Air Electrical Pty Ltd t/as DJ Staniforth & Co v Mortimer
[2015] NSWWCCPD 18
•6 March 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Air Electrical Pty Ltd t/as DJ Staniforth & Co v Mortimer [2015] NSWWCCPD 18 | ||
| APPELLANT: | Air Electrical Pty Ltd t/as DJ Staniforth & Co | ||
| RESPONDENT: | Paul Mortimer | ||
| INSURER: | Employers Mutual NSW Ltd | ||
| FILE NUMBER: | A1-5109/14 | ||
| ARBITRATOR: | Mr G Capel | ||
| DATE OF ARBITRATOR’S DECISION: | 7 November 2014 | ||
| DATE OF APPEAL DECISION: | 6 March 2015 | ||
| SUBJECT MATTER OF DECISION: | Order for payment of proposed knee replacement surgery; surgery not performed within 12 months of the date of claim; entitlement to compensation for cost of surgery lost by operation of s 59A of the Workers Compensation Act 1987; appeal against order; whether, in the circumstances, the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are satisfied; meaning of “compensation at issue on the appeal” | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Edwards Michael Powell Lawyers | |
| Respondent: | Law Partners | ||
| ORDERS MADE ON APPEAL: | 1. The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal. 2. No order as to costs. | ||
INTRODUCTION
This is an appeal against an Arbitrator’s finding that the worker suffered an injury by way of an aggravation, acceleration, exacerbation or deterioration of a disease, namely, osteoarthritis, and that, as a result of that injury, it is reasonably necessary that the worker have a right knee replacement operation and that the employer pay for that operation. For the reasons explained below, the appeal does not meet the relevant monetary thresholds and cannot proceed.
BACKGROUND
The respondent worker, Paul Mortimer, is 65 years old. He started worked for the appellant employer, Air Electrical Pty Ltd t/as DJ Staniforth & Co, as an electrical fitter from 1974 to 1977 and again from 1989 to date. He injured his right knee, while working with another employer, in approximately 1986. He had surgery for that injury and returned to work, initially on light duties and then normal duties.
On 13 November 2013, Mr Mortimer completed a claim form in which he asserted that he had been experiencing problems with his right knee for the previous couple of years and that his orthopaedic specialist had informed him that he needed a knee replacement. Under “Injury Details” he wrote that he suffered a gradual deterioration of the condition of his knee joint due to the type of work carried out over 20 years. That work included, among other things, heavy lifting, walking, climbing and squatting while working in confined spaces.
The appellant’s insurer disputed that Mr Mortimer had received an injury, that his employment was a substantial contributing factor to any injury, and asserted that the need for the proposed knee replacement did not result from any injury at work.
In an Application to Resolve a Dispute registered with the Commission on 26 September 2014, Mr Mortimer claimed the cost of medical expenses relating to the proposed knee replacement surgery as a consequence of his work with the appellant from 1992 to approximately 2014. He relied on a deemed date of injury of 13 November 2013, the date of claim.
The claim was referred to an Approved Medical Specialist (AMS), Dr Frank Machart, for opinion on whether the proposed surgery was reasonably necessary as a result of a work injury. Dr Machart issued a Medical Assessment Certificate on 27 October 2014.
After a contested arbitration on 5 November 2014, the Arbitrator delivered a decision on 7 November 2014 in which he found in favour of Mr Mortimer on all issues. The Commission issued a Certificate of Determination on 7 November 2014 in the following terms:
“The Commission determines:
1.The applicant sustained injury arising out of or in the course of his employment prior to 12 November 2013.
2. The applicant’s employment was a substantial contributing factor to his injury.
3.The applicant requires medical treatment as a consequence of his injury and the respondent is liable to pay reasonably necessary medical expenses.
4.The proposed right knee replacement surgery, and associated expenses, is reasonably necessary treatment as a result of the injury sustained during the course of the applicant’s employment prior to 12 November 2013.
The Commission orders:
5.The respondent to pay the applicant’s reasonably necessary medical expenses, including the cost of right knee replacement surgery and associated expenses, pursuant to section 60 of the Workers Compensation Act 1987.
6. No order as to costs.”
In an appeal filed on 5 December 2014, the appellant seeks to challenge all of the Arbitrator’s findings.
PRELIMINARY MATTERS
On the papers
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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 Nos 1 and 6, the documents that are before me, and the submissions by the parties 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.
However, before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act. An issue arises as to whether the monetary thresholds in s 352(3) are satisfied.
Monetary threshold
Legislation
Section 352(3) provides:
“(3) There is no appeal under this section 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.”
Submissions
Mr Mortimer’s counsel, Mr McManamey, has submitted that the monetary threshold has not been satisfied and there is no right of appeal. First, he submitted that the appellant bears the onus of satisfying the monetary thresholds and it has not done so because there is no evidence of the cost of the proposed surgery. Further, as Mr Mortimer is 65, he has no entitlement to weekly compensation and, in addition, there is no evidence that there could be any claim for permanent impairment compensation in these proceedings.
Second, Mr McManamey contended that, as a result of the operation of s 59A(1) of the Workers Compensation Act 1987 (the 1987 Act), Mr Mortimer’s entitlement to payment of medical expenses ceased on 12 November 2014 and, because he is 65, he has no entitlement to weekly compensation. He contended that the effect of lodging the appeal is that Mr Mortimer has been unable to have the proposed surgery and the appellant has avoided its liability to pay for the surgery regardless of the outcome of the appeal. Therefore the amount of compensation in dispute on appeal is zero and the monetary threshold cannot be satisfied.
The appellant’s solicitor, Mr Wardell, submitted that the cost of the proposed treatment can be established by reference to the legislation, noting that the maximum amount an employer is liable for medical treatment is fixed by the WorkCover Authority of New South Wales by order published in the New South Wales Government Gazette (s 61(2) of the 1987 Act) and that, applying the relevant order the prescribed fee for a total knee replacement arthroplasty is $5,535 (Workers Compensation (Surgeon Fees) Order 2014). Therefore, even without allowing for the other reasonably necessary expenses involved in such an operation, the monetary thresholds in s 352(3)(a) and (b) are satisfied.
Mr Wardell accepts and adopts Mr McManamey’s submission that, by operation of s 59A, the appellant is no longer liable to meet the cost of the proposed surgery. However, he submitted that:
(a) the proceedings the subject of the appeal were heard and determined prior to the first date on which s 59A took effect and that section was not in issue at the arbitration. Thus, that section has no bearing on the “decision” the subject of the appeal. Section 352(5) provides that the appeal is “limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion and to the correction of any such error”. For the purposes of s 352(3) “the amount of compensation at issue on the appeal” might be regarded as being limited to a consideration of that question in the context of the issues joined between the parties in the proceedings and at arbitration;
(b) he had concerns about the “interplay” between s 59A and s 60(5) (the later provision giving the Commission power to make the order for the payment of future medical expenses). A question arises as to whether the appellant is bound by the Arbitrator’s order or whether such obligation terminated when s 59A took effect on 12 November 2014;
(c) section 59A does not apply to a “seriously injured worker” and, while Mr Mortimer has not yet made a claim for any permanent impairment, under Table 17-33 of AMA 5 a total knee replacement with poor result attracts a 30 per cent whole person impairment. If Mr Mortimer were to be assessed on that basis, and also assessed to be entitled to a further one per cent whole person impairment from surgical scarring or some consequential injury, he has the potential to be found to be a seriously injured worker and therefore entitled to recover the cost of the surgery;
(d) the appeal should proceed on the basis of the “decision” made by the Arbitrator on the issues as claimed and joined between the parties with the threshold issue being determined by reference to those matters, and
(e) if it is found that there is no amount in issue on appeal, it should be formally stated that the effect of s 59A renders order five of the Certificate of Determination of no effect.
Discussion and findings
It is convenient to deal with the s 59A point first.
That section provides that a worker to whom weekly compensation has not been paid or payable is entitled to compensation under Div 3 of Pt 3 of the 1987 Act, that is compensation for any treatment, service or assistance, for only 12 months from the date on which a claim for compensation in respect of the injury was first made, but is not entitled to recover the cost of such treatment given or provided more than 12 months after that date (s 59A(1)).
As it is agreed that weekly compensation has not been paid, and was not and is not payable, to Mr Mortimer, his entitlement to recover compensation under Div 3 of Pt 3 of the 1987 Act expired on 12 November 2014. As he is 65, Mr Mortimer has no potential right to weekly compensation in the future (s 52 of the 1987 Act). Therefore, s 59A(3) does not apply to revive his entitlement to recover medical expenses in the future. Thus, by operation of law, Mr Mortimer has no entitlement to recover the cost of any treatment, service or assistance given or provided more than 12 months after 13 November 2013.
It follows that, as no compensation is payable under the award, no compensation is “at issue on appeal” and the monetary thresholds in s 352(3) cannot be satisfied. That that must be so is demonstrated by the fact that no order made on appeal will affect Mr Mortimer’s entitlement to recover the cost of the proposed surgery. Though Mr Mortimer would have been entitled to recover the cost of the surgery had he had it between the date of the Certificate of Determination on 7 November 2014 and 12 November 2014, that did not happen.
It is irrelevant that the arbitration was heard and determined prior to the passing of the 12 month time limit in s 59A and that that section had no bearing on the “decision”. The clear effect of the section is that Mr Mortimer has no entitlement to recover the cost of the proposed surgery (or to enforce the Arbitrator’s award) and, as no other compensation is claimed, or, on the current state of the evidence, can be claimed, there is no compensation at issue on appeal.
The Commission’s power, under s 352, to determine if a “decision” is affected by any error of fact, law or discretion is restricted to cases that satisfy the relevant monetary threshold. The amount of compensation at issue on appeal is not limited to a consideration of the context of the issues joined at the arbitration. It is limited by the amount of the compensation awarded or claimed.
The appellant is not bound by paragraph five of the Certificate of Determination. The force and effect of that order was extinguished, in Mr Mortimer’s circumstances, by the effect of s 59A and the passing of the 12 month limit in that section. As a result, the award cannot be enforced.
Mr Wardell’s submission about the potential consequence if Mr Mortimer is later found to be a seriously injured worker involves three assumptions. First, that Mr Mortimer will have the surgery. Second, that he will have a poor result from it. And, third, that due to some additional factor consequent upon the surgery, Mr Mortimer will ultimately be assessed to have a whole person impairment of more than 30 per cent.
Whether any of those things will happen is entirely speculative. The monetary threshold in s 352(3) is determined by reference to the award entered or, if no award for the payment of compensation is made, by reference to the quantum of compensation claimed. The claim made in the present case is for proposed surgery. As the expense has not yet been incurred, it was not possible for the Arbitrator to order the payment of a specific amount.
Therefore, for the purpose of the monetary threshold in s 352(3), one looks to the potential quantum of the compensation at issue in the claim. In this case, that is the potential cost of the surgery. On that issue, I accept that it is appropriate for the Commission to consider fees in the Workers Compensation (Surgeon Fees) Order 2014 in assessing if the surgery would cost more than $5,000. However, that does not overcome the s 59A issue.
The appeal can only proceed on the basis of the “decision” made by the Arbitrator on the issues as claimed, if the amount of compensation at issue on appeal is at least $5,000. For the reasons explained above, by operation of law, that threshold is not satisfied in the circumstances of the present case.
Last, Mr McManamey’s submission that the effect of lodging the appeal is that Mr Mortimer has been unable to have the proposed surgery and the appellant has avoided its liability to pay for the surgery regardless of the outcome of the appeal is incorrect. Mr Mortimer lost his right to recover the cost of the proposed surgery on 12 November 2014. That occurred by operation of s 59A, not because of the appeal which was filed on 5 December 2014.
CONCLUSION
It follows that as Mr Mortimer has no entitlement to enforce the Arbitrator’s award, and no entitlement to recover the cost of the proposed surgery, there is no “compensation at issue on the appeal” and the monetary thresholds in s 352(3) have not been satisfied and there is no right of appeal.
DECISION
The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal.
COSTS
No order as to costs.
Bill Roche
Deputy President
6 March 2015
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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