Arquero v DJ & T Denning Pty Limited t/as Capital Coast Steel

[2007] NSWWCCPD 126

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Arquero v D J & T Denning Pty Limited t/as Capital Coast Steel [2007] NSWWCCPD 126

APPELLANT:  Ricardo Arquero

RESPONDENT:  D J & T Denning Pty Limited t/as Capital Coast Steel

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC12667-06

DATE OF ARBITRATOR’S DECISION:          29 November 2006

DATE OF APPEAL DECISION:  30 May 2007

SUBJECT MATTER OF DECISION: Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Bowrey Lawyers

Respondent:   Goldbergs

ORDERS MADE ON APPEAL:  Leave to appeal is refused.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 13 December 2006 Ricardo Arquero (‘the Appellant Worker/Mr Arquero’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 29 November 2006.

1. The Respondent to the Appeal is D J & T Denning t/as Capital Coast Steel (‘the Respondent Employer’).

1. Mr Arquero alleges that he injured his right shoulder in the course of his employment with the Respondent Employer on 2 November 2002, 22 May 2003, 19 August 2003 and 20 January 2004.  Save for the injury on 19 August 2003, in respect of which it reserved its position, the Respondent Employer conceded that all injuries were work related.

1. By his Application to Resolve a Dispute (‘the Application’) Mr Arquero claimed lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of a 26% whole person impairment plus $40,000.00 for pain and suffering as a result of his shoulder injuries.

1. The matter was listed for conciliation and arbitration before a Commission Arbitrator on 7 November 2006 when the parties were unable to reach agreement and it proceeded to hearing.

1. The threshold issues in dispute before the Arbitrator were:

a)   whether the referral to the Approved Medical Specialist (‘AMS’) should require one assessment of whole person impairment, or apportionment between one or more injuries, and

b)   the date or dates of injury to be referred for assessment by the AMS.

1. In a reserved decision delivered on 29 November 2006 the Arbitrator made the following determination:

“1.The Applicant sustained injury to his right shoulder in alleged worked [sic] related incidents on 2 November 2002, 22 May 2003, 19 August 2003 and 20 January 2004.

2.This matter is to be referred to an AMS for general assessment.”

1. Mr Arquero seeks leave to appeal this determination.

PRELIMINARY MATTERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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. 

ISSUES IN DISPUTE

1. The grounds of appeal state:

“1.There is no medical dispute between the claimant and the person on whom the claim is made pursuant to the definition of medical dispute in section 319 [of the] Workplace Injury Management Act [sic] 1998.

2.There is no application by either party consistant [sic] with what appears at paragraph 71 of the reasons for determination.”

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:

“352 Appeal 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.

(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.

(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.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.

Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.

(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)

1. The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’.  Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.

1. Before leave to appeal can be granted it is necessary 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”.  The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.  In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:

“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”

1. In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (‘Regan’) it was held at [27] that:

“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”

1. As no compensation has been awarded in this matter the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. The quantum of compensation “at issue” on appeal easily exceeds the $5,000.00 threshold in section 352(2)(a). As no compensation has yet been awarded it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(a)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCCPD 5).

1. Therefore, the monetary thresholds in section 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Interlocutory Order

1. In light of the above amendments to section 352(8) and the issues raised in the appeal, I issued the following Direction to the parties on 26 April 2007:

“1.

The parties are directed to the provisions of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as amended by Act 113 of 2005, which excludes from the definition of ‘decision’, “any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations”.

Under Clause 200B of the Workers Compensation Regulation 2003, as amended, “for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.

Under Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 the above amendments to section 352 “apply in respect of a claim for workers compensation made before the commencement of the amendments”.

2.

In light of the above amendments and in light of the fact that the Respondent Worker made a claim for compensation on 20 March 2006, the parties are directed to make written submissions on the following issues:

·     whether the current appeal is against an order, ruling, determination or direction of an interlocutory nature, and, if so,

·     the basis on which leave to appeal can be granted, and

· the basis on which it is alleged that the thresholds in section 352(2) are satisfied.

3.

The Appellant Worker ’s submissions are to be filed and served on or before Thursday 10 May 2007 and the Respondent Employer’s submissions are to be filed and served on or before Thursday 24 May 2007.”

1. In response to the above direction the Appellant Worker filed further submissions on 9 May 2007.  He makes the following points:

a)   an interlocutory decision is a decision “incidental to the principal object of the action” (Appellant Worker’s submissions, paragraph three);

b)   the outcome of the Arbitrator’s decision under appeal would be to determine the rights of the parties and is not of an interlocutory nature;

c)   the Workers Compensation Regulation 2003 (‘the 2003 Regulation’) “prescribes awards, orders, determinations, rulings or directions of an interlocutory nature by Arbitrator’s only in relation to Medical Examinations & Disputes (Part 9) Restrictions on obtaining medical reports (Part 10) & Costs (Part 19)” (Appellant Worker’s submissions, paragraph four);

d)   the only part of the Regulation that might be relevant to the decision appealed against is Part 9 which relates only to claims made before 1 January 2002 and is irrelevant to the Arbitrator’s decision, and

e)   accordingly the Arbitrator’s decision is not within the definition of an award or determination of an interlocutory nature “prescribed by the regulations” under section 352(8) because the Arbitrator has not made a decision prescribed by the regulations.

1. The Respondent Employer submits that:

a)   the Arbitrator’s determination is of an interlocutory nature because the ruling does not determine the parties’ rights (P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’));

b)   in McGuire v State Transit Authority of NSW (No. 2) [2007] NSWWCCPD 109 it was held at [62] that a decision to refer a worker to an AMS is not a decision that “clearly disposes of the parties’ rights” and was therefore interlocutory in nature, and

c)   leave to appeal cannot be granted in the present matter.

1. I agree with the Respondent Employer’s submissions that the Arbitrator’s determination in the present matter has not determined any rights but has merely referred certain questions to an AMS for general assessment.  The test of whether a court’s order, determination or ruling is ‘interlocutory’ “…depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?” (per Gibbs J (as his Honour then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444). In Hawkins I considered the application of this authority in the context of the workers compensation legislation that governs the Commission.  I noted at [37 (j) and (k)]:

   “j) in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase “preliminary or interim orders…of an interlocutory nature” to matters that are genuinely preliminary, provisional or interim in nature, and

   k) given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”

1. On any view of the term ‘interlocutory’ the Arbitrator’s decision has not determined any rights. I do not accept the Appellant Worker’s submissions in respect of the 2003 Regulation. The terms of Regulation 200B are restricted to section 352 of the 1998 Act and have no relevance or application to Parts 9, 10 and 19 of the 2003 Regulation.

1. In all the circumstances the orders and rulings the Appellant Worker seeks leave to appeal are preliminary orders and rulings of an interlocutory nature and are not ‘decisions’ within the meaning of section 352(8). Leave to appeal is refused.

DECISION

1. Leave to appeal is refused.

COSTS

1. No order as to costs of the appeal.

Bill Roche

Deputy President  

30 May 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE