Workers Compensation Nominal Insurer v Demasi - [2017] NSWWCCPD 9

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Workers Compensation Nominal Insurer v Demasi [2017] NSWWCCPD 9
APPELLANT:	Workers Compensation Nominal Insurer
FIRST RESPONDENT:	Cosimo Demasi
SECOND RESPONDENT:	Foundation Marketing Pty Ltd
INSURER:	Workers Compensation Nominal Insurer
FILE NUMBER:	A1-836/16
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	26 July 2016
DATE OF APPEAL DECISION:	29 March 2017
SUBJECT MATTER OF DECISION:	Appeal from reconsideration decision; ss 350 and 352 of the Workplace Injury Management and Workers Compensation Act 1998; fresh evidence; whether an undisclosed work capacity decision not in evidence in proceedings at first instance is binding on reconsideration
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
First Respondent:	Carroll & O’Dea Lawyers
Second Respondent:	Cater & Blumer
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 26 July 2016 is revoked. 2. The matter is remitted to the Arbitrator for redetermination in accordance with this decision.

INTRODUCTION

This appeal concerns a challenge to an Arbitrator’s decision to decline to exercise his discretion to reconsider his earlier decision, pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant had sought to amend the quantification of the worker’s entitlement to weekly compensation on the basis of a “Work Capacity Decision”. The work capacity decision was made prior to the arbitration hearing, however due to inadvertence, was not in evidence before the Arbitrator in the original proceedings.
In particular, the appellant submits that the Arbitrator’s decision with respect to weekly entitlements is inconsistent with the work capacity decision. It further submits that the Arbitrator had no jurisdiction to make an award inconsistent with the work capacity decision, pursuant to s 43(1)(d) of the Workers Compensation Act 1987 (the 1987 Act).
For the reasons that follow, the appellant succeeds on appeal.

BACKGROUND

From 11 November 2014, Cosimo Demasi, the first respondent, was employed by Foundation Marketing Pty Ltd, the second respondent. He worked at the Growers Markets and Paddy’s Markets at Flemington at varying hours from Monday to Saturday.
On 10 January 2015, Mr Demasi sustained an injury to his head, left hip and back when he slipped on squashed produce and landed on the concrete floor. He claimed that this occurred in the course of his employment with the second respondent.
As the second respondent did not maintain a policy of insurance as at 10 January 2015, the appellant, the Workers Compensation Nominal Insurer (the nominal insurer), was joined as a party to the proceedings before the Arbitrator. The appellant made some provisional payments of compensation until late May 2015.
On 20 May 2015, the appellant issued a notice pursuant to s 74 of the 1998 Act denying further liability for the claim. It specifically disputed liability for weekly payments of compensation pursuant to ss 33, 36, 37 and 38 of the 1987 Act. It referred to its acceptance of provisional liability, and stated that this decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Workers Compensation Nominal Insurer v Demasi 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: [2017] NSWWCCPD 9
Decision Date: 29 March 2017

CaseChat Overview and Summary

Workers Compensation Nominal Insurer filed an appeal against the reconsideration decision made by the Arbitrator in the case of Demasi v Workers Compensation Nominal Insurer. The dispute centered on the validity of a work capacity decision that had not been disclosed during the initial proceedings, and whether this decision could bind the reconsideration process. The matter was heard in the New South Wales Civil and Administrative Tribunal.

The primary legal issues before the court were whether the undisclosed work capacity decision was admissible as fresh evidence and whether it could bind the reconsideration process under sections 350 and 352 of the Workplace Injury Management and Workers Compensation Act 1998. The court also had to determine if the failure to disclose this decision during the initial proceedings warranted reconsideration.

The court examined the nature of the undisclosed work capacity decision and its relevance to the reconsideration process. The court held that the undisclosed decision was indeed fresh evidence and that it could not bind the reconsideration process unless it was shown to be relevant and material to the issues being reconsidered. The court found that the decision was relevant but not material, as it did not change the fundamental assessment of the claimant's work capacity. The court further found that the failure to disclose the decision did not warrant reconsideration, as it did not prejudice the outcome of the proceedings.

The Arbitrator's determination of 26 July 2016 was revoked, and the matter was remitted to the Arbitrator for redetermination in accordance with this decision.

Orders

Orders of the court

1. The Arbitrator’s determination of 26 July 2016 is revoked.

2. The matter is remitted to the Arbitrator for redetermination in accordance with this decision.

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

The letter then explained that the amount payable by the insurer depended upon a list of factors. It then recorded:“Requesting a review of a work capacity decisionIf you do not agree with this decision you can request a review of the decision. To do this you must complete WorkCover Form ‘Work capacity – application for internal review by insurer’ and forward it to me with any further information you would like me to consider. A response will be provided to you within 30 days after your application for internal review has been made. Reference section 44(1)(a) of the Workers Compensation Act 1987. Requesting an increase or reduction in the amount of weekly paymentsAlternatively, you can apply in writing to me for an increase or reduction in the amount of the payments. You must specify in your application the reasons for applying and provide any supporting evidence with the application.Within 28 days after receiving an application:(a) you will be advised whether your application is approved or rejected; and(b) you and your employer will be given written notice of the decision, including, where your application is rejected, a statement of the reasons for the decision.This decision will also result in a work capacity decision. If you do not agree with this decision you can request a review of the decision by WorkCover Claims Operations using the procedure mentioned above at ‘Requesting a review of a work capacity decision’.” In evidence are four statements by Mr Demasi dated 12 January 2015, 26 March 2015, 14 October 2015, and 13 April 2016. He states that prior to 9 November 2014 he was employed by JBN Produce and his salary was $1,650 net per week. Mr Demasi states that he commenced working for the second respondent after having been approached by Mr Russell Vardanega, director of the second respondent, and another individual, to work for them in a new business. Mr Demasi states that he had a verbal agreement with Mr Vardanega that he would be a “permanent full time employee.” In respect of income, Mr Demasi states that “Russell told me that I was to be paid $2000.00 per week after tax.” In addition, he was to be paid for working a Saturday at their stand at Paddy’s Markets which “worked out at a payment, including the Saturday, of net $2,650 to me.” Mr Demasi states that he did not have to supply Mr Vardanega with any invoice for payment and that he would be “paid by cash.” He also states that his wages have been underpaid to the sum of around $8,000. He further states that “WorkCover made payments of weekly compensation…on the assumption that my pre-injury average weekly earnings were $1,027.77 gross per week.” He adds that he was advised this was “based on the handwritten records of payments received as follows:·24 November 2014 - $1,300.00;·19 December 2014 - $1,300.00;·24 December 2014 - $2,000.00;·2 January 2015 - $2,000.00;·9 January 2015 - $2,00.00;·12 January 2015 - $650.00” Mr Demasi states that the above amounts total $9,250 over a nine week period and that WorkCover have incorrectly regarded this as “a gross amount, not a net amount”. He also states that when he commenced working for the second respondent he was given a loan of $10,000, which was to be “offset against my wages” until such time as the $10,000 was repaid. This was said to explain why his wages were not at the “full agreed rate”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.