February 2004

A review of Workers Compensation Commission appeals - errors of law, errors of fact & failure to address evidence

Since January 2002, the Workers Compensation Commission has determined about 50 applications for leave to appeal. From those applications:

  • 64% were lodged by the worker
  • 36% were lodged by the employer
  • 76% were determined on the papers
  • 22% have been successful
  • In many cases, the appellant has not met the jurisdictional requirements in section 352 (2) of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act").

Right to appeal

Decisions of Arbitrators in respect of disputed workers compensation claims are capable of being appealed with leave before a Presidential member of the Commission within 28 days of the decision.

Decision includes an award, interim award, order, determination, ruling and direction.

Before proceeding to hear an appeal, the Commission must determine whether the application meets the requirements of section 352 (2) of the 1998 Act which provides as follows:

The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

  • at least $5,000.00 (or such other amount as may be prescribed by the regulations), and
  • at least 20% of the amount awarded in a decision appealed against.

Section 352 (2) has two limbs that must be satisfied. Not all "decisions" made by an arbitrator will meet the statutory monetary requirement. For example, in Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, the "decision" under appeal was the refusal to issue a direction to produce documents. Deputy President Byron accepted the argument that such a decision had the potential to affect the applicant’s ability to fully present his case and therefore affect the substantive issues. That is, the whole of the compensation at issue was likely to exceed the appeal threshold. In Adco Constructions Pty Limited v Ferguson [2003] NSW WCC PD 21, this reasoning was also applied to a decision refusing to allow a respondent to file a late reply and it was held that the threshold was satisfied.

The amount of compensation at issue on appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. For example, in Tagg v International Flavours and Fragrances (Australia) Limited [2003] NSW WCC PD 5, leave to appeal against a decision by an Arbitrator to adjourn a telephone conference was refused because it did not concern the amount of compensation at issue in the dispute. Similarly, an application for leave to appeal against a cost order does not concern an "amount of compensation" either in the appeal, or the original claim.

Appeal must be lodged within 28 days 

The Minister may make Rules of the Commission with respect to any procedures in connection with the jurisdiction or functions of the Commission, including "the extension or abridgement of any period" (section 364(1)(g)) referred to in Part 9 of the 1998 Act. That is, a Rule can be made by the Minister to extend the time required to lodge an appeal.

To date, no Rules have been made to extend or abridge the time required to lodge an appeal. Accordingly, the Commission has strictly applied the statutory requirement that an application for appeal must be lodged within 28 days after the making of the decision appealed against.

Deputy President Byron confirmed in Peter McBride v M & B Couriers Pty Limited [2003] NSW WCC PD 12, that in the absence of a Rule made pursuant to section 364 (1)(g), there is no power to extend or abridge the statutory period of 28 days for lodging appeals prescribed by section 352(4). In that case, the appellant’s solicitors attempted to rely on the Compensation Court rules to calculate the time prescribed by section 352(4) of the 1998 Act. It was determined that the Compensation Court Rules do not apply to Commission proceedings.

In Inghams Enterprises Pty Limited v Michelle Zarb [2003] NSW WCC PD 15, Deputy President Fleming confirmed that in the absence of a Rule made pursuant to section 364 (1)(g) there is no power to extend or abridge the statutory period of 28 days and therefore in that instance, where a decision was made by the Arbitrator on 11 December 2002 but not communicated to the parties until 10 March 2003, the parties were effectively denied their right of appeal because the time to lodge the application had passed. Dr Fleming found that the Registrar did not hold any power to extend the time for lodging an appeal other than in accordance with the 1998 Act and the Rules.

Costs

In most appeals, the Commission has been reluctant to make costs orders, preferring to direct the parties to reach agreement.

Comment

The Presidential members have shown a reluctance to find that errors made by Arbitrators affect the fairness or lawfulness of a decision. In a small number of cases where errors of law have been found, the Presidential members have revoked part of the award and/or substituted alternative orders. The Presidential members have stated in a number of decisions that an appeal:

"is not an appeal in the strict sense, as the Commission can receive further evidence. Similarly, it is not a "re-hearing" of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter "de novo" and coming to a fresh decision based on all the evidence available at that later time. The "review" is by way of a re-hearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the arbitrator is affected by "some legal, factual or discretionary error" (Allesh v Maunz) [2000] HCA 30 (3 August 2000)): Ross V Zurich Workers Compensation Insurance [2002] NSW WCC PD 7.

Appeals relying on the ground that the Arbitrator’s reasons were inadequate have generally been unsuccessful. On appeal, the Commission has said:

"To succeed on the grounds of inadequate reasons it will be necessary for the appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application" M&S Shipman Pty Ltd v Matters [2003] NSW WCC PD 19 at 81.

This is a heavy onus on the party appealing.

A review of the appeal decisions also indicates that the Presidential members of the Commission are reluctant to upset initial determinations by Arbitrators where an award has been made (in favour of either party) on substantive issues.

Whilst parties have a legislative right to challenge decisions of Arbitrators, in practice the appeal mechanism has generally resulted in Arbitrator error not being exposed and corrected.

Appeals will have a better chance of succeeding where the Arbitrator’s decision contains:

  • An error of law
  • A factual error (eg a finding of fact not supported by the evidence)
  • A failure to address or properly assess important evidence or findings that are inconsistent with the evidence or the overwhelming weight of the evidence.

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