Woodbury v Miles
[2006] NSWWCCPD 5
•24 January 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Merriman v Anaco Holdings Pty Ltd t/as Paddington Fresh Foods & Broadway [2006] NSWWCCPD 5
APPELLANT: Ciaro Merriman
RESPONDENT: Anaco Holdings Pty Ltd t/as Paddington Fresh Foods & Broadway
INSURER:CGU Workers Compensation Ltd
FILE NUMBER: WCC 19187-03
DATE OF ARBITRATOR’S DECISION: 7 May 2004
DATE OF APPEAL DECISION: 24 January 2006
SUBJECT MATTER OF DECISION: Restrictions on Commission’s jurisdiction pursuant to section 289 of the Workplace Injury Management and Workers Compensation Act 1998, application of section 53 of the Workers Compensation Act 1987, effect of recipient of weekly compensation paid voluntarily ceasing to reside in Australia.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Steve Walker & Associates, Lawyers
Respondent: Sparke Helmore, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 May 2004 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for determination of Ms Merriman’s application.
The Respondent, Anaco Holdings Pty Ltd, is to pay the Appellant, Ms Merriman’s costs in this appeal.
BACKGROUND TO THE APPEAL
On 31 May 2004, Ciara Merriman sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 7 May 2004. The Respondent to the Appeal is Anaco Holdings Pty Ltd t/as Paddington Fresh Foods & Broadway (‘Anaco’), whose workers compensation insurer is CGU Workers Compensation Ltd (‘CGU’).
Ms Merriman was born in Ireland on 8 March 1981 and is aged 24. While visiting Australia, she obtained casual employment with Anaco at its premises in Paddington. On 13 October 2003, while walking to work, she slipped and fell in Bondi Junction injuring her back. She was admitted to St Vincent's Hospital, where she underwent surgery and was not discharged until 20 November 2003. She returned to Ireland on 10 December 2003.
On 23 October 2003, Ms Merriman lodged a claim for workers compensation, liability for which was accepted by CGU on 1 December 2003, which advised that Ms Merriman “is not entitled to be paid compensation when she leaves Australia”. CGU paid weekly compensation and medical expenses for the period 13 October 2003 to 12 December 2003.
On 5 December 2003, Ms Merriman’s solicitor lodged an ‘Application to Resolve a Dispute’ with the Commission. The application was registered by the Commission on 9 December 2003. A file note made by Anaco’s solicitor on 16 December 2003, of her telephone conversation with Ms Merriman’s solicitor on that day, records:
“We discussed the matter generally. I noted s60s [the claim for medical expenses] weren’t declined, reasonableness etc needs to be considered.”
Anaco’s ‘Reply’ was filed on 17 December 2003. This stated:
“Liability has been accepted and weekly compensation and medical expenses paid for the period 13 October 2003 to 12 December 2003.”
The Commission was asked to expedite the matter because of Ms Merriman’s return to Ireland and, on 18 December 2003, an Arbitrator conducted a teleconference with the parties. On 19 December 2003, he issued a Direction requiring the parties to lodge medical reports and submissions. The specified dates for lodgement of these documents were amended by a further Direction dated 2 February 2004. The final documents were filed on 1 April 2004. However, on 2 April 2004, the Arbitrator issued a further Direction inviting submissions from the parties on the effect of the decision in Hickey v Ram Roofing Pty Ltd (1997) 15 NSWCCR 616 (‘Hickey’). Having received submissions, on 7 May 2004, the Arbitrator made the Determination set out below ‘on the papers’.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 7 May 2004, records the Arbitrator’s orders as follows:
“1. Award for the Respondent.
2. Each party is to pay its own costs.”
In his ‘Statement of Reasons for Decision’, the Arbitrator identified the issue in dispute as a legal one concerning the application of section 53 of the Workers Compensation Act 1987 (‘the 1987 Act’). He discussed the effect of the Compensation Court of NSW decisions in Hickey and in Djuric v Render Set Australia Pty Ltd (2000) NSWCCR 50 (‘Djuric’) on the application of section 53, in the context of section 23(b) of the 1987 Act and legislative changes in the claims procedure effected by the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Arbitrator concluded that the Commission had no jurisdiction to hear Ms Merriman’s application because there was no dispute on foot between the parties at the time Ms Merriman’s application was lodged with the Commission: the dispute did not arise until she left Australia when her weekly payments ceased.
ISSUES IN DISPUTE
The principal issues in dispute in the appeal are:
1. Whether the Commission has jurisdiction to hear the matter as a consequence of the application of section 289 of the 1998 Act.
2. Whether Ms Merriman ceased to be entitled to weekly compensation when she left Australia to return home to Ireland on 10 December 2003, pursuant to section 53 of the 1987 Act.
Ms Merriman’s solicitor also raises other grounds of appeal, including that the Arbitrator denied Ms Merriman natural justice and did not act according to equity, good conscience and the substantial merits of the case. The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Ms Merriman’s solicitor submits that novel and complex issues are involved in this matter and the Commission would be assisted by oral submissions. Anaco’s solicitors consent to the matter being reviewed ‘on the papers’, noting the numerous submissions made to the Commission.
I am satisfied that with the extensive written submissions by the parties both to the Arbitrator and on the appeal, together with the other documents, 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. Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of compensation at issue is, according to Ms Merriman’s solicitor, at least $12,633.60 and represents 100% of the amount in dispute, no award of compensation having been made by the Arbitrator. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS AND DISCUSSION
Section 289 of the 1998 Act
The first issue is whether the Commission has jurisdiction to hear the matter as a consequence of the application of section 289 of the 1998 Act.
The Arbitrator concluded that the Commission did not have jurisdiction to hear Ms Merriman’s application because there was no dispute on foot between the parties at the time Ms Merriman’s application was lodged with the Commission on 4 December 2003. Ms Merriman’s solicitor submits that two relevant events are identified in section 289(1): the first is when the dispute about the claim for weekly payments is “referred for determination by the Commission”; the second is when the person on whom the claim is made “disputes liability for the claim”.
Ms Merriman’s solicitor submits that the first event, when the claim is “referred for determination by the Commission”, is conceptually different to the act of commencing proceedings, embodying not only commencement of proceedings but also notification of the respondent. He argues that this took place on 13 December 2003 when a copy of Ms Merriman’s ‘Application’ was served on Anaco. Ms Merriman’s solicitor contends that because CGU disputed liability for the claim on 10 December 2003 (as notified to Ms Merriman’s solicitors by letters dated 1 December 2003 and 3 December 2003), this occurred before the referral on 13 December 2003. Thus, section 289(1) does not apply and the Commission has jurisdiction.
Anaco submits that an examination of the Workers Compensation Rules 2003(‘the WCC Rules’) indicates that the referral of a dispute to the Commission occurs when the Registrar of the Commission registers the application to resolve a dispute in accordance with Rule 15. In Ms Merriman’s case, this occurred on 9 December 2003, before Ms Merriman departed from Australia on 10 December 2003 and, therefore, before CGU disputed liability for the claim. Thus, Anaco submits, pursuant to section 289(1), the Commission had no jurisdiction to hear Ms Merriman’s application.
Section 287(1) defines the disputes to which Part 4 of the 1998 Act applies:
“(1) This Part applies to a dispute in connection with a claim for compensation between:
(a) the person who makes the claim and a person on whom the claim is made, or
(b) the employer on whom the claim is made and the insurer on whom the claim is made.”
In my view, it is important to note that the disputes to which this Part applies are those “in connection with a claim”. Ms Merriman’s application to the Commission was made about what was, initially, an anticipated dispute, and a few days later an actual dispute with CGU in connection with her claim for ongoing weekly compensation payments after she departed Australia.
Section 289 (1) states relevantly:
“(1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or ...”
CGU had accepted liability in respect of Ms Merriman’s claim for workers compensation on 1 December 2003. However, the effect of section 53 of the 1987 Act was that Ms Merriman’s weekly compensation payments might cease on her departure from Australia. Section 53 of the 1987 Act states:
“(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.
(2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.”
In its letter to Ms Merriman’s solicitor dated 1 December 2003, CGU asked to be notified if Ms Merriman was departing for Ireland, “as the worker is not entitled to be paid compensation when she leaves Australia”. Subject to the difficulty posed by Ms Merriman’s weekly payments not being received under an “award”, discussed below, section 53 presented Ms Merriman with two options if she departed Australia: to obtain either a certificate from an Approved Medical Specialist, or a determination from the Commission that the incapacity for work resulting from her injury was likely to be of a permanent nature. As CGU pointed out in its letter to Ms Merriman’s solicitor dated 3 December 2003, an Approved Medical Specialist had not, as of early December 2003, assessed Ms Merriman. Her only option, therefore, was to obtain a determination to that effect from the Commission.
In my view, CGU, in its letter dated 1 December 2003, clearly disputed liability for ongoing payments of weekly compensation if Ms Merriman departed Australia. There was therefore “a dispute in connection with a claim for compensation” (section 287(1)). Such a finding is, in my view, in line with the beneficial nature of this legislation, to which Ms Merriman’s solicitor drew attention in his submissions. In relation to section 289(1), CGU disputed Ms Merriman’s claim in part, in so far as it clearly stated, having become aware that Ms Merriman was proposing to depart from Australia, that it would cease payments if she departed Australia. This dispute already existed at the time Ms Merriman’s application was registered by the Commission on 9 December 2003.
I agree with Anaco’s submission on the date of referral to the Commission. The Explanatory Note to the WCC Rules states that the Rules make provision for, amongst other matters, the commencement of proceedings before the Commission and proceedings before the Commission. Rule 15 states:
“The time of commencement of proceedings is the time when the Registrar registers the application to resolve a dispute ... by affixing the seal of the Commission”.
This occurred on 9 December 2003, after CGU had expressed its intention to cease making compensation payments to Ms Merriman if she departed Australia.
Thus, in my view, the Commission was not prevented from hearing Ms Merriman’s application by reason of any lack of jurisdiction as a result of section 289(1) of the 1998 Act.
Section 23(b) of the 1987 Act
Reference has also been made by the parties in their submissions to section 23 of the 1987 Act. This states:
“23. Compensation under this Act is payable to a person, and proceedings for the recovery of compensation under this Act may be instituted by a person, even though:
(a) the person is under the age of 18 years, or(b) the person resides, or at any time resided, outside New South Wales.”
The Arbitrator discussed the Compensation Court of NSW decisions in Hickey and Djuric v Render Set Australia Pty Ltd [2000] NSWCC 50 (‘Djuric’) to which he had been referred by the parties. The Arbitrator recognised that pursuant section 23(b), Ms Merriman’s move to Ireland did not of itself disentitle her from instituting proceedings or receiving compensation payable under the 1987 Act. In my view, this is correct and is in accordance with the decision in Djuric.
Section 53 of the 1987 Act
The second of the principal issues identified above is whether, pursuant to section 53 of the 1987 Act, Ms Merriman ceased to be entitled to weekly payments when she left Australia to return home to Ireland on 10 December 2003. Section 53 is quoted above. Ms Merriman’s solicitor submits that section 53 does not apply to Ms Merriman because she ceased to reside in Australia prior to receiving or being entitled to receive weekly compensation under an award. Anaco asserts that it is not now open to Ms Merriman’s solicitor to assert this, nor at the time of filing written submissions for the Arbitrator prepared by Counsel (dated 14 April 2004), Ms Merriman’s solicitor having initially sought a determination by the Commission pursuant to section 53(1).
In Hickey, Neilson J held that section 53(1) requires that a determination can only be made if there is “an award” under which the worker is receiving or entitled to receive weekly compensation. Burke J in Djuric approved this interpretation, although His Honour found section 53 had no application in that case. However, in Hickey, despite section 53(1), Neilson J held the worker was able to rely on the now repealed section 106D(3) of the 1987 Act which permitted the commencement of court proceedings “(a) if the proceedings concern an application for a determination under section 53”. Neilson J stated:
“section 106D(3)(a) permits a claim for weekly payments to be made and an award entered, even though the worker is in voluntary receipt of payments, if he makes application for declaration under section 53 with the intention of residing outside the Commonwealth of Australia.”
Section 106D was repealed by the Workers Compensation Legislation Amendment Act 1998 with effect from 1 August 1998. A new provision, section 101, was included in the 1998 Act. This provides relevantly:
“(1) A worker cannot commence court proceedings in respect of weekly payments of compensation unless a dispute about liability to commence or continue to make weekly payments of compensation to the worker has been referred for conciliation ...
(5) This section does not prevent the commencement of court proceedings in any of the following circumstances:(a) if the proceedings concern an application for a determination under section 53 of the 1987 Act, ...”
Where section 101 of the 1998 Act differs from the now repealed section 106D of the 1987 Act is that in the new provision there is no specific reference to a situation where a worker is in receipt of payments voluntarily made and not pursuant to an award. Also, section 100A states that Division 5 of the 1998 Act, “Restrictions on Commencing Court Proceedings”, only applies to existing claims. Thus, section 101 does not apply in Ms Merriman’s case since her claim was made in 2003. New claims must be made in accordance with Chapter 7.
Thus, the effect of section 53(1) is that the worker must be receiving or entitled to receive weekly compensation under an award for the section to apply. With the repeal of section 106D of the 1987 Act, there are no legislative provisions to ameliorate the effect of section 53(1) in the case of a worker whose is receiving weekly compensation made voluntarily and not under an award. Therefore, Ms Merriman’s application is not subject to section 53(1). In making this determination, I have noted Anaco’s submission that Ms Merriman’s solicitor initially proceeded on the basis that section 53(1) applied and should not now be allowed to assert otherwise. However, the Commission is not bound by the rules of evidence (section 354(1) of the 1998 Act) and is required to act according to the substantial merits of the case and without regard to technicalities or legal forms (section 354(3)). In my view, this requires that I make the determination above.
The Outcome
If section 53 does not apply to Ms Merriman, there would also appear to be no stated grounds on which CGU could justify the cessation of weekly compensation payments to her. As I said earlier in discussing section 289 of the 1998 Act, in my view, there was a dispute to which Part 4 of the Act applies (section 287(1)) at the time her application was referred for determination by the Commission. That dispute was in connection with the cessation of her weekly compensation on her departure for Ireland, from which time CGU denied liability. Had the Arbitrator determined Ms Merriman’s claim in her favour, he would necessarily have made an award. In the absence of any certificate from an Approved Medical Specialist, the Arbitrator would then need to address the question posed by section 53(1), whether the incapacity for work resulting from Ms Merriman’s injury was likely to be of a permanent nature. Thus, the discussion comes full circle!
In conclusion, in my view, the Commission did have jurisdiction to hear Ms Merriman’s claim in connection with the dispute over the cessation of her weekly compensation on her departure for Ireland. The Arbitrator therefore made an error of law in finding the Commission did not have jurisdiction and in making an award in favour of the Respondent.
The appropriate decision is for me to revoke the Arbitrator’s decision and remit the matter to the Registrar for referral to a different arbitrator for determination of Ms Merriman’s application in relation to the cessation of her weekly compensation. As a result of section 53(1) of the 1987 Act, in the absence of a certificate from an Approved Medical Specialist, this will require the arbitrator to address the question whether Ms Merriman’s injury was likely to be of a permanent nature and, if so, to make a determination to that effect.
This analysis has been a complex one, arising, in my view, as a result of a gap in the legislation that fails to deal specifically with the issue arising in this matter. Clarification by legislative amendment would be of value to those who encounter this issue.
I have not dealt with other grounds of appeal raised by Ms Merriman’s solicitor, including that the Arbitrator denied Ms Merriman natural justice and did not act according to equity, good conscience and the substantial merits of the case. Given my determination above, it is not necessary for me to do so. However, I would add that I am not satisfied that there was any denial of natural justice by the Arbitrator – he sought and obtained extensive written submissions from the parties, nor am I satisfied that he failed to act according to equity, good conscience and the substantial merits of the case. The applicable law is complex and there is little authority to guide a decision-maker in such a matter.
I also note Anaco’s submissions in relation to Ms Merriman’s claim for medical expenses pursuant to section 60 of the 1987 Act. Although CGU’s letter dated 1 December 2003 stated that Ms Merriman “is not entitled to be paid compensation when she leaves Australia”, I am not aware of any other evidence of CGU having declined liability for medical expenses. Anaco/CGU’s solicitor’s file note dated 16 December 2003, referred to in paragraph 4 above, indicates that she informed Ms Merriman’s solicitor that liability for section 60 medical expenses had not been declined.
DECISION
The decision of the Arbitrator dated 7 May 2004 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for determination of Ms Merriman’s application.
COSTS
The Respondent, Anaco Holdings Pty Ltd, is to pay the Appellant, Ms Merriman’s costs in this appeal.
Robin Handley
Acting Deputy President
24 January 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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