William Joseph Crompton v Moree Plains Shire Council
[2003] NSWWCCPD 7
•13 March 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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| CITATION: | William Joseph Crompton v Moree Plains Shire Council [2003] NSW WCC PD 7 |
| APPELLANT: | William James Crompton |
| RESPONDENT: | Moree Plains Shire Council |
| INSURER: | Insurers Guarantee Fund - NEM General Insurance Association Ltd (in liquidation) |
| FILE NO: | WCC 805-2002 |
| DATE OF DECISION: | 13 March 2003 |
| PRESIDENTIAL MEMBER: | Dr Gabriel Fleming |
| DECISION UNDER APPEAL: | Decision of an Arbitrator that Moree Plains Shire Council is liable to make workers compensation payments to William James Crompton. |
| DATE OF DECISION UNDER APPEAL: | 28 November 2002 |
| REPRESENTATION: | Appellant: Michael Malley, Solicitor, Nevill & Edwards |
| Respondent: R A King, Claims Manager, Corporate Management Services (Australia) Pty. Ltd as agent for Insurers’ Guarantee Fund | |
| ORDERS MADE ON APPEAL: | Leave to appeal the decision of the Commission constituted by an Arbitrator dated 28 November 2002 is refused. |
THE APPEAL
On 9 December 2002 Mr. William Crompton (‘the Applicant’) lodged an appeal against the decision of an Arbitrator on his claim for workers compensation made against Moree Plains Shire Council (‘the Respondent’). The relevant insurer is the Insurer’s Guarantee Fund, for NEM General Insurance Association Ltd (in liquidation). The Certificate of Determination, issued by the Workers Compensation Commission on 28 November 2002, and attached statement of reasons, set out the decision of the Arbitrator as follows:
i.The Respondent to compensate Applicant for permanent hearing loss in the sum of $6,656.00 in accordance with Part 3, Division 4 of the Workers Compensation Act 1987
ii.Respondent to reimburse the Applicant in the sum of $7,000.00 for the cost of hearing aids in accordance with s60 of the Act.
iii.Each party to pay their own costs.
The first two of the above orders meet the Applicant’s claim, however he also sought compensation in the sum of $4.00 per week for batteries to run his hearing aid. The Arbitrator found that the cost of the batteries was not ‘a reasonable expense’ under section 60 of the Workers Compensation Act 1987.
The Applicant also sought leave to refer a question of law to the President. The President refused that request on 10 March 2003. The President took the view that the matter ‘should be referred back to Arbitrator Keogh, so that he may reconsider his decision as to costs under section 350(3) of the WIM Act’.
ISSUES IN THE APPEAL
The Applicant alleges that the Arbitrator “. . . erred in law in failing to make a general order in favour of the Applicant for the Respondent to pay expenses pursuant to section 60 of the Workers Compensation Act 1987 including expenses for the cost of hearing aid batteries”. The Applicant also alleges that the Arbitrator made an error of law and failed to properly exercise his discretion in making the order for costs in circumstances where the Applicant was largely successful in his claim.
The Respondent has not made any submissions on the appeal, preferring to rely upon the ‘Reply to the Application for Dispute Resolution’ filed in the original proceedings. This ‘Reply’ obviously does not address the threshold issues on the appeal nor any reason why the Arbitrator’s decision should not be revoked.
Whether or not the Applicant can meet the threshold test for leave to appeal, discussed below, is the first issue to be addressed in this application.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear 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 Act’), as follows:
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(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 the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
In accordance with the President’s Practice Direction 6B of 2002, I am satisfied that sufficient information has been supplied in connection with the application for leave to appeal to enable me to determine whether or not leave should be granted to appeal without holding a conference or formal hearing i.e. ‘on the papers’ (section 354(6) of the Act).
DETERMINATION OF LEAVE TO APPEAL
Section 352 is a mandatory provision that must be met before leave is granted. In this matter the ‘amount of compensation’ at issue on the appeal (section 352(2)) is the amount of the claim for batteries for Mr. Crompton’s hearing aid. The cost of the batteries is $4.00 per week and does not, on any calculation, amount to $5,000.00 and at least 20% of the amount of compensation at issue in the dispute.
DECISION
Leave to appeal the decision of the Arbitrator dated 28 November 2002 is refused.
OTHER ISSUES
I am in agreement with the President’s recommendation that the matter should be referred back to the Arbitrator so that he may reconsider his decision pursuant to section 350(3) of the Act. While section 350(3) has limited application (see Southern Tablelands Health Service v Solomon 19 NSW CCR (1999) 235) it seems to me to be relevant and applicable in this case.
Section 341 of the Workplace Injury Management and Workers Compensation Act 1998 provides as follows:
The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.
There is nothing in the Arbitrator’s statement of reasons for decision, or in the transcript of the proceedings that suggest the Arbitrator took these matters into consideration before making his orders. Indeed, it is difficult to see how the claimant could be found to have brought a frivolous, vexatious or fraudulent claim when the Arbitrator has substantially found in his favour.
The Arbitrator found there is “no reason in the evidence why the Applicant’s claim for the cost of his hearing aids should be denied”. However in relation to the claim for batteries for the hearing aid the Arbitrator states in the decision that, “I was not persuaded that the ongoing cost of batteries was a reasonable expense under s.60 of the Act and I decline to make an order in that respect”. I find it difficult to understand this finding and to appreciate why a successful claimant would be awarded the cost of a hearing aid and not the batteries to run it. Such an order is not, on its face, contrary to section 60 and indeed similar awards, including batteries, have been made by the Compensation Court of NSW (see Baldicchino v Comeng Holdings Pty Ltd (1998) 17 NSWCCR 27). The reasons for decision and the transcript of the arbitration hearing do not disclose any basis for this finding.
I recommend that the Arbitrator, pursuant to section 350(3) of the Act, reconsider not only the issue of costs but also the finding in relation to the expenses incurred by the Applicant for batteries for his hearing aid.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission
Registrar Date:
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