Wrights Industries Pty Limited v Barry
[2006] NSWWCCPD 59
•5 April 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wrights Industries Pty Limited v Barry [2006] NSWWCCPD 59
APPELLANT: Wrights Industries Pty Limited
RESPONDENT: Caroline Barry
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC15494-04
DATE OF ARBITRATOR’S DECISION: 8 December 2004
DATE OF APPEAL DECISION: 5 April 2006
SUBJECT MATTER OF DECISION: Sections 66 and 67 entitlements; absence of consent; application of section 66A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Mulcahy Lawyers
Respondent: Stacks/Goudkamp
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 8
December 2004 is revoked.
2. The matter is remitted to the Registrar
for referral to the Arbitrator at first instance for re-determination of all issues.
3. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Caroline Barry (‘Ms Barry’) was employed by Wrights Industries Pty Limited (‘Wrights Industries’) as a laundry hand. In a statement dated 2 October 2003, Ms Barry claimed that “[i]n August 2001 I was taking wet sheets out of a bin. They were twisted. I pulled hard. I felt something pull in my left arm … I kept working from August until December 2001 … I went off work on 13 December 2001 …”
At some point in time, of which there are no details, Ms Barry, through her solicitors, apparently made a claim on Wrights Industries’ Insurer, QBE Workers Compensation (NSW) Limited (‘QBE’) for lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 22 June 2004, QBE wrote to Ms Barry care of her solicitors with an offer in respect of her claim in the following terms:
·“Permanent disability: 10% loss of use of left arm at or above left elbow – (10% x 75,000) which equates to $7,500.00.
·Pain and suffering $3,750.00
·Total $11,250.00.”
However, on 23 June 2004, Ms Barry, through her solicitors, wrote to Wrights Industries making a claim for section 66 benefits in respect of 12% permanent loss of efficient use of the right arm ($9,600.00) and $15,000.00 pursuant to section 67 of the 1987 Act, a total of $24,600.00.
Ms Barry claims that by letter dated 12 July 2004, QBE’s offer of settlement dated 22 June 2004 was accepted.
On 27 August 2004, Ms Barry wrote to QBE repeating the claim made in the letter to Wrights Industries dated 23 June 2004.
Ms Barry claims that upon failure by QBE to provide settlement funds in accordance with its offer contained in the letter of 22 June 2004, an ‘Application to Resolve a Dispute’ was filed on 28 September 2004. Ms Barry this time claimed for 12% permanent loss of efficient use of her left arm at or above the elbow (and specified the sum of $9,600.00) and section 67 entitlements in the sum of $15,000.00. She nominated 13 December 2001 as the date of injury, and QBE as the relevant insurer.
On 20 October 2004, Wrights Industries filed a ‘Reply’. In that document, Wrights Industries submitted that the date of injury should be August 2001 in accordance with Ms Barry’s statement annexed to her application dated 2 October 2003 and that Wrights Industries should be deemed to hold a policy of insurance with the Insurance Ministerial Corporation because of “… the Applicant’s traineeship during all of August 2001 through to 30 October 2001.…” Wrights Industries also disputed the degree of loss claimed by Ms Barry, and her entitlement to section 67 benefits.
Both the ‘Application’ and ‘Reply’ contained a number of medical reports upon which the parties relied.
In a document headed “QBE – Employers Report of Injury” annexed to the Reply, no date of injury is nominated however, the date that notice was given was 13 December 2001.
The matter was listed for teleconference on 6 December 2004. It is alleged that a representative from Ms Barry’s solicitors advised the Arbitrator on that occasion that Ms Barry had agreed to accept Wrights Industries’ offer from QBE dated 22 June 2004 in accordance with her letter dated 12 July 2004.
There is scant information as to what transpired at the teleconference, however, the Arbitrator ultimately issued a ‘Certificate of Determination – Consent Orders’ dated 8 December 2004 in the following terms:
“In this matter, a telephone conference was held where the parties were assisted by
me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, … the determination of the Commission in this matter is as follows:
1. That the requirement to file a Notice of Discontinuance in accordance with Rule 74 of the Workers Compensation Commission Rules 2003 is dispensed with.
2. That the respondent pay the applicant’s costs as agreed or to be assessed.
The following is not a determination of the Commission, however, I note that the parties have agreed the following:
·To settle the dispute for s66 permanent impairment for $7500.00 being for 10% permanent impairment or loss of efficient use of the left arm at or above the elbow and s67 pain and suffering for $3750.00 making a total sum of $11,250.00.
·To file an Application for Registration of Agreement under s66A of the Workers Compensation Act 1987 within 21 days.”
What can only be described as vitriolic correspondence between the parties, ensued between 9 and 30 December 2004 where Ms Barry’s lawyers sought to enforce the alleged agreement, and Wrights Industries disputed the basis upon which any alleged agreement was reached.
Ultimately, on 5 January 2004, [sic – 2005] Wrights Industries lodged an ‘Appeal Against Decision of Arbitrator’. No specific grounds of appeal are cited. Wrights Industries has simply included a further copy of its letter to the Commission dated 16 December 2004. That letter sets out the sequence of events as Wrights Industries saw it, and noted two particular issues. Firstly, the parties would be unable to register a section 66A Agreement since there was no statutory entitlement to lump sum compensation pursuant to section 67 where the threshold applicable for section 66 impairments had not been reached. Secondly, Wrights Industries’ Reply had specifically indicated an error in the name of the correct insurer, and the proceedings should be discontinued against QBE and fresh proceedings issued against Treasury Managed Fund.
On 2 February 2005, Ms Barry filed “Written Submissions in Response” to Wrights Industries’ appeal.
LEAVE TO APPEAL
No amount of compensation has been awarded in this matter however, as Deputy President Byron held in Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 “the ‘decision’ in each instance is not restricted to an ‘award’”. In section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) “… ‘decision’ includes an … order …” such that the Commission constituted by a Presidential Member has power to review the Arbitrator’s decision.
Accordingly, leave to appeal is granted.
ON THE PAPERS REVIEW
Wrights Industries submits that the appeal can be determined on the papers. Ms Barry is silent on this issue. Having carefully read all the material before the Arbitrator, and the correspondence that ensued between the parties and the Commission consequent upon his determination, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE GROUNDS OF APPEAL
Section 352 of the 1998 Act makes provision for an appeal to the Commission constituted by a Presidential Member against a decision of an Arbitrator. The section goes on to set out the rules and procedures for filing of an appeal.
An appeal is by way of review of the decision of the Arbitrator. It is not an appeal in the strict sense as the Commission can receive further evidence. Similarly, it is not a rehearing of the matter ‘de novo’ but is a review by way of rehearing where the power of the Commission to confirm, revoke or substitute a new decision is exercisable only when it can be demonstrated that the original decision of the Arbitrator is affected by some legal, factual or discretionary error [see Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD7].
In the present case, the only decision of the Arbitrator is in respect of the dispensing with the requirement to file a Notice of Discontinuance and the payment of costs. The Commission is not empowered to make a determination pursuant to section 66 in the absence of an Approved Medical Specialist Certificate. (See section 293(2) of the 1998 Act).
Many of the submissions made by both parties rely on correspondence which does not appear to be before the Commission, such that it is impossible to determine the accuracy or otherwise of various statements contained in correspondence between the parties.
It is clear that there seems to be a dispute about the nominated insurer. It is also clear that the amount of compensation pursuant to sections 66 and 67 apparently agreed upon between the parties cannot be legally sustained in that the amount agreed under section 66 does not reach the threshold for an entitlement under section 67. Moreover, section 66A(4) of the 1987 Act provides that “the Registrar may refuse to register an agreement if the Registrar considers that the agreement is inaccurate or that the agreed amount of compensation is inadequate.”
It is noted that in her Application, Ms Barry claimed 12% permanent loss of use of the left arm at or above the elbow in the sum of $9,600.00. That amount is inaccurate, unless of course she is left arm dominant. As pointed out previously, she had of course initially made a claim for permanent loss of the right arm. Regardless of whatever limb she claimed was impaired, 12% was insufficient to reach the threshold for an entitlement pursuant to section 67 of the 1987 Act.
It also seems rather strange that, despite purporting to accept QBE’s offer of settlement by letter dated 12 July 2004, Ms Barry went on to make a claim against QBE by letter dated 27 August 2004 in respect of 12% loss of use of the right arm under section 66 and the sum of $15,000.00 under section 67.
The form included in the Arbitrator’s file headed “Teleconference Arrangements and Outcomes” sheds no further light on the matter other than that all parties participated at the teleconference and that the claims under sections 66 and 67 of the 1987 Act were resolved. It does not assist in determining the nature of any purported agreement between the parties.
It seems clear that, whatever transpired at the teleconference on 8 December 2004, there is a clear dispute as to what, if any, agreement was reached between the parties. In the absence of any clear ‘agreement’, it follows then that the Arbitrator’s ‘Certificate of Determination – Consent Orders’ was founded on a mistake of fact, that is, that there was an agreement between the parties.
In any event, given that the Arbitrator’s determination does not, and indeed cannot as a matter of law, include any determination of the issues in dispute, namely entitlements under section 66 and section 67 of the 1987 Act, I have no power to make any decision, whether by revocation, enforcement or otherwise, in respect of the claim for lump sum benefits.
The submissions by both parties do not really assist. Wrights Industries reinforces its position that there is no legal basis for the purported agreement and Ms Barry simply seeks to reinforce the agreement noted by the Arbitrator, despite its legal invalidity.
As a result, the Arbitrator’s “determination” was misconceived and based on incorrect premises. There was no valid agreement between the parties. The Arbitrator has erred in law by noting the parties’ apparent agreement under section 66 for 10% permanent loss of the left arm but including a component for pain and suffering pursuant to section 67 when Ms Barry’s claim under section 66 had not reached the threshold.
In addition, Wrights Industries disputes not only that there was an agreement, but also points out that its Reply clearly indicated that an incorrect insurer had been nominated, if Ms Barry’s statement as to the date of her injury was accepted. In these circumstances, it is impossible to conclude that any clear agreement has been reached between the parties.
The outcome of these proceedings reflect inaccuracies and misconceptions by all parties, including the Arbitrator, compounded in particular by the legal representatives for both Ms Barry and Wrights Industries.
CONCLUSION
Given the circumstances outlined above, the decision of the Arbitrator ought be revoked since it was based on an incorrect fact, namely, that there had been an ‘agreement’ between the parties, and the matter ought be remitted to him for re-determination of all issues.
Any defects in the pleadings or inaccuracies in the section 66 assessments can hopefully be rectified prior to ultimate determination of the issues in dispute.
DECISION
1. The decision of the Arbitrator is revoked.
2. The matter is remitted to the Registrar for referral to the Arbitrator at first instance
for re-determination of all issues.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
5 April 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
1
0