Westpac Banking Corporation v Dinning [2019] NSWWCCPD 33 (11 July 2019)

Background

The worker alleged that she suffered a psychological injury as a result of ongoing work stressors. The respondent disputed the claim and relied upon section 11A WCA. The worker filed an ARD claiming continuing weekly compensation and section 60 expenses, but she withdrew the weekly benefits claim at arbitration.

Decision

The arbitrator determined that the worker suffered a psychological injury in the course of her employment and that the section 11A defence was not established. A general order for payment of medical expenses was made. The medical expenses totalled $1,710.54.

Appeal

The appellant employer appealed the decision in its entirety. It argued that the monetary threshold was satisfied despite the fact that the worker had discontinued the claim for payment of weekly compensation at the original hearing.

The worker did not agree that the threshold was satisfied on the basis that there was no liability for the appellant employer to pay weekly compensation.

Deputy President Wood noted that section 352(3) of the Workplace Injury Management and Workers Compensation Act 1988 provided that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. Where there is no amount awarded (such as where there is an award for the respondent), subs (3)(b) of section 352 cannot apply, and the amount at issue is to be determined by reference to the compensation claimed in the proceedings before the Arbitrator.

Deputy President Wood discussed a line of authorities concluding with her latest decision in Lambropoulos v Qantas Airways Limited [2019] NSWWCCPD 17, in which she held that as there was no amount of compensation claimed before the Arbitrator and there was no amount of compensation directly at issue on the appeal, if the appeal succeeded, there would be no orders for the payment of compensation.

Given that in the present case, the appellant employer was only liable to pay the sum of $1,710.54 pursuant to the arbitral judgment, the monetary threshold was not satisfied and the appellant employer had no right of appeal.

Implications

In the course of the judgment, Deputy President Wood commented that it would seem that the intent of the legislation was to preclude minor or frivolous claims from being appealed. The Deputy President conceded to some extent that there were a number of cases where a decision of an arbitrator in respect of liability adversely affects, often significantly, the rights of a party, but an appeal cannot be brought because the monetary threshold has not been satisfied.