Woolsely v Pied Piper Pre-School (Wallerawang) Incorporated
[2005] NSWWCCPD 77
•27 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Woolsey v Pied Piper Pre-School (Wallerawang) Incorporated [2005] NSW WCC PD 77
APPELLANT: Bernadette Woolsey
RESPONDENT: Pied Piper Pre-School (Wallerawang) Incorporated
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC4674-02
DATE OF ARBITRATOR’S DECISION: 12 July 2004
DATE OF APPEAL DECISION: 27 July 2005
SUBJECT MATTER OF DECISION: Section 350 of the Workplace Injury Management and Workers Compensation Act 1998; Inadequate submissions on appeal; Evidence of incapacity.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Acting President
HEARING:On the papers.
REPRESENTATION: Appellant: Higgins & Higgins Lawyers
Respondent: Mr Kranz of the Insurer
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order as to costs.
Background to this Appeal
Bernadette Marie Woolsey worked part–time as a childcare worker with Pied Piper Pre-School (Wallerawang) Incorporated from February 1996 until 6 May 2002, when her employment was terminated. Her employer’s workers compensation insurer is Allianz Australia Workers Compensation (NSW) Limited. In August 2002 she commenced casual employment with Lithgow Family Day.
Ms Woolsey claims to have suffered a psychological injury arising out of her employment with Pied Piper, described as an ‘Adjustment Disorder’ with mixed anxiety and depressed mood. She claims compensation by way of weekly benefits due to a total incapacity for work. Pied Piper has denied liability for Ms Woolsey’s claim. Ms Woolsey lodged an ‘Application to Resolve a Dispute’ in the Commission and the matter went before a Commission Arbitrator.
On 29 August 2003 the Arbitrator made a decision in Ms Woolsey’s favour. Pied Piper appealed against that decision and on 2 February 2004 I heard and determined that appeal. The matter was remitted to the same Arbitrator “to determine the amount of the worker’s entitlements to compensation under s40 of the Workers Compensation Act 1987” (‘the 1987 Act’) in accordance with the reasons given on appeal.
The Arbitrator issued a fresh decision, with written reasons, on 12 July 2004. Ms Woolsey has appealed against the part of that decision which found in favour of Pied Piper in respect of her claim for weekly benefits compensation “from 16 June 2004 and continuing”.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. I am satisfied that the amount of compensation at issue in the appeal is at least $5,000 and 20% of the amount awarded in the decision appealed against. Leave to appeal is granted.
Both parties have made brief written submissions in the appeal and submit that it may be determined ‘on the papers’. I am satisfied that I have sufficient information to proceed ‘on the papers’ pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Issues in Dispute
The issues in dispute may be summarised as follows:
·Did the Arbitrator err in refusing to allow Ms Woolsey to submit updated medical reports?
·Did the Arbitrator err in failing to correctly apply section 40 of the 1987 Act in Ms Woolsey’s claim?
Did the Arbitrator err in refusing to allow Ms Woolsey to submit updated medical reports?
The Arbitrator held a telephone conference on 27 February 2004, which was attended by Ms Woolsey, her legal representative and the then legal representative of the Insurer. The Arbitrator issued directions granting both parties leave to admit late documents, including medical reports, on or before 30 April 2004, and submissions, on or before 14 May 2004. A further telephone conference was held on 28 May 2004.
Ms Woolsey’s legal representatives failed to file a report of Dr Parmegiani or other medical evidence, in accordance with the directions. An application was made on 28 May 2004 for leave to file the report of Dr Parmegiani, who was due to examine Ms Woolsey on 23 June 2004. The Arbitrator refused to grant leave.
Ms Woolsey argues that the Arbitrator erred in law in refusing her leave to submit an updated medical report from Dr Parmegiani, Psychiatrist, to give evidence “as to her current medical state and work capacity”. She submits that this decision closes her “medical case in October 2002, while permitting the Respondent to adduce three medical reports in 2004”.
In support of this submission reference is also made to the Arbitrator exercising the power of ‘reconsideration’ under section 350 of the 1998 Act. Pied Piper’s submission that section 350 is irrelevant to this matter is correct. Section 350 has nothing to do with this matter. The Arbitrator’s task was to determine the matter on the basis of the remittal decision in the previous appeal.
The Arbitrator had discretion whether to grant leave to Ms Woolsey to file further medical evidence. As with any discretion it must have been exercised fairly and lawfully. I cannot review the Arbitrator’s reasons for the decision because it was made at the teleconference and the reasons were not recorded or reduced to writing. However considering the progress of this matter from the documents in the file and taking into account the parties submissions it is apparent that the Arbitrator has not erred in refusing to allow Ms Woolsey to file the medical report of Dr Parmegiani. The parties had both been given significant time (3 months) to file further evidence following the telephone conference on 27 February 2004. Ms Woolsey failed to file her evidence in the time allowed and, I accept Pied Piper’s submission that no explanation was provided for the delay.
In her submissions on the appeal Ms Woolsey has also not provided any explanation for the delay in filing Dr Parmegiani’s report. Given that this is a central issue in the appeal it might be expected that arguments in favour of the admission of Dr Parmegiani’s report would be set out in the appeal documents. An application for leave to admit late documents in the appeal was filed on 18 March 2005. This application relates to, and attaches, two letters from Ms Woolsey’s solicitor dated 28 January 2003 and 17 December 2004, and an additional statement from Ms Woolsey dated 14 March 2005. The letter of January 2003 could, clearly, have been filed earlier. The letter of 17 December 2004, to Pied Piper’s legal representative, and the statement of March 2005, go to Ms Woolsey’s attempt to return to work at Pied Piper. In my view the application for leave to admit these documents in the appeal should be refused. Ms Woolsey has had more than sufficient time to evidence her return to work plans, including her efforts to return to her employment with Pied Piper. Evidence of these matters should have been properly put before the Arbitrator.
This matter has been on foot since November 2002 and it is in the interests of all parties to bring it to finality.
The Arbitrator did not err in refusing to allow Ms Woolsey to submit an updated medical report by Dr Parmigiani.
Did the Arbitrator err in failing to correctly apply Section 40 of the 1987 Act to Ms Woolsey’s claim?
Ms Woolsey submits that the Arbitrator did not correctly apply section 40 to the calculation of her entitlements from 7 May 2003. She submits that there was no evidence to find that Pied Piper was not liable to pay weekly payments compensation from 16 June 2004 or that she was capable of working 20 hours per week, or that there was suitable work available to her. She argues that the Arbitrator failed to take into consideration evidence that Pied Piper had not assisted her to return to work. She submits that she ought to have been found to be totally incapacitated on an ongoing basis.
Pied Piper submits that no particulars have been provided as to the grounds of appeal and therefore they must fail. Alternatively it argues that there was sufficient evidence before the Arbitrator to support his findings, as follows:
· A medical report of Dr Kanagaratnam, dated 27 June 2002, stating that ‘no physical restrictions [for Ms Woolsey] would be needed other than an alternative place of employment”.
· A medical report of Dr Robinson, dated 1 June 2002, stating that Ms Woolsey could shortly begin a graded return to work.
· A medical report of Dr Parmegiani dated 7 May 2003, stating that Ms Woolsey could then increase her work to 20 hours per week and return to full employment within six months.
· Ms Woolsey “did not deny that more hours of work were available for her to perform at Lithgow Family Day Care Centre”.
· Evidence was given of suitable work available in her geographical area.
· A medical report of Dr Smith dated 10 March 2004, stating that Ms Woolsey was fit to return to her pre-injury duties.
· A medical report of Mr O’Neill, dated 15 March 2004, that Ms Woolsey would be fit for her pre-injury duties within three months.
The Arbitrator made a careful and detailed examination of the medical and other evidence before him. He correctly stated the matters that he was required to address as a result of the matter being remitted on appeal. At paragraphs 24-35 of the decision he clearly summarises the medical evidence for both sides. He then summarises the parties’ submissions on the evidence and at paragraphs 47-53 sets out his findings. In his earlier decision of 29 August 2003 the Arbitrator had found, on the basis of Dr Parmegiani’s evidence that Ms Woolsey could work at least 20 hours per week as at 7 May 2003. He did not resile from that finding and found support for it in the other medical evidence, referred to by the Respondent as set out above. He also had a detailed section 40 assessment provided by Pied Piper. He accepted the Respondent’s submission that suitable employment was available to Ms Woolsey from 7 May 2003 and that Ms Woolsey was fit for her pre-injury duties from 15 June 2004. There was logically probative evidence to support these findings and the Arbitrator has not erred in his decision.
The Arbitrator’s reasons do not disclose an error of law, fact or discretion.
Decision
The decision of the Arbitrator is confirmed.
Costs
Ms Woolsey makes no submissions on the costs of the appeal.
Part 8 of the 1998 Act governs costs in proceedings in the Commission The starting point for a consideration of whether a costs order should be made in relation to this application is the power to award costs contained in section 341.
“341 Costs to be determined by Commission
(1)Costs to which this Division applies are in the discretion of the Commission.
(2)The Commission has full power to determine by whom, to whom and to what extent costs are to be paid.
(3)The Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 (or in relevant regulations under Division 4 of this Part) or on an indemnity basis.
(4)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.
(5)If the Commission is satisfied that a part only of a claim was frivolous or vexatious, fraudulent or made without proper justification, the Commission may order the claimant to pay the costs relating to that part of the claim.
(6)Any party to a claim may apply to the Commission for an award of costs.”
Section 345 provides as follows:
“345 Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a) if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b) if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b) the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3) If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4) An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5) The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.”
Pied Piper submits that the appeal was made without proper justification and therefore Ms Woolsey ought to pay its costs in accordance with section 341(5) of the 1998 Act. It argues that the appeal is out of time, that the alleged failure to allow the filing of updated medical evidence and that Ms Woolsey has failed to provide particulars to support the grounds of appeal.
Pied Piper’s submission, that the appeal was also ‘out of time’, lacks merit. It relies upon the fact that the Arbitrator made a direction in relation to medical reports on 28 May 2004, whereas the appeal against the final determination was not lodged until 4 August 2004. The whole of the Arbitrator’s final decision, including the effect of procedural orders made in the course of the proceedings before the Arbitrator, may be subject to review pursuant to an application made under section 352 of the 1998 Act. A Presidential Member reviewing the decision of an Arbitrator under section 352, is entitled to consider the effect, if any, of procedural or other orders made in the course of the Arbitrator’s deliberations. Challenges to interlocutory orders made by an Arbitrator are to be discouraged. In many cases the final determination, or indeed the parties agreed settlement of the dispute, may cure any alleged defect in such orders. Interlocutory orders crystallise in, and at the date of, the final decision, issued in the form of a Certificate of Determination. Time for appeal therefore runs from the date of the Certificate of Determination, in accordance with the Workers Compensation Commission Rules 2003.
I agree with the submission that Ms Woolsey has failed to provide adequate particulars of the grounds of the appeal. The submissions do not address the evidence nor do they refer to the detailed reasons for decision, given by the Arbitrator. However to allege that her claim was made ‘without proper justification’, and therefore to justify a costs order against her, it must be demonstrated that the ‘Application for Leave to Appeal’ is more than just poorly argued or, ultimately, unsuccessful. It cannot be said that Ms Woolsey’s ‘claim’ was totally unsupported by evidence or that it had no prospect of success.
Ms Woolsey has been unsuccessful on the appeal and is not entitled to an award of costs. However I am not satisfied that her claim was ‘frivolous, or vexatious, fraudulent or made without proper justification. She has been substantially successful in obtaining an Arbitral award in relation to her claim for compensation against Pied Piper.
The appropriate order in this matter is ‘No order as to costs’.
Dr Gabriel Fleming
Deputy President
27 July 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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