to Work Plan and the meeting foreshadowed in recommendation 2 above are to occur within the next 14 days.
Statement of Reasons:
6.       The applicant clarified her current restrictions at the teleconference and will seek an updated Certificate of Capacity from her NTD. It is noted that the applicant is only restricted from working at Murwillumbah High School. It was further clarified, that it is not a ‘restriction’ that the worker can only work at Southern Cross School.
7.       The above consent recommendations were agreed to by the parties.
Note: Pursuant to Section 308 of the Act, the parties must, within 14 days:
a)       comply with the recommendation, or
b)      request the Registrar to refer the dispute to the Commission for determination.”
On a number of occasions between 11 November 2015 and 18 November 2015, Ms Scott contacted the Commission. She claimed that the employer had not complied with the recommendations issued by Mr Paterson and requested that the matter be referred to a Commission Arbitrator pursuant to s 308(1) of the 1998 Act.
On 2 December 2015, Arbitrator Bell conducted a telephone conference between the parties and the appointed rehabilitation coordinator, Mr Hoole.
As at the date of the telephone conference, Ms Scott was working in casual employment for the employer in accordance with the restrictions that had been recommended by her nominated treating doctor. That position was available to Mr Scott until at least the end of the school term. Whilst there was some uncertainty as to employment, if any, that would be offered to Ms Scott thereafter, the Arbitrator accepted the employer’s assurances that it was continuing to attempt to identify suitable employment opportunities for Ms Scott on a more permanent basis.
The Arbitrator accepted that, in the circumstances, the employer had complied with the recommendations made by Mr Paterson and indicated that he proposed to dismiss the application.
On 8 December 2015, the Commission issued a Certificate of Determination in the following terms:
“At the telephone conference on 2 December the Commission ordered:
1. That pursuant to Section 354(7A)(b) of [the] Workplace Injury Management and Workers Compensation Act 1998, the Application to Resolve a Dispute is dismissed.
The reasons were given to the parties at the telephone conference.”
On 18 December 2015, Ms Scott again contacted the Commission alleging that her employment had been terminated and submitting further evidence that the employer had failed to comply with the recommendations made on 28 October 2015. That communication was treated as a request for a reconsideration of the previous orders of Arbitrator Bell and therefore the matter was again listed for a further telephone conference before Arbitrator Bell on 23 December 2015.
A transcript of the telephone conference of 23 December 2015 confirms that Ms Scott’s employment had not been terminated and attempts were still being made by her employer to find permanent employment within the restrictions placed on her by her treating doctors.
The Arbitrator was not satisfied that there had been any breach of the Commission’s recommendations by the employer and for those reasons declined to reconsider the previous orders. He did however direct that the matter be relisted for a further telephone conference on 21 January 2016 to “monitor the situation”. The transcript of the further telephone conference on 21 January 2016 indicates that by that point Ms Scott had been certified as totally unfit for work and therefore no further orders were made.
On 2 February 2016, Ms Scott lodged an appeal against Arbitrator Bell’s determination of 8 December 2015.

ON THE PAPERS

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 Nos 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.

THRESHOLD ISSUES

Monetary requirements

This appeal is brought pursuant to s 352 of the 1998 Act. There is no appeal under s 352 unless the monetary threshold requirements under sub-section (3) are satisfied. Section 352(3) provides:
“There is no appeal under this section 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.”
The appellant submits that by reason of the Arbitrator’s dismissal of her workplace injury management dispute, a chain of events initiated that resulted in her casual employment being terminated on 10 December 2015. Had this not occurred she would have remained in employment. Ms Scott submits that her loss of income from 10 December 2015 would satisfy the threshold requirements.
Further Ms Scott submitted that the Commission should waive the threshold requirements in s 352 for the following reasons:
“•     The Respondent Employer will suffer no prejudice;
·        It is in the interests of justice that the threshold issues be waived;
·        The Commission may dispense with compliance with any of the requirements of the Rules (Part 1 Rule 1.6(2));
·        The exercise of the Commission[’]s discretion should not be bound by the Rules and should be exercised whenever sufficient cause is shown in the circumstances of the particular case;
·        The period involved is ‘de minimus’ in comparison to the prejudice that would be suffered by the Appellant Worker if the right to appeal is not met;
·        It would be a denial of natural justice if the Commission refused to allow the filing of this appeal ‘contiguous’ to the threshold issues required by the Rules.
· Part 1 Rule 1.6(2) confers a discretion that should be exercised in a manner that ‘furthers the purpose of the statutory context in which it appears’; and
·        It is fair and just for leave to be granted to file an appeal contiguous to the threshold issues prescribed in the Rules.”
Contrary to Ms Scott’s submission, the Commission does not have discretion to “waive” the monetary threshold provisions in s 352(3) of the 1998 Act. The monetary threshold is a mandatory requirement which must be met before the Commission may hear the appeal (Patrick Operations Pty Ltd v Watson [2013] NSWWCCPD 18 at [13]).
Ms Scott’s submission that the monetary threshold is satisfied by reference to the quantum of earnings allegedly lost by reason of the Arbitrator’s decision must also be rejected. The relief claimed by Ms Scott did not seek an order for the payment of “compensation”, but merely sought a recommendation that the employer be required to comply with recommendations of the Commission with respect to an injury management plan. The application at [1.1] states “no money is sought, merely suitable employment”.
The Commission has held on a number of occasions that disputes in relation to injury management plans and return to work obligations of the employer do not meet the threshold test under s 352(3) because there is no “compensation at issue on the appeal” (Sydney Opera House Trust v Sykes [2006] NSWWCCPD 227; Department of Community Services v Hickey [2006] NSWWCCPD 320 and Rail Corporation NSW v Lam Luu [2010] NSWWCCPD 44).
For these reasons I am not satisfied that the threshold requirements under s 352(3) are satisfied, therefore the appeal cannot proceed.

OTHER MATTERS

In accordance with the decision in Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 and Pt 1 of Sch 1 of the Government Sector Employment Act 2013 (NSW), the name of the respondent employer has been amended to be Secretary, Department of Education and Communities.

ORDERS

The respondent employer’s name is amended to be Secretary, Department of Education and Communities.
The appeal is not to proceed as the threshold requirements of s 352(3) of the 1998 Act are not satisfied.

Judge Keating
President

14 April 2016