Wright v South Eastern Sydney Area Health Service (Sydney Eye Hospital)
[2003] NSWWCCPD 25
•3 October 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Mark Wright v South Eastern Sydney Area Health Service (Sydney Eye Hospital) [2003] NSW WCC PD 25 |
| APPELLANT: | Mark Wright |
| RESPONDENT: | South Eastern Sydney Area Health Service (Sydney Eye Hospital) |
| INSURER: | GIO General Limited |
| FILE NO: | WCC 3031-2002 |
| DATE OF DECISION UNDER APPEAL: | 11 March 2003 |
| PRESIDENTIAL MEMBER: | Dr Gabriel Fleming, Deputy President |
| DECISION UNDER APPEAL: | Alleged errors of fact and law, interruption to or deviation from a journey, inadequacy of reasons, decision of Arbitrator revoked. |
| HEARING: | 7 August 2003 |
| DATE OF APPEAL DECISION: | 3 October 2003 |
| REPRESENTATION: | Appellant: Mr W B Nicholson instructed by Mr Peter Erman, Solicitor. |
| Respondent: Ms Tzavaras, Solicitor, Phillips Fox. | |
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator is revoked and the following decision is made in its place: |
THE APPEAL
On 8 April 2003 Mr Mark Wright, (‘the Appellant’), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’). The Respondent to the appeal is South Eastern Sydney Area Health Service (Sydney Eye Hospital), (‘the Respondent’) and the Insurer is GIO General Limited, (‘the Insurer’).
The Arbitrator’s decision was directed to the preliminary question of whether the worker’s claim was within the scope of the protection of section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’). A Certificate of Determination, issued by the Commission on 11 March 2003, sets out the decision of the Arbitrator as follows:
1. Respondent is not liable to pay the Applicant’s claim for compensation under s.10 of the Worker’s Compensation Act 1987.
2. Each party to pay their own costs in the matter.
The Appellant submitted that the Arbitrator’s decision should be set aside and a new decision made in its place. The Appellant seeks orders that:
1. The Commission finds that the Applicant sustained injury during a journey from his place of employment to his home on 20 July 2001 and that the Respondent is liable for any compensation due to the Applicant in accordance with the Workers Compensation Act 1987.
2. The matter be remitted to the Arbitrator to determine the compensation payments applicable.
3. The Applicant have costs up to and including this Appeal.
The appeal was lodged within 28 days of the Arbitrator’s decision.
The Appellant’s solicitor submitted that the worker’s original claim was for weekly compensation for a period of approximately three months from 20 July 2001, at the rate of $568.80 per week, plus medical expenses estimated at $1,000.00, thus the claim for weekly compensation alone would amount to $6,825.60. The Appellant is appealing against 100% of the award made by the Arbitrator.
Leave to appeal against the decision of the Arbitrator was granted on 11 July 2003.
The parties filed written submissions with the appeal.
A telephone hearing of the appeal, at which both parties made oral submissions, was held on 7 August 2003 and a transcript of that hearing was later provided to the Commission.
AGREED FACTS
The facts relevant to the claim are not in dispute. Two statements by Mr Wright, dated 20 July 2001 and 22 September 2002, a report of Constable Maher of 12 June 2002, and medical reports, were before the Arbitrator, and are before me on the appeal. No new evidence has been introduced on appeal.
Mr Wright was, at the relevant time, employed as an operation assistant at the Sydney Eye Hospital. On 20 July 2001 he finished work at about 7.15 pm and began his usual walk home along George Street in central Sydney. As he was walking he witnessed a young woman steal a handbag from a woman who was also walking along the street. In his statement to police he described the assailant as a girl of . . . Caucasian appearance, thin build, about 175 cm tall (Statement, 20 July 2001 at page 1). He asserted that she was carrying a plastic bag as she ran along.
