Zhang v ABC Tissue Products Pty Limited
[2006] NSWWCCPD 231
•14 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Zhang v ABC Tissue Products Pty Limited [2006] NSWWCCPD 231
APPELLANT: Zi Ning Zhang
RESPONDENT: ABC Tissue Products Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC622-06
DATE OF ARBITRATOR’S DECISION: 4 April 2006
DATE OF APPEAL DECISION: 14 September 2006
SUBJECT MATTER OF DECISION: Section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Unilegal
Respondent: Vardenega Roberts
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 2 May 2006 Zi Ning Zhang (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 4 April 2006.
The Respondent to the Appeal is ABC Tissue Pty Limited (‘the Respondent’).
The Appellant allegedly injured his right wrist while lifting on 4 March 2005, and also due to the nature and conditions of his employment from 13 December 2004 to 1 April 2005. The nature of the issues raised by this appeal is such that I do not need to consider the circumstances of the injury in detail.
The Appellant registered an Application to Resolve a Dispute in the Commission on 17 January 2006. That document claimed weekly compensation at the rate of $551.60 from 1 December 2005 to date and continuing, a general order for the payment of medical, hospital or related expenses, and a sum of $5,000.00 pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), relating to an alleged 4% whole person impairment.
The Respondent filed a Reply on 9 February 2006. The only matter placed in dispute in that pleading, was whether the Appellant had suffered a loss or impairment entitling him to lump sum compensation pursuant to section 66, and if so, how much. In response to the pleaded claim for weekly compensation and medical expenses, the Reply said “There is no dispute in relation to the payment of weekly compensation and medical expenses as these payments are being met by the insurer”.
The matter was listed for teleconference on 28 March 2006. The teleconference was not sound recorded, and no transcript is available of what transpired.
THE DECISION UNDER REVIEW
A document headed “Certificate of Determination – Consent Orders” is dated 4 April 2006, and reads:
“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, and in accordance with Rule 75(1) of the Workers Compensation Commission Rules 2003, the determination of the Commission in this matter is as follows:
1.That the Respondent pay the Applicant weekly compensation in the amount of $441.28 for the period from 4/4/05 to 7/4/05 under s38 of the Workers Compensation Act 1987.
2.That the proceedings in relation to s60 and in relation to wage loss from 1/12/05 to date and continuing be discontinued.
3.That the requirement to file a notice of the discontinuance pursuant to Rule 74 is dispensed with.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the appeal satisfies the requirements in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). If those requirements are not met, then I do not have power to grant the Appellant leave to appeal.
(ii)If leave to appeal is granted, whether the Arbitrator erred in making the orders above, in circumstances where the Appellant’s solicitor denies having consented to the orders.
(iii)If leave to appeal is granted, whether the Arbitrator erred in failing to make a “finding or note in the determination” that there was a dispute on fourteen weeks weekly benefits totalling $6,177.92 within the meaning of section 295 of the 1998 Act up to 7 March 2006, being the date when the Respondent was said to have resumed weekly payments.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant that the appeal can proceed to be determined on the basis of these documents, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Section 352(2) provides:
“(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.
The orders the subject of this appeal did not affect the Appellant’s claim for lump sum compensation pursuant to section 66. At the time of the teleconference, and orders in the Certificate of Determination, the Appellant had not undergone assessment by an approved medical specialist (‘AMS’). The Appellant has subsequently undergone assessment by an AMS, Dr Bye, and he has issued a medical assessment certificate (‘MAC’) on 30 June 2006. The MAC certifies to the existence of 3% whole person impairment on the part of the Appellant. That MAC is binding on the parties as regards quantum. It is conceded by the Appellant that, by the time of the teleconference, “weekly benefits and s 60 expenses were no longer in dispute” (Appellant’s ‘Brief Facts’ at [12]).
It does not appear the Respondent ever denied liability. Weekly payments appear to have ceased on occasions in the past, and then resumed. The parties throw up competing explanations for this. The Appellant asserts the payments were stopped without any reason. The Respondent asserts they were stopped when, from time to time, the Appellant had not supplied appropriate certificates certifying incapacity for work. These matters are irrelevant to the question of whether the appeal satisfies the requirements of section 352(2) of the 1998 Act, and I do not need to delve further into the reasons for payments ceasing from time to time.
This appeal does not seek to vary the award of compensation to the Appellant. What is sought is to have the Arbitrator’s orders varied, to include a declaration regarding the compensation outstanding during the currency of the proceedings, before the Respondent resumed voluntary payments. The purpose of this would appear to be that it may affect the basis on which the Appellant is entitled to recover costs in the proceedings (see the Appellant’s Further Submissions at [17]). For section 352(2) to be satisfied, it is necessary that the “amount of compensation at issue on the appeal” (emphasis added) fulfils the requirements of sub-sections (a) and (b). There is no amount of compensation at issue on the appeal. What is sought is a declaration which may affect the basis on which costs are recoverable. It has been held on many occasions, in Presidential appeals, that costs are not “compensation” for the purpose of section 352(2) (see Grimson v Integral Energy [2003] NSWWCCPD 29, Benson v Integral Energy [2003] NSWWCCPD 37, Deeks v Harmer Steel Erection Pty Ltd [2004] NSWWCCPD 49). The same reasoning would dictate that the declaration sought by the Appellant is not “compensation” for the purpose of satisfying the requirements of section 352(2).
Section 352(8) defines “decision” widely, and appeals in appropriate circumstances may lie in respect of interlocutory orders where no compensation has been awarded. However, such appeals must have the real potential to put the amount of compensation claimed by the worker in issue (see Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7). The orders sought in this appeal do not fall within that category.
For the above reasons, I am of the view the appeal does not satisfy the requirements of section 352(2) of the 1998 Act, and I decline to grant leave to appeal.
DECISION
Leave to appeal is refused.
COSTS
I make no order as to costs of the appeal
Michael Snell
Acting Deputy President
14 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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