Brooke v GL & EJ Thurkettle trading as GL & EJ Thurkettle Mobile Crutching & Sheep Handling Unit
[2006] NSWWCCPD 188
•17 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Brooke v G L & E J Thurkettle t/as G L & E J Thurkettle Mobile Crutching & Sheep Handling Unit [2006] NSWWCCPD 188
APPELLANT: Bryan James Brooke
RESPONDENT: G L & E J Thurkettle t/as G L & E J Thurkettle Mobile Crutching & Sheep Handling Unit
INSURER:Allianz Australia Workers Compensation Limited
FILE NUMBER: WCC10467-05
DATE OF ARBITRATOR’S DECISION: 25 November 2005
DATE OF APPEAL DECISION: 17 August 2006
SUBJECT MATTER OF DECISION: MAC decision “not assessable at this stage”; failure by Arbitrator to refer again pursuant to section 329 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners, Lawyers
Respondent: Sparke Helmore, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated
25 November 2005 is revoked and the following decision made in its place:
The matter is remitted to the Arbitrator at first instance for re-referral of the Appellant
Worker’s claim to Dr Huntsdale in accordance with these reasons.
2.The Respondent Employer is to pay the costs of the proceedings before the Arbitrator and of the appeal.
BACKGROUND TO THE APPEAL
Bryan James Brooke (‘The Appellant Worker’) was employed by G L & E J Thurkettle trading as G L & E J Thurkettle Mobile Crutching & Sheep Handling Unit (‘The Respondent Employer’) as a shearer. He claimed that as a result of the nature and conditions of his employment up until 2 July 2003, he suffered injuries to both his arms and impairment to his sexual organs.
On 30 June 2005, the Appellant Worker lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation, medical, hospital and related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In its ‘Reply’ filed on 21 July 2005, the Respondent Employer claimed, inter alia, that the Appellant Worker’s “… condition has not reached maximum medical improvements.”
The matter was listed for a Teleconference on 8 September 2005 where it was noted that the Appellant Worker had undergone surgery to his right wrist some six weeks beforehand and was scheduled to have surgery to his left wrist some three weeks after that Teleconference. It was also noted at that stage that the Respondent Employer had accepted liability for the injuries and had made payments of weekly compensation and medical expenses.
At the Teleconference on 8 September 2005, the Appellant Worker’s solicitor requested that the matter be referred to an ‘Approved Medical Specialist’ despite the Respondent Employer’s contention that the Appellant Worker’s condition could not have reached maximum medical improvement.
The Arbitrator noted that because of the provisions of section 293 of the 1998 Act, he had no option but to make a referral. Section 293(2) of the 1998 Act provides that:
“If the dispute concerns the degree of permanent impairment of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of a dispute by the Commission pending the outcome of that medical assessment.”
The Appellant Worker underwent assessment by an ‘Approved Medical Specialist’, Dr Huntsdale, who issued a ‘Medical Assessment Certificate’ (‘MAC’) on 21 October 2005. In that Certificate, he certified: “That the impairment due to injury to the arms was not assessable at this stage.”
The parties attended a further Teleconference on 24 November 2005. The Appellant Worker requested that the claim for permanent impairment compensation be referred again pursuant to section 329 of the 1998 Act. The Respondent Employer submitted that the claim should be discontinued and recommenced when the Appellant Worker’s condition had settled. Both parties made oral submissions and were advised by the Arbitrator of his intention to determine the dispute without holding a conciliation conference or arbitration hearing in accordance with the Commission Guidelines.
On 25 November 2005, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The determination of the Arbitrator was as follows:
“1. Award for the Respondent.
2. No order as to costs.”
On 9 December 2005, the Appellant Worker filed an ‘Appeal Against Decision of Arbitrator’ which was initially rejected for failure to comply with certain requirements. It was resubmitted and accepted for filing on 20 December 2005. Briefly, the Appellant Worker submits that the Arbitrator erred by failing to refer the matter to an ‘AMS’ again pursuant to section 329 of the 1998 Act.
In its ‘Notice of Opposition’ to the appeal filed on 27 January 2006, the Respondent Employer claims firstly that service of the appeal was not effected in time and as a consequence, the appeal must fail, and secondly, that the decision of the Arbitrator was correct and should not be revoked.
ON THE PAPERS REVIEW
Both parties have submitted that the appeal can be determined ‘on the papers’. Having carefully read the Arbitrator’s reasons and all the evidence before him, and the submissions from both parties on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Directions No. 1 and 6 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
The appeal was filed in time, but the Respondent Employer submits that it was not served on the Respondent Employer until 18 January 2006.
Rule 77(4) of the Workers Compensation Rules 2003 (‘the Rules’) provides that:
“The party lodging an application referred to in sub-rule (1) must serve the application, including any attachments, on:
(a) all other parties to the proceedings, and
(b) where any of those parties is an employer (but not a self-insurer), the employer’s insurer,
during the period of 7 days commencing on the day on which the Registrar registers the application.”
The Respondent Employer submits that the only power to remedy a defect in the breach of restrictions on time under Rule 77 is contained in Rule 77(8): “… which is limited to extending time for the making of an appeal, not in respect of service.”
However, under Part 3, Rule 13, the Commission “… may by order extend or abridge any time fixed by these rules …” and may do so of its own motion. No explanation has been offered by the Appellant Worker as to why the delay occurred in serving the appeal documents, although it may have had something to do with the Christmas vacation period. There is no doubt that the appeal document was filed in time. In these circumstances, I am satisfied that no prejudice has occurred to the Respondent Employer by the late service of the appeal application. The Respondent Employer has had an opportunity to file its submissions and accordingly, I grant leave to the Appellant Worker to proceed with his application to appeal.
SUBMISSIONS, EVIDENCE AND FINDINGS
The Appellant Worker’s submissions set out a chronology of events. It confirms that the Appellant Worker underwent surgery on his right carpal tunnel on 20 July 2005 and further surgery on the left carpal tunnel on 22 September 2005.
It is the Appellant Worker’s submission that at the Teleconference on 8 September 2005, the Arbitrator was advised of the surgery but that the Appellant Worker could proceed “… on assessment of the right wrist, if the ‘Approved Medical Specialist’ appointments were made in December 2005, three months after the 22 September 2005 operation.”
Dr Huntsdale, the ‘Approved Medical Specialist’, in answer to the question “Have all body parts stabilised – reached maximum medical improvement?” replied “No. He is still in the relatively early post-operative period with his right and left hands, the left hand being operated on only three weeks ago.” In his report he also noted that:
“This man has had bilateral carpal compression, brought about by the nature and conditions of his work as a shearer. He has had carpal tunnel release performed initially in February 2004, with limited benefit only and quite a lot of residual symptoms. He has had revision carpal tunnel releases performed, the most recent one being the left side at the end of September 2005.”
As a result, Dr Huntsdale concluded that neither the right no left arm was “… assessable at this time”.
The Appellant Worker claims that he submitted to the Arbitrator that the matter could be referred back to Dr Huntsdale in 12 months time under section 322(4) of the 1998 Act, “… for the reassessment of the stability and the degree of permanent impairment of the Applicant’s injuries to his right and left wrists.”
This statement seems a little at odds with the Appellant Worker’s earlier submission that the Arbitrator was advised at the Teleconference on 8 September 2005 that the matter could proceed if a medical assessment appointment was made in December 2005, three months after the September 2005 operation.
In any event, these assertions are disputed by the Respondent Employer. The Respondent Employer in its submissions states that the Appellant Worker’s solicitor:
“… Submitted that the Applicant was entitled to bring his claim and insisted that the matter, at least with respect to the right hand, was forwarded to an ‘Approved Medical Specialist’ for determination. As such, it was agreed by the parties that it would be more cost effective for the referral to be made on the basis of a determination for both hands as it was unclear how long an examination with an ‘Approved Medical Specialist’ may take.”
The Respondent Employer further submits: “In response to the Applicant’s submission that the matter was referred to an ‘Approved Medical Specialist’ only if the appointments were made in December 2005 … this is denied. The Respondent denies that this discussion took place or that the referral was made on this basis. The Respondent also submits that there were clearly no orders made by [the Arbitrator] to this effect”.
The Respondent Employer points out that the parties were notified of the ‘AMS’ examination by the Commission on 22 September 2005:
“… at which point the Applicant’s solicitor could have contacted the Commission to have the matter listed for a further telephone conference if it was his view that such an agreement had been adopted between the parties at the Teleconference [on 8 September 2005]”.
Section 322(4) states that:
“An approved medical specialist may decline to make an assessment of a degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
It is on this basis that the Appellant Worker submits that the Arbitrator ought to have simply ‘adjourned’ the proceedings rather than to proceed with a determination of the issue before him. The Appellant Worker refers to a number of authorities on this issue to which I will refer shortly.
At paragraph 14 of the ‘Statement of Reasons’ the Arbitrator stated:
“The ‘MAC’ issued by Dr Huntsdale certifies that the condition of the Applicant’s arms is such that the impairment cannot be assessed at this stage because he has not reached maximum medical improvement. Pursuant to section 327(1)(e) of the 1998 Act the Certificate is conclusively presumed to be correct as to whether the degree of permanent impairment is fully ascertainable. Accordingly, I am bound by the certificate and cannot make a determination of the amount of permanent impairment compensation payable at this stage.”
In relation to the Appellant Worker’s submission that the matter should be referred to an ‘AMS’ again pursuant to section 329 of the 1998 Act for a period of say 12 months, the Arbitrator stated at paragraph 16 of the ‘Statement of Reasons’:
“In my view such a course would be contrary to the objects [sic] of the Act. It is not known whether maximum medical improvement will have been reached by that time. There is no evidence before me to say when the condition will stabilise or even if all treatment has finished. A referral to another ‘AMS’ will involve the expenditure of further monies with the same outcome as the current ‘MAC’.
The Arbitrator went on at paragraph 17, as follows:
“The appropriate course is for the Applicant to resubmit a claim to the Respondent when his condition has stabilised and he has been assessed for permanent impairment at that time. The Respondent will then have a fair opportunity to consider the claim and possibly settle the claim without the need for the time and expense of further proceedings in the Commission.
At paragraph 18, the Arbitrator stated:
“So far as these proceedings are concerned, the Applicant was invited to discontinue however he chose not to adopt that course. I am therefore required to make a determination before me.”
At paragraph 19, the Arbitrator concluded: “I am bound by the ‘Medical Assessment Certificate’ to conclude that there is no assessable impairment at this stage. Accordingly, the result is an Award for the Respondent in these proceedings. So that there is no doubt I confirm that the result in these proceedings does not prevent the Applicant from making a claim when his condition has stabilised.”
The Appellant Worker submits that it is “fairer and cost effective” for the Arbitrator to refer the matter back to Dr Huntsdale and then to “… arrange for a telephone conference to settle the lump sum dispute …” rather than a waiting for a period of time to obtain further medical reports of his own and for the Respondent Employer to do the same.
It is the Appellant Worker’s submission that the Arbitrator’s decision is not in accordance with the objectives of the 1998 Act and in particular section 367. That section provides as follows:
“367 (1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts, and
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that worker’s entitlements are paid promptly, …
(2)In exercising their functions, the members of the Commission must
have regard to the Commission’s objectives.”
The question then becomes whether the Arbitrator’s determination to enter an award in favour of the Respondent in the proceedings before him rather than to adjourn them to a later date was not only timely and cost effective but in accordance with the Commission Guidelines for Arbitrators to conduct proceedings with regard to equity, good conscience and the substantial merits of the case.
It is noted that Dr Huntsdale stated in answer to the question “If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?” He replied: “I believe this will occur at a period of 12 months from his most recent operation, ie September 2006.”
The Respondent Employer submits that despite section 332(4) of the 1998 Act:
“… There is no provision within the Workers Compensation Regulations or Rules for such a matter to be ‘held in limbo’ for up to one year. The Respondent submits that there is no provision within the current … legislation which allows for a matter to be ‘adjourned’ for up to one year whilst a worker’s condition reaches maximum medical improvement.”
The Respondent Employer further submits that Practice Direction No. 2 provides that adjournments will not be granted unless in can be demonstrated that one or more parties would suffer a substantial injustice if the adjournment was not granted. It is the Respondent Employer’s submission that the Commission has a duty to ensure the fair, efficient and prompt disposal of matters and that, in line with this duty, an ‘adjournment’ for a period of 12 months would cause the Respondent Employer unfair prejudice.
The Appellant Worker maintains that an adjournment along the lines proposed by Dr Huntsdale is the most “fair and cost effective resolution” of the dispute, but the Respondent Employer maintains that this course of action would be neither fair or cost effective.
What then is the appropriate course to adopt? The Appellant Worker has referred to the decision of Rowland v Colorado Group Limited t/as Mathers Shoes [2005] NSWWCCPD 11 (‘Rowland’s case’) as authority for the proposition that a medical assessment may be adjourned for 12 months. That case essentially involved the issue of the filing of late evidence. At paragraph 32 Deputy President Fleming noted that the matter had been in the Commission for a considerable time. There were at least three ‘MAC’s’, one of which was from Dr Breslin. He opined that the worker’s loss of sexual function was not stable and that the worker: “... should be assessed in 12 months time.” The Arbitrator at first instance had agreed to refer the matter to Dr Breslin pursuant to section 322(4) at a date 12 months after his initial ‘MAC’.
The Appellant Worker submits that Deputy President Fleming “… determined that the decision of the Arbitrator was confirmed.” This is not strictly true with respect to the issue at hand. Deputy President Fleming simply noted that: “… The Respondent has now withdrawn its objection to the matter being referred back to Dr Breslin …” so that it was no longer an issue in dispute between the parties.
In the present case, the Arbitrator’s statement that: “There is no evidence before me to say when the condition will stabilise or even if all treatment has finalised” was not strictly true: Dr Huntsdale had clearly stated that he considered that ‘maximum medical improvement’ would occur 12 months hence.
The powers of a Presidential Member of the Commission on appeal to confirm or revoke a decision are exercisable only where it can be demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error. (See Allesch v Maunz [2002] 203 CLR 172).
Ultimately, my task is to determine whether the Arbitrator’s refusal to refer the matter back to Dr Huntsdale was an inappropriate exercise of his discretion in light of the Commission objectives to which both parties have referred.
It seems to me that where a medical dispute exists, as in this case, and the matter has been referred to an ‘AMS’ to determine the degree of permanent impairment of an injured worker, some reliance ought be placed on that assessment in terms of the further conduct of the proceedings.
Section 322(4) specifically provides for an adjournment in circumstances where an ‘AMS’ is not satisfied that the degree of permanent impairment is fully ascertainable. The Arbitrator, in rejecting the Appellant Worker’s request for an adjournment, appears to have based his decision on the absence of evidence as to when maximum medical improvement may occur. However, as I have said, Dr Huntsdale has provided an opinion on this issue such that I consider the Arbitrator’s determination contrary to the evidence before him and an inappropriate exercise of his discretion.
Both parties have made submissions to the relative fairness and cost effectiveness of their positions. Each of these has merit however, on balance, I am persuaded by the Appellant Worker’s submissions in light of the provisions of both sections 322 and 329 of the 1998 Act such that the decision of the Arbitrator should be revoked.
DECISION
The decision of the Arbitrator dated 25 November 2005 is revoked and the following decision made in its place:
(i)The matter is remitted to the Arbitrator at first instance for re-referral of the
Appellant Worker’s claim to Dr Huntsdale in accordance with these reasons.
COSTS
The Respondent Employer is to pay the costs of the proceedings before the Arbitrator and of the appeal.
Deborah Moore
Acting Deputy President
17 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE