Bennett v Highland Pine Products Pty Limited final decision
[2005] NSWWCCPD 121
•24 October 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bennett v Highland Pine Products Pty Limited [2005] NSW WCC PD 121
APPELLANT: Shane Robert Bennett
RESPONDENT: Highland Pine Products Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC2573-05
DATE OF ARBITRATOR’S DECISION: 2 May 2005
DATE OF APPEAL DECISION: 24 October 2005
SUBJECT MATTER OF DECISION: Section 376(1)(a1) of the 1998 Act; failure to provide a report from WorkCover approved medical assessor; failure to properly make a claim; “reasonable cause”; power to strike out proceedings.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: Kenny Spring Solicitors
Respondent: CGU In House Counsel
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 2 May 2005, striking out the Application and ordering each party to bear their own costs is revoked.
The matter is referred to the Registrar to be allocated to an Arbitrator to be determined in accordance with these reasons.
BACKGROUND TO THE APPEAL
Shane Robert Bennett suffered injuries to his face whilst employed as a fork-lift operator by Highland Pine Products Pty Limited (‘Highland’). On 9 October 2002 he was hit in the face by a piece of particleboard whilst attempting to split the board with his foot. He suffered an injury for which he required surgery and was off work from that date until 24 November 2002 when he resumed restricted duties. He was certified fit for his pre-injury employment from 16 December 2002.
Mr Bennett made a claim for lump sum compensation for permanent impairment and pain and suffering for his injury, pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). Settlement negotiations in relation to his claim were unsuccessful and on 18 February 2005 Mr Bennett filed an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission.
CGU Workers Compensation (NSW) Limited (‘CGU’) is the workers compensation insurer for Highland and acted for and on behalf of Highland in the Commission proceedings.
The matter was referred to a Commission Arbitrator and a teleconference was held on 2 May 2005 at which the Arbitrator ordered that Mr Bennett’s application be ‘struck out’. She also ordered that each party bear their own costs of the proceedings. The reasons for the orders were given orally at the teleconference.
A ‘Certificate of Determination’ recording the Arbitrator’s orders, and attaching a written statement of the reasons, was not issued by the Commission until 29 August 2005. This appears to have been due to an oversight by the Commission registry. Both parties to the appeal have now been served with a copy of the Arbitrator’s reasons for decision and permitted to make further submissions on the appeal.
The primary issue in the dispute is whether Mr Bennett can rely upon a medical assessment by Dr Coren, who is not on the WorkCover Authority list of trained medical assessors for the purpose of assessing permanent impairment. The Respondent successfully argued before the Arbitrator that, without an assessment by a WorkCover approved doctor, the claim for compensation was not properly made and is therefore not capable of being brought to the Commission.
On 30 May 2005 Mr Bennett sought leave to appeal against the Arbitrator’s orders. He submits that the decision of the Arbitrator should be revoked, that he should be referred to an Approved Medical Specialist (‘AMS’) for assessment of the degree of permanent impairment and the matter be listed for a teleconference before a different Arbitrator.
LATE REPLY
On 1 June 2005 the Registrar directed that the ‘Application to Appeal Against Decision of Arbitrator’ (‘the Application’) be served on the Respondent by 9 June 2005 and the Respondent (Highland) lodge a ‘Notice of Opposition’ by 23 June 2005.
The appeal was served on Highland and CGU on 3 June 2005. CGU did not file a reply to the appeal until 5 July 2005, some twelve days after it was due. It was accompanied by an ‘Application to Admit Late Documents’. The reason given in support of the late filing of the reply was, “late receipt of Application to Appeal resulting in late reply”. In response Mr Bennett has submitted that the assertion that the appeal “was not served in the requisite time is simply false.” This is clearly correct as the Application was served within 7 days of being registered in accordance with rule 77(4) of the Workers Compensation Commission Rules 2003 (‘the Rules’) and in compliance with the Registrar’s direction on 1 June 2005.
Rule 13 provides that the Commission may extend or abridge any time fixed by the Rules. The submissions by CGU in reply to the appeal are extremely limited and there will be little, if any, prejudice to Mr Bennett if I permit their late admission. Time is therefore extended to allow the late filing of the ‘Notice of Opposition’.
ON THE PAPERS REVIEW
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.”
Both Mr Bennett and CGU have indicated that leave and the substantive appeal can be determined solely on the basis of the written submissions however in submissions dated 13 September 2005 Mr Bennett purported to reserve “the right to make further submissions in relation to the Appeal”. Mr Bennett has made submissions dated 30 May 2005, 8 July 2005 and 13 September 2005. He has had more than adequate opportunities to make submissions in relation to the appeal.
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
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 filed within 28 days of the decision appealed against in compliance with section 352(4) of the 1998 Act.
In Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSW WCC PD 83 Deputy President Byron granted leave to appeal against a decision of an Arbitrator striking out the proceedings. The Deputy President stated:
“The argument here is that there is no amount of compensation in issue. However, whether the Appellant’s rights are extinguished if the Arbitrator’s decision is upheld, is at the heart of this appeal and in fairness, should be determined as a substantive issue. I find therefore, that there is an amount of compensation at issue on appeal.”
(See also Way v Newcastle City Council [2004] NSW WCC PD 17 in which leave was granted to appeal against the decision of an Arbitrator striking out an application).
In this matter, the amount of compensation at issue on appeal is the amount claimed by Mr Bennett in lump sum compensation for permanent impairment and pain and suffering. Mr Bennett claimed $12,500 for a 10% whole person impairment and $10,000 in pain and suffering. The monetary threshold in section 352(2)(a) of the 1998 Act is met as the amount of compensation at issue on the appeal is in excess of $5,000.
No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
Leave to appeal is granted.
ISSUES IN DISPUTE
The issues in dispute in the appeal may be summarised as follows:
· Did the Arbitrator err in misapplying the provisions of section 376 of the 1998 Act?
· Did the Arbitrator err in striking out the Application?
· Did the Arbitrator provide adequate reasons for the decision?
CONSIDERATION
Did the Arbitrator err by misapplying the provisions of section 376 of the 1998 Act?
Section 376 of the 1998 Act provides, in part, that :
“(1) The Authority may issue guidelines with respect to the following:
(a)the assessment of the degree of permanent impairment of an injured worker result of an injury,
(a1)the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury…”
The Authority issued the ‘WorkCover Guides for the Evaluation of Permanent Impairment’ (‘the WorkCover Guides’) in December 2001 (pursuant to section 376). The WorkCover Guides provide that:
“Medical specialists trained in the use of the WorkCover Guides are to assess the degree of permanent impairment arising from a work related injury or condition”(at page 5).
A medical assessor is required to be “a registered medical practitioner with qualifications in the relevant medical specialty who has undertaken the requisite training in use of the WorkCover Guides” (at page 9). A list of trained medical assessors is available on the WorkCover website, with the names of practitioners being added as their training is completed.
The validity of the WorkCover Guides was challenged in the matter of Thomson v WorkCover Authority of NSW [2004] NSWSC 282 (‘Thomson’). In that case Justice Bell, found that the WorkCover Guides were beyond power to the extent that they imposed a training requirement on medical practitioners who carried out assessments of permanent impairment under the Workers Compensation Acts.
Following the decision in Thomson section 376(1)(a1) was inserted into the 1998 Act by the Workers Compensation and Other Legislation Amendment Act 2004, which was given assent on 15 December 2004. Clause 3 of part 151 of schedule 6 of the amending act provided that section 376(1)(a1) “extends to guidelines issued before the commencement of [the sub section]”. The Minister, Hon John Della Bosca, in the second reading speech on the bill, 9 December 2004, stated that:
"...Finally, the 1998 Act currently allows WorkCover to make guidelines regarding the assessment of permanent impairment of injured workers. This Bill makes explicit that this power includes the ability for the guidelines to specify the training and qualifications of practitioners who undertake these assessments.
This amendment addresses an issue that was the subject of a recent Supreme Court case - Thomson v WorkCover...
I can assure the House that the amendment does not change the permanent impairment guidelines in any way, other than to address the issue that was identified in the Thomson decision, that is, to confirm that guidelines may provide for the training and qualifications of doctors who may undertake permanent impairment assessors.
The guidelines currently provide that an assessor will be a registered medical practitioner with qualifications in the relevant medical specialty who has undertaken the requisite training in use of the WorkCover Guides. Assessors may be one of the claimant's treating practitioners or an assessor engaged on behalf of the employer or insurer to conduct an assessment for the purposes of assessing the level of permanent impairment.
However, given that the Government intended that the guidelines provide for who may undertake permanent impairment assessments, this Bill will ensure that existing guidelines issues in 2002 are valid. I can assure the Legislation Review Committee specifically that this retrospective validation is necessary not only because it implements the Government's policy but also ensures that the system in place since 2002 is not unduly disrupted on technical grounds..."
The Arbitrator, in her written reasons, expressly accepted CGU’s submission, that pursuant to section 376(1)(a1) of the 1998 Act and the WorkCover Guides, assessments of whole person impairment must be carried out by medical assessors who have undertaken the requisite training. However the Arbitrator did not make her decision on this basis. She reasoned that the failure to provide a proper medical assessment resulted in a failure to satisfy the requirements of rule 38 (1) of the Workers Compensation Commission Rules 2003, in relation to the filing of evidence at the time of the filing of the application. From this reasoning she purported to ‘strike out’ the application.
The Arbitrator’s reasoning clearly discloses an error of law. She did not consider the implications, at law of a failure to comply with section 376(1(a1) of the 1998 Act and the WorkCover Guides. She did not address whether this failure affected the validity of Mr Bennett’s claim or the implications of that for the exercise of the jurisdiction of the Commission.
The relevant facts are that:
·In November 2003 Mr Bennett was examined by Dr Davis, Orthopaedic Specialist, at the Insurer’s request. Dr Davis is a WorkCover approved medical assessor for permanent impairment.
·Mr Bennett’s legal advisers claim that on 2 March 2004 they requested a medical report from Dr Coren, a maxillo-facial specialist. His report was provided on 17 June 2004. It is not disputed that Dr Coren is not listed in the WorkCover list of trained medical assessors.
·On 15 June 2004 Mr Bennet was examined by Dr David Wilson, a maxillo-facial specialist, at CGU’s requrest. It is not disputed that Dr Wilson is not listed in the WorkCover list of trained medical assessors.
·On 9 August 2004 CGU advised Mr Bennett that it would not accept Dr Wilson’s assessment of his permanent impairment, as he was not a WorkCover trained medical assessor. Dr Wilson’s report was not served on Mr Bennett.
·The parties continued to try and settle the dispute by agreement until February 2005 when the application was filed in the Commission.
In the Commission proceedings, Mr Bennett sought to rely upon the report of Dr Coren, and CGU relied upon the report of Dr Davis.
Mr Bennett argues that section 376(1)(a1) of the 1998 Act was not enacted at the time of his claim and the WorkCover Guides “were not in place at any relevant time in the proceedings”. Consequently he argues that they have no application to this matter. This submission is rejected. It is clear, from the Act and from the Minister’s statement, that the amendment inserting section 376(1)(a1) had retrospective effect. The content of the requirements placed on approved medical assessors did not change with the amending legislation and Mr Bennett’s legal advisers should have been aware of them. The amendment retrospectively validated those requirements. Mr Bennett was injured on 9 October 2002 and gave notice of his injury on this day. The WorkCover Guides applied at this time. The effect of clause 3 of part 151 of schedule 6 of the Workers Compensation and Other Legislation Amendment Act 2004 was to retrospectively extend section 376(1)(a1) to the existing WorkCover Guides.
Mr Bennett submits that there were “no relevant” medical assessors trained in the WorkCover Guides at the time of making the claim and Dr Coren, Mr Bennett’s treating specialist was “in the best position to provide an assessment”. He maintains that his claim was “properly particularised” enabling CGU to assess the claim. In reply CGU submit that the Arbitrator’s decision to strike out the claim was made in accordance with section 376(1) of the 1998 Act, Mr Bennett’s claim “did not contain the relevant particulars” and the “claim was not supported by a WorkCover approved assessor of whole person impairment.”
The Arbitrator in her written reasons states that a “search of the WorkCover list of trained medical assessors on it’s [sic] website listed Dr Paul Lloyd Coceancig, Newcastle, as an oral and maxillo facial specialist”. There was no reference to Dr Coceancig in the parties submissions. Mr Bennett argues that there was no evidence of this before the Arbitrator and that this finding is therefore not open to her.
The Commission may inform itself as it thinks fit (section 354(2) of the 1998 Act) and is not bound by the rules of evidence or strict pleadings (Far West Area Health Service v Radford [2003] NSW WCC PD 10). However it is bound by principles of procedural fairness. Where, as in this matter, an Arbitrator has made his or her own relevant inquiries and intends to rely upon them in making the decision, the results of these inquiries must be disclosed to the parties and they must be given the opportunity to comment on them. In this matter the Arbitrator did not do so and this failure amounts to a denial of procedural fairness.
A search of the WorkCover Authority website, a publicly available site, does indeed disclose that Dr Paul Lloyd Coceancig, of Newcastle, a Maxillo-Facial and Oral Surgeon, is a WorkCover trained medical assessor. However further inquiries of WorkCover, which I have made on appeal, would have ascertained that Dr Coceancig achieved this status only on 28 March 2004.
The parties have now had the opportunity, on appeal, to comment on this information. CGU made no submissions. Mr Bennett’s legal representative submitted that he wished to issue Directions to WorkCover and Dr Coceancig in relation to this issue. In my view this is unnecessary.
While Dr’s Coceancig’s entry on the WorkCover list of trained medical assessors appears to have occurred before the provision of Dr Coren’s report in June 2004, it was after the report was requested in March 2004, and well after the claim was made (details of the exact date of the claim is not clear but it was at least, before March 2004).
It was open to the Arbitrator to find, as a matter of fact, that there was no WorkCover trained and approved medical assessor in the relevant specialty of Maxillo-Facial and Oral Surgery at the time the claim was made. However the issue that arises from this finding does not concern compliance with the Commission’s Rules and the striking out of the claim. The relevant question is: Was Mr Bennett’s claim, in the circumstances, properly made, and if not, did the Commission have jurisdiction over the dispute? This arises from a consideration of section 376 of the 1998 Act, the WorkCover Provisional Liability and Claims Guidelines (‘the Workcover Guidelines’) and the WorkCover Guides, and their application to the facts of this case. If Mr Bennett’s claim has not been properly made then no dispute can arise and consequently no application can be made to the Commission.
Was Mr Bennett’s Claim for Compensation properly made?
The 1998 Act incorporates the provisions of the WorkCover Guidelines (effective on 1 January 2002), and the WorkCover Guides into the requirements for the making of a valid workers compensation claim.
Section 260 of the 1998 Act, provides, relevantly, in part,:
“(1)A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
(2)The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form
part of a claim,
(f) such other matters as may be prescribed by the regulations.
…
(5)The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style…”
The WorkCover Guidelines set out the procedures for making claims under part 3 of the 1998 Act. Rule 6 of part 2 of the WorkCover Guidelines provides, relevantly, that:
“6.11 To make a claim for permanent impairment or lump sum damages the worker must provide relevant particulars about a claim.
Relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlements on the claim. The relevant particulars to be provided to the insurer are:
6.11.1…
6.11.7 A medical report completed as prescribed in WorkCover Guidelines on Assessment of Permanent Impairment…”
It is not disputed that, as a matter of fact, Mr Bennett’s claim for permanent impairment did not provide relevant particulars required by the Guidelines in that it was not accompanied by a report completed as prescribed by the WorkCover Guides. Mr Bennett’s claim relied upon the report of Dr Coren his treating Maxillo-Facial and Oral Surgeon, who is not a medical assessor trained in the use of the WorkCover Guides to assess the degree of permanent impairment arising from a work related injury, as required by the WorkCover Guides.
Unless the failure to comply with the Guidelines and Guides was a result of “ignorance, mistake or other reasonable cause” Mr Bennett’s claim must be found to have not been duly made (section 260(5) of the 1998 Act). Mr Bennett has claimed that there were no “suitable” medical assessors available at the time of considering the claim. He argues that in suggesting Dr Coceancig the Arbitrator did not consider “the requirement for an Applicant residing in Bathurst to travel approximately 1,000 kilometres by return trip for the purpose of assessment by a doctor who was not on the list at the time of original review of the claim, assessment or at any other appropriate time throughout the proceedings.”
In my view there are a number of factors that support a conclusion that Mr Bennett’s failure to comply with the WorkCover Guides and Guidelines was based in “reasonable cause”. At the time when he made the claim and was seeking a specialist to provide a report there was no Maxillo-Facial and Oral Surgeon on the WorkCover “list”. He therefore took the reasonable course of asking his treating specialist for a report. Clearly Dr Coren was fully conversant with his injury and the treatment that he had received. The fact that CGU also failed to rely upon a WorkCover trained medical assessor in the relevant specialty might indicate the difficulty of obtaining one. I note that were Mr Bennett to now have to see Dr Coceancig, as the only properly accredited Maxillo-Facial and Oral Surgeon, he would have to travel from Bathurst to Newcastle to do so. He is entitled to reimbursement for his travel expenses. I do not find the argument that to require him to travel this far is unreasonable to be convincing, however considering the other factors I am satisfied that his failure to provide a report from a WorkCover trained medical assessor was the result of “reasonable cause”.
Mr Bennett’s claim for compensation is therefore not barred, pursuant to section 260(5) of the 1998 Act.
Did the Arbitrator err in striking out the Application?
Mr Bennett submits that the Arbitrator erred “in purporting to strike out the Application in circumstances where there was no power to do so.”
As discussed above the Arbitrator purported to strike out the matter on the basis that Mr Bennett had not submitted a report in accordance with the Guidelines. This reasoning is clearly incorrect and the Arbitrator has made an error of law. Even if Mr Bennett had failed to act in accordance with the Guidelines in making his claim for lump sum compensation for permanent impairment, which I have found above he had not, this is not the same thing as failing to comply with the Commission’s Rules.
The Arbitrator erred in striking out the application.
Did the Arbitrator provide adequate reasons for the decision?
In his initial submissions in support of the appeal filed on 30 May 2005 Mr Bennett submitted that the Arbitrator “erred in failing to provide adequate or any reason for decision, or any written reasons for such decision.”
As mentioned above, the ‘Certificate of Determination’, was not issued by the Commission until 29 August 2005 with a ‘Direction’ of the Registrar. The Direction notes that: “[t]here is no evidence that the ‘Certificate of Determination’ and ‘Statement of Reasons’ issued by the Arbitrator on 2 May 2005 were issued to parties by the Registry.”
Mr Bennett submits that he contacted the Commission on various occasions and was told there were no written reasons for the decision made by the Arbitrator at the teleconference. Having now received the written reasons for the Arbitrator’s decision he alleges that “the Statement of Reasons is a ‘recent invention’ of the Arbitrator and as such ought be disregarded.” This is an extremely serious allegation, for which I can find no evidence to support in the Commission file. In fact the Registrar’s Direction and the Arbitrator’s written reasons directly conflict with this assertion. I am satisfied that the parties have had sufficient time to address the issues on appeal.
Arbitrators have a statutory duty to provide adequate reasons for decisions (section 294(2) of the 1998 Act and rule 73; Absolon v NSW TAFE [1999] NSWCA 311; Fox v Percy (2003) 214 CLR 118). The standard of reasons required will be relative to the nature and context of the decision made and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). Reading the reasons as a whole and without combing for error, the reasons must at least convey to the parties why the decision has been made (Beale v GIO (NSW) (1997) 48 NSWLR 430 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
In my view the Arbitrator’s reasons are adequate. The issue of adequacy of reasons is not to be confused with the Arbitrator’s errors in relation to the application of the legislation and the striking out of the claim. While the reasons disclose this error, they nonetheless set out the facts, law and findings on the issues as the Arbitrator understood them.
DECISION
The decision of the Arbitrator striking out the Application is revoked.
Mr Bennett has requested that the matter be remitted to a different Arbitrator. The serious allegations made against the Arbitrator who made the decision, in relation to the issuing of reasons for decision, are not substantiated. I am not satisfied that a procedural fairness issue arises in remitting the matter back to the same Arbitrator to be determined in accordance with these reasons. However the constitution of the Commission by an Arbitrator is a matter for the Registrar.
The order by the Arbitrator that each party is to bear their own costs, is also revoked. The issue of costs of the proceedings should be determined along with the determination of the substantive dispute.
Dr Gabriel Fleming
Deputy President
24 October 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.
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