Whitehead v Kassagrove Pty Ltd T/as Moorebank Hotel (No. 2)
[2008] NSWWCCPD 38
•28 March 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Whitehead v Kassagrove Pty Ltd t/as Moorebank Hotel (No 2) [2008] NSWWCCPD 38
APPELLANT: Robyn Anne Whitehead
RESPONDENT: Kassagrove Pty Ltd t/as Moorebank Hotel
INSURER:GIO Workers Compensation (NSW) Pty Ltd
FILE NUMBER: WCC16528-06
DATE OF ARBITRATOR’S DECISION: 12 December 2007
DATE OF APPEAL DECISION: 28 March 2008
SUBJECT MATTER OF DECISION: Disease provisions; section 15 of the Workers Compensation Act 1987; claim for lump sum compensation; whether deemed date of injury is date of incapacity or date on which the claim is made.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Bryden’s Law Office
Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 12 December 2007, as amended on 24 January 2008, is confirmed.
No order as to costs of the appeal.
BACKGROUND
This appeal concerns the determination of the correct ‘deemed date of injury’ under section 15 of the Workers Compensation Act 1987 (‘the 1987 Act’): whether it is the date of incapacity (22 May 2000) or the date on which the worker claimed lump sum compensation (12 September 2005).
Robyn Whitehead (‘the Appellant Worker/Ms Whitehead’) started work with Kassagrove Pty Ltd t/as Moorebank Hotel (‘the Respondent Employer’) as a bottle shop assistant in 1996 working 6 to 12 hour shifts standing on a cement floor in the cool room.
Whilst at work in June 1999 Ms Whitehead noticed a painful burning sensation in the soles of her feet. She continued working but over time the pain increased resulting in her seeing her general practitioner, Dr Tyssen, in early 2000. He referred her to Dr Giblin, orthopaedic surgeon, who diagnosed bilateral plantar fasciitis due to the nature of her work. He injected Ms Whitehead with steroid and local anaesthetic, which did not give her any significant permanent relief. At that time she had about one week off work and returned to her normal duties. Her pain returned and she ceased work on 22 May 2000 and returned on light duties in November 2000. She was first paid weekly compensation in respect of her condition on 22 May 2000.
On 9 March 2001 Ms Whitehead suffered a stroke and has not returned to work since that date.
By letter dated 12 September 2005 Ms Whitehead’s solicitor made a claim for lump sum compensation in respect of 15% permanent loss of efficient use of her left leg below the knee, 10% permanent loss of efficient use of her right leg below the knee and 5% permanent impairment of her back, plus compensation for pain and suffering. The matter was not resolved and an Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 19 October 2006 seeking the lump sum compensation particularised in the letter of 12 September 2005.
By its Reply filed on 9 November 2006 the Respondent Employer stated the issues in dispute to be whether Ms Whitehead’s condition was a disease, the determination of the correct ‘deemed date of injury’ and Ms Whitehead’s entitlement to lump sum compensation.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 12 February 2007 when the Arbitrator identified the issue for determination to be the correct ‘deemed date of injury’. The Appellant Worker submitted that the correct date was the date of incapacity, namely, 22 May 2000 (T7.53). The Respondent Employer submitted that the correct date was the date on which the claim for compensation was made, namely, “19 September 2005” (T5.29). Ms Whitehead claimed lump sum compensation by letter dated 12 September 2005, not 19 September 2005, but nothing turns on this difference. Throughout this decision I will refer to 12 September 2005 as the relevant date.
In a reserved decision delivered on 12 March 2007, the Arbitrator determined the deemed date of injury to be “15 September 2005” [sic, 12 September 2005] (Statement of Reasons for Decision (‘Reasons’) paragraph 23). The Certificate of Determination, dated 12 March 2007, records the Arbitrator’s determination as follows:
“1.That this matter be remitted to the Registrar for referral of the Applicant to an Approved Medical Specialist in accordance with this Determination.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
By an ‘Appeal Against Decision of Arbitrator’ filed in the Commission on 5 April 2007 the Appellant Worker sought leave to appeal that decision. In a decision delivered on 12 July 2007, I refused leave to appeal on the ground that the Arbitrator’s decision was interlocutory (Whitehead v Kassagrove Pty Ltd t/as Moorebank Hotel [2007] NSWWCCPD 154).
The matter was referred to an Approved Medical Specialist (‘AMS’) on 5 September 2007 and a Medical Assessment Certificate issued on 25 October 2007. The AMS provided two assessments, one under the Table of Disabilities for injuries before 1 January 2002 and a second in accordance with AMA5 and the WorkCover Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Consistent with his determination of 12 March 2007, the Arbitrator issued a further determination on 12 December 2007, wrongly headed “Consent Orders”, making orders consequent upon a deemed date of injury in September 2005. The Arbitrator caused a further Certificate of Determination to be issued on 24 January 2008 in the same terms, namely:
“1.That the Respondent pay to the Applicant the sum of $1,250 in respect of a 1% Whole Person Impairment.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 9 January 2008, the Appellant Worker seeks leave to appeal against the Arbitrator’s determination of 12 December 2007 (as amended by Certificate of Determination dated 24 January 2008), which is based on his decision of 12 March 2007.
PRELIMINARY MATTERS
Section 354(6) of the Workplace Injury Management and Workers 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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in determining the deemed date of injury to be “15 September 2005” [sic, 12 September 2005] and therefore awarding compensation for whole person impairment, instead of 22 May 2000 in which event Ms Whitehead’s compensation would be assessed under the Table of Disabilities.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS
The Appellant Worker submits:
(a)there is no dispute that Ms Whitehead’s condition has resulted from a disease process or that her claim for lump sum compensation was made on “19 September 2005” [sic, 12 September 2005];
(b)sections 15 and 16 of the 1987 Act provide three alternatives for determining a deemed date of injury:
(i)the time of death;
(ii)the time of incapacity, or
(iii)if death or incapacity has not resulted from the injury, then the time at which the worker makes a claim for compensation with respect to the injury.
(c)the third alternative (the time at which the worker makes a claim for compensation) is only available if the injury giving rise to the claim has not resulted in the worker’s death or incapacity for work (per Sheller JA in GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 at 195E (‘GIO’));
(d)“incapacity” in sections 15(1)(a) and 16(1)(a) does not mean physical incapacity for work but means the incapacity for which weekly compensation is claimed (Stone v Stannard Brothers Launch Services Pty Ltd (2004) 1 DDCR 701 at 703 [5] (‘Stone’)). The date of incapacity in the present matter was 22 May 2000, when Dr Giblin declared Ms Whitehead unfit and when she claimed and was paid weekly compensation;
(e)the authorities relied on by the Respondent Employer can all be distinguished on their facts;
(f)the correct application of the law is found in P & O Berkley Challenge Pty Ltd v Alfonso (2000) 49 NSWLR 487 (‘Alfonso’), and
(g)applying the principles in Alfonso, the Appellant Worker is entitled to an award for lump sum compensation calculated on the basis that her deemed date of injury is 22 May 2000.
The Respondent Employer concedes that the only issue is the determination of the deemed date of injury under section 15 of the 1987 Act. It submits:
(a)Ms Whitehead does not allege any incapacity in the present proceedings but, even if she had, the deemed date of injury for the purposes of a lump sum claim is still the date on which the claim is duly made and not the date of incapacity. In Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 (‘Antaw’), the Court of Appeal made it clear that the deemed date of injury under section 15 and/or section 16 for the purposes of a claim for weekly compensation can be a different date to the deemed date of injury for the purposes of a lump sum claim and that, for the purposes of a lump sum claim, the deemed date of injury is the date when the claim is made;
(b)consistent with the approach in Stone, it is now beyond argument that the deemed date of injury for the purposes of a claim under section 66 of the 1987 Act in respect of an injury to which section 15 and/or section 16 applies is the date on which the claim is made;
(c)Antaw is directly on point and is indistinguishable from the present matter. The fact that the worker may have been incapacitated as a result of the condition prior to the date on which the lump sum compensation was duly made does not affect the determination of the deemed date of injury. Sections 15 and 16 may fix different dates for incapacity and impairment injuries;
(d)the Appellant Worker’s submissions ignore section 15(4) which provides that “In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3”, and
(e)it follows that the deemed date of injury in the present matter is 12 September 2005 and the Arbitrator’s decision should be confirmed.
DISCUSSION AND FINDINGS
In GIO, the worker was exposed to sunlight in the course of his employment over 19 years. As a result he developed a melanoma on his right cheek. The melanoma was removed in 1983, which resulted in a short period of incapacity. The worker subsequently developed a number of metastases of the melanoma. In 1993 he died from a brain tumour, which was a metastatic melanoma that had resulted from his original melanoma in 1983. His widow claimed compensation under the 1987 Act and succeeded. The insurer on risk in 1993 appealed. It argued that as the operation on the melanoma in 1983 had caused a period of incapacity and, as the worker’s death had resulted from the 1983 melanoma and there was no evidence that exposure to sunlight since 1983 had played any role in the worker’s death, section 15(1) deemed the injury to have happened at the time of the incapacity in 1983.
After stating the passage relied on by the Appellant Worker at [26(c)] above, Sheller JA added:
“But, if the injury resulted in incapacity for work and the worker’s death, is it deemed to have happened at the time of the worker’s death or at the time of the worker’s incapacity for work? The appellant submitted that the answer was incapacity for work if that resulted. The injury is only deemed to have happened at the time of the worker’s death if it did not result in incapacity for work before death. In 1983, the operation on the melanoma resulted in incapacity for work. The appellant submitted that, pursuant to section 15(1), the injury was deemed to have happened at that time and that, accordingly, within the meaning of Part 3, clause 2(1), the worker’s death resulted from an injury received before the commencement of Division 1 of Part 3 and the amount payable was that under the former Act.” (195F-G) (emphasis added)
This is exactly the same argument presented by the Appellant Worker in the present matter. In rejecting this argument, Sheller JA (with Priestley and Clarke JJA agreeing) held at 196G that “for the purpose of the widow’s claim, the worker’s injury is deemed to have happened at the time of death”. His Honour said at 196B:
“In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed. Section 15(1)(b) provided that ‘compensation is payable by the employer in whose employment the worker is or who last employed the worker’. That means the employer in whose employment the worker is at the time the injury is deemed to have happened, or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn (1961) 105 CLR 177 at 196 and 199.” (emphasis added)
In the present matter, Ms Whitehead was incapacitated in May 2000 and was paid compensation. The current claim, however, is for lump sum compensation, not for weekly compensation.
In Antaw, the worker was a motor mechanic who was injured in 1976 when a metallic particle struck his left eye. He settled his claim under section 16 of the Workers Compensation Act 1926 (‘the 1926 Act’) for 10% loss of sight in the left eye. The worker moved to different employers and in 1992 he had further surgery to his eye. In April 1996 he ceased full time work as a mechanic because of his loss of vision. He claimed weekly and lump sum compensation on 29 July 1996 and was awarded weekly compensation from 10 August 1993 (incapacity having arisen in January 1992 when he had time off work for surgery and was paid voluntary compensation) and lump sum compensation in respect of a further 40% loss of sight in his left eye calculated on a deemed date of injury of 29 July 1996.
The employer appealed, arguing that the injury should be deemed to have happened on or before 30 June 1987 and lump sum compensation should have been calculated under section 16 of the 1926 Act. Counsel for the appellant argued that no practical purpose was to be served by applying section 15 of the 1987 Act where the worker had suffered a frank traumatic injury and there was no difficulty in identifying the date of the injury from which the incapacity arose. It was also argued that the evidence established a deemed date of injury under section 15 before 30 June 1987 because the worker had been incapacitated for work in 1976 and when he first stopped work because of his vision in 1985.
The Court of Appeal held that the trial judge’s finding, that the injury was deemed to have happened at the time of incapacity in 1992 when the worker was unable to work as a motor mechanic, was open to her. By 1996 the worker had sustained a further 40% loss of vision. The worker’s incapacity had not resulted from that additional loss of vision and the appropriate date to determine the lump sum entitlements was the time when the worker made his claim for lump sum compensation.
Ms Whitehead was incapacitated on and from 22 May 2000. As in Antaw, Ms Whitehead’s incapacity has not resulted from the losses she now alleges in her Application and on which she based her claim for lump sum compensation on 12 September 2005. Therefore, an application of the principles discussed in Antaw leads to the result that Ms Whitehead’s injury, for the purposes of her lump sum claim, is deemed to have happened on 12 September 2005.
The Appellant Worker argues that Antaw can be distinguished because it involved a claim for a ‘further loss’ and no incapacity resulted from that further loss. I do not accept this as a valid distinction as it fails to acknowledge subsection (4) of section 15, which states:
“(4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
At [15] of Antaw, Sheller JA said:
“15 S 15(4) provides that in s 15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3. Loss of vision is such a loss; see s66 and the Table to Div 4 of Pt 3 therein referred to. The combined effect of subs (3) and (4) means that the condition for the application of subs (1) of s15 is met. The respondent suffered an injury within the meaning of s15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity; s15 (1) (a) (i). Her Honour found that this incapacity occurred, other than for the purpose of s66, in 1992 and for the purpose of s66 in 1996.” (emphasis added)
His Honour held that the trial judge was not in error in making that finding because the relevant incapacity had not resulted from the additional loss of vision (at [25]). As with Mr Antaw, Ms Whitehead’s impairment/losses are losses for which compensation is payable under Division 4 of Part 3. She suffered an injury, namely, plantar fasciitis, which, it is agreed, is a disease of such a nature as to be contracted by a gradual process and is ‘an injury’ within the meaning of section 4(b)(i) of the 1987 Act. Accordingly, the injury is deemed to have happened at the time of incapacity (section 15(1)(a)(i)). That incapacity occurred in May 2000. However, for the purposes of a claim for lump sum compensation, the injury is deemed to have happened, if death or incapacity has not resulted from “the injury”, at the time the worker makes a claim for compensation with respect to “the injury”.
If section 15(4) had not been enacted, the reference to “the injury” in section 15(1) could only be a reference to the section 4(b)(i) injury, namely, the disease of plantar fasciitis which was contracted by Ms Whitehead in the course of her employment and to which her employment was a contributing factor, and the Appellant Worker’s argument would have much more force. For the purpose of lump sum claims, however, section 15(4) expands the definition of ‘injury’ to include “a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3”. The current claim is such a claim under Division 4 of Part 3 and, as no incapacity has resulted from the claimed impairment/losses, the injury is deemed to have happened at the time the worker made her claim for lump sum compensation.
The Court of Appeal further considered this issue in Alfonso. In that case the worker developed pain in her arms and neck in the early 1990’s. In 1993 she was put off work by her doctor and was paid compensation (the first incapacity). She moved to the second employer where her symptoms worsened and she again had time off work in 1995 and was paid compensation (the second incapacity). She worked for two weeks in February 1996 but ceased work again and did not return (the incapacity ‘for which compensation was claimed’). She claimed weekly and lump sum compensation from both employers in an application filed in the Compensation Court on 30 July 1997. The trial judge held that the incapacity for which compensation was claimed occurred when the worker ceased work in February 1996 and that was the deemed date of injury for both weekly and lump sum compensation. The Court of Appeal upheld that decision and held that ‘incapacity’ in section 16 of the 1987 Act means “incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity” (per Priestley JA at 486 [24]). In other words, the relevant deemed date of injury was not the first incapacity but was the date of the incapacity for which compensation was claimed or entitled to be claimed.
The Appellant Worker relies on this authority as a “correct application of the law”. I do not believe Alfonso assists Ms Whitehead. At [32], Priestley JA referred to the terms of section 16(3) of the 1987 Act (which is in identical terms to section 15(4)) and said that it:
“…appears reasonably plainly to serve the function of fixing dates for injuries entitling a worker to compensation payable under Division 4 of Pt 3, that is, necessarily including amounts payable under ss 66 and 67.”
In Stone, the Court of Appeal considered GIO, Alfonso and Antaw. In that case the worker developed skin cancer as a result of prolonged exposure to sun in the course of his employment with the respondent up to 16 December 1985, when he stopped work for unrelated reasons. Prior to stopping work he was aware of ‘sun spots’, which he had burnt off by his doctor. The worker’s condition deteriorated and he claimed lump sum compensation in respect of severe facial disfigurement in December 2001, which claim was amended on 10 June 2003. The trial judge held that the treatment given before 30 June 1987 would have involved some incapacity for work and therefore the deemed date of injury was before 30 June 1987 and the provisions of section 16 of the Workers Compensation Act 1926 applied in assessing the quantum of compensation recoverable.
On appeal, the trial judge was held to have erred. As there was no claim or entitlement to claim weekly compensation, section 16(1)(a)(i) did not fix a date on which the impairment injury happened. That date was, in the circumstances of the case, fixed when the claim for lump sum compensation was made in December 2001 or on 10 June 2003. Handley JA noted at [8] that Antaw is authority for the proposition that section 16 “may fix different dates for incapacity and impairment injuries”. His Honour’s statement is equally applicable to claims to which section 15 applies. In respect of Alfonso, his Honour noted at [9] and [10]:
“…the appeal did not require the Court to choose between 11 February 1996 and 30 July 1997 as the date of injury for the purposes of the ss 66 and 67 claims but between dates before and after 31 December 1995 when the appellant insurer came on risk.
10 In the present case where there was and could be no claim for weekly compensation s 16(1)(a)(i) did not fix a date on which the impairment injury happened. Accordingly s 16(1)(a)(ii) applied and this injury is deemed to have occurred when the claim for lump sum compensation was made. Even if s 16(1)(a)(i) was capable of operating in this case to fix a date for the worker’s incapacity injury we should nevertheless follow the Alto Ford case where this Court specifically held that s 16(1) could fix different dates for incapacity and impairment injuries and, in the latter case the relevant date was the date of the claim.”
Hodgson JA (Mason P agreeing) reached the same conclusion, noting at [37] and [38]:
“37 Berkeley Challenge [Alfonso] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.
38 In the present case, the claim for facial disfigurement is a claim for a loss of a thing as the result of an injury, within s.66(1), which loss is itself to be treated as an injury within s.16(1), as provided by s.16(3). The same applies to the claim in respect of bodily disfigurement. Each such loss or injury was the disfigurement assessed by Dr. Lobel on 5 March 2003, and included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 30 June 1987: in my opinion, this plainly follows from Antaw at par.[18]. For that reason, in my opinion the primary judge did make an error of law, and the appeal must be upheld.” (emphasis added)
In Ms Whitehead’s matter, there is no claim for weekly compensation under consideration but only a claim for lump sum compensation. Her claimed section 66 impairment/losses in September 2005 could not have caused her incapacity in 2000. As a result, applying the principles in Antaw, as explained in Stone, section 15 can “fix different dates for incapacity and impairment injuries”, and the correct deemed date of injury for Ms Whitehead’s “impairment injury” is, as the Arbitrator found, “15 September 2005” (sic, 12 September 2005). The Arbitrator’s decision therefore discloses no error.
DECISION
For the reasons given in this decision, the Arbitrator’s determination dated 12 December 2007, as amended on 24 January 2008, is confirmed.
COSTS OF THE ARBITRATION
By letter dated 22 March 2007, the Respondent Employer sought a reconsideration of the Arbitrator’s costs order on the following grounds:
(a)the only issues before the Arbitrator were whether the injury came within the disease provisions and, if so, the determination of the correct deemed date of injury;
(b)the Respondent Employer submitted at a teleconference on 12 January 2007 that the disease provisions applied and that the correct deemed date of injury was 15 September 2005 (sic, 12 September 2005), and
(c)the Arbitrator ultimately accepted the Respondent Employer’s submissions and, if the Appellant Worker had done so at the teleconference, no arbitration would have been necessary.
It does not appear from the Commission’s file if the Arbitrator considered the reconsideration application and the Respondent Employer now seeks to argue the costs issue on appeal.
Whilst it is not possible to appeal against a costs order as such (because no “compensation” is at issue in such an appeal (Grimson v Integral Energy [2003] NSWWCCPD 29)), it is possible, in the appropriate case, to argue the costs of the arbitration on appeal if the appeal is otherwise properly before a Presidential Member (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 at [67]). I doubt that this is an appropriate case in which to allow the costs of the arbitration to be argued on appeal because the Respondent Employer’s submissions on costs were not attached to its Notice of Opposition and were therefore not served on the Appellant Worker. As a result, the Appellant Worker has had no opportunity to respond to the argument now sought to be presented on appeal. Nevertheless, for the reasons set out below, I will deal with the application.
The Commission has a discretion to determine “by whom, to whom and to what extent costs are to be paid” (see section 341 of the 1998 Act). Identical language is used in section 112 of the 1998 Act, which deals with costs in ‘existing claims’.
The Commission also has a discretion to determine if costs have been unreasonably incurred and, if so, it is to order that those costs “are not to be paid by any party to the claim” (section 342(1) of the 1998 Act). The circumstances in which costs are considered to have been unreasonably incurred for the purposes of section 342 are set out in section 342(2). None of the circumstances listed in section 342(2) apply in the present matter and, therefore, the costs incurred after the teleconference on 12 January 2007 were not unreasonably incurred. I decline to make the costs order sought by the Respondent Employer.
COSTS OF THE APPEAL
No order as to costs of the appeal.
Bill Roche
Deputy President
28 March 2008
I, NING DONG, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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