Issue 5: May 2016

State of New South Wales v Stockwell (No 2) [2016] NSWWCCPD 19

Meaning of “paramedic” in cl 25 of Pt 19H of Sch 6 to the 1987 Act; the definition of “Ambulance Officer - Grade 2” in the Operational Ambulance Officers (State) Award; non-compliance with Practice Direction No 6, failure to support each ground of appeal with clear and succinct submissions; whether the Arbitrator erred in factual findings; whether the worker was a paramedic

Keating P

5 April 2016

Facts

This matter concerned the application of cl 25 of Pt 19H of Sch 6 of the 1987 Act, which provides that the amendments introduced by the 2012 amending Act “do not apply to or in respect of an injury received by a police officer, paramedic or firefighter” and “the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted”.

The respondent worker injured his back whilst employed as an operational ambulance officer for the Ambulance Service of NSW. As a consequence of his back injury the worker was assigned duties in an operations centre responding to emergency calls. While undertaking those duties the worker suffered a psychological injury, deemed to have occurred on 31 January 2007, for which he sought compensation. During this time the worker’s role title and remuneration remained that of an operational ambulance officer.

Operational ambulance officers are also known as paramedics. At the time of the deemed date of injury the worker held the grade of “Ambulance Officer Grade 2”. After the deemed date of injury, the relevant industrial award category for that grade had changed to “paramedic”.

The sole question on appeal concerned the then Senior Arbitrator’s decision on remitter that at the time of the psychological injury the worker was a “paramedic” within the meaning of that term in cl 25 Pt 19H of Sch 6 and, as a consequence, the amendments introduced by the 2012 amending Act did not apply to him. The Senior Arbitrator found that it did not matter that the worker was not performing front line operational duties of a paramedic when he suffered his psychological injury.

The Senior Arbitrator accepted the worker’s evidence that undertaking re-certification examinations (to maintain his qualifications as a paramedic) was done in accordance with “operational abilities” of the Ambulance Service. The worker was certified to work as an Ambulance Officer Grade 2 (paramedic) until the end of 2006 and would not have been precluded from working as such in January 2007, at the time of the deemed date of injury, due to non-compliance with the provisions of the relevant Ambulance Officers Award. It followed that the Senior Arbitrator found that the amendments introduced by the 2012 amending Act did not apply to the worker.

On appeal, the employer submitted that the Senior Arbitrator erred in:

(a) finding that the worker was a “paramedic” within the meaning of cl 25 at the date he sustained psychological injury with the appellant;

(b) finding that the 2012 amending Act does not apply to the worker in respect of his psychological injury;

(c) failing to make a factual finding that the worker did not give paramedic advice whilst he was employed as an operations centre officer;

(d) failing to make a factual finding that the worker was not certified as a paramedic at the time of the deemed date of his injury, and

(e) making a factual finding that, even if the worker was not certified as a paramedic at the time of the deemed date of injury, he was not precluded from being treated as a paramedic because of his failure to comply with the provisions of the award.

Held: The Senior Arbitrator’s determination was confirmed.

Certification as a “paramedic”

1. The appellant submitted that the worker was not qualified to carry out the duties of an Ambulance Officer Grade 2 at the time he suffered his psychological injury, due to having failed to meet the re-certification requirements of the relevant Award [80].

2. The President found, adopting the Senior Arbitrator’s finding, that the worker’s letter of appointment to the position of Ambulance Operations Centre Officer specifically provided that the worker’s employment was to be pursuant to the terms and conditions of the “Operational Ambulance Officers State Award” [92].

3. The Senior Arbitrator found that the worker was appointed to an Ambulance Officer position after joining the Ambulance Service in 1996. He was satisfied that, by reason of his training and experience, the worker satisfied the criteria for the classification of “Ambulance Officer Grade 2” in accordance with the relevant Award. He accepted the worker’s evidence that an Ambulance Officer Grade 2 was, for all intents and purposes, regarded as a “paramedic”. Those findings were open on the evidence and were correctly made [93].

4. It was apparent that the employer controlled the re-certification process and directed staff when and whether they were to present to attend re-certification courses [103].

5. From time to time lapses in the certification occurred during the re-certification process. In 2005 there was a period of almost four months where the worker’s certification had lapsed during the re-certification process. Whilst the evidence was unclear, the President inferred that the worker continued to work during that period as an Ambulance Officer Grade 2 [99]–[100].

6. The worker’s certification as an Ambulance Officer Grade 2 lapsed on 31 December 2006, approximately one month before the deemed date of injury on 31 January 2007. The President found that there was nothing in the evidence to suggest that staff were prevented from carrying out their normal duties until re-certification was complete or to indicate that their classifications were somehow altered whilst re-certification was outstanding [100]–[101].

7. On the evidence, it was open to the Senior Arbitrator to conclude that time restrictions on continuing education and re-certification were not strictly adhered to. Accordingly, the appellant’s submissions on this point failed [101].

Failing to make a finding that the worker did not give paramedic advice as an operations centre officer

8. Once the Senior Arbitrator was satisfied that the worker satisfied the Award classification of “Ambulance Officer Grade 2” it was open to find that he was a “paramedic” under cl 25. Whether he gave clinical advice as a paramedic or simply directed ambulances to specific locations simply did not arise. Therefore there was no requirement for the Senior Arbitrator to decide that question as it was not relevant [105].

Director of Education’s evidence

9. The appellant submitted that the Arbitrator failed to accept the lay evidence of the employer’s Director of Education, that a person cannot perform the duties of an on-road paramedic unless they maintain their certificate to practice every three years, in accordance with the relevant standard operating procedure [107].

10. The issue before the Senior Arbitrator was not whether the worker was able to perform “on-road” duties at the time he was injured, but whether he satisfied the Award definition of “paramedic”. For the reasons discussed above, the worker satisfied that definition despite a lapse in his re-certification [108].

11. The President found that the Senior Arbitrator fully and carefully analysed the issue raised in the Director of Education’s evidence and was right not to accept it [111].

The worker’s back injury

12. The appellant submitted that if the worker was certified to practise as a paramedic he was unable to do so by reason of his prior back injury. That submission failed to identify a relevant error. If the submission was directed to an argument that, by reason of his incapacity (as a result of his back injury), the worker would be unfit to work as an operational ambulance officer and therefore could not be classified as a paramedic, the President rejected it [112].

13. The worker continued to be classified and paid as an Ambulance Officer (paramedic) by reason of the application of the relevant Award provisions. The Award provided that “Ambulance Operations Centre Officer was to be a source of alternative duties for injured officers during rehabilitation”. Therefore, there was no inconsistency in the worker being unable to work in the field as a paramedic, because of his back injury, and his continuing to be employed as a paramedic [113].

Whether the authorities were correctly applied

14. The appellant’s submission that Australian Workers' Union, New South Wales v Office of Environment and Heritage [2012] NSWIRComm 133(AWU) is authority for the proposition that the definition of “paramedic” in cl 25 “turns on employment activity of the worker” was not an accurate statement of the ratio decidendi of that decision [114].

15. In AWU, his Honour Justice Boland held that cl 25 was intended to exempt workers who were appointed or employed as firefighters and paramedics. His Honour also accepted that workers employed in other occupations would also be regarded as entitled to the exemption afforded by cl 25 when they were performing “front line” duties as, in that case, firefighters [122].

16. The President considered Chapman-Davis v State of New South Wales [2015] NSWIRComm [10] (Chapman-Davis). In that case, Walton J concluded that “paramedic” in cl 25 denoted an employee who is classified as a paramedic by virtue of the operation of the Award. His Honour was not satisfied that that conclusion was displaced by the fact that the worker, in that matter, was not performing, or rostered to perform, operational paramedic duties at the time of her injury [134].

17. The President found there to be no inconsistency between AWU and Chapman-Davis. If a worker is employed as a paramedic, the exemption in cl 25 applies. If a worker is not employed as a paramedic, but from time to time is required to perform paramedic duties then they may be exempt if injured whilst performing those duties. For those reasons the maxim stare decisis did not assist the appellant in the circumstances of this case [143].

18. Applying the above authorities, the President found that that the appellant’s arguments must fail [145].

Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23

Fresh evidence on appeal; interlocutory decisions; consequential conditions

Snell DP

15 April 2016

Facts:

The worker was a PE teacher employed by the appellant employer at a school near a busy road. She said that she had to speak loudly when conducting classes outside. The worker received an injury (muscle tension dysphonia) to her voice in the course of her employment. That injury was not in dispute. The worker claimed compensation pursuant to ss 60 and 66 of the 1987 Act for the injury to her voice, together with alleged consequential conditions of her cervical spine and shoulders.

The appellant denied liability for the worker’s injury to her neck and shoulders. On 24 December 2015, a Senior Arbitrator found that the worker had received consequential conditions of her neck and shoulders and remitted the matter to the Registrar for referral to an AMS, to assess the worker’s whole person impairment as a result of the injury in respect of the consequential conditions to the neck and shoulders. The Senior Arbitrator also made an order that the appellant pay the worker’s expenses under s 60 of the 1987 Act in respect of the worker’s neck and shoulders. The employer appealed.

The issues in dispute on appeal were whether the Arbitrator erred in fact and law:

(a) in her consideration of the appellant’s report of Dr Wilcox and her rejection of that doctor’s opinion;

(b) in failing to consider whether there were “psychological, mood or pain disorder causes” for the worker’s neck and shoulder symptoms, and in finding that “pain symptoms alone” in the neck and shoulders were sufficient to establish the consequential conditions, and

(c) in determining that the report of Dr Endrey-Walder “supported the presence of a consequential condition in the shoulders”. It was said that she failed to reconcile his opinion with those of Dr Potter and Dr Wilcox.

Held: The Arbitrator’s determination was confirmed.  

Fresh evidence

1. In the Notice of Opposition, the worker sought leave to adduce fresh evidence, being a report by Dr Kneebone, psychiatrist. It could not be concluded that the result in the matter would be different, depending on whether the report of Dr Kneebone was admitted (CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 at [27] and [31] applied). The Deputy President was not persuaded that the continued unavailability of the report of Dr Kneebone would cause substantial injustice. The application to admit it as fresh evidence was refused [31].

Interlocutory decision

2. The Senior Arbitrator’s decision was interlocutory following the test by Gibbs J in Licul v Corney [1976] HCA 6; 50 ALJR 439 at [11]. The circumstances in the current appeal were similar to those in Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50, where the President granted leave to appeal. Granting leave to appeal would potentially avoid an unnecessary referral to an AMS, thus avoiding further costs and delay. It was desirable for the proper and effective determination of the dispute that the issues for determination be resolved now. Leave to appeal was granted pursuant to s 352(3A) of the 1998 Act [50], [55].

Ground 1 – The report of Dr Wilcox

3. Three arguments were advanced under this ground.

The First Argument

4. The first argument went to whether, on a fair reading, Dr Wilcox did not accept the proposition (which was common ground) that the worker suffered from muscle tension dysphonia which was work caused [68].

5. On a fair reading of the report, Dr Wilcox was seeking to mount an argument that the worker’s symptomatology, including that associated with the muscle tension dysphonia, was essentially psychosomatic rather than physically based [80].

6. Dr Wilcox, whilst acknowledging the views reached by other specialists going to the presence of muscle tension dysphonia, did not himself accept the appropriateness of that diagnosis or the fact that it resulted from employment. This was the view taken by the Senior Arbitrator on this point, and the Deputy President agreed with it. At the very least, it was a view of Dr Wilcox’s opinion which was available on a fair reading of his report, the adoption of which did not constitute error. The first argument in the first ground of appeal was rejected [81]–[82].

The Second Argument

7. The second argument went to the Senior Arbitrator’s observation that Dr Wilcox did “not suggest any limitation on his ability to comment on muscle tension dysphonia”. This was submitted to involve factual error, given the doctor’s statement at page 11 of the report:

“Even the causation of the MTD might need to be further analysed by experts in that field, given the additional evidence found in the documentation and the published medical studies. They should be made aware of the psychosomatic nature of the spreading symptoms now involving the neck, upper trunk and upper limbs” [83].

8. It was clear that the Senior Arbitrator was well aware of the passage in Dr Wilcox’s report referring to further analysis by experts in the field; the passage was quoted in her oral reasons [84].

9. The relevant passage from the Senior Arbitrator’s reasons was, taken literally, accurate, and in general terms consistent with the concession made by counsel that Dr Wilcox did not “say that the voice aspects are not part of his expertise”. It did not reveal factual error. The second argument in the first ground of appeal was rejected [87].

The Third Argument

10. The third argument advanced in support of this ground was that, even if Dr Wilcox did not accept the presence of muscle tension dysphonia, his views on the alleged consequential conditions should have been considered on their merits. They were not [88].

11. The Deputy President formed the view that, on a fair reading of his report, Dr Wilcox did not accept the appropriateness of the diagnosis of muscle tension dysphonia or the fact that it resulted from employment [106].

12. The passages of Dr Wilcox’s opinion were consistent with his report involving the same flaw as that which affected the opinion of the medicolegal expert in Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar), in which one of the qualified medical witnesses approached the issue of whether there was a consequential condition of the right shoulder, by asking whether the worker had suffered a “work related injury” to that shoulder and whether employment was a substantial contributing factor to the condition of that shoulder. The issue before the Senior Arbitrator was not whether the worker suffered injury to the neck and shoulders caused by overusing her voice in February/March 2011, under the ‘disease’ provisions or otherwise. It was not necessary, for the worker to succeed on the consequential conditions, that she establish ‘injury’ to these parts within the meaning of s 4 of the 1987 Act [102], [108].

13. The views of Dr Wilcox were “fundamentally flawed”, to appropriate the language in Kumar. It followed that the Senior Arbitrator was correct to reject the opinion of Dr Wilcox. The third argument in ground 1 was rejected. It followed that the first ground of appeal was rejected [110]–[111].

Ground 2 – Psychological, mood or pain disorder and the presence of symptoms

14. The Application to Resolve a Dispute pleaded the consequential conditions as involving “muscular strain”. It made no pleading of psychological injury. This was consistent with the report of Dr Endrey-Walder dated 26 August 2014, served when the lump sum claim was made on 21 May 2015 [125].

15. This was consistent with the application of the test of causation referred to by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463G to 464C, a test which has been frequently applied in the Commission in matters involving alleged consequential conditions. Such matters regularly involve a chain of causation in which a relevant work injury causes a chain of events, ultimately resulting in the consequential condition. It would not be considered necessary that each link in that chain of causation be specifically pleaded (see further: Far West Area Health Service v Colin Robert Radford[2003] NSWWCCPD 10 at [24]–[25] and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [91]) [128]–[130].

16. It was open to the Senior Arbitrator to make findings in the worker’s favour on the consequential conditions, notwithstanding that the causal chain may have involved some links of a psychological nature [133].

17. That the Senior Arbitrator considered complaints of pain from time to time, involving the alleged consequential conditions, was perfectly proper in considering whether there was a causal link between the voice injury and those conditions. It was not accepted that the Senior Arbitrator simply equated pain with the existence of the consequential conditions. The regular references to neck pain, in the treating material, were supportive of the alleged causal link, as were the references to muscle tightness [143].

18. Dealing at the arbitration hearing with whether the symptoms were associated with a mood disorder, the appellant raised two difficulties with that possibility. The first was that a mood disorder (or other psychological condition) was not pleaded. The second was that there was an absence of medical evidence to connect the worker’s voice injury to a mood disorder (however expressed), and from that to the muscle tension which was pleaded. The Deputy President did not view the pleadings as an impediment to a finding that the alleged consequential conditions resulted from the voice injury [147]–[148].

19. In considering how the Senior Arbitrator expressed herself on the issue of the causal link between the voice injury, and subsequent mood disorder and psychological difficulties, regard should be had to Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [45], where Roche DP said “it is not for a Presidential member on appeal to comb through the Arbitrator’s findings and reasons in search of error” (applying Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444 and Minister for Immigration and Multicultural Affairs v Liang [1996] HCA 6; 185 CLR 259). The Senior Arbitrator made a finding on the existence of the consequential conditions which was available on the evidence and consistent with the submissions of the appellant at the arbitration hearing, going to the nature of the finding required. The second ground of appeal was rejected [154]–[155].

Ground 3 – Dr Endrey-Walder and reconciliation of the medical opinions

20. Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) contains a review of recent authorities going to the respective functions of the Commission and Approved Medical Specialists in the bifurcated system. Neither party referred to Jaffarie and associated decisions. The submissions on the nature of the factual finding by the Senior Arbitrator were, in the present appeal, put on a narrower basis [163].

21. There is a clear distinction between a finding of ‘injury’ pursuant to s 4 of the 1987 Act, and a finding that a consequential condition results from an ‘injury’ (see Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni) at [73] and [74]) [164].

22. Bouchmouni and Kumar do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. The Deputy President accepted the worker’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar the relevant finding was based on the existence of symptoms [169].

23. The Senior Arbitrator said that Dr Endrey-Walder “supports a connection between the injury and consequential connections in her neck and shoulders”. She did not specifically say that she accepted the opinion of Dr Endrey-Walder. The findings made by her in her statement of reasons were consistent with her having done so. It was open to her to do so. She had rejected the opinion of Dr Wilcox. Additionally, the opinion of Dr Potter, read with that of Dr Mosse, would have been sufficient to establish the necessary causal linkage. The third ground of appeal was rejected [180], [182].

Saglimbeni v Only One Trading Pty Ltd t/as No 1 Smash Repairs and Mechanic [2016] NSWWCCPD 22

Whether insurer made a work capacity decision; s 43 of the 1987 Act; jurisdiction of the Commission to determine the dispute; factual findings; fresh evidence on appeal 

Keating P

15 April 2016

Facts

The appellant worker was employed by the respondent as a panel beater. The worker alleged that he sustained injuries in the course of his employment in the following circumstances:

(a) on 4 March 2011 he tripped over a car jack which had been used to hoist a motor vehicle. He alleged that he fell to the ground sustaining injuries to his neck and back;

(b) on 11 March 2011 he was using a hammer when he inadvertently impacted the medial aspects (sic) of his left ankle with the hammer, and

(c) on 5 August 2011 he developed pain and discomfort in the right shoulder following constant hammering and sanding.

In about August 2011 the worker ceased work. He received weekly payments of compensation pursuant to s 40 of the 1987 Act, as it stood prior to the amendments introduced by the 2012 amending Act, in respect of accepted injuries to his lumbar spine, left ankle and right shoulder.

On 16 October 2012, the worker underwent an arthroscopic rotator cuff repair and acromioplasty, in respect of the alleged injury to the right shoulder.

The employer’s insurer, GIO General Limited (GIO), initially accepted liability in respect of each of the alleged injuries but later sent several letters to the worker declining further liability. Relevantly, on 14 October 2013, GIO issued what purported to be a notice under s 54 of the 1987 Act and s 74 of the 1998 Act, declining liability for a special payment of compensation, payable pursuant to s 41(5) of the 1987 Act, for a period of incapacity arising from the shoulder surgery.

The matter came before a Commission Arbitrator. The Arbitrator found that the worker had not discharged the evidentiary onus on the balance of probabilities that the worker suffered an injury to the neck on 4 March 2011. Further, the Arbitrator was satisfied that the notification on 14 October 2013 constituted a work capacity decision and therefore the Commission had no jurisdiction to enter an award for weekly payments of compensation. In addition, the Arbitrator referred the worker’s injury to the lumbar spine to the Registrar for referral to an AMS for assessment.

The worker appealed the Arbitrator’s determination.

The issues on appeal were whether the Arbitrator erred in:

(a) finding that the worker had not suffered an injury to the neck pursuant to ss 4 and 9A of the 1987 Act;

(b) finding that there was an absence of neck pain referred to in any of the contemporaneous records and documentation before him;

(c) finding that the letter from GIO to the worker of 14 October 2013 was a work capacity decision;

(d) failing to address the worker’s entitlement to an award of weekly compensation in respect of the injury to the right shoulder on 5 August 2011, and

(e) finding that the worker made a concession during the course of the arbitration hearing that he would not be entitled to an award of weekly payments of compensation in the event that the letter from GIO to the worker of 14 October 2013 was found to be a work capacity decision.

At the hearing of the appeal it was conceded by the respondent that the Arbitrator erred in finding that the letter of 14 October 2013 constituted a work capacity decision. The letter merely informed the worker that his claim for a special benefit for limited weekly compensation following surgery had been declined. It did not constitute a work capacity decision within the meaning of s 43 of the 1987 Act. Counsel therefore conceded that ground (c) would be made out and did not require a determination by the Commission. The respondent’s counsel also conceded that although a submission to the contrary was made at the arbitration hearing, by the then counsel for the respondent, such a submission should not have been made. It followed that ground (c) was upheld.

Held: The Arbitrator’s determination was in-part revoked and remitted for re-determination by another Arbitrator.   

Injury to the neck

1. The Arbitrator considered all of the evidence at length. The Arbitrator noted that the claim form made no mention of an injury to the neck on 4 March 2011. The Arbitrator also noted that the worker attended his general practitioner immediately after the incident on 4 March 2011 and that the worker claimed that he complained of neck symptoms. The Arbitrator further noted that the general practitioner’s clinical records did not substantiate the worker’s claim; the first recorded complaint of neck symptoms was on 16 January 2012 [79]–[81].

2. The President admitted into evidence on appeal a vocational assessment report which was based on an assessment of the worker conducted on 26 September 2011. The report made no reference to an injury to the neck at that time. It merely recorded pain radiating from the right side of the worker’s shoulder to the side of his neck, occasionally inhibiting the range of neck movement. Even though the report advanced the point at which the Arbitrator first recorded complaints of neck pain from January 2012 to September 2011, the President found it could not be said to be a contemporaneous report of injury on 4 March 2011. As counsel for the worker conceded, more than six months elapsed after the alleged injury before the first recorded complaint of the neck was made. Further, there was nothing in the report concerning the aetiology of the complaints of neck pain and certainly no reference to the neck pain as having been permanently present since the incident of 4 March 2011, as the worker alleged [82]–[83].

3. As the Arbitrator observed, the worker saw his general practitioner on more than 50 occasions between 4 March 2011 and the first recorded complaints of neck pain on 16 January 2012. These attendances presented him with numerous opportunities to report neck pain yet, according to the general practitioner’s notes, he failed to do so for over eight months. On this basis, the President found that it was open to the Arbitrator to find that the worker’s explanation that the absence of contemporaneous reporting of neck symptoms was due to a refusal by his doctors to record the neck symptoms was unlikely and implausible [84].

4. The appellant’s submission that the Arbitrator erred by failing to provide reasons for not accepting that there had been an aggravation of a degenerative condition affecting the cervical spine as a result of the incident on 4 March 2011 was rejected, as the alleged injury to the cervical spine was pleaded as a frank injury and not a disease injury. The Arbitrator cannot have erred by failing to deal with an issue not argued before him (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). In any event, once it was accepted that the worker suffered no trauma to his neck on 4 March 2011, the question of aggravation of a disease did not arise [92].

5. It followed that the Arbitrator’s findings and orders with respect to the alleged injury to the cervical spine were confirmed [93].

Injury to the right shoulder

6. The appellant submitted, and the respondent conceded, that the Arbitrator failed to determine whether any incapacity in relation to the right shoulder injury was continuing and if so whether such incapacity was due to the effects of a work related injury or a constitutional condition [94]–[95].

7. As the parties were not in a position to indicate whether the worker had transitioned under the new regime introduced by the 2012 amending Act or in a position to address on the question of incapacity arising from the pleaded injuries until the Commission had determined the dispute in respect of the cervical spine, this issue was remitted for re-determination by another Arbitrator [95]–[98].

Tudor Capital Australia Pty Ltd v Christensen (No 2) [2016] NSWWCCPD 20

Section 341 of the 1998 Act, as it stood prior to the amendments introduced by the 2012 amending Act; jurisdiction to award costs 

Keating P

8 April 2016

Facts

This matter was reopened following an application made by the respondent widow, to the appeal in Tudor Capital Australia Pty Ltd v Christensen [2016] NSWWCCPD 14 (appeal decision), seeking that an order for costs of the proceedings be made in her favour. This matter specifically concerned the Commission’s jurisdiction to award costs pursuant to s 341 of the 1998 Act, as it stood prior to amendment by the 2012 amending Act.

Held: The appellant was ordered to pay the respondent’s costs of the appeal. Costs of proceedings before the Arbitrator were to follow the event.     

1. Section 341 in its original terms granted the Commission very broad power to award costs in respect of proceedings conducted before it. Section 341(2) provided that: “[t]he Commission has full power to determine by whom, to whom and to what extent costs are to be paid”. That section (unamended) continues to have force by reason of the savings and transitional provisions found in cls 5 and 21 of Pt 19H of Sch 6 to the 1987 Act and cl 8 of Sch 8 to the 2010 Regulation [15]–[16].

2. Having regard to the relevant savings and transitional provisions, s 341 continues to apply to costs in relation to a claim for compensation made before 1 October 2012 if proceedings of the claim are commenced in the Commission before 31 March 2013 [19].

3. Pursuant to r 3.4 of the 2011 Rules the “time of commencement of proceedings is the time when the Registrar registers the document lodged for the commencement of the proceedings by affixing the seal of the Commission”. A “document is registered for the purposes of these rules when it has been accepted by the Registrar” (r 1.4(2)) [20].

4. As 31 March 2013 fell on a Sunday, the “given day” for the reckoning of time pursuant to cl 8 is the next day that is not a “Saturday or Sunday, or a public holiday or bank holiday” (s 36 of the Interpretation Act). As 1 April 2013 was a public holiday, the given day for the reckoning of time is 2 April 2013 [21].

5. In the present matter, the claim for compensation was made on 8 September 2011 and proceedings in respect of that claim were filed in the Commission on 28 March 2013 and registered on 2 April 2013. It followed that the Commission had jurisdiction to determine by whom, to whom and to what extent costs were to be paid [22].

6. The common law presumption is that costs follow the event. A successful party to proceedings has a “reasonable expectation” of being awarded costs against the unsuccessful party to the proceedings (Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [134]) [23].

7. The employer’s only resistance to an order for costs on the appeal was based on an erroneous conclusion that it succeeded on ground four in respect of the appeal decision. The employer was unsuccessful on all grounds of appeal. Therefore, the President exercised his discretion to find in favour of the respondent and made an award for costs [24].

Scott v Secretary, Department of Education and Communities [2016] NSWWCCPD 21

Monetary threshold requirements for an appeal under s 352(3) of the 1998 Act; whether an appeal from a decision of an Arbitrator in relation to a workplace injury management dispute can satisfy the monetary threshold

Keating P

14 April 2016

Facts

This appeal concerned a decision of an Arbitrator to dismiss an Application to Resolve a Workplace Injury Management Dispute pursuant to s 354(7A)(b) of the 1998 Act. The Arbitrator dismissed the worker’s application, seeking orders in relation to a return to work plan, because the worker was in employment, albeit of a casual nature, at the time the orders were sought.

For the reasons discussed below, the appeal did not to proceed because the monetary threshold requirements under s 352(3) of the 1998 Act were not satisfied.

Held: The appeal did not proceed. 

Threshold issues

1. There is no appeal under s 352 unless the monetary threshold requirements under sub-section (3) are satisfied. Section 352(3) provides the amount of compensation at issue on the appeal must be both “at least $5,000” and “at least 20% of the amount awarded in the decision” appealed against [20].

2. The appellant (who was unrepresented) submitted that had the Arbitrator not dismissed her workplace injury management dispute a chain of events that resulted in her casual employment being terminated would not have occurred. It was submitted that the loss of income since termination would satisfy the threshold requirements. In the alternative, the appellant submitted that the Commission should “waive” the threshold requirements because, amongst other things, the respondent would not suffer any prejudice and because it was in interests of justice [21]–[22].

3. The President found that the Commission did not have discretion to “waive” the monetary threshold requirements in s 352(3) because it was a mandatory requirement which must be satisfied before an appeal could be heard (Patrick Operations Pty Ltd v Watson [2013] NSWWCCPD 18 applied) [23].

4. The President further found that the monetary threshold requirements could not be satisfied by reference to the quantum of earnings allegedly lost by reason of the Arbitrator’s decision. As the relief claimed by the worker did not seek an order for the payment of “compensation”, but merely sought a recommendation that the employer be required to comply with recommendations of the Commission with respect to an injury management plan, there was no “compensation at issue on the appeal” and s 352(3) could not be satisfied (Sydney Opera House Trust v Sykes [2006] NSWWCCPD 227; Department of Community Services v Hickey [2006] NSWWCCPD 320 and Rail Corporation NSW v Lam Luu [2010] NSWWCCPD 44 applied) [24]–[25].

5. Accordingly, the President was not satisfied that the threshold requirements under s 352(3) were satisfied and the appeal could not proceed [26].