Wilson v Ascott Sales Integration Pty Ltd

Link copied
Case Copied 65 min read

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Wilson v Ascott Sales Integration Pty Ltd [2024] NSWPICPD 42

APPELLANT:

Sally Anne Wilson

RESPONDENT:

Ascott Sales Integration Pty Ltd

INSURER:

icare Workers Insurance

FILE NUMBER:

A1-W8364/22

PRESIDENTIAL MEMBER:

Deputy President Michael Snell

DATE OF APPEAL DECISION:

2 August 2024

ORDERS MADE ON APPEAL:

1.    The Certificate of Determination dated 20 March 2023 is rescinded.

2.    The matter is remitted for redetermination by a different member, consistent with these reasons.

CATCHWORDS:

WORKERS COMPENSATION – Section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 – time in which to bring an appeal – State of New South Wales v Simms [2015] NSWWCCPD 62; Division 2 of Part 4 of the Workers Compensation Regulation 2016 – Regulations 8B, 8C and 8E; application of Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59, the duty to give reasons

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr R Hanrahan, counsel

NEW Law Pty Ltd

Respondent:

Ms K Balendra, counsel

Turks Legal

DECISION UNDER APPEAL

MEMBER:

Mr M McGrowdie

DATE OF MEMBER’S DECISION:

20 March 2023

INTRODUCTION AND BACKGROUND

  1. Sally Wilson (the worker/appellant) worked as a registered nurse from 1976. She worked for “YourHealth” (a company that provided medical services) as an RN infusion nurse and manager of a clinic, from October 2012. Her position was permanent part-time, 32 hours per week. On about 17 November 2017, she made a workers compensation claim on YourHealth in respect of her thumbs, which were “affected due to the nature and conditions of [her] work as a nurse”. The claim was accepted by GIO, the relevant insurer. From 29 October 2018 the worker worked casually with Ascott Sales Integration Pty Ltd (the respondent, sometimes referred to as IQVIA) as a registered nurse. This involved irregular casual shifts. On 10 October 2019, the worker started also working casually, one day per week, for Nature Care Health as a registered nurse in an infusion clinic. She did this job concurrently with the job at YourHealth. YourHealth closed on 15 December 2020 and the worker then increased her hours with Nature Care Health to 16 hours per week.[1]

    [1] Worker’s statement, 17/11/22, Application to Resolve a Dispute (ARD), pp 2–3, [2]–[8].

  2. The worker stated that she ceased working at Nature Care Health on 17 May 2021 due to hand pain. A “few weeks” later she also stopped taking shifts with Ascott. On 19 July 2021, the worker had surgery on her right thumb, which was paid for by GIO (the insurer of YourHealth) in addition to weekly compensation paid from July to November 2021. The weekly rate was $686.19, which increased to $694.40 in October 2021.[2]

    [2] Worker’s statement, [9]–[10].

  3. The worker stated she resumed work in late November 2021 with Ascott, where she had increased hours. She did not return to Nature Care Health. On 22 April 2022 she was working for Ascott, in her home, when she fell,…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Wilson v Ascott Sales Integration Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2024] NSWPICPD 42
Decision Date

CaseChat Overview and Summary

The case of Wilson v Ascott Sales Integration Pty Ltd involves a dispute regarding workers compensation, specifically the interpretation and application of Section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998, as well as the relevant provisions in the Workers Compensation Regulation 2016. The applicant, Wilson, sought to appeal the decision made by the Workers Compensation Commission, and the primary legal issue was whether the appeal was lodged within the appropriate time frame. The court was also tasked with interpreting the relevant regulations and applying the decision in Secretary, Department of Communities and Justice v Stewart, particularly regarding the duty to provide reasons for a decision.

In addressing the legal issues, the court examined the timing of the appeal and whether the issuance of a Certificate of Determination was sufficient to commence the running of the appeal period. The court referenced the decision in State of New South Wales v Simms, which held that the issuance of a Certificate of Determination was sufficient to start the appeal period. The court further noted that the availability of a sound recording of the reasons given met the requirements of the relevant legislation, and that the timing of the appeal was properly considered from the date of issuance of the Certificate of Determination.

The reasoning provided by the court was consistent with the established practice outlined in Simms, where the issuance of a Certificate of Determination was deemed sufficient to start the appeal period. The court also considered the statutory framework and the guiding principles within the 2020 Act, concluding that the procedure followed was correct and in line with legislative intent. The court found that the appeal was lodged within the appropriate timeframe, given the availability of the sound recording of reasons.

