Suine v Area Refrigeration Pty Ltd
[2016] NSWWCCPD 8
•3 February 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Suine v Area Refrigeration Pty Ltd [2016] NSWWCCPD 8 | |
| APPELLANT: | Lawrence Suine | |
| RESPONDENT: | Area Refrigeration Pty Ltd | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-2858/15 | |
| ARBITRATOR: | Mr G Brown | |
| DATE OF ARBITRATOR’S DECISION: | 28 September 2015 | |
| DATE OF APPEAL DECISION: | 3 February 2016 | |
| SUBJECT MATTER OF DECISION: | Extension of time to appeal; no prospect of success; no demonstrable or substantial injustice if time not extended; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; claim for compensation for pain and suffering for injury received before 1 January 2002; whether repeal of s 67 of the Workers Compensation Act 1987 by the Workers Compensation Legislation Amendment Act 2012 applies to pre-2002 injuries; Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 applied | |
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Villari Lawyers |
| Respondent: | HWL Ebsworth Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The application to extend time to appeal is refused. 2. The Arbitrator’s determination of 28 September 2015 is confirmed. | |
INTRODUCTION
Prior to the amendments introduced by Sch 2 to the Workers Compensation Legislation AmendmentAct 2012 (the 2012 amendments/the 2012 amending Act), workers who received an injury that resulted in a degree of permanent impairment of 10 per cent or more were entitled to receive, in addition to any other compensation, compensation for pain and suffering resulting from the permanent impairment (s 67 of the Workers Compensation Act 1987 (the 1987 Act)).
Among other things, the amendments introduced by Sch 2 to the 2012 amending Act repealed s 67. Therefore, subject to certain specific exceptions, and subject to the application of the relevant savings and transitional provisions, the amendments abolished workers’ rights to receive compensation for pain and suffering. This appeal concerns the interpretation and application of the relevant savings and transitional provisions.
The issue is whether the repeal of s 67 prevents a worker who was injured in 1997 from recovering compensation for pain and suffering in circumstances where he did not claim permanent impairment compensation until after 19 June 2012. The relevance of 19 June 2012 is that, under the relevant savings and transitional provisions, amendments introduced by Sch 2 to the 2012 amending Act apply to claims made before that date, but not to a claim that specifically sought compensation under ss 66 or 67.
The Arbitrator determined that the repeal of s 67 prevented the worker from recovering compensation for pain and suffering. In an appeal filed out of time, the worker has sought an extension of time to appeal the Arbitrator’s determination. For the reasons set out in Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 (Frick), which involved the same substantive issue, the Arbitrator’s determination is correct. As a result, the appeal has no prospect of success, the application to extend time to appeal is refused, and the Arbitrator’s determination is confirmed.
BACKGROUND
On 12 May 1997 and on 17 August 1999, the appellant worker, Lawrence Suine, injured his right knee in the course of his employment with the respondent, Area Refrigeration Pty Ltd. The insurer accepted liability for these injuries and paid compensation prior to 19 June 2012.
On 26 February 2014, Mr Suine first claimed lump sum compensation in respect of his injuries. This claim included a claim for $25,000 compensation for pain and suffering under s 67 as a result of the losses alleged to have resulted from the injuries.
On or about 30 June 2014, the parties entered a complying agreement under s 66A of the 1987 Act in which the respondent agreed to pay Mr Suine compensation under s 66 for 20 per cent loss of efficient use of his right leg at or above the knee. The respondent disputed Mr Suine’s claim for compensation under s 67, asserting that no such right exists because the section has been repealed.
On 19 May 2015, Mr Suine commenced proceedings in the Commission claiming compensation of $17,500 under s 67.
On 28 September 2015, the Arbitrator determined that, having regard to the express wording of the 2012 amendments, which repealed s 67, and the relevant transitional provisions, Mr Suine had no entitlement to compensation for pain and suffering. He made an award for the respondent.
Mr Suine has sought an extension of time to appeal the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Counsel for Mr Suine, Mr McManamey, has requested an oral hearing of the appeal, because of the “complexity of the matter”. The request for an oral hearing was directed to the substantive issue sought to be argued on appeal and not the application to extend time to appeal. The respondent has consented to the matter being determined on the papers.
I do not accept that the issue involved is of such complexity that an oral hearing is required. The parties have had every opportunity to provide submissions on the issue and have done so. The submissions made by Mr McManamey on the substantive issue are, in substance, the same submissions he made in Frick. As the issue has been determined in Frick, I do not believe I would be assisted by oral submissions.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the respondent 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.
PRELIMINARY
Time
Appeals to a Presidential member under s 352 of the 1998 Act must be made within 28 days of the decision appealed against (s 352(4)). The last day on which the present appeal could be lodged in time was 26 October 2015.
Documents lodged electronically with the Commission are received by it at the time the information is entered in the Commission’s email address. If that time is after 5 pm New South Wales standard time or New South Wales summer time on any day, it is taken to have been received on the next day (Pt 8 r 8.1(6) of the Workers Compensation Commission Rules 2011 (the Rules)).
As the Commission received the present appeal at 5.35 pm on 26 October 2015, it was not lodged until the following day and, as Mr McManamey has conceded, is therefore one day out of time. The submission by the respondent’s solicitor, Mr Andersen, that the appeal was lodged in time was plainly wrong.
Mr McManamey has sought an extension of time in which to appeal. Part 16 r 16.2(12) of the Rules, provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The explanation for the appeal being lodged out of time is that Mr Suine’s solicitor, Ms Vidovic, only received submissions from Mr McManamey via email at 4.00 pm on 26 October 2015. She was unable to download the relevant appeal form (Form 9) because the Commission’s website was “down”. The Commission emailed a copy of the form to Ms Vidovic at 4.21 pm on 26 October 2015. By the time the form was completed and documents attached, the form was not emailed to the Commission until 5.35 pm the same day.
Mr McManamey submitted that an extension of time should be granted, taking into account the fortuitous events involving a breakdown of technology on 26 October 2015, and that there would be demonstrable and substantial injustice to Mr Suine if an extension were not granted as he would not be able to argue a novel point of law before the Commission. He added that the respondent would suffer no prejudice, if time were extended, because the issue is a legal argument.
The arguments Mr McManamey seeks to present in Mr Suine’s case are identical to those put and rejected in Frick. It follows that, for the reasons given in Frick, the appeal cannot succeed.
As there is no injustice if Mr Suine loses the right to appeal, as the issue sought to be argued has been fully argued and determined against him, the application to extend time to appeal is refused.
DECISION
The application to extend time to appeal is refused.
The Arbitrator’s determination of 28 September 2015 is confirmed.
Bill Roche
Deputy President
3 February 2016
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE