Westpac Banking Corporation v Dinning - [2019] NSWWCCPD 33

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Westpac Banking Corporation v Dinning [2019] NSWWCCPD 33
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Karen Dinning
INSURER:	Self-insured
FILE NUMBER:	A1-5410/18
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	25 January 2019
DATE OF APPEAL DECISION:	11 July 2019
SUBJECT MATTER OF DECISION:	Monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96; 68 ALJR 626; 123 ALR 193, Grimson v Integral Energy [2003] NSWWCCPD 29, Hawke v Stanyer & ors t/as Stanyer Partnership [2007] NSWWCCPD 208, Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7, O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 applied; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, Anderson v Secretary, Department of Education [2018] NSWWCCPD 32, *Lambropoulosv Qantas Airways Limited* [2019] NSWWCCPD 17 discussed and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	Turner Freeman Lawyers
ORDERS MADE ON APPEAL:	1. The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied, and there is no right of appeal.

INTRODUCTION AND BACKGROUND

Ms Karen Dinning (the respondent) claimed that she suffered psychological injury as a result of alleged ongoing work stressors culminating in meetings with two of her superiors in February, March and April 2017. The respondent ceased work on or about 21 April 2017.
In a notice of dispute (dispute notice) dated 23 November 2017, which was issued pursuant to the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the appellant declined the claim. The basis of the declinature was said to be that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the appellant in respect of “performance appraisal, informal/formal performance management for the purposes of subsection 11A(1)” of the Workers Compensation Act 1987 (the 1987 Act).[1]
[1] Appellant’s dispute notice dated 23 November 2017; Application to Resolve a Dispute (ARD) pp 198–210, at p 199, [1].
A further dispute notice was issued by the appellant dated 28 March 2018. That dispute notice amended the issues in dispute to allege that the respondent’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the appellant in respect of “performance appraisal or discipline” pursuant to s 11A of the 1987 Act.[2]
[2] Appellant’s dispute notice dated 26 March 2018; ARD pp 213–217, at p 213.
The respondent lodged an ARD in the Commission, seeking a continuing claim for weekly payments of compensation at the rate of $1,500 per week from 21 April 2017, and ongoing treatment expenses pursuant to s 60 of the 1987 Act, claimed in Part 5.3 of the ARD as “$2,000 plus Medicare notice of charge”. A schedule of s 60 expenses dated 7 November 2017 was annexed to an Application to Admit Late Documents (AALD) filed by the respondent on the same date, which particularised the amount of s 60 expenses totalling $1,710.54.[3]
[3] AALD, p 6.
The matter was listed for conciliation and arbitration on 10 January 2019 and proceeded to an arbitration hearing on that day. At the commencement of the arbitration, the respondent withdrew the claim for weekly payments thereby limiting the claim to what it referred to as a “general order” for treatment expenses pursuant to s 60 of the 1987 Act.
The Arbitrator delivered a written decision on 25 January 2019. The Certificate of Determination recorded:
“The Commission determines:
1. The applicant sustained a psychological injury in the course of her employment with the respondent with a deemed date of injury being 19 April 2017.
2. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987.
The Commission orders that:
3. The respondent is to meet the payment of the applicant’s reasonable medical expenses for treatment for her psychological injury pursuant to section 60 of the Workers Compensation Act 1987.”
The appellant appeals the Arbitrator’s decision.

ON THE PAPERS

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.”
Both parties agree that there is no need for an oral hearing of the appeal and that it is appropriate for the matter to be determined ‘on the papers’ in accordance with s 354(6) of the 1998 Act. I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. 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.

THRESHOLD MATTERS

The appeal was filed within the time prescribed by s 352(4) of the 1998 Act.
The appellant asserts that the threshold requirements pursuant to s 352(3) of the 1998 Act have been met.
Section 352(3) of the 1998 Act provides as follows:
“(3) There is no appeal under this section 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 compensation appealed against.”
The respondent disputes that the amount of compensation in issue reaches the $5,000 threshold required by s 352(3)(a).

SUBMISSIONS

The appellant submits that the amount of compensation in issue is at least $5,000.00.
The appellant says that the entirety of the Arbitrator’s decision is in issue, which was that the appellant had failed to establish a defence pursuant to s 11A of the 1987 Act.
The appellant says that the respondent discontinued her claim for weekly payments. The appellant points out that in that claim, the respondent alleged she had no capacity for work and her pre-injury average weekly earnings were $1,500.00 per week. The appellant assessed the value of the weekly payments from 21 April 2017 to the date of the arbitration was a total of approximately $118,125.00.
The appellant contends that this amount of compensation is at issue in the appeal for the purposes of s 352(3) of the 1998 Act.
The appellant submits that the only issue in the proceedings was whether the respondent’s injury was wholly or predominantly caused by its reasonable action in respect of performance appraisal and/or discipline pursuant to s 11A(1) of the 1987 Act. The appellant points out that it was never in dispute that the respondent was incapacitated as a result of her injury and that she required treatment for the injury.
The appellant adds that it was confirmed in the second dispute notice issued on 28 March 2018 that this was the only issue in dispute.
The appellant submits that, given the nature of the dispute, it is immaterial that the respondent discontinued the claim for weekly payments. Following the Arbitrator’s determination of the only issue in the matter, all compensation claimed (not just the compensation for which an award was sought) is “at issue” and is “at issue” on the appeal.
The appellant contends that the weekly compensation is not a theoretical or possible entitlement to compensation, and nor is it an entitlement that has not been particularised, relying on Hamilton v Sydney Water Corporation[4] and Popovic v Liverpool City Council[5] respectively.
[4] [2008] NSWWCCPD 5 (Hamilton).
[5] [2017] NSWWCCPD 49 (Popovic).
The respondent disputes that the threshold requirements of s 352(3) have been met.
The respondent asserts that the appellant has “virtually acknowledged”[6] that to be the case by resorting to the suggestion that the amount in issue is $118,125. The respondent contends that if the appeal is dismissed, the appellant will not be liable for payment of that amount.
[6] Respondent’s submissions, [2.2.2].
The respondent says that the appeal is prohibited because of the text within s 352(3) that “there is no appeal” unless the monetary jurisdictional threshold is satisfied, which it is not.

DISCUSSION

Section 352 of the 1998 Act was extensively amended by the Workers Compensation Legislation Amendment Act 2010 (the 2010 amendments) and the current provisions apply to decisions of arbitrators on and from 1 February 2011. Prior to the 2010 amendments, the requirement to meet the monetary threshold was set out in s 352(2) of the 1998 Act. As s 352(2) was expressed in identical terms to s 352(3) as it now appears, the pre-2011 authorities dealing with the former s 352(2) are equally applicable to the issues relating to the monetary threshold pursuant to s 352(3).[7]
[7] Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96; 68 ALJR 626; 123 ALR 193.
A “decision” is defined in s 352(8) to include an award, interim award, order, determination, ruling or direction.
It is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. Where there is no amount awarded (such as where there is an award for the respondent), subs (3)(b) of s 352 cannot apply, and the amount at issue is to be determined by reference to the compensation claimed in the proceedings before the Arbitrator.[8]
[8] Grimson v Integral Energy [2003] NSWWCCPD 29 (Grimson), [30]; Hawke v Stanyer & ors t/as Stanyer Partnership [2007] NSWWCCPD 208, [20].
In circumstances where the requirement to file the appeal within 28 days has not been met (s 352(4) of the 1998 Act), the Workers Compensation Commission Rules 2011 (the 2011 Rules) make provision for the granting of leave to proceed in certain circumstances. There is no such equivalent discretion provided for in the legislation or the 2011 Rules in relation to the monetary threshold requirements. The Commission, therefore, has no power to permit conduct of an appeal if the monetary threshold has not been met.[9]
[9] Patrick Operations Pty Ltd v Watson [2013] NSWWCCPD 18, [13].
Section 4 of the 1998 Act defines “compensation” as “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. It does not include “damages” (s 149(1) of the 1987 Act) or “costs”.[10]
[10] Grimson, [23].
On the face of the provision, it would seem that the intent of the legislation was to preclude minor or frivolous claims from being appealed. However, the Commission has identified a number of cases where a decision of an arbitrator in respect of liability adversely affects, often significantly, the rights of a party, but an appeal cannot be brought because the monetary threshold has not been satisfied.
In Sheridan v Coles Supermarkets Australia Pty Limited,[11] the injured worker claimed weekly payments and treatment expenses, quantified by the Arbitrator as a total amount of $3,736.46. The worker had also been assessed by Dr Alan Hopcroft, orthopaedic surgeon, as suffering from 10% permanent impairment pursuant to s 66 of the 1987 Act. Dr Hopcroft’s report was in evidence, but a lump sum was not claimed in the proceedings before the Arbitrator. The appellant worker submitted that the amount in issue was $9,736.00, which included the amount of $6,000.00 in respect of the 10% permanent impairment. Deputy President Fleming observed as follows:
“The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. The Application to Resolve a Dispute does not identify an amount of $6000.00 for a 10% permanent impairment of the Applicant’s back as being in dispute. On any reading of the Arbitrator’s statement of reasons for decision it is clear that he was not considering any such claim.”[12]
[11] [2003] NSWWCCPD 3 (Sheridan).
[12] Sheridan, [16].
Deputy President Fleming also considered the monetary threshold in Fletchers International Exports Pty Limited v Regan,[13] in which she said that the decision must have a real capacity to put the amount of compensation in issue, determined by reference to the decision or the claim.
[13] [2004] NSWWCCPD 7, [27].
I made the following observations in relation to s 352(3) in Anderson v Secretary, Department of Education[14] (citations omitted):
“Ms Anderson’s reliance on subss 354(1) and 354(3) of the 1998 Act and the Court of Appeal decision in Thoroughgood is misplaced. Section 352(3) of the 1998 Act is expressed in clear terms. It provides that there is no appeal under this section unless the amount of compensation at issue on the appeal, in this case, exceeds $5,000.
As explained by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
‘the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’
The general purpose and policy of the provision is to require a certain monetary threshold to be met, that is, there is ‘an amount in issue’. The provision restricts the right of appeal in a number of circumstances, as the authorities referred to below illustrate. The requirement is not a simple formality or technicality and its application does not offend the principles and objectives of the Commission set out in subss 354(1) and 354(3) of the 1998 Act.”
[14] [2018] NSWWCCPD 32, [53]–[55].
In O’Callaghan v Energy World Corporation Ltd,[15] Acting President Roche found that an application for reconsideration of consent orders did not satisfy the monetary threshold partly because there was no compensation claimed in the proceedings. It was not sufficient that the result had the potential to allow future compensation.
[15] [2016] NSWWCCPD 1.
In the present case, neither party has explained why the claim for weekly payments was discontinued. In any event, the circumstances are similar to those of the injured worker in my decision in Lambropoulosv Qantas Airways Limited.[16] In those proceedings, the appellant applied for an assessment by an Approved Medical Specialist (AMS) in order to be assessed for the purposes of ascertaining whether he suffered from a whole person impairment of greater than 20%. Such an assessment would entitle him to claim continuing weekly payments beyond the first 260 weeks of weekly compensation, pursuant to s 39 of the 1987 Act. There was no actual amount of compensation claimed.
[16] [2019] NSWWCCPD 17.
Mr Lambropoulos sought to rely on earlier proceedings in which he had made a claim for treatment expenses pursuant to s 60, listed in a schedule as totalling approximately $107,000.00. That claim was discontinued. Mr Lambropoulos sought to rely on that schedule of s 60 expenses in his appeal from the Arbitrator’s decision in the application for assessment by an AMS, in order to establish that monetary compensation satisfying the threshold would flow if the decision was overturned. I determined that there was no amount of compensation claimed before the Arbitrator, and there was no amount of compensation directly at issue on the appeal. If the appeal were to succeed, there would be no orders for the payment of compensation.
The appellant relies on Hamilton and Popovic to support its submission that the respondent’s entitlement to weekly compensation is not a theoretical or possible entitlement. The appellant’s submissions do not identify how the ratio decidendi in those authorities support their argument.
In Hamilton, the claim before the Arbitrator was for s 60 expenses totalling less than $5,000.00. In addition to the section 60 expenses claimed in the ARD, the appellant sought leave on the appeal to introduce into evidence further expenses incurred in the sum of $478.15. Acting President Byron said that:
“There is nothing recorded in the Arbitrator’s Reasons nor in the transcript of the proceedings to indicate that an amount of ‘at least $5,000’ was ever in dispute, in the matter before him.”[17]
[17] Hamilton, [35].
The appellant in Hamilton also sought to rely on a potential future withdrawal of suitable duties, which if it eventuated would enliven a claim for weekly payments. In response to that submission, the Acting President observed that:
“In any event, to suggest that the monetary threshold, which must be met before the appeal can proceed, may be fixed by reference to what might flow from a possible outcome of the very appeal for which leave is sought, is misconceived.”[18] (emphasis in original)
[18] Hamilton, [38].
Ultimately, Hamilton did not reach the threshold for appeal because the amount at issue before the Arbitrator was less than $5,000.00. While in the present case the appellant’s claim for weekly payments had been particularised, it remained a claim that was not in issue before the Arbitrator. It follows that Hamilton does not assist the appellant.
The appellant’s reliance on Popovic is misplaced. In that case, Ms Popovic claimed weekly payments of compensation and treatment expenses in the sum of $5,000 (without supporting accounts or receipts). As in the present case, at the arbitration, Ms Popovic discontinued her claim for weekly payments, and amended the claim pursuant to s 60 to a “general order” with no specific amount expressed.
President Judge Keating said:
“Mrs Popovic submits that the threshold issue should be decided in her favour because of the way in which the case was pleaded. Namely, that an amount of $5,000 was pleaded in the Application as the amount sought in compensation. I do not accept that submission. It is apparent that Mrs Popovicabandoned that claim on the first day of the hearing. The matter proceeded before the Arbitrator on the basis that only a general order was sought in respect of medical and hospital expenses. There was no particularisation of the extent of the medical expenses sought to be recovered”[19]
And
“It follows that the reference to a claim for ‘$5,000’ pleaded in the Application is not decisive of whether the monetary threshold has been satisfied. What is decisive is the way in which the Application was run and decided, namely, on the basis of a claim for a general order for medical expenses rather than a claim for any quantified sum.”[20]
[19] Popovic, [25].
[20] Popovic, [28].
Popovic establishes that the reference to $5,000 is a reference to the amount in issue that was before the Arbitrator and required to be determined by the Arbitrator. Unlike in Popovic, in the present case the s 60 expenses claimed were itemised and supported with accounts and/ or receipts. Those expenses fell short of the $5,000 threshold.
Applying the authorities referred to above, in the present proceedings the amount the appellant is required to pay in satisfaction of the order made by the Arbitrator is limited to the respondent’s treatment expenses, particularised as totalling $1,710.54. There is no evidence that the treatment expenses ordered by the Arbitrator exceeded the monetary threshold of $5,000.00, and expressing the order as a general order is of no moment. The appellant cannot include in the calculation the amount of a claim that was discontinued as it was not an amount in issue before the Arbitrator. It follows that the monetary threshold requirement in s 352(3)(a) has not been met and the appeal cannot be brought.

DECISION

45. The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied, and there is no right of appeal.

Elizabeth Wood

DEPUTY PRESIDENT

11 July 2019