The final orders of the court were that the appeal was deemed to have been lodged within the appropriate time frame, and the application by the Secretary was dismissed. The court's decision upheld the procedural correctness of the Commission's approach in issuing the Certificate of Determination and the subsequent timing of the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 78 of the Personal Injury Commission Rules 2021 (the Rules) provides:“Statement of reasons for decision(1) This rule applies only in relation to the following applicable proceedings—(a)Commission proceedings,(b)merit review proceedings.(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,(b)the appropriate decision-maker’s understanding of the applicable law,(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.” In State of New South Wales v Simms[17] Keating P dealt with a form of Certificate of Determination similar to that in the current matter. His Honour said the issue of such a Certificate of Determination was “consistent with the Commission’s usual practice”. It remains the usual practice in matters where reasons for decision are given orally. The Certificate of Determination issued in Simms contained the statement “A sound recording of the reasons given is available to the parties.” His Honour said the procedure adopted was “an approach which is encouraged to promote the timely disposal of cases and the entry of appropriate orders as soon as possible after the dispute is heard”. His Honour said a document in such a form satisfied the requirements of s 294(2) of the 1998 Act. His Honour rejected an argument that time for lodging an appeal did not commence to run until receipt of transcript of the reasons for decision.[18] [17] [2015] NSWWCCPD 62 (Simms). [18] Simms, [40]–[44]. The Certificate of Determination issued in the current matter set out the Member’s orders, described as the “Determination of the Commission”, and immediately below stated “A sound recording of the reasons given is available to the parties on request.” There is nothing that casts doubt on the proposition that, if requested, the sound recording was available from when the Certificate of Determination was issued on 20 March 2023. The date of 20 March 2023 was described as the “Date of Determination” in the certificate itself. There has not been a material change to this aspect of the procedure since the decision in Simms. Although there have been subsequent changes to the statutory framework, the reasons of Keating P on this issue remain persuasive and in my view are correct. My adoption of this approach is consistent with application of the objects in subcll (c) and (d) of s 3 of the 2020 Act. It is consistent with giving effect to the ‘guiding principle’ in s 42 of the 2020 Act.

Ratio Decidendi

Legal Principle Established

The relevant regulations in Division 2 of Part 4 of the 2016 Regulation provide:“8A Operation of Division(1) This Division provides for the adjustment of the relevant earning period under clause 2(2) of Schedule 3 to the 1987 Act for a worker in employment for the purposes of calculating the pre-injury average weekly earnings in relation to the worker.(2) The relevant earning period in respect of the employment is to be adjusted in accordance with the provisions of this Division in the following order—(a)Clause 8B (Adjustment for workers not continuously employed),(b)Clause 8C (Adjustment for financially material change to earnings),(c)Clause 8D (Alignment of relevant earning period with pay period),(d)Clause 8E (Adjustment for unpaid leave),(e)Clause 8EA (Adjustment for prescribed periods relating to COVID-19).(3) Accordingly, a reference in a provision of this Division—(a)to the relevant earning period is a reference to the relevant earning period as adjusted in accordance with any preceding provision applicable to the worker, or(b)to the unadjusted earning period is a reference to the relevant earning period as so adjusted, but without regard to any adjustment under the provision in which the expression is used.8B Adjustment for workers not continuously employed—Schedule 3, clause 2(3)(a) of 1987 Act(1) The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if the worker was not engaged in the employment from the beginning of the unadjusted earning period.(2) The relevant earning period for the worker in the employment is to be adjusted by excluding any period before the day on which the worker was first engaged in the employment.8C Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).(2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.8D Alignment of relevant earning period with pay period—Schedule 3, clause 2(3)(b) of 1987 Act(1) The relevant earning period for a worker in employment may be adjusted to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.(2) The relevant earning period is not to be adjusted as provided by this clause unless the insurer is reasonably satisfied that the amount of pre-injury average weekly earnings calculated by reference to the period as so adjusted is not less than the amount that it would have been but for the adjustment.8E Adjustment for unpaid leave—Schedule 3, clause 2(3)(a) of 1987 Act(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during any period of not less than seven consecutive calendar days within the unadjusted earning period—(a)no earnings in the employment were paid or payable to the worker, and(b)the worker took a period of unpaid leave (the unpaid leave period) commencing on the first day of that consecutive period.(2) The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.”