Mr Wright responded to the victim’s call for help and ran after the assailant as she went down George Strreet and into Goulburn Street. He caught up with her, restrained her and stayed until police arrived. While he was trying to restrain the girl until police arrived there was a scuffle and he injured his ankle.
Mr Wright was off work from September to December 2001. He has continued to have a problem with his ankle subtalar joints and his medical advice is that he has a permanent impairment.
He notified his employer of a claim for workers compensation on 7 June 2002 His claim was refused by the Insurer on 18 September 2002.
ISSUES IN DISPUTE
The critical issue in dispute in this claim is whether Mr Wright suffered a compensable injury on a journey to which section 10 of the 1987 Act applies. Section 10 provides, in part, as follows:
10Journey Claims
(1)A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(1A)Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.
(1B)A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.
(1C)(Repealed)
(1D)Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.
(2)Subsection (1) does not apply if:
(a) the injury was received during or after any interruption of, or deviation from, any such journey, and
(b) the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,
unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.
(3)The journeys to which this section applies are as follows:
(a) the daily or other periodic journeys between the worker’s place of abode and place of employment,
. . .
The Arbitrator’s Statement of Reasons sets out his conclusions on the issues in dispute as follows:
(a)The Applicant’s injuries were received during an interruption to, or deviation from, his journey from work to home.
(b)The interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey and,
(c)In my view of the circumstances of the case, the risk of personal injury was materially increased because of the interruption or deviation.
In respect of (c) I took into consideration the following actions of the Applicant:
(i)He left the safety of the footpath and chased the bagsnatcher along George Street thereby exposing himself to the danger of vehicular traffic.
(ii)In pursuing the bagsnatcher he increased the risk of injury to himself by running either on the footpath or on the road.
(iii)By wrestling with the bagsnatcher and seeking to restrain her the Applicant exposed himself to the increased risk of being injured by a concealed dangerous weapon carried by the bagsnatcher.
As a result of these conclusions the Arbitrator found that the Respondent was not liable for the worker’s claim for compensation.
SUBMISSIONS
The Appellant’s submissions may be summarized as follows:
The Arbitrator erred in:
(i)failing to decide whether the injury was sustained on an interruption, or on a deviation, from his journey from work to his home,
(ii)finding that the reason for any purported interruption or deviation was unconnected with his employment or the purpose of the journey,
(iii)finding that the purported interruption or deviation materially increased the risk of injury,
(iv)misdirecting himself as to the law stated in Rivett v Commission for Railways (1961) 79 WN (NSW) 1 by relying upon the dissenting judgment of Justice Owen, and
(v)failing to give adequate reasons for the decision.
The Appellant submitted that there was no deviation or interruption in his journey from home to work. Alternatively, if an interruption or deviation were found to have taken place, it was connected with the purpose of the journey and thus the issue of material increase of risk of injury did not arise under section 10 of the 1987 Act.
The Appellant submitted that the test of whether a worker was injured during an interruption to, or deviation from, a section 10 journey should be the same, or a less demanding, test as that for determining whether a worker was injured in the course of employment (section 4 of the 1987 Act). The Appellant referred to the beneficial approach adopted by the courts in a number of ‘rescue’ cases (Blacktown City Council v Smith [1996] 14 CCR 132, Reay v The Electricity Commission of NSW [1973] WCR 139, McKenzie v William Holyman & Sons Pty Ltd [1939] 61 CLR 584, Sibson v Keith Lord Pty Ltd [1970] WCR 94), and submitted that . . . There would be no logical reason why such cases would be dealt with differently in the circumstances of journeys, given that the journeys provisions act to extend benefits (Appellant’s Submissions, dated 6 April 2003 paragraph 7.8; see also Ngamoki v MAS Venure Services (Commissioner Wright 43109/2001, August 2002, Compensation Court, Unreported)).
The Respondent submitted that:
(i)The Arbitrator correctly found that the Applicant was injured during an interruption or deviation.
(ii)The onus was on the Applicant worker to establish that the interruption or deviation was connected with his employment or for the purposes of the journey and he failed to meet this onus.
(iii)The Applicant worker bore the onus of establishing that the interruption or deviation did not materially increase the risk of injury. The interruption or deviation was unconnected with Mr Wright’s employment and the risk of injury was materially increased . . . by virtue of the fact that the Applicant voluntarily participated in chasing a person, unbeknown [sic] to him, who was in the process of performing a criminal act. That person’s state of mind and propensity for violence were also unbeknown to him. It was further unknown to the Applicant as to whether the person was armed (Respondent’s Submissions, dated 28 May 2003, paragraph 39).
The Respondent argued that the ‘rescue’ cases referred to by the Appellant were not relevant because they concerned the definition of injury in section 4 of the 1987 Act, and not the journey provisions of section 10, which have a specific purpose. The Respondent maintains the Appellant worker brought about the interruption to his journey by voluntarily intervening in a criminal act (Respondent’s Submissions dated 28 May 2003, paragraph 21) that entailed an abnormal risk of injury (Taylor v Stapley [1954] 90 CLR 1; see also Gallard v State Rail Authority of NSW [1992] 8 NSW CCR 280).
DISCUSSION AND FINDINGS
It is clear that on 20 July 2001 Mr Wright was on a ‘journey’, from work to his home, to which subsections 10(1) and 10(3) of the 1987 Act may apply. He left the Sydney Eye Hospital and was walking his usual route to go home (section 10(3)(a)). In Vetter v Lake Macquarie City Council (2001) 202 CLR 439 the High Court, Gleeson CJ, Gummow and Callinan JJ, in the majority, said (at 452):
. . . There is no obligation upon a worker to take the shortest and most direct route from the worker’s place of work to the worker’s abode so long as the journey can be said to be a journey between the worker’s place of abode and place of employment.
I accept the Appellant’s submission that section 10 of the 1987 Act should not be read so as to impose a more onerous test of what is ‘in the course of employment’ than is required by section 4 (definition of injury). In my view this is evident, not only as a matter of legislative intent, bearing in mind the purpose of the legislation (Project Blue Sky v Australian Broadcasting Authority [1998] 194 CLR 355), but as a matter of statutory construction based on the express words of the relevant section.
The ‘journey’ provisions of the 1987 Act extend the benefits of the statutory workers compensation scheme to injuries occurring on certain prescribed journeys. The cases demonstrate that these provisions can cover a wide variety of circumstances. For example: a worker on a journey from a worksite in Young to his home in Brisbane, having interrupted his journey to stay with his sister overnight in Sydney, was injured when he recommenced his journey and stayed overnight in a hotel: (Mechanical Advantage Group Pty Ltd v George [2003] NSWCA 121); a worker, who visited her grandmother on her way from work once a fortnight was injured in a car accident whilst driving home from her grandmother’s: (Vetter v Lake Macquarie City Council [2001] 202 CLR 439); a worker was injured in a motorcycle accident as he travelled from his home to his workplace on a rostered day off to find out if he was working the next day: (Pickwell v Cotswold Australia Pty Ltd [2001] NSWCA 462).
Section 10(1) expressly extends the concept of ‘arising out of or in the course of employment’ to an injury that occurs on a prescribed journey, unless one of the conditions set out sub-sections (1A), (1B), (1D) or (2) apply. The circumstances of each case will determine whether an injury incurred on any particular journey, is deemed to have been incurred in the course of employment, or is outside the course of employment due to the application of section 10, subsections (1A), (1B), (1D) or (2).
