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Reasonable compliance 21 WCMS 2

O'Carroll Constructions PL [QBE] v Burgess [2007] NSWWCCPD 224. Roche DP. 13.11.07.

The appeal was filed electronically 24 minutes late, and sought to set aside a finding on 1998 Act s57 that the worker had not unreasonably failed to oblige the insurer's injury management plan.

The worker had 16% WPI settlement after neck disc prolapse operating an excavator in 2004.

Symptoms halted him working within the injury management plan as a property subdivision trades assistant and gymnasium labourer. Of his own volition, he enrolled this year in an occupational therapy course at Newcastle University.

Notifying compliantly with 1998 Act s 45(4), the insurer suspended weekly payments contending unreasonable compliance with the injury management plan.

The worker commenced proceedings and obtained an award on 20.07.07, based on the compliance issue under s 57, of weekly payments to the maximum under s 40 with dependant wife and two children.

Roche DP said: "The appeal was originally lodged electronically at 4:54pm on Friday 17 August 2007. Under Part 8 Rule 8.1(5) of the Workers Compensation Commission Rules 2006, a document lodged with the Commission after 4:30pm is received 'on the next day that is not a Saturday, Sunday or public holiday'. Therefore, the original appeal was not lodged until Monday 20 August 2007 and was outside the 28-day period within which an appeal must be lodged under section 352(4) of the 1998 Act."

Later, the deputy president said the profession knew lodgements were required before 4.30pm, and "inadvertence or administrative errors by a legal practitioner do not amount to exceptional circumstances: Department of Education & Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55", and it was "most unusual" for the employer's solicitor not to have received the arbitrator's reasons before 09.08.07, such having been despatched by letter dated 20.07.07.

The employer objected to a notice of objection filed by the worker, filed after time set by the Registrar's timetable and WCCR 16.2(8).

At [24]: "Contrary to the appellant employer's submissions, the Commission has power under Part 1 Rule 1.6 of the Rules to dispense with compliance with any requirement of the Rules and power under Part 3 Rule 3.2 to extend or abridge any time fixed by the rules. In circumstances where there is no prejudice to the appellant employer and where it has filed further submissions in Reply to the Notice of Opposition, I extend the time for filing the Notice of Opposition until 18 October 2007," Mr Roche said.

On the substantive appeal issue about unreasonable failure of a worker under s 57, the deputy president said: "That question is a question of fact and it is not disputed that the appellant employer carries the onus of proof: Jafari v Bartter Enterprises PL [2004] NSWWCCPD 88."

Objectives of "timely, safe and durable return to work" stated in s 41 were relevant.

Roche DP said [42]: "However, other matters, such as the worker's attitude and approach to rehabilitation in general and whether he is serious about seeking a genuine and sustainable return to work, or, whether he is deliberately avoiding his obligations so as to prolong time on compensation, are also relevant. In looking at these matters it is necessary to consider a worker's overall circumstances, his injury and incapacity, his education and qualifications, his likely career prospects in general and whether his past attempts at rehabilitation and or retraining have been genuine."

Later [48]: "Mr Burgess is not restricted to the occupations listed in the section 40 assessment or in the management plan. If he is able, through his own endeavours, to pursue an alternative career path in an area in which he has some interest, and he has the motivation and ability to do so, then, provided the alternative career is reasonably feasible, he is entitled to do so without loss of his weekly compensation.

"That is particularly so in circumstances where the pursuit of two of the alternative occupations provided by the insurer's rehabilitation providers to date have been unsuccessful and where, even if Mr Burgess was successful in obtaining one of the alternative occupations listed in the s 40 assessment, he would most likely still be entitled to a full award under s 40 of the 1987 Act."

Because there was no award error disclosed, the appeal had no prospects, and there would be no "demonstrable or substantial", nor any, injustice to refuse to extend time to appeal.

Leave refused, costs to the worker.

A: Moray & Agnew. R: Marshall & Partners.

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