Box v State Transit Authority of NSW

[2005] NSWWCCPD 29

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Box v State Transit Authority of New South Wales [2005] NSW WCC PD 29

APPELLANT:  Lindsay Box

RESPONDENT:  State Transit Authority of New South Wales

INSURER:Railcover

FILE NUMBER:  WCC10839-2003

DATE OF REGISTRAR’S DECISIONS:           7 and 15 June 2004

DATE OF APPEAL DECISION:  3 May 2005

SUBJECT MATTER OF DECISION:                Appeal against decisions of Registrar; failure to give reasons for decision; failure to use best endeavours to bring the parties to a settlement.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Bale Boshev Lawyers

Respondent: Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: The decision of the Registrar acting as an Arbitrator, dated 15 June 2004, is revoked. The matter is remitted to an Arbitrator to be appointed by the Registrar, for determination afresh, including using his or her best endeavours to effect a settlement, as required by section 355(1) of the Workplace Injury Management and Workers Compensation Act 1998, in accordance with these reasons.

No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1.On 22 June 2004, Lindsay Box (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against decisions by the Registrar dated 7 and 15 June 2004.

2.The Respondent to the Appeal is the State Transit Authority of New South Wales (‘the Respondent’).

3.Mr Box was born on 27 May 1949 and is aged 55. He has worked as an electrician for the State Transit Authority since about 1972. Mr Box suffered several injuries to his left shoulder in the course of his employment and his claim for compensation in respect of those injuries was settled by agreement dated 26 October 2000. On 23 January 2001, he also suffered a work-related injury to his right shoulder. On 18 February 2003, Mr Box lodged a further claim for workers compensation in respect of left and right arm injuries. On 6 June 2003, he lodged an ‘Application to Resolve a Dispute’ with the Commission. At a teleconference with the parties on 17 September 2003, an Arbitrator made directions by consent, including the following:

“(1)   That the Applicant discontinues his Application so far as it relates to the Left Arm.

(2)   The Application, so far as it relates to the Right Arm is continued including for AMS [Approved Medical Specialist] referral purposes.”

4.On 10 November 2003, Mr Box was examined by an Approved Medical Specialist (‘AMS’), Professor Robin Higgs, an Orthopaedic Surgeon. In a Medical Assessment Certificate of Permanent Impairment issued by the Commission on 16 January 2004, Professor Higgs concluded that Mr Box suffers from the following conditions:

·    “Right-sided post-traumatic acromio-humeral impingement syndrome that has been treated by arthroscopic acromioplasty. The acromio-humeral impingement syndrome is associated with acromial spur formation.

·    Severe degenerative osteoarthritis of the left gleno-humeral joint.”

5.Professor Higgs stated the following opinion:

“I have formed the opinion that the Worker suffers from a 30% loss of full and normal function of the right upper limb when the loss of function of the right upper limb is considered above the right elbow and when the loss of full and normal function is compared to that of a most extreme case. I am further of the opinion that two thirds (2/3) of the loss of the full and normal function of the right upper arm can be causally associated with the presence of a pre-existing, and co-existing, right-sided subacromial spur. I am also of the opinion that one-third (1/3) of the loss of full and normal function of the Worker’s right upper limb can be causally associated with the consequences of injury that was suffered by the Worker on 23/1/01.”

He therefore attributed 10% permanent loss of efficient use of the “right arm at or above elbow” to the injury on 23 January 2001.

6.By letter dated 16 January 2004, the Commission sent the parties a copy of Professor Higgs’ Certificate, noting that the Certificate “is conclusively presumed to be correct in respect of the degree of permanent impairment resulting from the injury/ies”. With a letter dated 5 February 2004, the Appellant’s solicitors lodged an application appealing against the decision of the AMS and setting out grounds of appeal. The Respondent made submissions received on 15 March 2004.

7.By decision dated 7 June 2004, the Registrar stated she was not satisfied by the Appellant’s submissions that grounds for appeal existed under section 327(3)(c) or (d) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and, accordingly, the appeal was not to proceed. Pursuant to Rule 6(4) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’), the Registrar therefore struck out the Application to Appeal the Decision of an Approved Medical Specialist.

8.Following this, the Registrar issued a Certificate of Determination dated 15 June 2004, stating:

“In accordance with the medical assessment certificate issued under section 325 of the Workplace Injury Management and Workers Compensation Act 1998, the Commission determines:

(1) That the Respondent pay the Applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $8000.00 in respect of 10% permanent loss of efficient use of the right arm at or above the elbow.

(2) That the Respondent pay the Applicant’s costs as agreed or assessed.”

9.As stated above, on 22 June 2004, the Appellant lodged an ‘Appeal Against Decision of Arbitrator’ in respect of the Registrar’s decisions of 7 and 15 June 2004.

10.On 28 June 2004, the Registrar issued a Decision further to her Decision of 7 June 2004, expanding on the reasons for her not being satisfied that grounds for appeal existed under section 327(3)(c) and (d) of the 1998 Act.

11.The Appellant’s solicitors made submissions to the Commission received on 5 July 2004 and the Respondent’s solicitors’ submissions were received on 28 July 2004.

ISSUES IN DISPUTE

12.The issues in dispute in the appeal identified by the Appellant are:

(1)In relation to the Decision of 7 June 2004 as amended by the further Decision of 28 June 2004, whether the Registrar provided sufficient reasons for her decision, whether she considered and/or took into account all relevant considerations and documentation and demonstrated dealing with the substantial issues upon which the decision turns, and whether she failed to observe mandatory procedures outlined in section 328 of the 1998 Act.

(2)In relation to the Decision of 15 June 2004, whether the Appellant can appeal against the medical assessment pursuant to section 327(3)(a) or (b) of the 1998 Act.

(3)Whether the Appellant has been denied procedural fairness.

13. An additional issue in dispute in the appeal identified by the Respondent is:

(4)   Whether an appeal can be made against the decision of the Registrar.

ON THE PAPERS REVIEW

14.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.”

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

16.Neither party sought to adduce fresh evidence.

LEAVE

17.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:

“352Appeal 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.

(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.

(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”

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

19.With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and at least 20% of the amount awarded.

20.Thus, the appeal meets the threshold requirements of section 352 and I am satisfied that I should grant the Appellant leave to appeal.

SUBMISSIONS

21.The Appellant’s solicitors noted that the Registrar’s further Decision of 28 June 2004 indicated “our concerns are at least partially justified”. They said that at the teleconference, submissions were “quite clearly made as to the nature and conditions of this workers [sic] employment”. Further,

“…referral for further medical assessment in relation to section 327(3)(a) and (b) of the 1998 Act may be precluded by the issuance of the Certificate of Determination dated 15 June 2004 given section 327(7) quite clearly anticipates this.

Alternatively, by the issuance of the Certificate of Determination dated 15 June 2004 the Appellant (worker) would be significantly prejudiced by a previous finding of a 66.6% reduction pursuant to the then section 68A and now section 323 of the 1998 Act. The threshold for this worker for a further claim under section 66 of the 1987 Act would be significant.”

22.The Respondent’s solicitors submitted that the 1998 Act “does not contain provisions allowing for an appeal of a decision of the Registrar”. Section 351 allows for a question of law to be referred to the President for determination; section 352 allows for an appeal against the decision of an Arbitrator. In this case, the decisions appealed against were made by the Registrar.

23.Should this submission not be accepted, the Respondent’s solicitors submitted that the Registrar was not required to publish detailed and lengthy reasons. For this to be required would be inconsistent with the objectives of the Commission. Moreover they stated:

“There is no requirement for the Registrar to prove due consideration was given to all documentation nor is there a requirement for the Registrar to demonstrate dealing with the substantial issues. The Registrar must simply decide whether any of the grounds for appeal as set out in section 327(3) exist on the submissions provided by the parties. The onus is on the Appellant’s solicitors to make the appropriate submissions so that the Registrar may decide whether one of the grounds for appeal exists.”

24.The Respondent’s solicitors submitted that section 328 is not relevant to these proceedings – it “deals with appeals against a medical assessment that have been granted by the Registrar”.

25.With regard to section 327(7), the Respondent’s solicitors submitted that the Appellant cannot appeal against a medical assessment once the dispute has been the subject of a determination by the Commission. However, even if an appeal was possible, the Appellant had not annexed any new medical evidence in support of his appeal under section 327(3)(a) and (b) as required by Rule 77(3)(c) of the 2003 Rules.

26.Lastly, the Respondent’s solicitors submitted that there had been no denial of procedural fairness for the Appellant. Indeed, it “is unfair and costly for the Respondent that the Appellant should continue to appeal decisions of the Commission in an attempt to achieve his desired outcome”.

EVIDENCE, FINDINGS AND DISCUSSION

27.It is appropriate to deal first with the Respondent’s solicitors submission that the 1998 Act “does not contain provisions allowing for an appeal of a decision of the Registrar”. The role of the Registrar of the Commission was discussed by Deputy President Fleming in Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50. With the exception of an appeal in relation to a costs assessment under the Workers Compensation Regulation 2003, there is no provision for decisions of the Registrar to be appealed to a Presidential Member. Appeals pursuant to section 352 of the 1998 Act are limited to appeals against decisions of the Commission constituted by an Arbitrator. Section 350(1) of the 1998 Act emphasises that it is only where the Act so provides, that appeal lies against a decision of the Commission. Otherwise, a decision of the Commission under the Workers Compensation Act 1987 or the 1998 Act “is final and binding on the parties and not subject to appeal or review”.

28.However, section 371(1) of the 1998 Act states that “The Registrar has and may exercise all the functions of an Arbitrator”. Thus, where the Registrar is exercising powers as an Arbitrator, her decisions are appellable to and subject to review by a Presidential Member pursuant to section 352 of the 1998 Act. Section 294(2) of the 1998 Act and Rule 73 of the 2003 Rules imposes an obligation on an Arbitrator to provide adequate reasons for a decision.

Decisions dated 7 and 28 June 2004

29.Dealing first with the Registrar’s decision dated 7 June 2004, section 327(1) of the 1998 Act states that appeals can be made “only in respect of a matter that is appellable under this section and only on the grounds for appeal under this section”. There is no dispute that the matter is appellable under section 327(2), the medical assessment being “conclusively presumed to be correct” pursuant to section 326(1). However, what is at issue is whether any of the grounds for an appeal under section 327(3) have been made out. Section 327(4) states:

“(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.”

30.Section 327(3) states:

“(3) The grounds for appeal under this section are any of the following grounds:

(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
 (b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),
 (c) the assessment was made on the basis of incorrect criteria,
 (d) the medical assessment certificate contains a demonstrable error.”

31.I note that the Appellant’s ‘Appeal Against Decision of Approved Medical Specialist’ lodged on 5 February 2004 did not identify either section 327(3)(a) or (b) as grounds relied on for the appeal, referring only to the grounds identified in section 327(3)(c) and (d).

32.The decision made by the Registrar on 7 June 2004, was made pursuant to section 327(4) of the 1998 Act and stated that “the Registrar is not satisfied that at least one of the grounds for appeal specified in section 327(3) exists. Accordingly, the appeal is not to proceed.”

33.There is no provision for an appeal against the Registrar’s decision that the appeal “is not to proceed”. Thus, the Registrar’s decision of 7 June 2004 is not appellable. In any event, I note that the Registrar’s further decision dated 28 June 2004, which appears to be a replacement decision for that of 7 June 2004, sought, in paragraphs 6 and 7, to give a brief statement of reasons explaining why the Registrar was not satisfied that grounds for appeal existed under either section 327(3)(c) or (d). As to section 327(3)(c), the Registrar said that:

“The Application to Resolve a Dispute lodged 6 June 2003 made no mention of the nature and conditions of the applicant’s employment. Indeed the Application to Resolve a Dispute indicated the date of injury as 23 January 2001. The Application to Resolve a Dispute was referred to a teleconference before Arbitrator McGruther, with both parties to the dispute, on 17 September 2003. As a result of this teleconference the Arbitrator issued a Request for Medical Assessment by Approved Medical Specialist in which no mention was made of the nature and conditions of the worker’s employment. The Approved Medical Specialist assessed the claim in accordance with section 66(3) of the 1987 Act, the Application to Resolve a Dispute and the Arbitrator’s Referral.”

34.As to section 327(3)(d), the Registrar stated “[t]he Application to Appeal Against a Decision of an Approved Medical Specialist contained no submissions substantiating this ground of appeal.”

35.In my view, the Respondent’s solicitors state correctly that the onus was on the Appellant’s solicitors to make appropriate submissions to the Registrar to establish that the grounds for appeal existed under section 327(3). It would appear that such submissions as they made failed to satisfy the Registrar of the existence of such grounds and this was reflected in the brevity of her statement of reasons. I also agree with the Respondent’s solicitors that section 328 is not relevant here, applying where an appeal against a medical assessment proceeds.

36.With regard to section 327(7) of the 1998 Act, both parties appear to recognise that the subsection precludes any appeal against a medical assessment once the dispute has been the subject of a determination by the Commission. In this case, the relevant determination is that dated 15 June 2004.

37.However, I note that in addition to not having identified section 327(3)(a) and (b) in the Appellant’s application to appeal to the Registrar against the decision of the AMS lodged on 5 February 2004, the Appellant’s solicitors made no submissions in support of their stated wish in relation to the current proceedings “to appeal against the medical assessment on the grounds of section 327(3) (a) and (b)” and no additional evidence was sought to be adduced.

38.In any event, as I have stated, the Registrar’s decisions of 7 and 28 June 2004 are not appellable.

Decision dated 15 June 2004

39.With regard to the Registrar’s decision of 15 June 2004, it is not clear on what basis the Appellant’s solicitors’ submission challenges this decision except in so far as the Appellant’s entitlement is “significantly prejudiced” by the AMS’s attribution of two thirds of the proportion of permanent loss to “pre-existing injury, abnormality or condition”, and a general statement that “[t]he Applicant has been denied procedural fairness”.

40.I will assume that the claim of a denial of procedural fairness includes a challenge to the adequacy of the statement of reasons. In this regard, reference to the decision of Deputy President Byron in Vogel v Eagle Landscapes Pty Ltd [2005] NSW WCC PD 10 (“Vogel”) is of assistance. In that case, the Registrar had issued a Certificate of Determination pursuant to sections 294 and 371(1) of the 1998 Act in very similar terms to those of the Registrar’s Certificate of Determination of 15 June 2004 in the current proceedings, set out at paragraph 8 above.

41.In issuing a Certificate of Determination, the Registrar is exercising the powers of an Arbitrator pursuant to section 371(1) and, pursuant to section 294(2), must therefore provide adequate reasons for the determination. As Deputy President Byron noted in Vogel at paragraph 21, “failure to give adequate reasons is an error of law and may be a ground to set aside the decision”. He continued:

“In the instant case, the Registrar gave no reasons for her determination, in contravention of her statutory obligation to do so. While she made her calculations and orders relying on the contents of the MAC [Medical Assessment Certificate], there are no reasons given as to the basis for the determination of the dispute, or any indication that she had taken into account and made findings in relation to, all or any outstanding relevant issues in dispute, such as those indicated by the Appellant Worker. She may well have done so, but in the absence of a brief Statement of Reasons for Decision, there is no evidence of it. In the circumstances I find that the absence of reasons for the decision demonstrates a failure to exercise the statutory duty to fairly and lawfully determine the matter … and is an error of law.”

42.In Vogel, Deputy President Byron also found that the Registrar, acting as an Arbitrator, had failed to comply with the requirements of section 355(1) of the 1998 Act by not affording the parties the opportunity to settle their dispute by agreement before determining the dispute. Deputy President Byron therefore revoked the decision and remitted the matter to an Arbitrator to be appointed by the Registrar, for determination afresh, including using his or her best endeavours to effect a settlement, as required by section 355(1).

43.There is little to distinguish the facts of Vogel from those of the current matter. In my view, the Certificate of Determination issued by the Registrar on 15 June 2004 did not contain an adequate statement of reasons for the decision and the Registrar thereby made an error of law. Similarly, although the Appellant did not raise this in submissions, the Registrar, acting as an Arbitrator, did not afford the parties an opportunity to settle their dispute by agreement after issuing the Medical Assessment Certificate by Professor Higgs on 16 January 2004. Whilst, as in Vogel, settlement is probably unlikely, this “does not diminish the statutory obligation of the Commission to afford that opportunity” (Vogel at paragraph 23).

44.Having regard to the failure of the Registrar acting as an Arbitrator to provide reasons for her decision, and the failure to comply with the requirements of section 355(1) of the 1998 Act to attempt to bring the parties to a settlement before determining the dispute, it is appropriate to revoke the decision of the Arbitrator dated 15 June 2004 pursuant to section 352(7) of the 1998 Act, and to remit the matter to an Arbitrator for determination afresh.

DECISION

45.The decision of the Registrar acting as an Arbitrator, dated 15 June 2004, is revoked. The matter is remitted to an Arbitrator to be appointed by the Registrar, for determination afresh, including using his or her best endeavours to effect a settlement, as required by section 355(1) of the Workplace Injury Management and Workers Compensation Act 1998, in accordance with these reasons.

COSTS

46.In view of the lack of clarity of the Appellant’s solicitors’ submissions on this appeal, their failure to succeed in relation to the decisions of 7 and 28 June 2004 and, in relation to their submissions and the fortuitousness of the Appellant’s success with regard to the decision of 15 June 2004, I consider it is appropriate to exercise my discretion pursuant to section 341(1) of the 1998 Act to make no order as to costs.

Robin Handley

Acting Deputy President  

3 May 2005

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

ASSOCIATE