Chown v Tony Madden Refrigeration Transport Limited

[2005] NSWWCCPD 159

WORKERS COMPENSATION COMMISSION

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

CITATION:Chown v Tony Madden Refrigeration Transport Limited [2005] NSW WCC PD 159

APPELLANT:  Bruce Chown

RESPONDENT:  Tony Madden Refrigeration Transport Limited

INSURER:Vero Workers Compensation

FILE NUMBER:  WCC10493-2005

DATE OF ARBITRATOR’S DECISION:          6 October 2005

DATE OF APPEAL DECISION:  20 December 2005

SUBJECT MATTER OF DECISION:                Interlocutory Order; Admission of Medical Reports; section 73 of the Workplace Injury Management and Workers Compensation Act 1998; clause 37 of the Workers Compensation Regulation 2003.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming

HEARING:On the papers.

REPRESENTATION:  Appellant:     Firths

Respondent:  Bartier Perry Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 6 October 2005, is revoked and the following decision is made in its place:

The reports of Dr Van Der Rijt and Dr Mills are not admitted in the proceedings and are not to be disclosed to the Approved Medical Specialist for the purpose of the assessment of the ‘medical dispute’.

The Appeal

1. On 2 November 2005 Bruce Chown (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 6 October 2005.

1. The Respondent to the Appeal is Tony Madden Refrigeration Transport Pty Limited.  Vero Workers Compensation is the relevant insurer.

1. The appeal relates to a claim by Mr Chown for weekly benefits and lump sum compensation for permanent impairment.  The Respondent disputes the claim and Mr Chown has applied to the Commission to resolve the dispute.  The matter was referred to a Commission Arbitrator. 

1. In the course of the proceedings before the Arbitrator a threshold issue arose as to the referral of medical reports to an Approved Medical Specialist (‘AMS’), who must assess the ‘medical dispute’.  The Arbitrator determined that the reports of Dr Van Der Rijt and Dr Mills be admitted in the proceedings and be referred to the AMS.  Mr Chown appeals against this decision.

1. The only issue in dispute is whether the Arbitrator erred in referring these medical reports to the AMS.  Mr Chown’s appointment with an AMS, originally scheduled for 7 November 2005, was cancelled pending the outcome of this appeal.

1. Leave to appeal is granted pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) (Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7).

1. I am satisfied that I have sufficient information to proceed ‘on the papers’, pursuant to section 354(6) of the 1998 Act, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

Did the Arbitrator err in admitting the medical reports of Dr Van Der Rijt and Dr Mills?

1. The Arbitrator found that the relevant facts were as follows:

   ·     On 12 July 2004 the Insurer advised Mr Chown that it denied liability for his claim, on the basis of the medical reports of Dr Van Der Rijt and Dr Mills.  Contrary to section 73of the 1998Act it failed to provide Mr Chown with a copy of these reports.

   ·     On 26 July 2004 Mr Chown requested a copy of the reports.

   ·     On 6 September 2004 copies of the reports were provided.

1. The Appellant submitted to the Arbitrator, and on appeal, that the Respondent could not rely upon the reports in Commission proceedings, because they were inadmissible, by operation of section 73 of the 1998 Act and clause 37 of the Workers Compensation Commission Regulation 2003 (‘the Regulation’).  

1. Section 73 of the 1998 Act provides as follows:

73  Insurer to provide copies of reports to worker

(1)The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker’s legal representative or any other person, within the period required by the regulations, with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker.

(2)Without limiting subsection (1), the kind of reports to which the regulations under this section can apply include investigators’ reports, rehabilitation providers’ reports and reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act.

(3)If an insurer fails to provide a copy of a report as required by the regulations under this section:

(a)  the insurer cannot use the report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and

(b)  the report is not admissible in proceedings on such a dispute before the Commission.

1. Clause 37 of the Regulation provides as follows;

37  Access to certain reports obtained by insurer: sec 73 of 1998 Act

(1)A worker may request an insurer to supply the worker with a copy of a report obtained by the insurer and specified in a notice to the worker under section 54 ((Notice required before termination or reduction of payment of weekly compensation) of the 1987 Act or a notice under section 74 (Insurers to give notice and reasons when liability disputed) of the 1998 Act.

(2)An insurer who receives a request for a copy of such a report must, within 10 days after receiving the request, supply the worker (or a legal practitioner or agent acting on behalf of the worker) with a copy of the report.

(3)If the insurer is of the opinion that supplying the worker with a copy of a medical report would pose a serious threat to the life or health of the worker or any other person, the insurer may instead supply the medical report to a medical practitioner nominated by the worker for that purpose.

1. It is not disputed that the Insurer did not provide Mr Chown with the reports of Dr Van Der Rijt and Dr Mills within 10 days of receiving his request for them.

1. The Arbitrator reasoned that by “adopting a purposive and contextualised interpretation of section 73(3), it is very apparent that the mischief the subsection sets out to combat is a rank failure by an insurer to furnish a report.  Such a failure is punished by, amongst other things, making the report in question inadmissible in Commission proceedings.  The operative language here is “[i]f an insurer fails to provide a copy of the report as required by the regulations . . .”.  While the insurer in this case failed to provide the reports in good time, it did not fail to provide them at all.  It did indeed provide the reports required by the regulations, but did so belatedly. . . . The most unambiguous statutory language would be required before the Applicant’s draconian and statute-defeating interpretation could be upheld”.  The Arbitrator also referred to my decision in Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7 in relation to the point that an AMS assessment is not a “proceeding” in the Commission.

1. The Appellant submits that there is no discretion available to the Arbitrator to admit the reports where section 73 and clause 37 operate to prohibit their admission. 

1. The Respondent submitted, before the Arbitrator and on appeal, that the Arbitrator is permitted to take a ‘purposive and contextual interpretation of the regulation and look to the purpose behind that regulation’.  It argues that the Arbitrator could take into account any prejudice that the Respondent may suffer as a result of the reports not being disclosed to the AMS.  The Respondent argues that there is no unfairness in allowing the reports to be admitted and referred to the AMS as they were in fact sent to Mr Chown some ten months prior to the filing of the application in the Commission.  The Respondent submits Mr Chown has “acquiesced or accepted the fact that reports were not provided within the time limit imposed by the Act and Regulation, or lost the opportunity to object to the Respondent’s reliance on those reports and is in any event, for the reasons outlined above, not prejudiced by their admission in these proceedings”.

1. The admission of medical reports in proceedings in the Commission and the referral of medical reports to an AMS have been the subject of a number of decisions in the Commission, most recently Fishburn v Integral Energy Australia [2005] NSW WCC PD 53. This area is not without its difficulties. However, previous decisions have largely concerned the application of Part 10 of the Workers Compensation Regulation 2003 and the restriction on medical reports contained therein.

1. There is no doubt that a purposive approach to statutory interpretation is the correct way to consider the relevant provisions.  However, in my view section 73 of the 1998 Act and clause 37 of the Regulation are unambiguous in their language and the serious consequence of non-compliance is exactly what those provisions intended.  They have a broader, underlying purpose, not referred to by the Arbitrator, but consistent with the objectives of the Workers Compensation Acts, namely to ensure a timely, effective and transparent determination of a workers entitlement to compensation as a result of a work injury.  Where a worker is not informed of the basis of a decision to deny compensation, the obvious questions of whether to accept or appeal that decision, and how and when to return to prior employment may remain unresolved.  The consequence of non-compliance with section 73 and clause 37 is that the reports of Dr Van Der Rijt and Dr Mills are not admissible in the proceedings before the Arbitrator.  The Arbitrator has no discretion to avoid the consequence of these provisions.

1. However the facts of this case highlight yet another difficulty with Part 10 of the Regulation, in particular, Clause 43A, which provides as follows:

43A       Restriction on disclosure of medical reports to approved medical specialists

A medical report is not to be disclosed to an approved medical specialist in connection with a claim unless:

(a)  the report was admitted in proceedings on the claim, or

(b)  the report was nominated by the claimant or respondent as the report that the claimant or respondent concerned would introduce in evidence in proceedings on the claim, or

(c)  the report was the sole report in the particular specialty concerned that was lodged in relation to the claim by the claimant or respondent (as the case may be), or

(d)  the approved medical specialist calls under section 324 (1) (b) of the 1998 Act for the production of the report.

1. As the Arbitrator and the parties rightly point out, the AMS has the power to “call for” the production of reports pursuant to section 324 of the 1998 Act, and these reports would therefore, arguably be ‘disclosed’ to the AMS, pursuant to clause 43A(d).  In this way the reports of Dr Van Der Rijt and Dr Mills could be before the AMS in any event.  In Fishburn v Integral Energy Australia [2005] NSW WCC PD 53 the medical reports in question were identified under clause 43A (a) (b) and (c) and I took the view (at paragraph 79) that:

   “Subject to the mandatory restriction on the disclosure of medical reports to an AMS an Arbitrator has a discretion to refuse to disclose a medical report to an AMS which has not been admitted into evidence in the proceedings, although disclosure of the medical report is not otherwise restricted pursuant to clause 43A of the Regulation.” 

1. In my view this applies equally to a medical report that is excluded from Commission proceedings by operation of section 73 of the 1998 Act and clause 37 of the Regulation, but that is a report an AMS may “call for” pursuant to section 324 of the 1998 Act.  To allow an AMS to ‘call for’ any report, regardless of its ‘place’ when the statutory scheme is considered as a whole, has the potential to subvert other statutory provisions concerning medical evidence of a workers claim.  

1. The Arbitrator erred in admitting the reports of Dr Van Der Rijt and Dr Mills and in referring them to the AMS.  The decision should therefore be revoked.

Decision

1. The decision of the Arbitrator, dated 6 October 2005, is revoked and the following decision is made in its place:

   The reports of Dr Van Der Rijt and Dr Mills are not admitted in the proceedings and are not to be disclosed to the Approved Medical Specialist for the purpose of the assessment of the ‘medical dispute’.

Dr Gabriel Fleming

Deputy President  

20 December 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.

ASSOCIATE

WORKERS COMPENSATION COMMISSION

APPLICATION FOR COSTS FOLLOWING THE DETERMINATION OF AN APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Chown v Tony Madden Refrigeration Transport Limited [2005] NSWWCCPD 159C

APPELLANT:  Bruce Chown

RESPONDENT:  Tony Madden Refrigeration Transport Limited

INSURER:Vero Workers Compensation

FILE NUMBER:  WCC10493-05

DATE OF ARBITRATOR’S DECISION:          6 October 2005

DATE OF APPEAL DECISION  20 October 2005

DATE OF THIS DECISION:  18 April 2006

SUBJECT MATTER OF DECISION:                Costs of the Appeal

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:On the papers

REPRESENTATION:  Appellant:      Firths

Respondent:   Bartier Perry Solicitors

ORDERS MADE ON APPEAL:  The Respondent is to pay the costs of the appeal.

APPLICATION FOR COSTS OF THE APPEAL

1. On 20 December 2005 I determined an appeal lodged by Mr Chown against Tony Madden Refrigeration Transport Limited (‘the Respondent’) (Chown v Tony Madden Refrigeration Transport Limited [2005] NSW WCC PD 159). 

1. Mr Chown was successful on the appeal, which challenged a decision by an Arbitrator in relation to the disclosure of medical reports to an Approved Medical Specialist.

1. On 22 December 2005 Mr Chown wrote to the Commission seeking the costs of the appeal.  This letter was served on the Respondent but generated no response to the Commission.  I note that in the submissions filed in the original appeal Mr Chown did not make an application for costs of the appeal in addition to his submissions on the substantive issues.  In the ‘Notice of Opposition to the Appeal’ the Respondent made an application for the costs of the appeal. 

1. Division 3 of Part 8 of the Workplace Injury Management and Workers Compensation Act 1998 governs the award of costs of an appeal.

1. Mr Chown was successful on the appeal and it is fair that he have the benefit of an award of costs in his favour. 

DECISION

1. The Respondent is to pay the costs of the appeal.

Dr Gabriel Fleming

Deputy President  

18 April 2006

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.

ASSOCIATE