Sepic v Linfox Transport Group Pty Limited - [2007] NSWWCCPD 171

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Sepic v Linfox Transport Group Pty Limited [2007] NSWWCCPD 171
APPELLANT:  Senad Sepic
RESPONDENT:  Linfox Transport Group Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC18446-06
DATE OF ARBITRATOR’S DECISION:          22 February 2007
DATE OF APPEAL DECISION:  6 August 2007
SUBJECT MATTER OF DECISION:                Partial incapacity; section 40 of the Workers Compensation Act 1987; interlocutory decision; section 352(8) of the Workplace Injury Management & Workers Compensation Act 1998; jurisdiction; sections 289 and 289A of the Workplace Injury Management & Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:25 July 2007
REPRESENTATION:  Appellant:      Beilby Poulden Costello,
Lawyers
Respondent:   Mr JW Dodd, instructed by Hunt and Hunt, Lawyers

ORDERS MADE ON APPEAL: 1. Leave to appeal is refused.
2.Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Senad Sepic (‘the worker’) was employed by Linfox Transport Group Pty Limited (‘the employer’) as a truck driver and received injury in the course of such employment on 13 October 2004. He ceased work the following day and made a claim for compensation. This claim was met by the employer’s workers compensation insurer Allianz Australia Workers Compensation (NSW) Limited.
In May 2005 or thereabouts the worker returned to his employment on a restricted basis. However after some months he suffered a recurrence and was then off work until a date in early 2006.
On 20 July 2006 the worker’s solicitors wrote to the employer making a claim for lump sum compensation in accordance with the report of Associate Professor van Gelder of 9 May 2005. It is not clear what steps were taken by the employer or its insurer in response to this. However, on 29 December 2006 an ‘Application to Resolve a Dispute’ was registered in the Workers Compensation Commission (‘the Commission’). This claimed weekly payments of compensation under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) together with lump sum compensation. In Part 1.2 of the Application it was stated that section 74/54/287A Notices were attached. This, however, does not appear to have been the case. Similarly, it was indicated that correspondence concerning exchange of offers concerning the lump sum claim was attached, however this also appears incorrect.
The claim for lump sum compensation was dealt with by referral to an Approved Medical Specialist (‘AMS’) and was later resolved by consent. The agreement of the parties was embodied in a Certificate of Determination dated 2 May 2007. It is the claim for weekly payments which is the subject of this appeal.
The Reply filed on behalf of the employer relied, inter alia, on the failure of the worker to make a claim for weekly compensation pursuant to section 65 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and the non-issue of a section 74 Notice disputing liability by the employer. The employer also relied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWWCCPD 171
Decision Date: 6 August 2007

CaseChat Overview and Summary

In the matter of Sepic v Linfox Transport Group Pty Limited, the plaintiff, Mr. Sepic, sought a review of a decision made by an arbitrator in a workers' compensation dispute. The dispute primarily revolved around the cessation of weekly compensation payments and the subsequent decision of the arbitrator regarding the same. The matter was heard in the Workers Compensation Regulation 2003 (Qld). The primary legal issue before the court was whether the decision appealed against constituted an interlocutory decision, thereby precluding an appeal under Section 352(2) of the 1998 Act. This required the court to consider the nature of the decision made by the arbitrator and to determine if it fell within the definition of an interlocutory decision as outlined in Section 352(8) of the 1998 Act and clause 200B of the Workers Compensation Regulation 2003.

The court examined the specifics of the arbitrator's decision, focusing on the claim for weekly compensation and the medical certificates provided. It was noted that the arbitrator had determined the weekly compensation based on the difference between the worker's actual earnings and the probable earnings but for the injury. The court also considered the medical certificates provided by the worker's general practitioner, which indicated periods of fitness and unfitness for work. The absence of a statement from the worker regarding his fitness for work was highlighted as unusual given the compensation sought. Additionally, the court scrutinized the payment records and the worker's solicitor's statement about a payment received from the employer.

The court concluded that the decision of the arbitrator did not constitute an interlocutory decision as it involved a substantive determination on the merits of the worker's entitlement to weekly compensation. The court found that the arbitrator's decision was not of an interlocutory nature and therefore the appeal could proceed under Section 352(2) of the 1998 Act. The court's decision was based on the comprehensive nature of the arbitrator's determination, which addressed the core issue of the worker's entitlement to compensation and the employer's obligations.

The court ordered that the appeal be allowed and the matter remitted back to the arbitrator for further consideration in light of the court's findings. The decision underscored the importance of distinguishing between interlocutory and substantive decisions in the context of workers' compensation appeals.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 352(2) prescribes a monetary threshold for appeals. That subsection is as follows:“(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 amounts as may be prescribed by the regulation), and(b)at least 20% of the amount awarded in the decision appealed against.”Section 352(8) is as follows: “(8)In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” The appropriate part of the Workers Compensation Regulation 2003 (‘the WC Regulation’) is clause 200B. That provides as follows:“200B For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.” It is necessary in my opinion to consider what exactly was decided by the Arbitrator in order to determine whether the decision appealed against is of an interlocutory nature. The Arbitrator firstly noted that weekly compensation was sought under section 40 of the 1987 Act from 1 March 2006 on the basis that the worker had been receiving $719.00 per week while his probable earnings but for injury would have been $1,050.00 per week. The difference of $331.00 was accordingly claimed. The Arbitrator then noted that the only medical certificates in evidence were attached to the employer’s Reply and were dated 30 March, 3 April and 20 April 2006. There were in fact four certificates attached to the Reply, the earliest being that of 24 February 2006. All certificates are signed by the worker’s general practitioner, Dr Kuzmanovski. In the earliest certificate he certified the worker fit for suitable duties for the period 24 February to 24 March 2006. In the second certificate he certified the worker unfit for work from 30 March to 31 March 2006 but fit for suitable duties from 1 April to 21 April 2006. On 3 April 2006 the doctor certified the worker unfit for work from 3 April to 7 April 2006 but fit for suitable duties from 8 April 2006 to 21 April 2006. The final certificate certifies the worker fit for suitable duties from 21 April 2006 to 19 May 2006. All references to suitable duties are to a trial of driving duties without lifting or with lifting restricted to five kilograms. There is no statement from the worker attached to the ‘Application to Resolve a Dispute’ which is surprising considering the compensation which was sought. However, there are three Notices of Assessment under the Income Tax Assessment Acts 1936 and 1997 for the years ended 30 June 2004, 2005 and 2006. There are also a number of payment slips for the period 30 June 2005 to 12 October 2006. It is not clear how the figures to which I have referred at [16] have been arrived at. The Arbitrator has recorded in his reasons for decision that the worker’s solicitor told him that the worker had instructed him that on 13 December 2006 he received a cheque from the employer for “at least $16,000.00”. It was said to be unclear what this payment represented. For the employer, it was submitted that there never had been a decision made to terminate the worker’s weekly benefits and that payments had been made. The Arbitrator found that:(a)there was no notice of termination of weekly benefits under section 54 of the 1998 Act;(b)there was no correspondence from the insurer indicating that it disputed liability for weekly payments in any way;(c)no claim had been made by the worker for recommencement of weekly benefits based on the belief that they had been terminated; and(d)there had been no correspondence from the worker alerting the insurer to the existence of any dispute or difficulty relating to the worker’s weekly payments for compensation.

Ratio Decidendi

Legal Principle Established

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