Toll Stevedoring Pty Ltd (in the interests of Toll Pty Ltd) v Sammut and anor

[2006] NSWWCCPD 232

WORKERS COMPENSATION COMMISSION

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

CITATION:Toll Stevedoring Pty Ltd (in the interests of Toll Pty Ltd) v Sammut and anor [2006] NSWWCCPD 232

APPELLANT:  Toll Stevedoring Pty Ltd (in the interests of Toll Pty Ltd)

FIRST RESPONDENT:  Paul Sammut

SECOND RESPONDENT:  Toll Stevedoring Pty Ltd (in the interests of Bluescope Steel (AIS) Pty Ltd)

FIRST INSURER:  Bluescope Steel (AIS) Pty Ltd (Self Insurer)

SECOND INSURER:  Toll Pty Ltd (Self Insurer)

FILE NUMBER:  WCC18209-04

DATE OF ARBITRATOR’S DECISION:          7 October 2005

DATE OF APPEAL DECISION:  14 September 2006

SUBJECT MATTER OF DECISION: Leave to appeal; section 352(2)(a) of the Workplace Injury Management andWorkers Compensation Act 1998

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:On the Papers

REPRESENTATION:  Appellant:                  Leigh Virtue &

Associates

First Respondent:      W G McNally and Co

Second Respondent:  Sparke Helmore

ORDERS MADE ON APPEAL:  1. Leave to Appeal is refused.

2. The Appellant, Toll Stevedoring Pty Ltd (in the interests of Toll Pty Ltd (as Self Insurer)) is to pay the costs of the appeal.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 2 November 2005 Toll Stevedoring Pty Ltd (in the interests of Toll Pty Ltd (as Self Insurer)) (‘Toll’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 7 October 2005.

1. The First Respondent to the Appeal is Paul Sammut (‘Mr Sammut’).

1. The Second Respondent to the Appeal is Toll Stevedoring Pty Ltd (in the interests of BlueScope Steel (AIS) Pty Ltd (as Self Insurer)) (‘BlueScope’).

1. Mr Sammut worked for Toll Stevedoring Pty Ltd (‘Toll Stevedoring’) as a plasterer when he claims he suffered injury to his back, chest and ribs on 9 July 1997, 6 October 2000 and 9 January 2003 as a result of the nature and conditions of his employment from 1 September 1996 to 31 January 2003. Mr Sammut claims lump sum compensation for permanent impairment and reasonable medical expenses (pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’)) as a result of his injuries.

1. Toll Stevedoring was insured for workers compensation by Toll and Bluescope during different periods on risk in relation to the injuries claimed by Mr Sammut.

1. The dispute about lump sum compensation for permanent impairment was referred to an Approved Medical Specialist (‘AMS’), Dr Kumar, who found that Mr Sammut suffered no permanent impairment to his back. As a result, the Arbitrator found that “the only issue remaining in dispute between the parties is therefore whether the past section 60 expenses, as claimed by the Applicant [Mr Sammut] are reasonably necessary medical and related expenses, for the purposes of sections 59 and 60 of the Act and whether the Applicant is entitled to a general order for future section 60 expenses.”

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’ and attached ‘Statement of Reasons’, dated 7 October 2005 records the Arbitrator’s orders as follows:

   “The determination of the Commission in this matter is as follows:

   1.The Respondent in the interests of the Second Insurer [Toll Pty Ltd] is to pay the Applicant’s past section 60 expenses amounting to $431.76, as specified in the letter dated 3 August 2005 referred to at paragraph 15 of this Statement of Reasons.

   2.The Respondent in the interests of the Second Insurer is to pay the Applicant’s future reasonably necessary section 60 expenses as they are incurred and on the production of accounts and/or receipts.

   3.The Respondent in the interests of the Second Insurer is to pay the Applicant’s costs as agreed or assessed.”

ON THE PAPERS REVIEW

1. Section 354(6) of Workplace Injury Management andWorkers 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.”

2. I have before me all of the evidence and submissions that were before the Arbitrator, the transcript of the arbitration and the submissions made by both parties on the appeal.  There is no fresh evidence in the appeal.

1. Mr Sammut submits the appeal may be determined on the papers.

1. Toll’s submission, filed with the appeal on 2 November 2005 asserts that the appeal:

   “ . . . cannot be dealt with on the papers and should rather be dealt with by the appointment of a hearing before a Presidential Member firstly because the additional information and documentation sought has not yet been provided and secondly because careful consideration will need to be given to whether any determination in this matter can be corrected on Appeal or whether it is necessary for the matter to be remitted to an Arbitrator to be determined according to Law.”

2. Toll’s legal representative also requested, by letter dated 2 November 2005, that it be provided with a copy of all of the documents on the Commission file.  On 10 November 2005 the Commission advised the legal representatives they could make an appointment to view the file and copy relevant documents.  The transcript of the arbitration was sent to the parties on 10 November 2005.  Mr Sammut advised the Commission that the ‘Notice of Opposition to the Appeal’ was served on Toll on 24 November 2005.

1. On 30 November 2005 Toll’s legal representative wrote to the Commission stating that it would:

   “. . . arrange to view the Commission files shortly before the Hearing to be appointed before a Presidential Member.  We also understand that the solicitors for the Respondent has sought to file Submissions in this matter and we will require the opportunity of being heard in respect of those submissions”.

