Alexandru v State Rail Authority of NSW
[2004] NSWWCCPD 54
•13 August 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY THE REGISTRAR
CITATION:Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54
APPELLANT: Jan Alexandru
RESPONDENT: State Rail Authority of NSW
INSURER:State Rail Authority of NSW
FILE NUMBER: WCC7860-2003
DATE OF ARBITRATOR’S DECISION: 15 January 2004
DATE OF APPEAL DECISION: 13 August 2004
SUBJECT MATTER OF DECISION: Leave to Appeal Against Decision of an Arbitrator, Appeal filed out of time, Leave refused.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION: Appellant: Fishburn Watson O’Brien
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Registrar, acting as an Arbitrator, is refused.
THE APPEAL
On 10 March 2004 Jan Alexandru (‘the Appellant/Mr Alexandru’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision dated 15 January 2004.
The Respondent to the Appeal is the State Rail Authority of NSW (‘the Respondent/the Employer’) which is self insured for the purposes of workers compensation. The Respondent filed a Reply to the Appeal on 16 June 2004.
The appeal relates to a claim by Mr Alexandru for workers compensation by way of a lump sum payment pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), and a lump sum payment for pain and suffering pursuant to section 67 of the 1987 Act.
The Arbitrator’s orders are recorded in the Certificate of Determination, dated 15 January 2004 and a brief ‘Statement of Reasons’ as follows:
“ 1. That the Applicant suffers 0% permanent loss of efficient use of sexual organs, attributable to this injury.
2. No order as to costs.”
The matter was referred to me for review on 11 August 2004.
ISSUES IN DISPUTE
There are two threshold issues that must be determined in this appeal. The first is whether or not leave should be granted to extend the time for filing of the appeal. The second is whether or not the Appellant should be permitted to give fresh evidence on the appeal.
The substantive grounds of appeal submitted by the Appellant are:
1. The MAC should not be presumed to be conclusively correct for the purposes of section 326 of the 1998 Act, insofar as it refers to the Appellant suffering “prostatitis”, as that injury is not work related. Section 326(1)(a) provides that a MAC is only to be conclusively presumed to be correct in relation to “the degree of permanent impairment of the worker as a result of an injury”, and such an injury must have occurred out of or in the course of employment.
2. As the MAC was consequently not binding, the Commission should have considered all medical evidence provided in the matter, particularly in relation to Dr Breslin’s diagnosis of “prostatitis”.
3. The Certificate of Determination gives no reasons for its determination other than that it reflects the MAC, nor does it indicate whether any other medical opinions, as supplied by the parties, were considered in the matter.
4. Rather than issuing a Certificate of Determination, the Commission should have referred the matter for conciliation/arbitration on the matter of causation.
ON THE PAPERS REVIEW
The Appellant submits that both the leave application and the substantive appeal may be determined on the papers.
The Respondent submits that the matter should proceed to be determined 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.”
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.
LEAVE
The application must meet the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal 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.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was not lodged within 28 days of that decision, i.e. on or before 12 February 2004, in compliance with section 352(4) of the 1998 Act. The appeal was lodged 55 days after the decision was made.
Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) effective from 1 July 2003, relevantly provides that:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The following sets out the progress of this matter in the Commission:
·On 14 March 2003, the Appellant lodged an ‘Application to Resolve a Dispute’ in the Commission.
·The Respondent lodged a reply to the Application on 28 March 2003.
·The parties attended a teleconference on 31 July 2003, at which they agreed to refer the matter to Dr Breslin (AMS) for a determination of permanent impairment due to loss of sexual function.
·On 2 October 2003, Dr Breslin examined Mr Alexandru and found that he suffered no permanent impairment in the form of a loss of sexual function.
·On 15 December 2003, the Commission issued the MAC and advised the parties that a Certificate of Determination would be issued after 28 days, “setting aside the matter”, unless the Commission was advised of outstanding issues in the interim.
·No correspondence was received from the parties.
·On 15 January 2004, the Commission issued a Certificate of Determination reflecting the assessment made by Dr Breslin.
The Appellant submits that he should be granted an extension of time for leave to appeal, for the following reasons:
·The Appellant has spent most of his time in Westmead hospital with his son who suffered a cerebral haemorrhage in October 2003, and is now in a coma. Consequently, the Appellant’s solicitors have not had the opportunity to obtain instructions from him.
·Due to the diagnosis made by the AMS, it has been necessary to obtain reports from other doctors in clarification of the diagnosis of “prostatitis”. Professor Champion supplied reports dated 27 January 2004 and 16 February 2004, and Dr Lowy, a report dated 19 February 2004.
·The MAC is not binding, yet the Certificate of Determination was issued pursuant to section 325 of the 1998 Act. The Appellant is entitled to argue the merits of his case before an arbitrator at a conciliation/arbitration hearing, and to deny the Appellant that right would constitute a demonstrable and substantial injustice to the Appellant.
The Appellant has submitted new evidence on the appeal, in the form of further medical reports.
The Respondent submitted that it neither consents to nor opposes the application for extension of time pursuant to Rule 77 (8) of the Workers Compensation Commission Rules 2003.
DISCUSSION AND FINDINGS ON LEAVE
Time
The Rules do not set out the factors to be considered in the exercise of the discretion to extend time for the filing of an appeal against the decision of an Arbitrator. Ultimately the discretion must be exercised to ensure that ‘justice between the parties’ is achieved (Gallo v Dawson (1990) 93 ALR 479; Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd (in Liq) (formerly SACS Group Pty Ltd) (1993) 113 ALR 637).
As I stated in Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22,
“The courts have frequently considered this issue. Guidance as to the factors that a court or Tribunal should have regard to when exercising the discretion to extend time is found in the leading case of Gallo v Dawson (1990) 93 ALR 479. In that case Justice McHugh considered an application to extend time for the filing of a Notice of Appeal in the High Court and set out the following guiding principles:
“. . . The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No.2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “ a vested right to retain the judgement” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
I have taken the matters referred to by Justice McHugh into account in the particular circumstances of this case.
Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes (section 367 of the 1998 Act). A party who has the benefit of an order is entitled to rely on the finality of that order. In this matter the Certificate of Determination did not attach a brief statement of reasons, as required by the Workers Compensation Commission Rules 2003 (Rule 73), however this is not critical to the issue of the extension of time for the filing of the appeal.
The appeal in this matter was not filed until 10 March 2004, nearly two months after the issue of the Certificate of Determination appealed against. I accept that tragic circumstances confronted the Appellant personally in October 2003, however the Appellant was on notice of the contents of the MAC from 15 December 2003. The option of appealing against the Medical Appeal Panel was open until 15 January 2004, and appeal against the Certificate of Determination until about 15 February 2004. The Registrar advised the parties of her intention to proceed to determine the matter on 15 December 2003.
The Appellant lodged an ‘Appeal Against the Decision of Approved Medical Specialist’ on 25 February 2004. This appeal was rejected because it was filed out of time, i.e. after the issue of the Certificate of Determination. Clearly the Appellant was able to give his legal representative instructions at that time and, had the appeal against the Certificate of Determination been filed on the same day, it would have been only about one week out of time. The Appellant now effectively seeks review of Dr Breslin’s MAC by way of appeal to a Presidential Member.
I accept that the Appellant’s circumstances of October 2003 are exceptional, however I do not accept that it is reasonable that the Appellant, who was legally represented, took no action to file the appeal in accordance with the Rules, until March 2004. The Appellant was on notice that the matter would be determined in accordance with the MAC. I have weighed this factor together with my view that the appeal has minimal prospects of success.
The prospects of success of the appeal are minimal, partly because it is misconceived. Subject to any non-compliance with the statutory requirements (section 325 of the 1998 Act, see Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50), a Medical Assessment Certificate issued by an AMS on a matter on which the AMS’s opinion is ‘conclusively presumed to be correct’ is binding on the parties, and is not appellable to a Presidential Member of the Commission. Where a party is dissatisfied with a MAC a right of appeal exists, subject to certain criteria, to a Medical Appeal Panel. Indeed, the authority relied upon by the Appellant (Baham v ABW Engineering Pty Limited (2003) NSW WCC MAP 9) is of a Medical Appeal Panel, constituted by the Registrar of the Commission, in accordance with section 327 of the 1998 Act.
The matter referred for Dr Breslin’s assessment was permanent impairment of the ‘sexual organs’. Dr Breslin reviewed the medical reports sent to him and examined Mr Alexandru. Dr Breslin considered the impact of Mr Alexandru’s back injury, which is not disputed, occurred in the course of his employment, on his loss of sexual function. I accept the Respondent Employer’s submission that Dr Breslin’s finding in relation to ‘prostatitis’ was clearly in addition to his findings as to any permanent impairment due to his claimed compensible injury. Dr Breslin’s MAC is not ambiguous. While not coming to a concluded view on the substantive issues in the appeal, I believe it is unlikely the MAC would be found non-binding on the issue of the degree of permanent impairment suffered by Mr Alexandru as a result of his injury.
The consequence of refusing to grant leave is that Mr Alexandru must accept the determination of the Registrar, based upon Dr Breslin’s report. In my view this does not work an injustice to Mr Alexandru, as he has had the benefit of putting his evidence before the Commission and has had a proper assessment by Dr Breslin. This is the intention of the new statutory scheme for the determination of ‘medical disputes’. I am not satisfied that the refusal to grant the Appellant leave to file the appeal nearly two months after the decision was issued is unfair or unjust in the circumstances of this case.
DECISION
Leave to appeal against the decision of the Registrar, acting as an Arbitrator, is refused.
Dr Gabriel Fleming
Deputy President
13 August 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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