Wang v KAS Australia Pty Limited (reconsideration)

[2010] NSWWCCPD 119

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
STATUS: Reconsideration: This decision is a reconsideration of the decision in Wang v KAS Australia Pty Limited [2010] NSWWCCPD 110
CITATION:		Wang v KAS Australia Pty Limited (reconsideration) [2010] NSWWCCPD 119
APPELLANT:		Yue Wang
RESPONDENT:		KAS Australia Pty Limited

APPLICANT FOR RECONSIDERATION:		KAS Australia Pty Limited
INSURER:		QBE Insurance (Australia) Limited
FILE NUMBER:		A1-2500/10
ARBITRATOR:	Mr D Minus
DATE OF ARBITRATOR’S DECISION:		30 June 2010
DATE OF APPEAL DECISION:		22 October 2010
DATE OF RECONSIDERATION:		5 November 2010
SUBJECT MATTER OF DECISION:		Reconsideration of order made on appeal; section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Unilegal
Respondent:	Gillis Delaney Lawyers
ORDERS MADE ON RECONSIDERATION:		Order (1) made on appeal on 22 October 2010 is revoked and is to be substituted by the following order: The Arbitrator’s order 1.1 as appears in the Certificate of Determination dated 30 June 2010 is revoked and in its place the following order is made: 1.1 Under s 38 of the Workers Compensation Act 1987 from 25 April 2008 to 24 April 2009 at the maximum statutory rate for a worker with one dependant child and from 25 April 2009 to 27 December 2009 at the maximum statutory rate for a worker with one dependant child under s 40 of the Workers Compensation Act 1987.

BACKGROUND TO THE RECONSIDERATION

1. On 22 October 2010 a determination of an appeal brought by Mrs Yue Wang against a decision of the Commission constituted by an Arbitrator was published (Wang v KAS Pty Limited [2010] NSWWCCPD 110). Order (1) made on that appeal was in the following terms:

   “The Arbitrator’s order 1.1 as appears in the Certificate of Determination dated 30 June 2010 is amended to delete ‘s38’ and substituted with ‘s37’, but is otherwise confirmed.”

1. The amendment to the Arbitrator’s order as effected by the order set out above was made, as stated at [9] of the Determination on appeal, on the basis that there appeared to be an error. The error perceived at that time was that the Arbitrator’s order had purported to make an award under s 38 during a period in excess of 52 weeks, and was thus made without jurisdiction (section 38(2) Workers Compensation Act 1987 (the 1987 Act)).

2. At all relevant times the parties have agreed concerning Mrs Wang’s entitlement to compensation between 25 April 2008 and 27 December 2009. It had been agreed at the hearing before the Arbitrator, as noted at page 2 of the transcript, that Mrs Wang was entitled to weekly benefits during that period calculated at the maximum statutory rate for a worker with one dependant child. It was also agreed that Mrs Wang had been paid compensation during that period and that the respondent was to have credit with respect to payments made.

1. The agreement between the parties, whilst not recorded in the transcript, was that Mrs Wang’s entitlement to weekly benefits arose pursuant to the provisions of s 38 of the 1987 Act. The respondent’s solicitors brought this matter to the attention of the Commission by letter in which amendment of the order made on appeal was sought. A teleconference was arranged and conducted on 1 November 2010.

2. At the teleconference Mrs Wang was represented by her solicitor Mr William Jiang and the respondent was represented by Mr Stephen Hodges. During of the teleconference the parties acknowledged that an award under s 38 can only be made in respect of a maximum period of 52 weeks. The original agreement between the parties as to Mrs Wang’s entitlement to compensation benefits between April 2008 and December 2009 was confirmed.

3. Following general discussion and submissions by the parties agreement was reached that order (1) made on the appeal was to be amended so as to properly reflect both the agreement reached between the parties and the jurisdictional limits of the Commission. The terms of that amendment appear below.

DECISION ON RECONSIDERATION

1. Following reconsideration pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and with the consent of the parties, order (1) made on appeal on 22 October 2010 is revoked and is to be substituted by the following order:

   The Arbitrator’s order 1.1 as appears in the Certificate of Determination dated 30 June 2010 is revoked and in its place the following order is made:

   1.1 Under s 38 of the Workers Compensation Act 1987 from 25 April 2008 to 24 April 2009 at the maximum statutory rate for a worker with one dependant child and from 25 April 2009 to 27 December 2009 at the maximum statutory rate for a worker with one dependant child under s 40 of the Workers Compensation Act 1987.

COSTS

1. No order as to costs of this reconsideration.

Kevin O’Grady

Deputy President  

5 November 2010

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE