Bagtrans Pty Limited v Simunic

[2007] NSWWCCPD 212

WORKERS COMPENSATION COMMISSION

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

CITATION:Bagtrans Pty Limited v Simunic [2007] NSWWCCPD 212

APPELLANT:  Bagtrans Pty Limited

RESPONDENT:  John Simunic

INSURER:Employers Mutual NSW Limited

FILE NUMBER:  WCC338-07

DATE OF ARBITRATOR’S DECISION:          11 April 2007

DATE OF APPEAL DECISION:  19 October 2007

SUBJECT MATTER OF DECISION: Leave to appeal; order or determination of an interlocutory nature; section 352(8) Workplace Injury Management and Workers Compensation Act 1998; Clause 200B of the Workers Compensation Regulation 2003; error of law in failing to exercise jurisdiction; error of law in referral to Approved Medical Specialist for assessment without determining injury; inadequate reasons, and weight of evidence.

PRESIDENTIAL MEMBER:  Acting President Gary Byron

HEARING:On the papers

REPRESENTATION:  Appellant:      Edwards Michael Moroney

Respondent:   Firths

ORDERS MADE ON APPEAL:  Leave to appeal is refused.

The Appellant Employer is ordered to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. Mr John Simunic, the Respondent Worker, commenced employment as a forklift driver/labourer with Bagtrans Pty Limited (‘Bagtrans’), the Appellant Employer, in May 2002. 

1. Employers Mutual NSW Limited  (‘the Insurer’) was Bagtrans’ insurer at all relevant times.

1. Mr Simunic claims to have suffered an injury to his thoracic spine, lumbar spine and left lower extremity on 9 February 2004 while he was lifting a heavy bracket weighing approximately 36 kilograms. 

1. Mr Simunic saw his family doctor, Dr Tablante on 10 February 2004 who referred him for a CT scan of the lumbar spine and deemed him unfit for work from 10 February 2004.  Mr Simunic subsequently lodged a Workers Compensation claim with Bagtrans on 18 March 2004 claiming injury sustained on 9 February 2004 as “protrution [sic] in lower back (discs L4/5)”.

1. On 23 April 2004 the Insurer advised Mr Simunic that liability for his claim was declined pursuant to section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). In making this decision to discontinue weekly payments of compensation the Insurer relied upon the reports of Dr Ian Barrett, Orthopaedic Surgeon, dated 16 March 2004 and Dr John Silver, Consultant Occupational Physician, dated 8 April 2004.

1. In late March 2004 Mr Simunic attempted a gradual return to suitable duties and by April 2004 attempted to return to normal duties.  However, he experienced a severe exacerbation of his symptoms and accordingly, he returned to suitable duties.  He alleges that Bagtrans advised him that if he could not return to normal duties at that stage his services were no longer required.  He further claimed that as a consequence of being unable to perform his normal duties his employment was terminated on 10 May 2004.  

1. On 11 December 2006 the Insurer advised Mr Simunic that liability for his claim for permanent impairment was declined on the basis that:

“Evidence in our possession indicates that the worker does not suffer with an assessable permanent impairment as a result of the injury relied upon.  The evidence relied upon in reaching this decision is Dr Matheson’s (Neurosurgeon) report dated 16 October 2006.”

1. An ‘Application to Resolve a Dispute’ (‘the Application’) was registered with the Commission on 24 January 2007 seeking weekly compensation from 21 April 2004 and continuing, and lump sum compensation.

1. In its Reply filed on 12 February 2007 Bagtrans disputed:

·that Mr Simunic sustained an injury to his thoracic spine in the incident on 9 February 2004;

·that the disc bulges/protrusions in Mr Simunic’s lumbar spine were caused by the incident on 9 February 2004;

·that Mr Simunic sustained an injury to his left leg in the incident on 9 February 2004, and

·that Mr Simunic had any incapacity for work as a result of the injury sustained on 9 February 2004 but if he did, then he is not incapacitated to the extent alleged.

1. The claim was listed for a conciliation/arbitration hearing before a Commission Arbitrator on 26 March 2007.  The Arbitrator issued a ‘Certificate of Determination’ dated 11 April 2007, in the following terms:

“The Application is to be remitted to the Registrar for referral to an Approved Medical Specialist for an assessment of permanent impairment, if any, in relation to the Applicant’s thoracic spine, lumbar spine, and left lower extremity.”

1. On 9 May 2007, Bagtrans lodged with the Commission an ‘Application to Appeal Against Decision of Arbitrator’ (‘Application’).  Bagtrans appeals the determination of the Arbitrator “to refer the matter to an Approved Medical Specialist ‘for an assessment of permanent impairment, if any, in relation to the Applicant’s thoracic spine.’”  Bagtrans states at paragraph 2.5.2 of its submissions on appeal that it does not appeal against the determination “to refer the matter to an Approved Medical Specialist for an assessment of permanent impairment in relation to the lumbar spine and left lower extremity.”

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ISSUES IN DISPUTE

1. The substantive issues in dispute in the appeal are:

1.whether the Arbitrator erred at law in referring the matter to an AMS without first determining the issue of injury to Mr Simunic’s thoracic spine, and in the alternative

2.in the event that it is accepted that the Arbitrator is deemed to have determined the issue of injury to Mr Simunic’s thoracic spine, the decision was made without proper reasons and was against the weight of the evidence.

LEAVE TO APPEAL

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Section 352(4) states that an appeal can only be made within 28 days after the making of the decision appealed against. Bagtrans’ appeal was lodged on 9 May 2007, in compliance with that section.

1. Before the Commission may grant leave to appeal, the threshold requirements in section 352(2) of the 1998 Act must be met. It provides:

“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.”

1. Bagtrans relies upon the decisions of Robert Grimson v Integral Energy [2003] NSWWCCPD 29 (‘Grimson’) and Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 (‘Regan’) in which it was held that “the threshold requirements do not apply to interlocutory decisions that have a real capacity to put the award of compensation in issue.”

1. Bagtrans contends that, in this regard, the determination of an injury to the thoracic spine may affect Mr Simunic’s entitlement to lump sum entitlement, and states that Dr Patrick’s 11 July 2006 assessment of Mr Simunic, having a 6% Whole Person Impairment as a result of injury to the thoracic spine, equates to compensation pursuant to section 66 of the 1987 Act, in the sum of $6,250.  Furthermore it submits that the determination as to whether Mr Simunic sustained an injury to his thoracic spine may affect the extent of his entitlement (if any) to weekly benefits and medical expenses.

1. In the ‘Notice of Opposition to Appeal Against Decision of the Arbitrator’ (‘Opposition’) dated 5 June 2007, Mr Simunic’s solicitors argue that Bagtrans is unable to satisfy section 352(2) of the 1998 Act as no amount has been awarded. They further submit that Bagtrans, in its submissions on appeal, concede, “the Appeal would be in respect of an Interlocutory Decision”, and it is therefore, not a matter against which an appeal may be brought, because of the express preclusion from the definition of “decision” of “any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (Section 352(8) of the 1998 Act). In its submissions on appeal, at paragraph 2.2.3, Bagtrans in fact, specifically acknowledges ‘decisions’ of the kind appealed against, as “interlocutory”.

Interlocutory award, order, determination ruling or direction – section 352(8)

1. In Grimson the Deputy President observed that generally, there is a need to “reconcile this section [352(2)] with the broad definition of ‘decision’ in subsection 352(8), which encompasses interim awards, rulings and directions. Consistent with this definition it is possible to appeal against an interlocutory decision, involving no monetary dispute.” Since the amendment to section 352(8) of the 1998 Act, by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005, which became operational on 1 November 2006, this is no longer the case. The definition of “decision” in section 352(8) now expressly precludes any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.

1. Similar observations were made in Regan.  In that case the Deputy President went on to make the distinction between interlocutory decisions that have a real capacity to put the amount of compensation in issue in the appeal, determined by reference to the decision or the claim, on the one hand, and purely procedural decisions, such as a decision to adjourn a telephone conference, a decision in relation to costs only, or a decision to schedule a further telephone conference, on the other. This consideration was undertaken in the context of the threshold provisions of section 352(2) as they then were. However, again, by reason of the amendment to section 352(8), which became operational in November 2006, awards, orders, determinations, rulings or directions of an interlocutory nature are now precluded from the range of decisions that are able to be appealed.

1. The issue is therefore, whether the ‘decision’ appealed against, is interlocutory in nature, within the meaning of section 352(8) of the 1998 Act. Both parties are unequivocal that the ‘decision’ under appeal is interlocutory in nature. In fact, Bagtrans, the Appellant Employer, relies to a great extent on that fact in citing Grimson and Regan.

2. Section 352(8) of the 1998 Act provides:

“(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”

1. Clause 200B of the Workers Compensation Regulation 2003 [as amended] (‘the Regulation’), provides that “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.”

1. Considerable difficulty can arise in these cases, as the amendments to the 1998 Act and the Regulation do not include a useful and workable definition of the term “interlocutory” for the particular purposes of the Workers Compensation jurisdiction.   However, the Regulation does provide some guidance in that it prescribes “preliminary or interim orders … of an interlocutory nature”. The “interlocutory” issue was first addressed in some detail in the Commission by Deputy President Roche in P & O Ports Limited v Alan Hawkins [2007] NSWWCCPD 87 (‘Hawkins’). The relevant discussion is found at [35] – [45]. This decision has been followed and applied in other decisions on appeal in the Commission, including McGuire v State Transit Authority of New South Wales (No 2) [2007] NSWWCCPD 109.

1. In the absence of a precise statutory definition, reference must be made elsewhere for guidance.  The distinction between a final and an interlocutory order was said to be not an entirely satisfactory one (Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others [No 2] (1990) 21 NSWLR 200 per Kirby P, as he then was, at 206). Kirby P cited Licul v Corney (1976) 50 ALJR 439 (‘Licul’), where Gibbs J, as he then was, said at 443-444, that it depends upon the nature of the orders made. He said:

“… the test is: does the judgment or order, as made, finally dispose of the rights of the parties?”

1. As Deputy President Roche observed in Hawkins, in the absence of a definition of “interlocutory” it is for the Commission to determine which matters fall within the terms of Clause 200B of the Regulation. Workers’ rights under the Workers Compensation Legislation are ongoing and subject to review under section 57 of the 1987 Act, or reconsideration under section 350(3) of the 1998 Act. The Deputy President said at [37c]:

“In this respect there is rarely an order (at least where the worker succeeds with his or her claim) by the Commission that ‘finally disposes of the rights of the parties’ in the sense that a common law verdict does.”

1. However, decisions made that clearly dispose of the rights of the parties, including the findings made in the process and in support of such decisions, are no less final simply because of the unique statutory provisions under which the Commission operates.  They are final at the time they are made and for the legal and practical purposes that they serve.  As Gibbs J said in Licul, the distinction between a final and interlocutory order depends upon the nature of the order made.  In this regard the legal/statutory context in which, and the purposes for which an order is made, have a direct bearing upon the nature of the order made, and are relevant factors, even if each standing alone, may not be determinative.   Further, these provisions, peculiar as they are to the Workers Compensation jurisdiction, were not necessarily or specifically envisaged in the common law authorities.

1. The order or determination appealed against in the instant case, does not in any sense, finally dispose of the rights of the parties, as to the particular issue involved. It is “preliminary” or “interim” and is of “an interlocutory nature”, as prescribed by the Regulation. Both parties specifically recognize that it is “interlocutory”. Accordingly, I find that the order or determination made is of an interlocutory nature within the meaning of section 352(8) of the 1998 Act and Clause 200B of the Regulation, notwithstanding the absence of a clear definition of the term “interlocutory”, for the purposes of the Workers Compensation jurisdiction.

1. Leave to appeal must be refused.

DETERMINATION ON THE PAPERS

1. Section 354(6) of 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. Notwithstanding that the appeal can proceed no further, I note that both parties submit that the matter is suitable for determination ‘on the papers’.  Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’ to this point, and to a substantive determination should that have been necessary, without holding any conference or formal hearing, and that this was the appropriate course in the circumstances. 

DECISION

1. For the reasons set out in this decision, leave to appeal the Arbitrator’s  preliminary or interim determination or order, dated 11 April 2007, is refused.

OTHER MATTERS

1. Refusal of leave to appeal the Arbitrator’s determination or order does not of itself, disentitle Bagtrans from appealing a final decision of the Arbitrator in due course.  If the interlocutory order or determination made by the Arbitrator on 11 April 2007 was a step in the procedure leading up to the final decision in the matter, provided other threshold requirements are met, leave to appeal would normally be granted and would, at that point and in that context, enable a consideration of the issue appealed against in the instant case (see Crowley v Glissan (1905) 2 CLR 402; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; Bunning v Cross (1978) 141 CLR 54; Ramton v Cassin (1995) 38 NSWLR 88, and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543. See also Sydney Institute of Technology –NSW TAFE Commission v Fleming [2007] NSWWCCPD 97).

1. As the appeal cannot proceed because of the interlocutory nature of the preliminary or interim order or determination, it is not necessary to deal with the threshold requirements of section 352(2) of the 1998 Act.

COSTS

1. Bagtrans, the Appellant Employer, is ordered to pay the Respondent Worker’s costs of this appeal.

Gary Byron

Acting President  

19 October 2007

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE