Visy Board Pty Ltd v Nguyen - [2010] NSWWCCPD 101

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Visy Board Pty Ltd v Nguyen[2010] NSWWCCPD 101
APPELLANT:		Visy Board Pty Ltd
RESPONDENT:		Tan Duy Nguyen
INSURER:		CGU Insurance Limited
FILE NUMBER:		A1-1407/2010
ARBITRATOR:	Ms J Connelly
DATE OF ARBITRATOR’S DECISION:		25 May 2010
DATE OF APPEAL DECISION:		23 September 2010
SUBJECT MATTER OF DECISION:		Section 261 of the Workplace Injury Management and Workers Compensation Act 1998, notice of claim; proof of injury; admission of late evidence
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore
Respondent:		TK Legal
ORDERS MADE ON APPEAL:		The Findings recorded in the Certificate of Determination dated 25 May 2010 are confirmed. Orders 1 and 3 of the Certificate of Determination dated 25 May 2010 are confirmed. Order 2 of the Certificate of Determination dated 25 May 2010 is revoked and the following order made in its place: “2. Tender of a CT scan report from Southern Radiology dated 13 April 2010 is rejected.” Order 4 of the Certificate of Determination dated 25 May 2010 is amended to delete reference to the CT scan report dated 13 April 2010. The following order is made: “4. The documents to go to the AMS are the Application to Resolve a Dispute, the Reply, the documents attached to the Application to Admit Late Documents filed 14 May 2010.” The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND TO THE APPEAL

Mr Tan Duy Nguyen, who is 37 years of age, commenced work with Visy Board Pty Ltd (the appellant) as a plate maker/machine operator in September 2000. Mr Nguyen received injury to his back in the course of that employment on 20 April 2007. He stopped work immediately and reported the circumstances of his injury to his supervisor.
Mr Nguyen had two periods of absence from duties by reason of severe back pain. He resumed duties on a return to work program provided by the appellant’s insurer through a rehabilitation provider in late October 2007.

Mr Nguyen has not, by reason of painful symptoms caused by the injury, returned to his full duties. He remains employed by the appellant.

On 6 January 2009 Mr Nguyen’s solicitors made on his behalf a claim for lump sums pursuant to s 66 and s 67 of the Workers Compensation Act 1987 (the 1987 Act). That claim was in respect of 16 per cent whole person impairment. In support of that claim a report of Dr Clive Sun dated 27 November 2008 was served with the notice of claim. Dr Sun expressed the opinion in that report that Mr Nguyen had suffered a 12 per cent whole person impairment in respect of the lumbar spine and five per cent whole person impairment in respect of the thoracic spine. The combined value of those assessments was stated to be a total of 16 per cent whole person impairment.
In correspondence dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWWCCPD 101
Decision Date: 23 September 2010

CaseChat Overview and Summary

Visy Board Pty Ltd, the appellant, and Nguyen, the respondent, were involved in a legal dispute concerning workers' compensation claims. The matter was heard in the Workers Compensation Commission of New South Wales. The central issue was whether the appeal against the Arbitrator's decision was lodged within the required time frame and if the compensation amount met the statutory threshold for appeal. Specifically, the court needed to determine if the appeal was filed within 28 days of the decision and if the compensation amount was at least $5,000 or 20% of the amount awarded by the Arbitrator.

The court found that the appeal was indeed lodged within the required 28-day period, as evidenced by the endorsement on the application indicating its receipt on 17 June 2010, following the decision date of 25 May 2010. Regarding the compensation amount, the court ruled that since no monetary award had been made by the Arbitrator, the amount of compensation at issue should be determined by the claim as particularised by the respondent. The respondent's claim was particularised in a sum well over the $5,000 threshold. Therefore, the court concluded that the monetary threshold for appeal was met. The court also noted that the provisions concerning 20% of the amount awarded were irrelevant because no compensation had been awarded.

The court confirmed the findings and orders from the Certificate of Determination dated 25 May 2010, with certain modifications. Specifically, the court rejected the tender of a CT scan report from Southern Radiology dated 13 April 2010 and amended the order regarding the documents to be sent to the Approved Medical Specialist (AMS). Additionally, the court ordered that the appellant employer would pay the respondent's costs of the appeal, as agreed or assessed.

Orders

Orders of the court

The Findings recorded in the Certificate of Determination dated 25 May 2010 are confirmed.

Orders 1 and 3 of the Certificate of Determination dated 25 May 2010 are confirmed.

Order 2 of the Certificate of Determination dated 25 May 2010 is revoked and the following order made in its place:

“2. Tender of a CT scan report from Southern Radiology dated 13 April 2010 is rejected.”

Order 4 of the Certificate of Determination dated 25 May 2010 is amended to delete reference to the CT scan report dated 13 April 2010. The following order is made:

“4. The documents to go to the AMS are the Application to Resolve a Dispute, the Reply, the documents attached to the Application to Admit Late Documents filed 14 May 2010.”

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The question arises as to whether the appeal has, as required by s 352(4), being “made within 28 days after the making of the decision appealed against”. Procedural requirements concerning the conduct of appeals against an Arbitrator’s decision are prescribed by the Workers Compensation Commission Rules 2006 (‘the Rules’). So far as those rules are presently relevant Part 16.2 subrules (1) and (2) apply. Those subrules state:“16.2 Appeal against Arbitrator’s decision(1)A party to any proceedings applying for leave to appeal under section 352 ofthe 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (11).(2)For the purposes of subrule (1), a decision is made, in respect of a dispute,when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.” It may be seen that the Rules require lodgement of any application with respect to the making of an appeal within 28 days after the making of the decision. The decision in the present matter was made on 25 May 2010 being the date of the Certificate of Determination. The endorsement made by the registry upon that application, indicating that it had been received by the Commission on 17 June 2010, provides evidence that the appellant lodged the application within the 28 days as prescribed by the Rules. It follows that the appeal has been made within 28 days after the making of the decision appealed against. I reject Mr Nguyen’s argument that the appellant has failed to meet the time requirements as prescribed by the 1998 Act and the Rules. Mr Nguyen submits that the quantum of the award made by the Arbitrator does not meet the threshold as prescribed by s 352(2) of the 1998 Act. That sub section provides:“(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 theregulations), and(b) at least 20% of the amount awarded in the decision appealed against.” In the present matter no monetary award has been made by the Arbitrator. In those circumstances, as has been determined in numerous earlier decisions of the Commission on appeal, the amount of compensation at issue on the appeal is to be determined having regard to the amount of compensation at issue in the proceedings heard by the Arbitrator. As was stated by Deputy President Fleming in Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]:“The ‘amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularised by the applicant”. The quantum of Mr Nguyen’s entitlement is presently unknown given the need to have his lump sum claim in respect of whole person impairment assessed by an Approved Medical Specialist (AMS). He has particularised his claim in a sum well in excess of the threshold as prescribed by s 352(4). His evidence supports that claim. In the circumstances I conclude that the dispute between the parties concerning the occurrence of an injury to Mr Nguyen’s thoracic spine places in issue not only that amount of compensation to which he may be entitled pursuant to s 66 but places in issue his entitlement to a sum pursuant to s 67. I conclude that the quantum of compensation ‘at issue’ in this matter exceeds the threshold as prescribed in s 352(2)(a). The provisions of s 352(2)(b) have no relevance having regard to the fact that no compensation has yet been awarded (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5). I conclude that the monetary threshold has been met.

Ratio Decidendi

Legal Principle Established

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