Sheridan v Coles Supermarkets Australia Pty Limited

[2003] NSWWCCPD 3

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Kate Louise Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3
APPELLANT:	Kate Louise Sheridan
RESPONDENT:	Coles Supermarkets Australia Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NO:	WCC 942- 2002
DATE OF DECISION:	31 January 2003
PRESIDENTIAL MEMBER:	Dr Gabriel Fleming
DECISION UNDER APPEAL:	Application for Leave to appeal against a decision of an Arbitrator
DATE OF DECISION UNDER APPEAL:	9 October 2002
HEARING:	Leave determined on the papers
REPRESENTATION:	Appellant: Everingham Soloman Solicitors
Respondent: Lander and Rogers
ORDERS MADE ON APPEAL:	Leave to appeal the decision of the Commission constituted by an Arbitrator dated 9 October 2002 is refused.

THE APPEAL

1. On 18 October 2002 Ms Kate Sheridan (‘the Applicant’) lodged an appeal against the decision of an Arbitrator refusing her claim for workers compensation made against Coles Supermarkets Australia Pty Ltd (‘the Respondent’).  The relevant insurer is Allianz Australia Compensation (NSW) Ltd.  The Certificate of Determination, issued by the Workers Compensation Commission on 9 October 2002, and attached statement of reasons, dated 2 October 2002, set out the decision of the Arbitrator as follows:

   The Respondent is not liable for the Applicant’s claim for weekly compensation between 4 April 2002 and 1 August 2002 pursuant to Part 3 of the Workers Compensation Act 1987.
   The Respondent is not liable for the payment of the Applicant’s claim of $216.30 under s60 of the Workers Compensation Act 1987 for medical expenses incurred on or after 4 April 2002.
   That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses up to the sum of $558.80 incurred prior to 4 April 2002 on production of proof of her liability to reimburse Medicare.

JURISDICTION TO HEAR THE APPEAL

1. The Applicant seeks leave to appeal this decision on a number of grounds, which it is not necessary to detail at this point.  The Applicant also sought leave to refer a question of law to the President, in similar terms to the appeal, and this application was refused on 16 January 2003. 

2. Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’), as follows:

   (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.

   (8) In this section, decision includes an award, interim award, order, determination, ruling and direction.

1. The ‘amount of compensation at issue on the appeal’ is in dispute. In accordance with the President’s Practice Direction 6B of 2002, I am satisfied that sufficient information has been supplied in connection with the application for leave to appeal to enable me to determine that issue without holding a conference or formal hearing i.e. ‘on the papers’ (section 354(6) of the Act).

EVIDENCE AND SUBMISSIONS

1. The original application, reply and supporting documents are to be found in the Commission file, which forms part of the documents before me.  Also before me are submissions in support of the application for leave to appeal filed by the Respondent on 19 December 2002 and submissions filed by the Applicant on 23 January 2003. 

2. The Applicant was legally represented before the Commission at all times.  The ‘Application to Resolve a Dispute’, dated on 17 July 2002 and filed by the Applicant’s legal representative, does not refer to any claim upon the Respondent for compensation for permanent impairment.  The application asked the Commission to resolve a dispute about payments of weekly benefits compensation for the period 4 April 2002 ‘to date’ and for the amount of $750.00 in medical expenses. 

3. A telephone conference was held with the parties and the Arbitrator on 2 September 2002, at which the Arbitrator confirmed that the claim related to weekly benefits from 4 April 2002 to 1 August 2002 at the rate of $14.21 per hour for six hours per week, from 30 April to 1 August 2002 at the same rate although for fourteen hours per week, and for medical expenses of $767.90.  This differs little from the details on her original application.  The Arbitrator was advised that Ms Sheridan had returned to work on 2 August 2002.

4. The parties appeared in person before the Arbitrator on 15 September 2002 at which time the admission of further evidence was decided and further submissions were made.  There was agreement between the parties as to the final amount of $775.10 in relation to medical expenses.  However of these it was apparent that the amount of $558.80 was relative to the period of compensation prior to 4 April 2002 and the Respondent was liable for these conditional upon proof of payment being provided.  This left the amount of $216.30 in medical expenses actually in dispute. 

5. The Arbitrator quantifies the amount at issue in the dispute in the Statement of Reasons for the decision, as follows:

   For the period 4 April 2002 to 30 April 2002 she [Ms Sheridan] claims weekly compensation of $315.46 gross and for the period 30 April 2002 to 1 August 2002, $2645.90 gross.  In addition, she claims $775.10 medical expenses.  This varies a little from the amount claimed in her application.  Her total claim is therefore $3,736.46.

6. In so far as they relate to the question of leave to appeal the Applicant’s submissions provide as follows;

   . . .   By letter dated 4 April 2002, the Respondent declined liability and an application was made for weekly payments of compensation for partial incapacity from 4 April 2002 to 30 April 2002, and for total incapacity from 30 April 2002 to 1 August 2002.  In addition there was a claim for medical expenses and it was agreed to total $775.10.
   In addition to this, Dr Hopcroft’s report dated 28 May 2002 provides an opinion that the Applicant has a 10% permanent impairment of the back which would entitle the worker to $6000.00.  We note that Section 352(2)(a) provides that the Commission is not to grant leave to appeal unless the amount in issue is greater than $5000.00.  It should be noted that this is far in excess of 20% of the amount awarded in the decision in accordance with Section 352(2)(b) of the Workplace Injury Management Act 1998.

7. The Applicant claims the amount of compensation at issue is $9,736.00 and 94 percentage of the amount awarded on the decision appealed against.  A simple calculation appears to have been made by adding the total amount of the claim before the Arbitrator and the $6000.00 referred to by Dr Hopcroft.  No other explanation is given for this calculation.

8. In so far as they relate to the question of leave to appeal, the Respondent’s submissions provide as follows:

   . . . the total amount in dispute in the substantive proceeding is an amount of $775.10 being for section 60 (medical expenses) and weekly compensation for the period 4 April 2002 until 1 August 2002. Accepting the Statement of Reasons for Decision (paragraph 2) this equates to a total claimed amount of $3,736.46.  Even allowing for a miscalculation, this does not satisfy the requirement of section 352(2)(a) WIM.
   Whilst the present Application to Appeal makes reference in Part 2 to an amount of $9,736.00, the manner of calculation for this amount is not specified.  It is further noted that the Application to Appeal does not dispute paragraph 2 of the Statement of Reasons for Decision.
   Further, and in the alternative, it is submitted that even in the event that the Commission accepts that the thresholds provided for in section 352(2) are satisfied (which is not conceded), this does not lead to an automatic granting of leave to appeal.  The construction of the section is that leave is required to appeal (section 352(1)), however “the Commission is not to grant leave to appeal unless” both criteria contained in section 352(2) are met.  Accordingly, it may be seen that leave must be granted, based upon other merits and that the provisions of section 352(2) act as a bar to appealing, however do not create a right of appeal.

DETERMINATION OF LEAVE TO APPEAL

1. The Act provides a comprehensive scheme for the making of claims for workers compensation and for the resolution of disputes in relation to these claims by the Workers Compensation Commission.  Section 351 refers to the appeal rights of a ‘party in dispute in respect to a claim for compensation’ [emphasis added]. ‘Claim’ is defined in section 4 of the Act to ‘mean a claim for compensation or work injury damages that a person has made or is entitled to make’. Chapter 7 of the Act sets out the claims procedure applicable in relation to injuries incurred after 1 January 2002.

2. Part 4, Chapter 7 of the Act, governs ‘Compensation dispute determination’. Section 288 provides that a party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However section 289 (3) provides that:

   A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:

   (a)wholly disputes liability for the claim, or

   (b)made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and one month has elapsed since the offer was made, or

   (c)fails to determine the claim as and when required by this Act.

3. No dispute about a claim for lump sum compensation for permanent impairment has been referred to the Registrar in this matter and consequently no such dispute was before the Arbitrator for determination.  The fact that Dr Hopcroft was of the opinion that the Applicant had a 10% permanent impairment of her back does not mean that such a claim has ever been made on the Respondent nor that such a claim is automatically in dispute before an Arbitrator of the Commission.  There is no evidence before the Commission to indicate whether such a claim has been made on the Respondent or whether the statutory requirements have been met. 

4. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.  The Application to Resolve a Dispute does not identify an amount of $6000.00 for a 10% permanent impairment of the Applicant’s back as being in dispute.  On any reading of the Arbitrator’s statement of reasons for decision it is clear that he was not considering any such claim.

5. At most, the amount of compensation at issue on the appeal is the total of the claim before the Arbitrator, $3736.46, less the amount awarded to the Applicant for medical expenses, $558.80. This amount does not meet the requirements of section 352 and leave to appeal is therefore not granted.

DECISION

1. Leave to appeal the decision of the Commission constituted by an Arbitrator dated 9 October 2002 is refused.

COSTS

1. No order as to costs has been sought or is made.

Dr Gabriel Fleming
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President, Dr Gabriel Fleming, Workers Compensation Commission

Registrar

Date: