Baker v NSW Police Force
[2010] NSWWCCPD 10
•27 January 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Baker v NSW Police Force [2010] NSWWCCPD 10 | |||||
| APPELLANT: | Justin Baker | |||||
| RESPONDENT: | NSW Police Force | |||||
| INSURER: | Allianz Australia Insurance Limited | |||||
| FILE NUMBER: | A1-5707/09 | |||||
| ARBITRATOR: | Mr R Bell | |||||
| DATE OF ARBITRATOR’S DECISION: | 15 October 2009 | |||||
| DATE OF APPEAL DECISION: | 27 January 2010 | |||||
| SUBJECT MATTER OF DECISION: | Leave to appeal; compensation; monetary threshold on appeal; interlocutory orders; section 352 of the Workplace Injury Management and Workers Compensation Act 1998 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Harris Wheeler Lawyers | ||||
| Respondent: | DLA Phillips Fox | |||||
| ORDERS MADE ON APPEAL: | Leave to appeal is refused. | |||||
| Each party is to pay his or its own costs of the appeal. | ||||||
BACKGROUND
The worker, Mr Baker, started work as a probationary constable with the respondent, NSW Police Force, in December 1989. Over the years, his work as a general duties police officer exposed him to many scenes that he found distressing.
On 4 January 2006, he attended a house at Lake Haven with three other officers. When he entered the house he came into contact with a mentally disturbed man who lunged at him, and the other officers, with a pitchfork. Eventually, the man was restrained. In the course of the melee, Mr Baker received lacerations to his left forearm and injuries to his right thumb and wrist. He ceased work and attended hospital for treatment.
The Police Force’s insurer, Allianz Australia Insurance Limited (‘Allianz’), accepted liability for Mr Baker’s claim and paid compensation for time off for his physical injuries and for “psychological treatment for pain management issues, adjustment issues and managing return to work for his physical injuries” (letter from Allianz to Ms McKeown, psychologist, 11 February 2009).
On 31 July 2006, Mr Baker returned to work for two hours per day three days per week in the Highway Patrol office. However, as he continued to have significant problems with his right thumb, he underwent surgery on 29 September 2006. At about this time, Mr Baker experienced back pain. Allianz appears to have accepted liability for the back condition and treated the cost of physiotherapy for it under the wrist claim (rehabilitation progress report No. 1, Ms McNeill, 22 August 2006).
After his thumb surgery, Mr Baker returned to work on restricted duties and hours in December 2006 and was ultimately certified fit for full-time work on 5 March 2007, though he continued to have restrictions to ensure that he was graduated back to patrol car duties in a safe manner (rehabilitation progress report No. 7, Ms McNeill, 9 March 2007).
Mr Baker returned to his pre-injury duties on 19 March 2007, with the rehabilitation case manager (Ms McNeill) monitoring his progress, with the intention that he would gradually upgrade the time spent on patrol.
On 27 March 2007, Mr Baker slipped and fell in the course of his duties and seriously injured his left knee. He has not returned to work since. He has had at least three operations on his left knee. Allianz has accepted liability for the left knee injury and continues to pay hospital and medical expenses and weekly compensation at the maximum statutory rate for a worker with two dependent children.
On 14 October 2008, Mr Baker saw Dr Butler, psychiatrist, on referral from his general practitioner, Dr Curry. Dr Butler diagnosed Mr Baker to be suffering from Post Traumatic Stress Disorder (‘PTSD’) as a result of the incident on 4 January 2006.
On a date not disclosed in the evidence, Mr Baker’s former solicitor, Terry Steer, claimed the cost of medical treatment for the worker’s PTSD. By letter dated 21 November 2008, Allianz declined liability for “any psychological consultations directed at treatment of PTSD, as same is not ‘reasonably necessary’ in treatment of any physical injury sustained” (letter from Allianz to Terry Steer dated 21 November 2008). Allianz attached to this letter a section 74 notice in which it disputed the claim on the grounds that Mr Baker had not made a claim for a primary psychological injury. It also disputed that his treatment for PTSD was reasonably necessary or that it had resulted from his current physical injury.
By letter to Ms McKeown dated 11 February 2009, Allianz noted that Mr Baker had recently been diagnosed with PTSD and had begun to receive treatment for that condition as part of his claim for his physical injuries on 4 January 2006. A new claim (not in evidence) for a primary psychological injury was apparently lodged in January 2009 and Allianz accepted provisional liability.
However, Allianz issued a second section 74 notice on 17 April 2009 in which it denied liability “for ongoing payments and/or benefits paid to [Mr Baker] in respect of [his] psychological injury” on the following grounds:
(a) he had not suffered any injury within the meaning of sections 4 and 11A(3) of the Workers Compensation Act 1987 (‘the 1987 Act’);
(b) his employment was not a substantial contributing factor to any such injury pursuant to section 9A of the 1987 Act, and
(c) he suffered no incapacity or impairment and no further treatment was reasonably necessary in the treatment of any condition allegedly suffered.
In an Application to Resolve a Dispute (‘the Application’) registered with the Commission on 21 July 2009, Mr Baker claimed weekly compensation from 17 April 2009 and continuing. His injury is described in the Application as “Post Traumatic Disorder with associated depression and anxiety”. The injury is described as having occurred as follows:
“Disease of gradual onset. Deemed date of 4 January 2006 as the first date of incapacity. In the alternative, aggravation of disease of gradual onset.”
On 11 August 2009, Allianz filed a Reply disputing liability for the reasons in the section 74 notices referred to above, and on the basis of several additional grounds that it is not necessary to list.
The Commission listed the matter for conciliation and arbitration in Newcastle on 13 October 2009. Counsel for the employer submitted that there was no dispute because Allianz had at all times paid Mr Baker weekly compensation at the appropriate statutory rate for a worker with two dependent children and there was no claim for hospital or medical expenses. He therefore argued that the Commission had no jurisdiction to entertain the Application and that it should be struck out under the “provisions of the rules” (T2.47).
Counsel for Mr Baker argued that the matter could proceed to a hearing because, notwithstanding that Mr Baker was in receipt of voluntary payments of weekly compensation at the maximum statutory rate, those payments were the result of “some physical injuries both connected with a date of injury 4 January 2’ 06 and separate injuries to his knee and back” (T1.45). He emphasised that Mr Baker had made a claim “or several claims” with respect to his psychiatric injury and the insurer had issued both section 74 and section 54 notices putting at issue whether there was a psychiatric injury. Therefore, the Arbitrator was obliged to hear the Application pursuant to section 287 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) because there was a dispute in connection with a claim for compensation (T2.5) and Mr Baker was entitled to have an award of compensation with respect to the pleaded injury.
In an ex tempore decision the Arbitrator noted that he was restricted in what he could do under the Act and that section 287 was “all to do with payments” (T2.55). As he could only make orders for the payment of money, and as no money was outstanding, because the insurer was paying weekly compensation at the correct rate and there were no outstanding medical expenses, the Commission had no jurisdiction to determine “any peripheral matters that don’t relate to the payment of money” (T3.10). He concluded that he had no alternative but to “dismiss the application under rule 15” (T3.15).
On 15 October 2009, the Commission issued a Certificate of Determination in the following terms:
“1. That the Application is dismissed.
2. No order as to costs.”
In an appeal filed on 11 November 2009, Mr Baker seeks leave to appeal the Arbitrator’s determination.
ON THE PAPERS
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.”
Having regard to Practice Directions Numbers 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.
LEAVE TO APPEAL
Time
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
The respondent argues that the appeal does not meet the monetary threshold of $5,000.00 in section 352(2)(a) because, as Allianz is paying compensation at the maximum statutory rate for the physical injuries, no further compensation is payable as a result of the alleged psychological injury. It states that, at all relevant times, Mr Baker has “been totally incapacitated due to leg and back injuries” (respondent’s submissions at 2.2 paragraph 7) and, as a result, any psychological injury does not create any additional separate and distinct incapacity. It argues that once a worker is “totally” incapacitated, he or she cannot have an additional separate incapacity. There is no evidence that Mr Baker’s physical injuries have improved such that he is only partially incapacitated as a result of his physical injuries. Therefore, the respondent submits that, even if Mr Baker establishes that he sustained a primary psychological injury, he has no entitlement to weekly compensation and no “compensation” is “at issue” on appeal.
Mr Baker’s position is that his entitlements flow from the receipt of an injury, as defined in section 4 of the 1998 Act, and, if total or partial incapacity for work results from an injury, the compensation payable by the employer shall include a weekly payment during the incapacity (section 33 of the 1987 Act). The respondent’s denial of liability gives rise to a dispute “in connection with a claim for compensation” (section 287 of the 1998 Act). Therefore, so it is argued, Mr Baker is entitled to have the Commission determine the dispute and it is not open to the respondent to argue that Mr Baker’s physical and psychological conditions are “a single injury within the meaning of s. 4” (Mr Baker’s submissions at paragraph 20). It “must be”, it is submitted, that the two conditions are separate and distinct injuries bearing separate and distinct incapacities. A worker suffering an injury from which incapacity flows is entitled to an award (Sydney City Council v Ince (1989) 16 NSWLR 690 (‘Ince’) and Nowakowska v Home Care Services of NSW [2008] NSWWCCPD 62 (‘Nowakowska’)).
The authorities of Ince and Nowakowska refer to the circumstances where a worker may be entitled to two awards of weekly compensation (one for partial incapacity and the other for subsequent total incapacity). They do not suggest that a worker is entitled to two separate payments for two total incapacities. Given the facts in the present case, it is difficult to see how Mr Baker could be entitled to two payments for two separate total incapacities. If a worker is being compensated on the basis of an accepted total incapacity for a physical injury or injuries, it is not possible to be further totally incapacitated (in a legal sense), and further compensated, as a result of a concurrent psychological condition.
It therefore follows that there is no “compensation at issue” on appeal because Mr Baker cannot recover any more than he is currently being paid. In these circumstances, the appeal does not satisfy the monetary threshold in section 352(2) and leave to appeal is refused.
Interlocutory
A further issue arises as to whether the Arbitrator’s order is of an interlocutory nature.
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 (section 352(1)). However, section 352(8) 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”.
The distinction between a ‘final’ and an ‘interlocutory’ order has been 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). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. His Honour added at 207:
“Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another.
The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.”
His Honour quoted from Gibbs J (as he then was) in Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439 at 443-444 where his Honour said that the established view in Australia was that what 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?”
The Commission has considered and applied the above authorities, subject to its statutory context and objectives (see P & O Ports Limited v Hawkins [2007] NSWWCCPD 87).
The authorities of Little v State of Victoria (1998) 4 VR 596 (‘Little’), Wickstead v Browne (1992) 30 NSWLR 1 at 11 (‘Wickstead’), and Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 (‘Micallef’) provide clear statements of principle that are applicable to the present matter. In Little, an order striking out proceedings because they did not disclose a cause of action was held to be interlocutory. In Wickstead, an order for summary dismissal under Part 13 Rule 5 of the NSW Supreme Court Rules was held to be interlocutory. In Micallef, the NSW Court of Appeal held that an order dismissing a claim under Part 18 Rule 3 of the District Court Rules was interlocutory.
In light of these authorities, the Arbitrator’s order dismissing Mr Baker’s Application was clearly a preliminary or interim order of an interlocutory nature as it did not dispose of or finally determine any of the parties’ rights. Though he would be ill advised to do so, Mr Baker is free to issue further proceedings seeking the same relief. The Arbitrator made no orders or findings that will restrict or inhibit that being done.
It follows that the Arbitrator’s order is not a “decision” against which leave to appeal can be granted and, if I am wrong on the monetary threshold issue, leave to appeal is also refused on this ground.
OTHER MATTERS
Two other matters arise.
First, the Arbitrator purported to dismiss the Application under “Rule 15”. I assume that he relied on Part 15 Rule 15.8 of the Workers Compensation Commission Rules 2006 (‘the Rules’), which provides:
“Dismissal for want of due despatch
Failure by an applicant to prosecute the proceedings with due despatch is a ground of dismissal for the purposes of section 354(7A) of the 1998 Act.”
Section 354(7A) of the 1998 Act provides:
“(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Rules.”
As Mr Baker’s solicitors prosecuted the proceedings with due despatch, it is difficult to see why the Arbitrator dismissed the Application under Rule 15.8. However, section 354(7A) provides other grounds on which the Application could have been dismissed, namely that the proceedings were “misconceived or lacking in substance” on the basis that Mr Baker has no entitlement to any greater weekly compensation than Allianz is already paying.
Second, it would be of great assistance if the parties could exercise care in preparing applications filed with the Commission to ensure that documents are grouped in a logical order. The preferred order for documents attached to applications in the Commission is: claim form/s, worker’s statement/s, witness statement/s and factual investigations, notice of claim document/s, section 74 notice/s, relevant correspondence, medical certificates, medical reports, clinical notes, and financial records. Documents in each section should be arranged in chronological order with the first in time placed first. The Application in the present matter includes hundreds of pages of documents, some of which are incomplete but all of which are out of order, thus making it extremely difficult to follow the relevant history in any logical way.
DECISION
Leave to appeal is refused.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
27 January 2010
I, EMMA LETHBRIDGE-GILL, 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
3
8
0