Sydney Institute of Technology - NSW TAFE Commission v Fleming
[2007] NSWWCCPD 97
•18 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sydney Institute of Technology – NSW TAFE Commission v Fleming [2007] NSWWCCPD 97
APPELLANT: Sydney Institute of Technology – NSW TAFE Commission
RESPONDENT: John Fleming
INSURER:GIO General Ltd
FILE NUMBER: WCC8084-06
DATE OF ARBITRATOR’S DECISION: 14 September 2006
DATE OF APPEAL DECISION: 18 April 2007
SUBJECT MATTER OF DECISION: Leave to appeal interlocutory matter; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: McLean Lawyers
Respondent: Carroll & O’Dea
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
On 12 October 2006 Sydney Institute of Technology – NSW TAFE Commission (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 September 2006.
The Respondent to the Appeal is John Fleming (‘the Respondent Worker/Mr Fleming’).
Mr Fleming was born on 3 June 1949 and started work for the Appellant Employer as a graphic arts teacher at Ultimo TAFE in July 1987. In October 1992 he was diagnosed with acute myeloid leukaemia and, as a result, was absent from work from then until 23 June 1993 when he resumed part-time work. By mid 1994 he had returned to full-time teaching.
It is alleged that he notified the Appellant Employer of his injury in October 1992 and made a claim for compensation on 15 December 2004. In 2005 Mr Fleming lost all vision in his left eye.
In his Application to Resolve a Dispute (‘the Application’) registered in the Commission on 26 May 2006 Mr Fleming alleges that he suffered acute myeloid leukaemia as a result of the nature and conditions of his employment with the Appellant Employer from July 1987 to 12 October 1992. He claimed weekly compensation from October 1992 to 23 June 1993, medical and hospital expenses of $17,176.80 and lump sum compensation in the sum of $40,000.00 in respect of 100% loss of vision in his left eye plus compensation for pain and suffering in the sum of $45,000.00.
By its Reply filed on 16 June 2006 the Appellant Employer conceded that Mr Fleming suffers from a 100% loss of vision in his left eye but disputed whether the condition of acute myeloid leukaemia was an injury that arose out of or in the course of Mr Fleming’s employment. The Reply also says that Mr Fleming’s claim was brought outside the time limit set in section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and, as a result, Mr Fleming is not entitled to recover compensation.
At the request of the Appellant Employer the matter was listed for hearing on 31 August 2006 for determination of the preliminary issue of whether Mr Fleming gave notice of his claim for compensation within the time limit set out in section 261. The Arbitrator was informed that the other issues in dispute were likely to resolve following determination of the section 261 issue (Statement of Reasons for Decision (‘Reasons’), paragraph 32).
In a reserved decision the Arbitrator found in favour of Mr Fleming on the preliminary issue and the Appellant Employer seeks leave to appeal that decision.
PRELIMINARY MATTERS
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.”
The Appellant Employer submits that the substantive appeal raises complex issues and that an oral hearing is required. In view of the decision I have made on the question of whether leave to appeal can be granted, this submission is no longer relevant.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker that the appeal can proceed to be determined on the basis of these document, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 14 September 2006, records the Arbitrator’s orders as follows:
“1.The Applicant made a claim for compensation within the time prescribed by section 261 of the 1998 Act.
2.That the Respondent pay the Applicant’s costs as assessed or agreed.
3.For costs purposes I certify that this matter was complex and proceeded directly to Arbitration.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in finding, as preliminary issues, that the Respondent Worker’s deemed date of injury under the relevant legislation was 15 December 2004 and that he had made a claim for compensation within the time prescribed by section 261 of the 1998 Act.
LEAVE TO APPEAL
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Interlocutory Matter
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(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.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(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.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(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.” (emphasis added)
The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’. Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.
In light of the above amendments to section 352(8) I issued the following Direction to the parties on 29 January 2007:
1. “The parties are directed to the provisions of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as amended by Act 113 of 2005, which excludes from the definition of ‘decision’, “any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations”.
Under Clause 200B of the Workers Compensation Regulation 2003, as amended, “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”.
Under Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 the above amendments to section 352 “apply in respect of a claim for workers compensation made before the commencement of the amendments”.
2. In light of the above amendments and in light of the fact that the Respondent Worker made a claim for compensation on 15 December 2004, the parties are invited to make written submissions on the following issues:
· whether the current appeal is against an order, ruling, determination or direction of an interlocutory nature, and, if so,
· the basis on which leave to appeal should be granted.
3. If it is submitted that leave to appeal can and should be granted the Appellant Employer is directed to file submissions in support of the merits of the appeal.
4. The Appellant Employer’s submissions are to be filed and served on or before Monday 19 February 2007 and the Respondent Worker’s submissions in reply are to be filed and served on or before Monday 12 March 2007.
5. It is currently proposed that the application for leave to appeal and, if leave to appeal is granted, the appeal, be determined ‘on the papers’ (see section 354(6) of the 1998 Act) without holding any conference or formal hearing. The parties are at liberty to make submissions as to whether an oral hearing is required.”
In response to the above Direction the Appellant Employer filed further submissions on 19 February 2007 and the Respondent Worker on 23 March 2007.
The first question (not addressed by either party) is whether the amendment to section 352(8) is retrospective. The wording of Schedule 6 Part 18J Clause 5 quoted above is in clear and unambiguous language. The relevant amendments to section 352 apply “in respect of a claim for workers compensation made before the commencement of the amendments” (emphasis added). The claim in the present matter was made on 15 December 2004. Therefore, the amendments apply to the present application for leave to appeal (see also P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 at [32] to [34] (‘Hawkins’).
The Appellant Employer concedes that its Application for Leave to Appeal is “of an interlocutory nature” and submits that leave to appeal should be granted though the Arbitrator has not determined the issues of causation and injury. This submission fails to acknowledge that the amendments to section 352(8) exclude from the definition of ‘decision’, “any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations”. It is now not open to the Commission to grant leave to appeal where the determination or order is of an interlocutory nature prescribed by the regulations. Clause 200B of Workers Compensation Regulation 2003, as amended, provides that “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”.
Therefore, given the Appellant Employer’s concession that the determination from which it seeks to appeal is ‘interlocutory’, it is not open to the Commission to grant leave to appeal no matter what the merits of its application may be.
Whilst it would be in the interests of the proper and efficient administration of the Commission’s proceedings if leave to appeal could be granted in this matter, it is simply not possible to do so in light of the Appellant Employer’s concession.
As the legislation currently stands, leave to appeal must be refused. This does not mean that the section 261 issue cannot be later argued once a final determination has been made (provided the other thresholds in section 352 are satisfied) but merely that leave to appeal cannot be granted at this stage (see Hawkins at [46]).
DECISION
Leave to appeal the Arbitrator’s decision dated 14 September 2006 is refused.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
18 April 2007
I 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
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