Claverie v State Transit Authority of NSW

[2004] NSWWCCPD 39

WORKERS COMPENSATION COMMISSION

REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT

CITATION:Claverie v State Transit Authority of NSW [2004] NSWWCCPD 39

APPLICANT:  State Transit Authority of NSW

INTERVENOR  WorkCover Authority of NSW

RESPONDENT:  Raphael Claverie

INSURER:State Transit Authority of NSW

FILE NUMBER:  WCC 1911-04

DATE OF DECISION:  30 June 2004

SUBJECT MATTER OF QUESTION: Admissibility of Medical Reports; Section 43 of the Workers Compensation Regulation 2003; Part 68 of the Workers Compensation Commission Rules 2003.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Acting President

HEARING:On the Papers

REPRESENTATION:  Applicant: Sparke Helmore Lawyers

Respondent: Goldbergs Lawyers

ORDERS MADE:  Leave to refer a question of law is refused.  The Applicant is to pay the costs of this application.

BACKGROUND TO THE REFERRAL OF THE QUESTION

1. On 27 May 2004 the State Transit Authority of NSW (‘the Applicant/State Transit’) sought leave to refer a Question of Law to the President (‘the Application’) of the Workers Compensation Commission (‘the Commission’).

1. Mr Claverie filed a Reply to the Application on 21 June 2004.

1. By letter of 31 May 2004, the WorkCover Authority was invited to be heard on the Application, and on 18 June 2004 lodged written submissions.

1. Having regard to Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), 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.

THE QUESTION

1. The application arose in the context of a dispute currently before an Arbitrator in the Commission.  A teleconference was held on 12 May 2004 at which State Transit sought to file two reports; Dr Rod Milton, Forensic Psychiatrist, and Professor Mattick, Psychologist.  Mr Claverie’s legal representative objected to the filing of both reports on the ground that they were from the same medical specialty.  The Arbitrator directed that a decision on the Applicant’s objection to the filing of the report of Dr Milton dated 17 March 2004 would be dealt with at the arbitration hearing, which was listed for 21 July 2004.

1. The Applicant asks that the following be considered as a question of law:

   Whether forensic psychiatry and clinical psychology are different specialties for the purposes of Section 43 of the Workers Compensation Regulation (2003) and Part 68 of the Workers Compensation Commission Rules 2003?

LEAVE

1. Before granting leave to refer the question, the President must be satisfied that the question meets the requirements of section 351(3) of the 1998 Act, which provides:

   (3)   The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.

1. State Transit submits this question has not previously been determined and that this, of itself, is evidence of the novelty and complexity of the question.  Furthermore. . . . a finding by the Arbitrator that there is no distinction between forensic psychiatry and clinical psychology at the arbitration of this matter would be in conflict with a long standing understanding of the situation within the medical and legal community.

1. Mr Claverie submits both Dr Milton and Professor Mattick are psychologists and thus their reports address the same issue in the dispute. Even if they are from different specialties the Arbitrator has a discretion, in accordance with the intent of Clause 43 of the Workers Compensation Regulation 2003 (‘the Regulation’), to refuse to admit two reports addressing the same issue.

1. The WorkCover Authority submits the issue raised is not a novel or complex question of law and that the operation of Clause 43 of the Regulation and Rule 68 of the Workers Compensation Commission Rules 2003 (‘the Rules) is clear. Section 127 of the 1998 Act defines a ‘medical report’ as a report issued by a medical practitioner. Section 59 of the 1987 Act defines ‘medical practitioner’ as a ‘duly registered medical practitioner’ under relevant State and Territory legislation.

DISCUSSION AND FINDINGS

1. The referral of this matter is misconceived.  The question posed is not novel or complex.  It involves a simple exercise in statutory interpretation and the application of same to the facts of the particular case. 

1. It is not apparent to me why the Arbitrator directed that the issue be dealt with at a later date. There may have been other matters involving the timeliness of the documents, or other issues not readily apparent from the papers. Clearly a psychologist is not a ‘medical practitioner’ as defined in the Workers Compensation Acts and it does not contravene the Rules or the Regulations for a party to submit a report from both a psychologist and a psychiatrist.

1. The relevance and weight to be given to the evidence is a matter for the Arbitrator’s discretion, subject to Rule 70, which provides that the Commission must inform itself on the basis of logically probative and relevant evidence.  Unsubstantiated assumptions and unqualified opinions are unacceptable.

DECISION

1. Leave to refer the question of law is refused.

COSTS

1. The Applicant should pay the costs of this application.

Dr Gabriel Fleming

Acting President  

30 JUNE 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE