Arifagic v Gate Gourmet Services Pty Limited
[2005] NSWWCCPD 96
•26 August 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Arifagic v Gate Gourmet Services Pty Limited [2005] NSW WCC PD 96
APPELLANT: Sabaheta (Sabrina) Arifagic
RESPONDENT: Gate Gourmet Services Pty Limited
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC20580-2004
DATE OF ARBITRATOR’S DECISION: 23 February 2005
DATE OF APPEAL DECISION: 26 August 2005
SUBJECT MATTER OF DECISION: Interlocutory decision; referral to AMS; decision not subject to Presidential review; costs of the appeal.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Arbitrator, dated 23 February 2005, is refused.
No order as to costs.
THE APPEAL
On 14 March 2005 Ms Sabaheta Arifagic sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 February 2005.
The Respondent to the appeal is Gate Gourmet Services Pty Limited, who was Ms Arifagic’s employer. QBE Workers Compensation (NSW) Limited is the employer’s workers compensation insurer and it acted for and on behalf of the employer in the proceedings before the Commission. Both Ms Arifagic and the Insurer were legally represented.
The appeal was referred to me for review on 25 August 2005.
ISSUES IN DISPUTE
Ms Arifagic’s legal representative has made written submissions on the appeal. It is generous to state that these submissions do not clearly disclose exactly what part of the decision of the Arbitrator is in issue, or what alleged error of law, fact or discretion has been made (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The submissions state dissatisfaction with the Arbitrator’s referral of the matter to an Approved Medical Specialist for a medical assessment and request that the Arbitrator determine issues of injury and incapacity prior to this referral.
The Insurer submits that there is no basis to the appeal as “the Arbitrator has not made a decision. He has simply referred the matter to an Approved Medical Specialist prior to being referred to conciliation arbitration”.
ON THE PAPERS REVIEW
I am satisfied that I have sufficient information to proceed ‘on the papers’ pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
I am satisfied that the appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).
The Arbitrator made a number of ‘Orders’ on 23 February 2005. These related to the grant of leave for the filing of late documents, including the Reply and access to material produced under ‘Directions for Production’. No specific order was made that the matter be referred to an Approved Medical Specialist (‘AMS’), however this was clearly the path upon which the matter was proceeding. The Arbitrator noted in his reasons for the ‘Orders’ that “ [t]he AMS referral will not be delayed by the filing of the Reply”.
An Arbitrator cannot make an award for lump sum compensation for permanent impairment in the absence of an assessment by an AMS. It is for the Arbitrator who has the carriage of a matter to determine whether there are legal issues that must be determined prior to the referral to an AMS. In accordance with the guideline on the ‘Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’ these issues are first identified, narrowed and discussed at the telephone conference.
It is evident from the Arbitrator’s ‘Orders’ and Ms Arifagic’s submissions on appeal that these issues were in fact discussed at the telephone conference held on 23 February 2005. In my view the referral of a matter to an AMS is not a decision that is amenable to review by a Presidential Member pursuant to section 352(2)(a) of the 1998 Act. It is purely a procedural matter and does not concern “an amount of compensation at issue” in the dispute or in the appeal (see Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5).
There is no transcript of the telephone conference before me nor is there detailed reference in the ‘Orders’ to the referral to the AMS. I therefore do not know the reason why the Arbitrator, in this particular matter, decided that the correct procedure was to refer the matter to an AMS at this point. For the purpose of considering this application for leave to appeal, I do not need to know this. The Arbitrator was responsible for deciding the appropriate procedure in the matter that was before him, subject to the requirements of the 1998 Act (in particular section 354) and to the Commission’s established guidelines.
The referral of the matter to an AMS does not foreclose on any issues that Ms Arifagic may have in relation to the determination of the dispute. If the parties remain in dispute about legal issues these will clearly need to be determined by an Arbitrator before a final award is made.
This is not the first time that I have expressed this view. This same issue was decided in Hanley v Cypress Lakes Group Ltd [2004] WCC PD 23. Had Ms Arifagic’s legal representative consulted the Commission’s website he would have been able to easily locate a copy of that decision there.
Leave to appeal is refused.
DECISION
Leave to appeal against the decision of the Arbitrator, dated 23 February 2005, is refused.
COSTS
The application for leave to appeal is misconceived and lacking in substance.
Ms Arifagic is ‘unsuccessful’ on the appeal (section 345(3) of the 1998 Act). In my view the appeal has resulted in unnecessary litigation and costs, as well as avoidable delay. This is despite the fact that Ms Arifagic’s solicitor had recognised that the delay of this matter would aversely affect her.
The appropriate order is ‘No Order as to Costs’.
Dr Gabriel Fleming
Deputy President
26 August 2005
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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