2. This correspondence requires comment.  Toll’s legal representatives appear frequently in the Commission, both before Arbitrators and Presidential Members on appeal.  It must be assumed that they are familiar with the Commission’s processes.  The determination of appeals ‘on the papers’ is common practice in the Commission, and it is for this reason that the Practice Direction requires submissions going to substantive and threshold issues to be filed with the ‘Application for Leave to Appeal’ and the ‘Notice of Opposition to the Appeal’.

3. The Commission wrote to the parties on 30 November 2005 advising that the appeal had been referred to the President and that “the Presidential Member may determine the leave application and appeal solely on the basis of the written application and any written notice of opposition”.

1. Toll’s assertion that a hearing is to take place does not equate to a decision of the Presidential Member (who determines the appeal) that the matter will in fact proceed in that way (pursuant to section 354(6) of the 1987 Act). Toll also asserted in the submissions on appeal that it was “not yet able to complete submissions and Grounds of Appeal but would do so at a hearing once Transcript [sic] and documents are provided by the Commission”. Toll’s legal representative has now had the transcript, an invitation to make arrangements to view the Commission file and the opportunity to make further submissions for a period of nearly nine months. It has not done so. In my view there is no denial of procedural fairness in proceeding to determine the matter in accordance with my discretion as to whether it is a matter suitable for determination on the papers.

1. This matter is not unduly complex.  The parties have made written submissions on the threshold issues and on the ‘grounds of appeal’.  The evidence is that which was before the Arbitrator.  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.

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:

   352Appeal 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.

   (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.

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

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. The Arbitrator’s award is for a sum amounting to $431.76 for medical expenses. The Arbitrator also made a general order in relation to future medical expenses, which must be met on the production of accounts or receipts. There is no evidence of the likely future cost of medical treatment for Mr Sammut in relation to his compensable injuries. The original ‘Application to Resolve a Dispute’ sought an order for $168.31 plus a “general order for Section 60 expenses”.

1. Toll argues that:

   “The amount of compensation at issue in the Appeal exceeds $5000 and represents 100% of the sum awarded.  In this regard the total compensation payable as a consequence of the determination for the Commission is not able to be precisely calculated but relates to claimed amounts and entitlement which clearly exceed $5,000.”

1. Mr Sammut submits that:

   “1.The amount of compensation payable is not able to be determined and may or may not eventually exceed $5,000.00. As at the date of hearing the Section 60 expenses totalled $431.76.

   2.The Appellant Employer has not established that the amount of compensation at issue is at least $5,000.00 as required by Section 352(2) of the Workplace Injury Management Act.  Accordingly it is submitted that the Commission has no jurisdiction to grant leave.”

1. Bluescope submits that the threshold of $5000.00 is not met.  It agrees with Mr Sammut as to the substantive issues in dispute and argues against the grant of leave to appeal.

1. It is not clear, as Toll asserts, that the amount of compensation at issue on the appeal is at least $5,000.  The award covers an amount of only $431.76.  Mr Sammut sought an order in relation to future medical expenses in relation to physiotherapy, General Practitioner review and chemist expenses.

1. It is necessary to consider the operation of section 60 of the 1987 Act, when deciding if the threshold test in section 352(2)(a) is met in this matter. A general order may be made in relation to future medical and related expenses, however section 60 is an indemnity provision and it will remain for the employer to assess the reasonableness of each section 60 claim if and when it is submitted in the future.

1. It is difficult to determine, where a ‘future’, general order is made, whether the amount at issue will exceed $5,000.  The only guidance is the evidence and submissions made by the parties to the dispute.  Mr Sammut filed a letter from Dr Samaraweera, dated 17 October 2004, which opined that Mr Sammut would require two physiotherapy sessions per week for six months and General Practitioner review once per fortnight for a period of twelve months.  Despite this predication, and its associated costs, as at 3 August 2005, Mr Sammut’s particulars of outstanding expenses stood at $263.45 for Dr Samaraweera and $168.31 for chemist and physiotherapy.

1. I have considered the evidence and submissions before the Arbitrator and must conclude that there is no probative evidence that the amount in issue in this dispute will reach or exceed $5,000 within such a period of time that it could reasonably be asserted to be within the scope of the Arbitrator’s decision of 7 October 2005, and, therefore, an ‘amount of compensation at issue on the appeal’.  As the claim, and the dispute now stands, there is no probative evidence that his “section 60 expenses, including general practitioner review, physiotherapy, chemist medication and other treatment as prescribed” (refer to ‘Application to Resolve a Dispute’) will, as a result of the Arbitrator’s ‘general order’ reach or exceed this sum in the near and foreseeable future.

1. The amount of compensation at issue on the appeal is less than $5,000. Therefore section 352(2)(a) of the 1998 Act is not met and leave to appeal must be refused.

DECISION

1. Leave to appeal is refused.

COSTS

1. The Appellant, Toll Stevedoring Pty Ltd (in the interests of Toll Pty Ltd (as Self Insurer)) is to pay the costs of the appeal.

Dr Gabriel Fleming

Deputy President

14 September 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE