Xue Xin Li v Dex Australia Pty Ltd
[2007] NSWWCCPD 71
•1 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Xue Xin Li v Dex Australia Pty Ltd [2007] NSWWCCPD 71
APPELLANT: Xue Xin Li
RESPONDENT: Dex Australia Pty Ltd
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC4742-02
DATE OF ARBITRATOR’S DECISION: 8 May 2006
DATE OF APPEAL HEARING: 20 February 2007
DATE OF APPEAL DECISION: 1 March 2007
SUBJECT MATTER OF DECISION: Leave to Appeal; threshold in section 352(2)(a) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:Oral
REPRESENTATION: Appellant: In person
Respondent: Ms Wood instructed by Abbott Tout
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs.
BACKGROUND TO THE APPEAL
On 2 June 2006 Xue Xin Li (‘the Appellant Worker/Mr Li’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 May 2006.
The Respondent to the Appeal is Dex Australia Pty Ltd (‘the Respondent Employer/Dex’).
This matter was heard at first instance with two other matters (Xue Xin Li v Precise Craft Pty Ltd WCC3760-02 and Xue Xin Li v Almec Pty Ltd WCC 7226-03). Although the three claims were heard together the Arbitrator prepared and issued three separate decisions. Mr Li has appealed all three decisions. As three decisions were issued under the three different matter numbers, I have considered and determined each appeal separately (see also Xue Xin Li v Precise Craft Pty Ltd NSWWCCPD 70 and Xue Xin Li v Almec Pty Ltd NSWWCCPD 72).
Mr Li was born in the Peoples Republic of China on 9 April 1956. He left school at the age of 18 years and then worked in a department store where he became a section manager. He came to Australia in 1989 as an English language student. In 1991 he started work for Precise Craft Pty Ltd (Precise Craft) as a sheet metal worker and spot welder.
On 17 March 1992 he was injured in the course of his employment with Precise Craft when metal sheets fell onto him causing a laceration to his left wrist and bruising to his right thigh. He was taken to Blacktown Hospital where his left wrist was sutured. He was off work for two and a half days and then returned to his normal duties until about February 1993.
In 1994 he commenced proceedings in the former Compensation Court of NSW (matter 6455 of 1995) seeking compensation as a result of the March 1992 injuries (pleaded as: “laceration of left hand and bruising of right thigh”). That claim was heard and determined by Commissioner Grayson on 24 April 1995. The Commissioner found that Mr Li had sustained injury “as alleged” but that he had no entitlement to lump sum compensation as a result of those injuries. Precise Craft was ordered to pay Mr Li’s reasonable section 60 expenses.
Mr Li appealed Commissioner Grayson’s decision to Justice Campbell (matter 8554 of 1995). The appeal was settled and the following orders were made by consent on 31 October 1995:
“Having duly considered the matters submitted, THE COURT, by and with the consent of the parties hereto –
1.HEREBY ORDERS that the award dated 24 April 1995 in matter no. 6455 of 1995 be discharged.
HEREBY ORDERS AND AWARDS:
(1)That an award be made in favour of the Respondent in respect of the Applicant’s claim for weekly compensation.
(2)That the Respondent pay the Applicant as lump sum compensation under section 66 –
i.$1,203.15 in respect of 15% [sic] loss of use of the Applicant’s left hand.
ii.$925.50 in respect of 1% loss of use of the Applicant’s right leg at or above the knee.
(3)That the respondent pay the Applicant interest in the agreed sum of $371.35 on the said lump sums awarded under section 66.
(4)That an award be made in favour of the Respondent in respect of the Applicant’s claim for section 60 expenses, other than those already paid by the Respondent.
(5)That the Respondent pay the Applicant’s costs, including fee for counsel for advice on evidence and fee for counsel for additional/second/special conference in the sum of $150.00.
3. NOTES:
(1)It is agreed that the said lump sums awarded under section 66 represent the totality of all losses suffered by the Applicant in the employ of the Respondent.
(2)Other than as referred to in paragraph 2(3) above, it is agreed that the sums herein include all claims for interest.
(3)Admissions and agreed facts are set forth in the documentation filed herein.”
The reference to “15%” in paragraph 1(2)(a) is an error and should be 1.5%.
The “Admissions” filed with the court on 31 October 1995 included the following admission by Mr Li at paragraph five:
“Other than injuries the subject of these proceedings, I suffered no injury within the meaning of the Act in the employ of the Respondent.”
In June 1993 Mr Li started work for Lighting Dynamics as a storeman where he stayed until late 1995. He then worked for an air-conditioning company as a sheet metal worker for several months. No injury is alleged against either of these companies.
In September 1996 Mr Li started worked for Dex as a machine operator producing plastic products. He remained in that job until April 1998. Mr Li alleges that over time he developed pain in his right elbow and left knee as a result of the nature of his duties with Dex.
In or about April 1998 Mr Li started work for Almec Pty Ltd (Almec) where he was employed on a foot operated spot welding machine. His duties also required him to lift metal sheets on occasion and to use a rivet gun. He alleges that as a result of his duties he injured his back, knees, hands, right foot and developed pain in his chest and eyes.
An Application to Resolve a Dispute (‘the Precise Craft Application’) was filed in the Commission on 29 October 2002 (matter WCC3760-02). The Application alleged injury to the right knee, left hand and back as a result of the 17 March 1992 incident and claimed section 60 expenses and lump sum compensation under sections 66 and 67.
An Application to Resolve a Dispute (‘the Dex Application’) was filed in the Commission on 29 November 2002 (matter WCC4742-02). This Application alleged injury to the back, knees and right arm as a result of the nature and conditions of his employment with Dex from September 1996 to April 1998. The Application claimed weekly compensation from 20 January 1998 to 11 March 1998, section 60 expenses and lump sum compensation under sections 66 and 67.
An Application to Resolve a Dispute (‘the Almec Application’) was filed in the Commission on 19 February 2003 (matter WCC7226-03). This Application alleged injury to the back, right leg, right foot, knees, hands, and pain in the chest, head and eyes as a result of the nature and conditions of employment from April 1998 to May 2002. It also alleged an injury to the back as a result of being hit in the back “by a stripper machine” (see the Almec Application, Part 2) but no date is given for this incident. In addition, a reference is made to “catching cold all [the] time” and nose bleeds. This Application claimed weekly compensation from “25 November 2002 to up [sic] now 20% weekly lost[sic]” and lump sum compensation.
Under Rule 29(3) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) the Arbitrator issued a Direction on 24 April 2003 joining Dex and Almec as parties to the Application against Precise Craft (matter WCC3760-02) thereby making Precise Craft the first Respondent, Dex the second Respondent and Almec the third Respondent. This description of the parties is used in various documents throughout the matter though the order joining Dex and Almec was set aside by a later Direction dated 6 August 2003.
The Arbitrator issued three separate Directions after a preliminary assessment conference held on 6 August 2003. The first was in matter WCC3760-02 as follows:
“1.By consent the Direction made on 31/1/03 joining Dex Australia Pty Ltd and Almec Pty Ltd to these proceedings is set aside.
2.By consent matters 3760-2002, 4742-2002 and 7226-2003 are to be heard together.
3.This matter is to be referred to an AMS.”
I am not in possession of any Direction made in any of the above matters on 31 January 2003 and assume that this is a reference to the Direction made on 24 April 2003 joining Dex and Almec as Respondents to the Precise Craft Application (matter WCC3760-02).
The second Direction issued on 6 August 2003 was in matter WCC4742-02 as follows:
“1.By consent the Application is amended to include a claim for compensation in respect of the left hand.
2.The date for the filing of the Reply is extended to 6 August 2003 as I do not consider that the late admission of this document prejudices the applicant and it is in the interests of justice for it to be admitted.
3.The applicant is to provide full particulars of his claim for medical and related travel expenses to the Commission and the respondent within 28 days.
4.Access periods in respect of documents produced by the Workers Compensation Commission, Compensation Court of NSW, Dr Bracken, Bankstown Hospital, Workers Health Centre and Regency Medical Centre are as follows: Respondent 12 to 19 August, Applicant 20 to 27 August 2003.
5.Any documents on which parties seek to rely are to be sent to the Commission by 15 September 2003.
6.By consent matters 3760-2002, 4742-2002 and 7226-2003 are to be heard together.
7.This matter is to be referred to an AMS.”
The third Direction issued on 6 August 2003 was in matter WCC7226-02 as follows:
“1.The date for the filing of the Reply is extended to 6 August 2003 as I do not consider that the late admission of this document prejudices the applicant and it is in the interests of justice for it to be admitted.
2.The applicant is to provide full particulars of his claim for medical expenses and weekly payments to the Commission and the respondent within 28 days.
3.The Registrar is directed to send a full copy of the Application filed in this matter to the respondent.
4.The claim for lump sum compensation pursuant to s66 of the Workers Compensation Act 1987 in respect of chest pain, nose bleeding, catch cold [sic] and heavy headache is struck out as the Commission has no power to make an award in respect of these disabilities.
5.The Commission will hear arguments in relation to jurisdiction at the next hearing of this matter in relation to the applicant’s claim for loss of superannuation and 20% loss of weekly wages.
6.By consent matters 3760-2002, 4742-2002 and 7226-2002 are to be heard together.
7.This matter is to be referred to an AMS.”
An Approved Medical Specialist (‘AMS’), Dr Pillemer, examined Mr Li on 27 October 2003 and issued a Medical Assessment Certificate (‘MAC’) under section 325 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) on 23 January 2004. That document was issued with page four missing and a corrected MAC was issued on 11 February 2004. The only issues referred to and addressed by Dr Pillemer were the level of incapacity suffered by the worker and the contributions made by his various injuries.
An AMS, Dr Healey, examined Mr Li’s eyes on 11 December 2003 and a MAC was issued on 11 February 2004. In Dr Healey’s opinion neither Mr Li’s myopia nor his colour blindness were related to his employment.
A teleconference was held with all parties on 19 February 2004 when a further Direction was issued dealing with various procedural matters that need not be repeated here.
A Direction was issued on 8 March 2004 when one of the three employers was given leave to again file and serve several Directions for Production. Mr Li was encouraged to seek legal advice.
By Direction issued on 24 March 2004 the parties were, among other things, directed to file and serve by 6 May 2004 a typed list of all documents upon which they sought to rely and which they wished to be forwarded to the AMS. By consent the matter was referred to an AMS to be chosen by the Registrar. Mr Li was strongly encouraged to seek legal advice.
On 6 December 2004 Dr Pittar, AMS, examined Mr Li in respect of his alleged eye injury and issued a MAC on 25 February 2005 assessing him to have nil loss of vision as a result of any injury to his eyes.
On 7 December 2004 Dr Briet, AMS, examined Mr Li in respect of his alleged orthopaedic injuries and issued a MAC on 25 February 2005 assessing him to have nil permanent loss of use or impairment of any body part he was asked to assess.
On 18 March 2005 Mr Li lodged an Application to Appeal the Decision of both MACs under section 327(3) of the 1998 Act.
A preliminary assessment conference was held on 16 March 2005 and the following Direction issued on that date:
“1.By consent the applicant is to file and serve full details of his claim against each respondent for expenses, made pursuant to s60 of the Workers Compensation Act 1987 (the ‘Act’), with all supporting invoices and receipts within 14 days.
2.By consent the 3rd respondent [Almec] is to file and serve a list of all weekly payments made to the applicant within 21 days.
3.By consent the applicant is to provide copies of his marriage certificate and his children’s birth certificates to the 3rd respondent and the Commission within 21 days.
4.It is agreed between the parties that the only outstanding issues post MAC are as follows:
1st respondent [Precise Craft] – claims made pursuant to s67 and 60 of the Act and costs;
2nd respondent [Dex] – claims made pursuant to s67 and 60 of the Act and costs;
3rd respondent [Almec] – claims made pursuant to s67 and 60 of the Act, a claim for weekly payments for the applicant and his dependants, a claim for superannuation and costs.”
In respect of Mr Li’s appeals against the MACs, the Registrar determined on 1 July 2005 that it did not appear that at least one of the grounds of appeal specified in section 327(3) existed and the matters were referred back to the Arbitrator for any outstanding issues to be resolved.
On 10 August 2005 the following Direction was issued by the Arbitrator:
“1.This matter is referred back to Dr Breit, the AMS, to assess permanent impairment of the body parts referred and as at the dates noted in the referral and to answer the additional 4 questions asked at the end of the referral.
2.This matter is referred back to Dr Pittar, the AMS, to assess the permanent impairment as at 5/2002, the date noted in the referral, and to answer the additional 4 questions asked at the end of the referral. I note permanent impairment has only been assessed as at ‘two or three months in 1998’.
3.The further reports from the AMSs are to be sent to all parties as soon as received.
4.The conciliation/arbitration date of 18 August 2005 is vacated.”
As a result of the above Direction a further MAC was prepared by Dr Briet and provided to the parties on 22 November 2005. Dr Breit certified that Mr Li had no permanent impairment or permanent loss of use of any of the body parts referred to him for assessment and he provided answers to the four questions asked at the bottom of the referral. Those questions and the doctor’s answers were as follows:
“(i) Please assess the level of incapacity suffered by the worker if any.
I do not believe any incapacity has been suffered by the worker as indicated in the Summary Tables. The reasons are given in the body of the report.
(ii) What contribution if any towards this incapacity has been played by
(a) Injury on 17/3/1992 – Nil
(b) Injury in March/April 2002 – Nil
(c) Nature and conditions of employment with Dex Australia Pty Ltd from 9/96 to 4/98 – Nil
(d) Nature and conditions of employment with Almec Pty Ltd from 4/98 to 5/02 – Nil
(iii)Has employment with each employer been a substantial contributing factor to the impairment suffered, if any?
No. There is no impairment in my opinion.
(iv)Please advise to the extent if any of the permanent impairment which may be said to be related to pre-existing conditions or abnormalities.
None.There is evidence of spondylosis which is a pre-existing degenerative condition. However, in the presence of such marked abnormal illness behaviour I am led to conclude that there is no impairment. The mere presence of degenerative changes on investigation does not equate with symptomatology or impairment.”
Dr Pittar’s response to the further referral arising from the direction of 10 August 2005 was to provide a letter dated 30 August 2005 in the following terms:
“There was no permanent impairment noted [in] either eye on the examination date of 6 December 2004. So regardless of whom the claimant worked for or when the claimant worked there was no permanent impairment.”
Dr Pittar’s letter of 30 August 2005 was provided to Mr Li and the parties’ legal representatives on 22 November 2005.
On 30 November 2005 Mr Li lodged a further appeal against the MACs issued on 22 November 2005. By decision made on 3 February 2006, the Registrar determined that it did not appear to her that at least one of the grounds for appeal specified in section 327(3) existed and, therefore, the appeal was not to proceed and the matter was referred back to the Arbitrator to resolve any outstanding issues.
On 6 Aril 2006 the matters were listed for conciliation and arbitration. Mr Li was again unrepresented. An interpreter in the Mandarin language was provided for Mr Li. The matters could not be resolved and proceeded to Arbitration. Whilst the three claims were heard together the Arbitrator prepared and issued three separate decisions, each of which Mr Li appealed.
The claim against Dex was originally for weekly compensation from 20 January 1998 to 11 March 1998, lump sum compensation and for section 60 expenses totalling $796.90 (see Arbitrator’s Statement of Reasons for Decision (‘Reasons’) at paragraph 14). The claim for weekly compensation was withdrawn at the Arbitration hearing as it had already been paid by Dex in February 2000 (Reasons, paragraph four). The claim for lump sum compensation was particularised by Mr Li in a letter dated 21 September 2002 as follows:
1.15% permanent loss of use of the right hand;
2.5% permanent loss of use of “both knee” [sic];
3.10% permanent loss of efficient use of the “right leg”;
4.10% permanent “loss of efficient use of back” [sic], and
5.$60,000.00 in respect of pain and suffering.
In a reserved decision the Arbitrator dismissed Mr Li’s claims for lump sum compensation but ordered Dex to pay the sum of $131.75 under section 60.
Mr Li seeks leave to appeal from that decision.
UNREPRESENTED PARTY
On appeal, as before the Arbitrator, Mr Li was unrepresented. At the hearing of the appeal a Mandarin interpreter was provided for Mr Li. The submissions attached to his notice of appeal and dated 31 May 2006 merely restated his claim for compensation and made no effort to identity any factual or legal error by the Arbitrator. As a result I issued the following direction on 17 January 2007:
“The parties are directed to the authorities of Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79 and The King Island Company Limited v Deery [2005] NSWWCCPD 1 at [19] and to the provisions of section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appellant is directed to file and serve on or before 7 February 2007 a document precisely identifying the error or errors of fact, law or discretion it is alleged the Arbitrator has made in her decision of 8 May 2006 and indicating why leave to appeal should be granted.
The appeal is listed for oral hearing at 1 Oxford Street Sydney at 10am on Tuesday 20 February 2007.
The Commission strongly recommends that the appellant seeks independent legal advice for the future conduct of the appeal.”
In response to the above direction Mr Li wrote to the Commission on 6 February 2007 stating:
“Under compensation law section 60, 66, 67 [the] Arbitrator made error [in her] decision on 8 May 2006. That’s why leave to appeal should be granted. My supporting documents are Application – Appeal Against Decision of Arbitrator. Submissions on 31/5/06 and the letter to President Workers Compensation Commission on 21 May 2006 and whole files. This letter will forward to three respondents and my solicitor P K Simpson & Co.”
At no stage has a solicitor filed an appearance for Mr Li.
Mr Li’s letter to the President of the Commission dated 21 May 2006 quoted from several of Mr Li’s medical reports, all of which were before the AMSs when they prepared their assessments.
I am satisfied that the Commission has complied with the provisions of the Commission’s Access and Equity Service Charter.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 8 May 2006, records the Arbitrator’s orders as follows:
“1.The application made pursuant to s66 of the Workers Compensation Act 1987 (‘the Act’) is dismissed.
2.The application made pursuant to s67 of the Act is dismissed.
3.The claim for weekly payments is discontinued.
4.Pursuant to s60 of the Act the respondent is ordered to pay the applicant the sum of $131.75.
5.Each party is to pay its own costs.”
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Mr Li seeks to rely on fresh evidence in the form of a prescription for panamax from Dr Leung dated 28 May 2006. The need for the prescription is said to have arisen from an episode of dizziness and headaches that Mr Li experienced on 26 May 2006. Dr Leung is alleged to have said that the dizziness and headaches were related to Mr Li’s cervical spondylosis. Mr Li then adds that whilst working for Almec the spot welding made him dizzy, caused a loss of vision and headaches.
I do not believe that the prescription has any relevance to issues before me. It does not advance Mr Li’s case.
The application to rely on fresh evidence is refused.
LEAVE TO APPEAL
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. Section 352(2) provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)…
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
This provision makes it clear that the Commission is not to grant leave to appeal “unless the amount of compensation at issue on the appeal is” at least $5,000.00. While it is correct that in some cases leave to appeal may be granted even though no compensation has been awarded (see Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 (‘Mawson’)), it must first be established that the compensation “at issue” on appeal is at least $5,000.00.
The claim against Dex was for lump sum compensation and for $796.90 in respect of section 60 expenses. The Respondent Employer disputed Mr Li’s claim for lump sum compensation. As a result, the Arbitrator was required to refer that assessment to an AMS for assessment and that is what she did. So far as the claim against Dex is concerned, the AMS (Dr Breit) assessed Mr Li to have no permanent impairment of his back, no permanent loss of use of either leg at or above the knee and no permanent loss of use of his right hand and a valid MAC was issued to that effect.
Section 65(3) of the 1987 provides:
“(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
There is no issue that the present claim by Mr Li is a “new claim” (notice of claim having been given by Mr Li on 21 September 2002) and that in these circumstances the provisions set out in Schedule 6 Part 18C Clause 4 of the 1987 Act apply to an injury received before 1 January 2002. That provision provides:
“Disputes concerning lump sum compensation claims
(1) In the case of a new claim in respect of an injury received before the commencement of the lump sum compensation amendments, compensation under Division 4 of Part 3 (as in force before the commencement of those amendments) may not be awarded by the Commission if there is an impairment dispute unless the dispute has been assessed by an approved medical specialist under Part 7 of Chapter 7 of the 1998 Act.
(2) An assessment certified in a medical assessment certificate pursuant to the medical assessment of an impairment dispute is conclusively presumed to be correct as to the matters in dispute in any proceedings in respect of the claim for compensation concerned.
(3) For the purposes of this clause, Part 7 of Chapter 7 of the 1998 Act extends (with such modifications as may be prescribed by the regulations) to the assessment of an impairment dispute as if it were a medical dispute under that Part.
(4) In this clause, ‘impairment dispute’ means a dispute about whether a loss or impairment exists and, if so, the nature and extent of the loss or impairment.”
In the present case two AMSs (Drs Breit and Pittar) assessed that Mr Li has no degree of permanent impairment as a result of any of his work incidents. The MACs are conclusively presumed to be correct as to the degree of permanent impairment sustained by a worker as a result of a work injury (section 326(1)(a) of the 1998 Act). Therefore, the Commission may not award permanent impairment compensation or pain and suffering compensation to Mr Li. In the absence of any challenge to the validity of the MACs under the principles discussed in Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (and none has or, in my opinion, could reasonably be raised) there is no right of appeal in respect of a MAC to a Presidential member. Such appeals are dealt with under section 327 of the 1998 Act. Mr Li has unsuccessfully pursued his rights under that section. Therefore, the Arbitrator was right to dismiss Mr Li’s application for lump sum compensation against Dex. In light of the MACs issued, Mr Li has no entitlement to such compensation and no right of appeal under section 352 against the assessments in the MACs.
It follows that the only compensation “at issue” on appeal is Mr Li’s claim for section 60 expenses totalling $796.90. That amount does not meet the threshold in section 352(2)(a) ($5,000.00) and leave to appeal must be and is refused.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
1 March 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:Xue Xin Li v Dex Australia Pty Ltd [2007] NSWWCCPD 71R
APPELLANT: Xue Xin Li
RESPONDENT: Dex Australia Pty Ltd
APPLICANT FOR RECONSIDERATION: Xue Xin Li
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC4742-02
DATE OF ARBITRATOR’S DECISION: 8 May 2006
DATE OF APPEAL HEARING: 20 February 2007
DATE OF APPEAL DECISION: 1 March 2007
DATE OF RECONSIDERATION DECISION: 5 April 2007
SUBJECT MATTER OF DECISION: Application for reconsideration
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: In person
Respondent: Home Wilkinson Lowry
ORDERS MADE ON APPEAL: The application for reconsideration is refused.
No order as to costs of the reconsideration application.
BACKGROUND TO THE APPLICATION FOR RECONSIDERATION
On 2 June 2006 Xue Xin Li (‘the Appellant Worker/Mr Li’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 May 2006.
The Respondent to the Appeal is Dex Australia Pty Ltd (‘the Respondent Employer/Dex’).
The appeal was heard on 20 February 2007 and decided by me on 1 March 2007 when leave to appeal was refused. The full history of this matter is set out in Xue Xin Li v Dex Australia Pty Ltd [2007] NSWWCCPD 71 and will not be repeated here.
On 15 March 2007 Mr Li filed an Application - Reconsideration of Commission Decision (‘the Reconsideration Application’). In support of his application he has also filed additional medical evidence.
Dex filed a Notice of Opposition to Reconsideration of Commission Decision on 29 March 2007.
PRELIMINARY MATTERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(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.”
Neither party has made submissions on whether the Reconsideration Application should be dealt with on the papers.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, I am satisfied that 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.
SUBMISSIONS AND FINDINGS
Mr Li seeks to rely on the following evidence to ground his reconsideration application:
a) report and physiotherapy referral from Dr Sun, dated 15 September 2005;
b) report from Juliet Smith, audiologist, dated 20 April 2005;
c) report from Dr Larry Kalish, ENT Registrar, Concord Hospital, dated October 2006;
d) report of Dr Elizabeth Dally, Urology Registrar, Concord Hospital, dated 5 May 2006;
e) renal tract ultrasound report by Dr Harding Smith, dated 20 October 2006;
f) report by Dr Son Huynh, Ophthalmology Registrar, Westmead Hospital, dated 17 October 2006;
g) clinical notes of Dr Benjamin Ly relating to attendances by Mr Li in August, June and November 2006, and
h) a prescription from Dr Ly for osteoeze dated 3 August 2006.
I have read all of the above documents. None of them has any relevance to the Reconsideration Application that has been filed.
Mr Li’s submission in support of the Reconsideration Application is that “many reports of the files [sic] proved Dr Breit’s assessment is lying”. This submission was put by Mr Li at the oral hearing of his appeal on 20 February 2007 and was rejected. The binding nature of Dr Breit’s Medical Assessment Certificate (‘MAC’) was dealt with in the substantive appeal at [58] and will not be repeated here.
Dex submits that the Reconsideration Application appears to be based on upon Mr Li’s well-documented dissatisfaction with the findings of the Approve Medical Specialists and that dissatisfaction is not a ground for reconsideration of the appeal decision delivered on 1 March 2007. It is correctly noted that leave to appeal was refused because the thresholds in section 352(2) were not satisfied.
Mr Li has established no grounds for a reconsideration of the earlier appeal decision and his application is refused.
DECISION
Application for reconsideration is refused.
COSTS
No order as to costs of the reconsideration application.
Bill Roche
Deputy President
5 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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