There is often not a clear distinction between a journey claim and a claim that arises within the general principles applicable to the scope of employment, encompassed in the definition of injury in section 4 of the 1987 Act. There has been a number of cases where a work-related journey was found to be within the course of a worker’s employment without specific recourse to the journey provisions of the 1987 Act. The leading case of Hatzimanolis v ANI Corporation Ltd [1992] 173 CLR 473 is a good example (see also Farmer v Aggcon Pty Ltd [2003] 24 NSWCCR 705; Dew v Maher [1996] 14 NSW CCR 56). The jurisprudence that has considered the meaning to be given to the course of employment, and that which has considered the application of the journey provisions of the 1987 Act, are instructive for the determination of Mr Wright’s claim.
In this matter there is no suggestion that Mr Wright’s injury arose ‘out of’ his employment. The argument is that it arose in the course of [his] employment, to the extent that the journey is deemed to come within the scope of that phrase. There is no causal connection required, between the employment and the injury, for an injury to occur ‘in the course of employment’, see Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
Was there an Interruption or Deviation to the Journey?
The Appellant relies upon the principles to be drawn from the so-called, ‘rescue’ cases. In Blacktown City Council v Smith (NSW Court of Appeal 16 July 1996), for instance, the Court (Mahoney P, Handley and Beazley, JJA agreeing) found that the action of a worker in interrupting her work to go to the assistance of another worker, in an adjoining office, did not take her outside the course of employment. The Appellant submits that a journey claim has a parallel to the ‘rescue’ cases in that, if going to the assistance of a person in the workplace, as for example in the case of Blacktown City Council v Smith, does not take the worker outside the course of his or her employment then, the same action on a prescribed journey does not take the worker outside of the protection of section 10(1).
A number of cases have considered these provisions. The concept of a ‘deviation’ from the journey involves assumptions about the usual route that is taken and how it is departed from (Minchinton v Homfray [1994] 10 NSWCCR 778 at 787). The evidence in this case is that Mr Wright had been working at the Sydney Eye Hospital for over a year, and that on the night in question he was walking along his usual route home down George Street. His pursuit of the bagsnatcher led him to turn into Goulburn Street and, after proceeding only a short distance, he caught up with her between George and Sussex Streets, a distance of less than about one hundred metres. There is no evidence as to whether Mr Wright usually turned into Goulburn Street on his way home. Given that there is no obligation to take the shortest or most direct route on a prescribed journey, and that he could not be said to have departed to any significant extent from the point where he was on his usual route along George Street, I find that there was no deviation from his journey.
Just as the temporal connection to the workplace applies to the course of employment in section 4, (Kavanagh v Commonwealth [1960] 103 CLR 547; Commonwealth v Oliver [1962] 107 CLR 353, Commonwealth of Australia v Lyon [1979] 24 ALR 300), so the temporal connection between the injury and the journey is sufficient to deem the injury to have occurred within the course of employment, provided it meets the other requirements of section 10 of the 1987 Act (Commonwealth v Hornsby [1960] 103 CLR 588). The relevant prescribed journey, in this case from Mr Wright’s workplace to his home, must be viewed, in time and place, as a whole.
The normal meaning of interruption includes the act of making a break in an otherwise continuous course or path (Macquarie Dictionary, Revised Third Edition at page 991). The legislation no longer requires that the interruption or deviation be substantial. A number of cases have considered the question of what amounts to an interruption to a journey for the purposes of entitlement under the workers’ compensation legislation. It will be a question of fact in each case (Scobie v K. D. Welding Co. Pty. Ltd [1959] 103 CLR 314 at 332). An interruption must be the result of a voluntary act of the worker (Napoli v Arthur H Stephens (NSW) Pty Ltd [1970] 1 NSWR 125). Delay on public transport in the course of a journey, or waiting for transport to arrive, is not likely an interruption (Smith v Brown [1986] 16 NSWCCR 492).
In my view, the Appellant’s submissions have significant merit, in light of the intention of the legislation in extending the benefits of the statutory compensation scheme to journey claims, as discussed above. The Blacktown City Council case presents an interesting comparison. Had the worker in that case heard the cry for help while on her journey home, she would likely have been in the same position as Mr Wright in terms of pursuing her claim for compensation.
I do not accept that I should take an approach to the determination of Mr Wright’s claim that is more restrictive than if he had responded to an assault that occurred in front of him at his workplace. I am not satisfied that Mr Wright, in coming to the aid of a person who had been robbed in front of him on his way home, acted in a way that amounted to an interruption to his journey. Mr Wright’s usual journey from work to home took him through the central business district of Sydney, where it might not be considered uncommon or unusual for an incident such as ‘bagsnatching’ to occur. The evidence is that the bagsnatcher was a young girl, of slight build and not obviously in the possession of a weapon of any kind. Mr Wright acted, apparently spontaneously, to assist the victim of the assault. While it cannot be said that he did not act ‘voluntarily’, there is a sense in which he had limited choice in responding to what happened in front of him. After the bagsnatcher was detained, and Mr Wright had given his statement to the police, he continued on his journey home. In normal parlance, what happened to Mr Wright, happened ‘on his way home from work’. Ironically, it is evident from the cases that if he had interrupted his journey to go to a hotel and injured his ankle while there (Mechanical Advantage Group Pty Ltd v George [2003] NSWCA 121), or had taken a different and longer route home, and stopped to visit a friend (Vetter v Lake Macquarie City Council [2001] 202 CLR 439), it is unlikely that liability for his claim would ever have been disputed.
It has been increasingly recognized by the courts that the interpretation of workers compensation legislation needs to adapt to contemporary employment situations (Commonwealth v Oliver [1962] 107 CLR 353 at 364 per Menzies J and Hatzimanolis v ANI Corporation Ltd [1992] 173 CLR 473 at 486 per Toohey J). To the extent that it is relevant, Mr Wright’s actions, in my view, were within what an employer, located in the central business district of Sydney, would ordinarily expect and tolerate from an employee in his situation. On this occasion the victim of the bagsnatch incident was subject only to losing her bag, but it is easy to contemplate that any manner of serious or violent assaults may occur in the path of workers as they journey from work to home, and it is consistent with normal community expectations that, in certain circumstances, they should assist. In the case of some workers in the course of a journey home, for instance doctors, nurses, police, paramedics and others, there indeed may be a broader, ethical obligation to assist.
Having found that Mr Wright suffered an injury on a journey, as defined within section 10(3) of the 1987 Act, and that his injury was not received during an interruption or deviation from this journey, it is not necessary to deal with the parties’ submissions on whether any such interruption or deviation materially increased the risk of injury.
Adequacy of the Arbitrator’s Reasons
The Appellant has submitted (Appellant’s submissions dated 6 April 2003 paragraph 7.1):
The Arbitrator’s decision discloses no reasons that would assist an appellate court or judicial officer conducting an appeal from or review of his decision to ascertain by what means the Arbitrator reached his decision that the applicant’s injury was sustained during an interruption from his journey to home from his place of employment or during a deviation from the journey.
Section 294 of the 1998 Act provides:
294 Certificate of Commission’s Determination
(1)If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination…
Rule 73 of the Workers Compensation Commission Rules 2003 provides as follows:
73Certificates of Determination
(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.
In his Statement of Reasons the Arbitrator outlined the law he considered applicable to the matter. He set out the relevant section of the 1987 Act and listed a number of authorities he reviewed in relation to the issue of liability. He also cited statements by Dixon J in Hume Steel Ltd v Peart (1947) 75 CLR 242 and Owen J in Rivett v Commissioner for Railways [1961] 79 WN (NSW) 1 (Rivett) regarding the underlying purpose of section 10. He then stated that . . . In applying the reasoning that flows from the cases cited above to the facts of this matter he came to the conclusion that (at page 4) there had been an interruption or deviation from a journey home from work, for a reason unconnected to the worker’s employment, and, that it had materially increased the risk of personal injury.
The Arbitrator’s reasons do not clearly disclose his findings of fact and the source of the evidence he relied upon. There is no evidence to suggest that the assailant Mr Wright confronted was found to have a concealed weapon. The Arbitrator makes no reference to the relevant evidence or legal principles that apply to the determination that the risk of injury was not materially increased because of the interruption or deviation from the journey, as required by section 10(2) of the 1987 Act.
The Arbitrator’s limited reasons for his decision do not adequately address the requirements of Rule 73. The Arbitrator does not set out his understanding of the applicable law. He has simply listed the authorities he has considered with little or no analysis. I accept the Appellant’s submission that the Arbitrator erred in his reliance upon Owen J in Rivett v Commission for Railways [1961] 79 WN (NSW) 1. Exactly what principle the Arbitrator extracted from his reference to this case, and to Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13, is not clear to me from the statement of reasons. The Arbitrator’s reasoning process, in coming to the conclusions that he did, in the determination of relevant facts necessary to establish an entitlement under section 10 of the 1987 Act, and in the application of the relevant law that guided him to those conclusions, cannot readily be understood from the statement of reasons.
It is not encumbent upon a Commission Arbitrator to set out lengthy written reasons in order to comply with the Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes (Collector of Customs v Pozzolanic [1993] 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] 185 CLR 259; Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, M & S Shipman Pty Ltd v Larry John Matters [2003] NSW WCC PD 19). However, the reasons should, at least, explain to the parties why the Arbitrator has made the particular decision.
Ultimately, in this case, it is not necessary for the Appellant to rely upon the ground of inadequate reasons in order to have the Arbitrator’s decision set aside, as I have found (above) that the Arbitrator has made an error of law in relation to the application of section 10(2) of the 1987 Act. However, I am satisfied that the inadequacy of the reasons would have been, of itself, sufficient reason to set the decision aside. In my view the reasons demonstrate that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247, Absolon v NSW TAFE [1999] NSWCA 311).
Summary
In summary, I find that the Arbitrator erred in
(i)the application of section 10 of the 1987 Act to the Appellant worker’s claim, and
(ii)failing to provide adequate reasons for his decision.
The result of these findings is that the decision must be revoked and a new decision made in its place, in accordance with section 352 (7) of the 1998 Act. I note that the decision of the Arbitrator concerned only one aspect of the full determination of Mr Wright’s claim, namely, did he suffer a compensable injury on a journey to which section 10 of the 1987 Act applies? For the reasons set out above, it is my view that the answer to that question is “yes”. However this does not fully dispose of his claim in terms of the extent of his entitlements under the workers compensation legislation. This detailed determination remains to be agreed by the parties or determined by an Arbitrator. It is, therefore, appropriate for this decision to be drawn to the attention of the Registrar so that the matter may be finally determined, in accordance with these reasons.
DECISION
The decision of the Arbitrator is revoked and the following decision is made in its place:
Mr Wright suffered an injury on a journey to which section 10 of the 1987 Act applies.
The matter is referred to the Registrar for allocation to an Arbitrator to determine the remaining issues in dispute.
COSTS OF THE APPEAL
The Appellant has applied for costs in the appeal.
The appeal has been successful and costs fall to be determined in accordance with section 345 of the 1998 Act. That section provides, relevantly, that:
“345Costs 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.
There is difficulty in the application of these provisions to the circumstances of this case because the quantum of Mr Wright’s claim was not the issue determined by the Arbitrator at first instance. While the amount of compensation at issue on the appeal (section 352(2) of the 1998 Act) was relative to the amount of the Appellant’s claim on the Respondent, the amount of compensation ultimately to be paid to Mr Wright remains to be determined.
In the circumstances it is appropriate for no order to be made as to costs at this stage. The parties are urged to come to an agreement as to costs, taking into account the terms of section 345 and the final determination of the matter, by agreement or by determination. Failing that a further application for costs may be made.
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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