Unique Concrete Pumping Pty Limited v Bayeh

[2005] NSWWCCPD 153

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Unique Concrete Pumping Pty Limited v Bayeh [2005] NSWWCCPD 153

APPELLANT:  Unique Concrete Pumping Pty Limited

RESPONDENT:  Emad Bayeh

INSURER:GIO Workers Compensation (NSW) Limited

FILE NUMBER:  WCC19650-04

DATE OF ARBITRATOR’S DECISION:          16 March 2005

DATE OF APPEAL DECISION:  13 December 2005

SUBJECT MATTER OF DECISION: Threshold dispute; sections 313 and 314 of the Workplace Injury Management and Workers Compensation Act 1998; jurisdiction.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant: Turks Legal

Respondent: Keddies Litigation Lawyers

ORDERS MADE ON APPEAL:  (1)       The Commission has no jurisdiction to

determine the Appeal, and the Appeal

is not successful.

(2)No order as to costs of the Appeal

BACKGROUND TO THE APPEAL

1. Emad Bayeh (‘the Respondent Worker’) suffered an injury to his right hand on 4 December 2001 when it was caught in machinery he was cleaning whilst in the course of his employment with Unique Pumping Pty Limited (‘the Appellant Employer’).

1. On 30 November 2004, the Respondent Worker lodged an Application to Resolve a Dispute in the Workers Compensation Commission. The Application was for “Threshold Dispute for Work Injury Damages or Commutation”, and in paragraph 4.4 of that Application, under the heading “Reasons for Dispute”, the Respondent Worker ticked “Whether the degree of permanent impairment from the injury is at least 15%”. Annexed to the Application were reports from Doctors Guirgis, Ellis and Stenning.

1. A Reply was filed by the Appellant Employer on 12 January 2005. The Appellant Employer claimed that the Respondent Worker’s solicitors had, by letter dated 18 November 2004 addressed to the Appellant Employer’s insurer, requested that a concession be made by 23 November 2004 that the Respondent Worker’s injuries exceeded the 15% whole person impairment threshold. This, the Appellant Employer claimed, allowed the Appellant Employer’s insurer only three working days in which to assess the claim, which the Appellant Employer submitted was an impossible time to make any assessment. Accordingly, the Appellant Employer claimed that there was no dispute as to whether the Respondent Worker suffered a 15% impairment as it had not had an opportunity to obtain a medical report that might assist it in either agreeing or disputing the Respondent Worker’s claim.

1. The Appellant Employer further claimed that the Commission did not have jurisdiction to hear the application as its jurisdiction was dependant on there being a dispute as to the threshold for an award of damages and that no such dispute existed.

1. The matter was listed for arbitration hearing on 23 February 2005. On 16 March 2005, a Certificate of Determination issued with an accompanying Statement of Reasons. The Arbitrator determined that “The Application sought by the Respondent Employer to strike out the Application to Resolve the Dispute as registered with the Commission on 30 November 2004, is dismissed.” Directions were then made as to the further conduct of the matter.

1. On 5 April 2005, the Appellant Employer lodged an Appeal Against Decision of Arbitrator. That document was rejected on several occasions by the Commission but eventually accepted on 2 May 2005.

1. The Appellant Employer submits the Arbitrator erred in determining that there was a “threshold dispute” within the meaning of sections 313 and 314 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and that his determination was against the weight of the evidence. The Appellant Employer submits that the Respondent Worker’s Application should have been dismissed on the basis that the Commission did not have the jurisdiction to deal with it, since no dispute in relation to the claim for work injury damages existed at the time that the Application to Resolve a Dispute was filed on 30 November 2004.

1. The Respondent Worker lodged a Notice of Opposition to Appeal on 2 June 2005. The Respondent Worker submits that there has been no error by the Arbitrator, and further, that the Commission “… lacks jurisdiction to hear and determine this Appeal as it fails to satisfy the legislative requirements of section 352 [of the 1998 Act] …”

ON THE PAPERS REVIEW

1. No submissions have been made by either party on this issue. Having carefully read the Arbitrator’s decision, the transcript and all the material before him, I am satisfied that I have sufficient information to proceed ‘on the papers’ in accordance with section 354(6) of the 1998 Act, and that this is the appropriate course in the circumstances.

THE ARBITRATOR’S DECISION

1. The Respondent Worker had put before the Arbitrator a letter from his then solicitors dated 17 March 2004 addressed to both the Appellant Employer and its insurer which enclosed a medical report from Dr Stenning and requested, inter alia, “please advise whether you concede our client’s whole bodily impairment exceeds 15%”.

1. The Insurer replied on 29 March 2004 enclosing a medical report from Dr Brian Stephenson. Quoting from that report, the insurer advised “… maximum medical improvement has not been achieved…” and accordingly, “… at this time we are unable to accept your offer …, nor make an alternative offer”.

1. By letter dated 18 November 2004, the Respondent Worker’s new solicitors made a further claim on the Appellant Employer’s Insurer for lump sum benefits pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). He also made a claim for work injury damages. The letter then concluded:

“In relation to the threshold dispute, we invite you to concede that our client’s injuries exceed the 15% whole person impairment threshold and accordingly that our client had suffered a degree of permanent impairment sufficient for an award of damages.

Should we not receive a response on or before 5:00pm on Tuesday, 23 November 2004, we shall assume that a dispute exists in relation to this issue. This request is made pursuant to section 151D(a) of the Act.”

1. On 28 November 2004 the Appellant Employer’s insurer wrote to the Respondent Worker’s solicitors submitting that the section 66 claim had not been duly made.

1. Following that letter, on 30 November 2004, the Respondent Worker then lodged his Application to Resolve a Dispute in the Commission.

1. The Appellant Employer claims that the Respondent Worker’s Application was lodged prematurely, and that the Commission did not have jurisdiction to determine the matter on 30 November 2004, “… due to the absence of a statutory defined dispute.”

1. The Arbitrator considered all the correspondence and submissions before him in paragraphs 8 – 28 of his Statement of Reasons. Ultimately, the Arbitrator accepted that “…a dispute did arise when the letter of 29 May [sic – March] 2004 from the Insurer was provided to the Applicant,” and declined to strike out the Respondent Worker’s Application as requested by the Appellant Employer.

THE SUBMISSIONS AND EVIDENCE

1. Under section 313 of the 1998 Act, a Claimant cannot commence court proceedings for the recovery of damages unless the degree of permanent impairment has been assessed by an Approved Medical Specialist under Part 7 of the 1998 Act. Section 314(1) states that:

“… there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:

(a)the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or

(b)there is a dispute as to whether the degree of permanent impairment resulting from the injuries fully ascertainable.”

1. In the present case, the Appellant Employer’s submissions focused on the Respondent Worker’s solicitor’s letter of 18 November 2004. As the Arbitrator noted (paragraph 21) “purely in the context of that particular letter, I fully accept that the Applicant has failed to provide evidence that there is a dispute that warrants the invoking of a claim to be entertained by this Commission. Further, “… relying solely upon the letter of 18 November 2004, there was no dispute at the time that the Application to Resolve a Dispute was filed, and accordingly, upon that selected correspondence, the Commission did not have jurisdiction to hear it.”

1. The Respondent Worker, as stated earlier, had relied on correspondence dated 17 March 2004 as invoking a “dispute”. That was ultimately accepted by the Arbitrator as the basis for the “dispute” as he found it.

1. However, as the Arbitrator pointed out at paragraphs 29 and 30 of his Statement of Reasons, “a close analysis of section 314(1)(a) of the 1998 Act provides that a dispute arises when the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured person resulting from the injury is at least 15%.

Except for the threshold test, the issues concerning the actual common law damages claim are not relevant to this Commission. What is the focal point of section 314(1)(a) of the 1998 Act is the question of the threshold test relating to whether or not the worker has a degree of permanent impairment in respect of the amount of 15% or above.”

JURISDICTION AND LEAVE TO APPEAL

1. The jurisdiction of the Commission is defined in section 105 of the 1998 Act as follows:

“105(1)       Subject to this Act, the Commission has exclusive jurisdiction to

examine, hear and determine all matters arising under this Act and the 1987 Act.

(2)The Commission does not have that jurisdiction in respect of matters

arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of the Chapter 7 of this Act”.

1. Part 6 of Chapter 7 of the 1998 Act deals with work injury damages. Section 313 provides as follows:

“If there is a dispute as to whether the degree of permanent impairment of the

injured worker resulting from an injury is sufficient for an award of damages, the

claimant cannot commence court proceedings for the recovery of work injury

damages and cannot serve a pre-filing statement under Division 3 unless the degree

of permanent impairment has been assessed by an approved medical specialist

under Part 7.”

1. In other words, the Commission has the jurisdiction to refer a question of permanent impairment to an Approved Medical Specialist. That falls within the province of the Registrar. An Arbitrator, in accordance with section 105 referred to above, has no jurisdiction to make an determination on an issue involving an “award of damages”.

1. The circumstances of this case are similar to that in Ferraro v WGE Pty Limited [2005] NSWWCC PD 98. In that case, the Arbitrator had struck out the worker’s application for “Threshold Dispute for Work Injury Damages”. The worker appealed. I determined that the Commission had no jurisdiction to determine the appeal, following the decision of Deputy President Byron in Programmed Maintenance Services Limited v Barter [2005] NSW WCCPD 42 (‘Barter’).

1. Deputy President Byron’s analysis of the sections referred to above, and the jurisdictional issue was extensive. In summary, he determined that a decision as to whether a threshold dispute exists within the meaning of section 314 of the 1998 Act is a decision in relation to a claim for damages not compensation and accordingly, section 352 of the 1998 Act does not enable a party to appeal in relation to such a decision to the Commission constituted by a Presidential Member.

1. The present case sought a determination of a “threshold” issue for the purposes of commencing common law proceedings. There was nothing in the evidence before the Arbitrator to suggest that the claim related to a “commutation”. The Arbitrator, confined to determining “compensation” claims, had no jurisdiction to determine the matter. Accordingly, the Arbitrator had no power to determine that a “threshold dispute” existed such that the determination is null and void, and the proceedings ought to remain on foot.

1. Similarly, in light of Barter’s case, I too have no jurisdiction to deal with the appeal. It appears that there has been an error by the Registry such that the Application, when filed, ought to have been referred by the Registrar to an Approved Medical Specialist for determination.

1. Since neither the Arbitrator nor I have jurisdiction to deal with the matter, it follows that it is not necessary for me to consider whether or not there has been compliance with the provisions of section 352 of the 1998 Act in determining whether or not leave to appeal should be granted. The Commission has no jurisdiction to determine the appeal and it should simply be dismissed.

CONCLUSION

1. The Arbitrator had no jurisdiction to determine the matter in the first place, nor to make directions since the only claim made by the Respondent Worker in his application was for “threshold dispute”, and as a consequence, the proceedings remain on foot and the Registrar should refer the matter to an Approved Medical Specialist as soon as possible.

DECISION

The Commission has no jurisdiction to determine the appeal, and the appeal is unsuccessful.

COSTS

1. No order as to costs of the appeal.

Deborah Moore

Acting Deputy President

13 December 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE