Comensoli v NSW Department of Juvenile Justice
[2006] NSWWCCPD 138
•5 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Comensoli v NSW Department of Juvenile Justice [2006] NSWWCCPD 138
APPELLANT: Martin Henri Comensoli
RESPONDENT: NSW Department of Juvenile Justice
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC20884-04
DATE OF ARBITRATOR’S DECISION: 19 August 2005
DATE OF APPEAL DECISION: 5 July 2006
SUBJECT MATTER OF DECISION: Reconsideration of decision; section 350 of the Workplace Injury Management and Workers Compensation Act 1998; medical assessment by an Approved Medical Specialist
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Adams Leyland Solicitors
Respondent: Leitch Hasson Dent Solicitors
ORDERS MADE ON APPEAL: Leave to Appeal is granted.
The decision of the Arbitrator, contained in Orders 1, 2 and 3 of the Certificate of Determination dated 12 August 2005, is revoked and the following decision is made in its place:
1.Mr Comensoli is to file a statement of his evidence within ten days of the date of this decision.
2.The matter is referred to a different Arbitrator for determination in accordance with these reasons and for referral to an Approved Medical Specialist.
The Respondent is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Martin Comensoli was employed by the Department of Juvenile Justice (‘the Department’) as a Youth Worker when, in March and November 2003, he suffered two injuries to his back and right knee. On 23 November 2004 he made a claim on the Department for lump sum compensation for permanent impairment as a result of these injuries. On 26 November 2004 the Department refused the claim on the basis that any permanent loss arising from Mr Comensoli’s injuries had not stabilised and therefore could not be assessed for the purpose of determining compensation. Mr Comensoli lodged an ‘Application to Resolve a Dispute’ in relation to that decision in the Workers Compensation Commission on 21 December 2004.
GIO Workers Compensation (NSW) Limited (‘the Insurer’) is the workers compensation insurer of the Department. It acted for, and on behalf of, the Department in the Commission proceedings and lodged a ‘Reply to Application to Resolve a Dispute’ in the Commission on 11 January 2005.
At the Department’s request, ‘Directions for Production’ were issued to Dubbo Base Hospital and Dr Burgess, General Practitioner, on 11 January 2005.
Mr Comensoli filed a report of Dr Abdel-Wahab, General Practitioner, on 28 February 2005.
An ‘Application to Admit Late Documents’ was filed by the Department on 28 February 2005.
On 1 March 2005 the matter went before a Commission Arbitrator (‘the First Arbitrator’) who issued ‘Directions’. She directed, amongst other things, that an amendment to the ‘Application to Resolve a Dispute’ to include another injury to the left knee on 17 August 2001, be allowed (Direction 2). She also referred the medical dispute to an Approved Medical Specialist (‘AMS’) for assessment.
A second ‘Application to Admit Late Documents’ was filed by the Department on 9 March 2005 in relation to; clinical notes from Dubbo Hospital; reports of Dr Parker, treating Orthopaedic Surgeon (April 2004); Dr Hargreaves, Orthopaedic Surgeon (June 2004) and Dr Davis (August 2003), General Surgeon. A further ‘Application to Admit Late Documents’ in relation to a letter and report from the Department, was filed in the Commission by the Department on 14 March 2005.
A Medical Assessment Certificate (‘MAC’) was issued on 26 May 2005.
On 18 July 2005 the matter went before a different Arbitrator (‘the Second Arbitrator’) for a telephone conference. He adjourned the proceedings. (The Arbitrator purported to act “under delegation from the Registrar”. Rule 5(1) of the Workers Compensation Commission Rules 2003, gives ‘the Commission’ the power to give directions. An Arbitrator acts as ‘the Commission’ and, in this capacity, is not a delegate of the Registrar.)
On 22 July 2005 the Department filed an ‘Amended Reply’ under cover of an ‘Application to Admit Late Documents’.
On 12 August 2005 the Second Arbitrator finally determined the dispute. He purported to reconsider the decision of the First Arbitrator and made further orders. The parties have made no submissions on whether a formal application for reconsideration was made and this appears not to be a contentious issue. There is no written application for reconsideration on the Commission file.
On 1 September 2005 Mr Comensoli lodged an ‘Appeal Against Decision of Arbitrator’ against the decision of 12 August 2005. The Department is the Respondent to the Appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 August 2005, records the Second Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.Pursuant to s.350(3) of the 1998 legislation [Workplace Injury Management and Workers Compensation Act 1998] I reconsider the decision of the Arbitrator of 1 March 2005 and disallow the amendment made in Direction 2 thereof.
2.I therefore find that the medical assessment certificate lodged herein is a nullity in relation to the assessment by the AMS in relation to that amendment, that is to say in relation to the assessment made purporting to find that the Respondent is to pay the Applicant a sum equal to 20 percent loss of use of the left leg at or above the knee as a result of an injury of 17 August 2001.
3.The Respondent is to pay the Applicant the sum of $5,000 in respect of a 4 percent whole person impairment pursuant to the binding portion of the medical assessment certificate lodged herein.
4.The Respondent is to pay the Applicant’s costs of the dispute herein resolved by virtue of the lodging of his Application to Resolve a Dispute.
5.I find that the issue reconsidered herein constitutes an ‘other proceedings before the Commission involving the determination of substantive legal issues’ pursuant to item 9.01 of the Compensation Costs Table made pursuant to Workers Compensation Regulations 2003.
6.The Respondent is to pay the Applicant’s costs of that ‘other’ issue.”
ISSUES IN DISPUTE
Mr Comensoli submitted the Second Arbitrator erred in:
·Rescinding the decision of the First Arbitrator allowing the ‘Application to Resolve a Dispute’ to be amended to include an injury to the left leg on 17 August 2001.
·Declaring those parts of the MAC that related to the alleged injury on 17 August 2001 to be a nullity.
Mr Comensoli submitted that the Second Arbitrator’s decision should be revoked and the MAC “ordered to stand and the matter referred back to the Second Arbitrator in order to determine the compensation as required and payable under Section 66 and 67 of the Workers Compensation legislation”.
The Department submitted that the Second Arbitrator’s decision was correct and should be confirmed.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘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 parties submitted the appeal is suitable for resolution on the papers. I have before me all of the documents that were before both Arbitrators, as well as written submissions on appeal and the transcript of the proceedings before the Arbitrator on 12 August 2005. I also have a copy of the documents that were included in the referral of the ‘medical dispute’ to the AMS.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties 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.
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, which provides:
“352 Appeal 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.”
The appeal was lodged within 28 days of the Second Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
The appeal concerns an amount in issue of greater than $5000, being compensation for lump sum impairment of $15,000. The threshold requirement of section 352(2)(a) is met. As the decision under review concerns an amount of $5000 awarded, section 352(2)(b) is met.
Leave to appeal is granted.
CONSIDERATION OF THE ISSUES
To fully understand what has occurred in this matter it is necessary to review the conduct of the proceedings by the First Arbitrator who gave ‘Directions’ including the referral of the ‘medical dispute’ to the AMS on 1 March 2005, and the decision of the Second Arbitrator, who finally determined the dispute on 12 August 2005, and whose decision is under review in this appeal.
The ‘Application to Resolve a Dispute’
The ‘Application to Resolve a Dispute’ (‘the Application’), filed on 21 December 2004, gave ‘Injury Details’ as follows:
“Date of Injury: 14/3/2003 & 18/11/2003.
Notice of injury: 14/03/03.
Date of Compensation Claim: 14/03/03.
Injury Description: Injury to back and right knee.
Describe how injury occurred: 14/03/03-Applicant stepped in a depression in pathway during course of employment sustaining injury. 18/11/03- Applicant was walking during the course of his employment sustaining injury.”The ‘claim details’ were stated as “Whole person impairment (injury 14.03.04), 10%, $12,500.00; Whole person impairment (injury 18/11/03) 13%, $17,000.00”.
Attached to the Application were a number of documents including medical reports and copies of two ‘Workers Compensation Claim Form[s]’ dated 18.11.03 and 8.04.04. A number of documents were identified as “Documents and information you intend to use but do not yet have’, including, importantly, “Statements from Applicant and various witness statements”. The reason these statements were not available was stated as “Not required until Application has been registered with WCC” with an “expected availability” date of “6-8 weeks”. Rule 38(2) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that an Applicant may not introduce evidence in proceedings unless a statement of that evidence has been lodged with the ‘Application to Resolve a Dispute’ (Rule 38(2)(a)). The worker’s statement is not a document that can be subject to a claim of ‘not yet available’. It is a fundamental document that should be prepared with the ‘Application to Resolve a Dispute’ and filed at the same time. This is reinforced in the Commission’s guideline document, ‘The Practice of the Conciliation Arbitration Process in the Workers Compensation Commission’. The Applicant’s stated intention to file evidence “6-8 weeks” after filing the Application is in breach of the Rules. It was also never realised, as no statements of evidence, by Mr Comensoli or witnesses, were ever filed. The failure to do so has had significant consequences (as discussed below).
Proceedings Before the First Arbitrator
At the telephone conference on 1 March 2005, the First Arbitrator heard from the parties and made a number of ‘Directions’ as follows:
“At the telephone conference in this matter on 1 March 2005, the parties were agreed that the Applicant should be referred to an approved medical specialist for assessment of his permanent impairment. As a result, the following directions were made:
1. The Applicant is to be referred to an Approved Medical Specialist for assessment of the degree of the permanent impairment of his back and his left and right legs at or above the knee.
2. Leave is given to the Applicant to amend the Application to include: (a) a third frank injury on 17 August 2001; and (b) an injury to his left leg at or above the knee.
3. Leave is granted to the Respondent to lodge and serve on the Applicant further relevant documents in relation to the claimed incident on 17 August 2001 and/or in relation to the claimed injury to the left leg at or above the knee within 28 days of this Direction.
4. Subject to Directions 5 and 6 below, leave is granted to the Respondent to admit as late evidence the documents included within the Application to Admit Late Documents lodged on 28 February 2005.
5. The document dated 22 December 1999 produced by Dubbo Base Hospital under a Direction to Produce which relates to an admission for treatment for an alleged overdose is not to be forwarded to the Approved Medical Specialist.
6. The document dated 16 June 2000 produced by Dubbo Base Hospital under a Direction to Produce which relates to an admission for an alleged assault to the Applicant is not admitted as late evidence as it is not relevant to the claimed injuries.
7. Leave is also granted to the Respondent to lodge and serve on the Applicant the medical report of Dr Colin Davis dated 28 August 2003.”
Mr Comensoli submitted, on appeal that “ . . .due to a typographical error the left leg was not included in the description of injury in the Application”. The Department claims no notice of the alleged injury. The argument, that the failure to include the injury to the left leg in the ‘description of injury’ in the Application was due to a typographical error, is an untenable position, not supported by the documents that accompanied the Application. In any event, there is disagreement between the parties as to whether the Department consented to the amendment to the Application, to add the injury of 17 August 2001. This disagreement is not resolved by recourse to the First Arbitrator’s hand written notes of the telephone conference (despite the Second Arbitrator’s attempt to understand these notes). The First Arbitrator did not record brief written reasons for the decision in the Commission file, which in my view she was obliged to do (see discussion in Fletcher International Exports Pty Limited v Regan [2004] NSWWCCPD 7). Her hand written notes are unclear and of no assistance. If reasons were given orally at the telephone conference on 1 March 2005, there is no record of them.
There is nothing on the Commission record that reveals whether or not the First Arbitrator made findings on the Department’s liability for any or all of Mr Comensoli’s claim, including a finding of ‘injury’, pursuant to section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) and of ‘substantial contributing factor’ pursuant to section 9A of the 1987 Act. The ‘Reply’ filed by the Department put ‘injury’ in issue between the parties. Indeed in the absence of any evidence from the worker, in the form of a written statement or oral evidence, it is clear that the First Arbitrator would have had difficulty in determining this issue. It is reasonable to expect that when a matter is referred to an AMS these findings are made prior to the referral for assessment (see discussion in Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50). Given the Department was yet to file evidence in reply to the claim of a third injury of 17 August 2001, it must be assumed that the First Arbitrator did not make findings on the issue of liability for that injury prior to the referral to the AMS. The First Arbitrator should not have referred the ‘medical dispute’ to the AMS with a request to assess the permanent impairment arising from the alleged injuries, in the absence of any finding of ‘injury’, and in this case the employer that was liable for the claim (there was confusion about the relevant employer), pursuant to the Workers Compensation Acts (the 1987 and the 1998 Acts). (I note that amendment to the 1998 Act, effective 1 July 2006, make it clear that, in future, disputes about liability are to be determined by an Arbitrator, prior to referral to an AMS by the Registrar (Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005.)
The First Arbitrator’s ‘Directions’ also make no reference to the limitations on the filing of medical reports pursuant to the 1998 Act and the Workers Compensation Regulation 2003 (Part 10). There is no reference to the treating doctors reports of Dr Hargreaves, nor is there any provision made to oversight the reports yet to be filed by the Respondent in relation to the injury of 17 August 2001, to ensure compliance with the limitations on medical reports contained in the Regulations.
The First Arbitrator purported to consider an application to amend the ‘Application to Resolve a Dispute’, although no such application in written form is in the papers. Amendment of the Application raised issues of jurisdiction that were not addressed by the First Arbitrator. There was no evidence of a claim having been made on the Department in relation to the alleged injury of 17 August 2001. While liability for the claimed injuries of 14 March 2003 and 18 November 2003 appeared less contentious, the injury of 17 August 2001 was not elsewhere particularised in the Application or Reply. These facts should have raised the question for the Arbitrator of whether the Commission, in the absence of a claim having been made, had jurisdiction to hear a dispute arising from the injury (section 260 of the 1998 Act). There is nothing in the papers before me or in the parties’ submissions on appeal, to indicate that the First Arbitrator considered the issue of jurisdiction. In the absence of a claim being made in accordance with the Workers Compensation Acts and the WorkCover Claims Guidelines, and evidence of its consideration pursuant to the statutory framework for dealing with a claim, the Commission does not have jurisdiction to hear a dispute (Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSWWCCPD 8; Tan v National Australia Bank Limited [2006] NSWWCCPD 115).
The decision of the First Arbitrator is not the subject of this appeal, however, in my view the First Arbitrator made a number of errors that have affected the course of the matter in the Commission. She erred in:
· Failing to consider whether any claim in relation to the alleged injury of 17 August 2001 had been made pursuant to the Workers Compensation Acts and whether or not she had jurisdiction to hear a dispute in relation to that claim.
· Failing to consider whether any purported failure to make a claim in relation to the alleged injury of 17 August 2001 could be excused by exercising her discretion under section 260(5) of the 1998 Act.
· Failing to fully determine the application of Part 10 of the Workers Compensation Regulation 2003 to the admission of medical reports and their disclosure to an AMS.
· Failing to determine issues of liability in relation to the injuries claimed, prior to referral to the AMS.
· Failing to give brief reasons for the directions issued, including reasons for allowing the admission of late documents.
· Failing to ensure that a statement of evidence of Mr Comensoli was filed, in compliance with the Rules, including a failure to make a Direction to that effect.
Following the Directions issued by the First Arbitrator the matter was referred to the AMS.
Referral to the AMS and Issue of the MAC
There are three documents on the Commission file in these proceedings headed ‘Request for Medical Assessment by Approved Medical Specialist’ (‘Request’). All are dated 1 March 2005 and bear the name of the First Arbitrator, however none bear the Arbitrator’s signature. All are slightly different, as follows:
1.‘Request’ completed by hand, without file identification details (parties, matter number etc). This, among other things, identifies the dates of injury as ‘17.8.01, 14.04.03 and 18.11.03 and refers the matter to an AMS “Orthopaedic Specialist in Dubbo”. It states that documents under the “Applic lodged on 1.3.05” and the reports of Dr Davis, dated 28.8.03, Dr Parker and Dr Burgess are to go to the AMS, in addition to other documents.
2.‘Request’, in typed form, completed with the details of the matter, parties, etc that identifies the same injury dates. It differs from the first ‘Request’ in that it states “by consent an additional frank injury has been added-17 August 2001 – and an additional body part-the left knee”. It states more clearly that “All documents included by the Respondent in the Application to Admit late documents lodged on 1 March 2005” are to be sent to the AMS. This refers the matter to an AMS in Sydney.
3.‘Request’, in typed form identical to the second ‘Request’ (above). It differs from the second ‘Request’ in that it has a handwritten note nominating an AMS in Brisbane.
The referral of a medical dispute to an AMS pursuant to section 321 of the 1998 Act is a critical step in the determination of the rights and liabilities of parties to a workers compensation claim for lump sum compensation for permanent impairment (Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50). It is a matter that should be given careful attention. The content of the referral should be carefully checked by the Commission and the parties to ensure it is in accordance with the issues in dispute and in accordance with any findings of the Arbitrator or the Registrar.
The referral itself should identify the nature of the ‘medical dispute’ that is being referred (section 319 of the 1998 Act) and the details of the injury, including any findings by the Arbitrator on the issue of causation and whether or not the worker’s employment was a substantial contributing factor to that injury. Clearly there is nothing to be achieved by referring a medical dispute to an AMS for assessment where there is no liability established for the injury under the Workers Compensation Acts. Where an Arbitrator finds that an ‘injury’ has been established then the AMS assessment must be made on the basis of that finding (Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 at [29]).
Following the ‘Request’ in this matter arrangements were made to refer the matter to an AMS in Brisbane, who was able to examine Mr Comensoli in Cairns, Queensland, where he now lives.
It is evident from the information recorded on the ‘Request(s)’ described above that there were inconsistencies between the Arbitrator’s Directions of 1 March 2005 and the form of the referral. These were:
·The ‘dates of injury’ were not in accordance with the claim. The date referred as 14.4.03 (which appeared on all three Requests, should have been 14.3.03). This caused the AMS to write to the Commission to clarify the date of injury and, as a result, it did not adversely affect the Medical Assessment Certificate.
·There was no ‘Application to Admit Late Documents’ filed on 1 March 2005. The only possible reading of the ‘Request’ is to infer that the reference to ‘1 March 2005’ is in fact to the documents filed under the ‘Application to Admit Late Documents’ on 28 February 2005. This reading is at least consistent with the Arbitrator’s Directions of 1 March 2005.
·The identification of the documents to be sent to the AMS included, according to the Request, all documents filed under the ‘Application to Admit late Documents’ filed by the Department on, presumably, 28 February 2005. However the Direction, specifically exempted two documents within this category from disclosure to the AMS. They are as detailed in Directions 5 and 6 as set out above.
The Department disputed the referral to the AMS in relation to the left leg and submitted, on appeal, that the injury of 17 August 2001 was in relation to Mr Comensoli’s back. It has no explanation as to why the ‘left leg’ was referred to the AMS for assessment.
Following the telephone conference before the First Arbitrator on 1 March 2005, the following further evidence was filed:
·Report of Dr Abdel-Wahab, dated 25 February 2005, by Mr Comensoli on 28 February 2005.
·Dubbo Hospital Clinical Notes, 35 pages, dating from 1985-2000, filed by the Department on 9 March 2005.
·A letter and report from the Department of Juvenile Justice to Mr Comensoli in relation to the claimed incident of 17 August 2001, filed on 14 March 2005 by the Department.
The evidence filed by the Department was presumably in response to the First Arbitrator’s direction of 1 March 2005. None of these documents were disclosed to the AMS. .
I have before me the Commission file of the ‘Request’ to the AMS (the third ‘Request’ as described above) and the documents that were disclosed to him. The Commission disclosed the following documents to the AMS:
·The Application and attached documents, including letter to Dr Burgess dated 21 September 2004 and report of Dr Burgess dated 19 October 2004.
·The Reply and attached documents including two reports of Dr Davis dated 28 August 2003.
The documents produced under the ‘Direction for Production’ and included in the ‘Application to Admit Late Documents’ filed by the Department on 28 February 2005, but NOT sent to the AMS were:
·Dubbo Hospital clinical notes (32 pages) concerning Mr Comensoli.
·Report of Dr Parker, treating Orthopaedic Surgeon, dated 4 August 2004.
·Report of Dr Hargreaves, treating Orthopaedic Surgeon, dated 28 June 2004.
These documents, with the minor exclusion referred to in the First Arbitrator’s Direction, should have been referred to the AMS, in accordance with the terms of the Directions and the ‘Request’. The documents that the First Arbitrator excluded from admission are only three pages of the Dubbo Hospital clinical notes filed on 28 February 2005 (two pages dated 22 December 1999 and one page dated 16 June 1999). One apparent explanation for the failure to disclose documents to the AMS may be that that the First Arbitrator’s Order referred to documents filed on “1 March 2005”, of which, as discussed above, there were none.
Contrary to the Rules, Mr Comensoli did not file a statement of his evidence and therefore none could be provided to the AMS. The AMS, in taking a history of injury from Mr Comensoli, has made an error in stating that Mr Comensoli was employed by ‘Eagle Boys Pizza’ at the time of the first injury. Both parties acknowledge this error. The description of the injury is also inconsistent with the claim as the AMS refers to an injury that occurred as a result of tripping over in the street, whereas the amended claim asserts that the injury occurred when a youth jumped on his back. Had Mr Comensoli filed a statement of his evidence then the likelihood of this type of error occurring would have been reduced, or at least the AMS could have taken the opportunity to address different histories in his discussions and clinical examination of Mr Comensoli.
In summary the AMS was not sent:
·Dubbo Hospital Clinical notes, filed 28 February 2005 and 9 March 2005.
·Report of Dr Abdel-Wahab dated 25 February 2005.
·A statement of Mr Comensoli’s evidence.
·Report of Dr Parker, treating Orthopaedic Surgeon, dated 4 August 2004.
·Report of Dr Hargreaves, treating Orthopaedic Surgeon, dated 28 June 2004.
The AMS, in the MAC, made the following permanent impairment assessment of Mr Comensoli’s injuries:
·20% loss of efficient use of the left leg at or above the knee arising from the injury on 17 August 2001.
·Nil% loss of efficient use of the back arising from the injury to the back on 17 August 2001.
·Nil% Whole Person Impairment arising from the injury to the lumbar spine on 14 March 2003.
·4% Whole Person Impairment arising from the injury to the right lower extremity on 18 November 2003.
Mr Comensoli has submitted on appeal that “it can only be determined from the reasons provided by the Approved Medical Specialist that he has failed to read all the relevant documentation and material provided to him by Arbitrator . . . in the referral dated 1 March 2005”. In view of the fact that the AMS was not sent all the relevant material there are clearly other reasons that may explain any factual errors in the MAC. As noted above the parties also dispute whether the injury was to the back or left leg.
In my view the entire process of referral to the AMS was flawed by the failure to:
·Determine liability prior to the referral, in particular in relation to the correct employer at the time of the alleged injuries.
·Properly identify the dates of injury for which liability had been found and for which a medical assessment was required.
·Clearly particularise the details of the injury and the evidence being referred in the ‘Request for Medical Assessment’, including, in this case, the nature of the injury alleged to occur on each of the claimed dates of injury.
·Properly determine the medical reports that are permitted to be filed in the proceedings and that are to be disclosed to the AMS pursuant to the Workers Compensation Regulation 2003.
·Disclose to the AMS the documents specified in the Arbitrator’s Direction of 1 March 2005.
These errors, in addition to the errors made by the First Arbitrator at the telephone conference on 1 March 2005 have affected the validity of the MAC. They also confronted the Second Arbitrator when the matter was referred to him for determination following the issue of the MAC, which was received in the Commission on 26 May 2005 and was sent to the parties on 17 June 2005.
Before considering the substance of his decision it is necessary to consider the nature and extent of the power of reconsideration pursuant to section 350 of the 1998 Act, which he purported to exercise.
Reconsideration Pursuant to Section 350 of the 1998 Act
Section 350(3) of the 1998 Act provides that:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The discretionary power of reconsideration is expressed in broad terms. The considerations relevant to its exercise must be understood within the context and purpose of the statutory scheme of the Workers Compensation Acts (Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28).
Section 17 of the Compensation Court Act 1984 (now repealed) was in similar terms to section 350(3) of the 1998 Act. Walker J reviewed the case law and considered the principles relevant to the exercise of the reconsideration power by the Compensation Court in Southern Tablelands v Solomon (1999) 19 NSWCCR 235 (Southern Tablelands), and stated that:
“The principles I draw from this case law are as follows:
1.The Compensation Court Act imposes no limits as to the extent of this Court’s powers to review its decision. Presumably that means this Court can utilise all the powers conferred upon it by statute as well as its inherent jurisdiction.
2.The powers are wide but their use discretionary. The practice of the Court is such that only in highly unusual circumstances where there is some manifest injustice to be remedied will the Court’s discretion be exercised to set aside a prior judgement of the Court.
3.One of the factors that should be weighed in deciding whether or not the discretion should be exercised is the public interest that litigation should not proceed interminably.
4.Reconsideration is not limited to an examination of changed circumstance but may include examination of fresh evidence concerning the original circumstances. However the material to be adduced must be such that it could not with reasonable diligence have been put before the Court at the original proceedings. It must be moved upon without delay and it must be of such a nature that it would have affected the outcome of the proceedings.
5.In a proper case the Court is allowed to consider whether an error of fact or law has been made.
6.An Anshun Estoppel may be available to prevent a party from relying upon a claim or defence which it has unreasonably refrained from raising in earlier proceedings.
7.Mistake or inadvertence by a party’s legal advisor is an insufficient ground to permit the exercise of the discretion. However, a disposal of litigation concluded by legal advisers outside instructions can justify the exercise of the discretion in some circumstances.”
These principles are broadly applicable to section 350(3) of the 1998 Act but must be considered in the context of the dispute resolution scheme of the Workers Compensation Commission, rather than that of the former Compensation Court of NSW. The Commission does not, for example, have the inherent powers that attach to a court, Commission proceedings are not governed by pleadings and the rules of evidence do not apply. To date there is no judicial authority on the interpretation to be given the section 350(3) of the 1998 Act and its application in the Commission.
A power of reconsideration, similar to section 350(3) of the 1998 Act, resided in the Dust Diseases Tribunal. It was considered in CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223, and D’Arcy v CSR Ltd & Another (1997) 14 NSWCCR 586. It was found in both of those cases that the power of reconsideration should be exercised in exceptional circumstances because of the nature of the jurisdiction. The public interest in the finality of litigation, the potential prejudice to the parties and the demand for fairness in the instant case must be reconciled in the exercise of the discretion to reconsider.
The Workers Compensation Commission is not a court. It is a statutory tribunal whose functions and powers are found only in the Workers Compensation Acts. The statutory context in which the Commission operates is markedly different to the context in which the Compensation Court operated. The Commission aims to provide a fair, low cost and expeditious review of workers compensation disputes. Arbitrators must assist the parties to come to an agreed resolution of their dispute prior to proceeding to determination. The Commission must determine matters according to “equity, good conscience and the substantial merits of the case” (section 354(3) of the 1998 Act). There is provision for ‘internal’ appeal to a Presidential Member by way of review of an Arbitrator’s decision for error of law, fact or discretion (section 352 of the 1998 Act; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). There is also a separate and distinct decision-making process for ‘medical disputes’, which, in relation to the assessment of permanent impairment of a worker, is binding upon the Commission in making an award of lump sum compensation. This process is by way of referral to an AMS, assessment of the medical dispute and the issue of a Medical Assessment Certificate (Part 7 of Chapter 7 of the 1998 Act). Presidential Appeal and Medical Appeal Panel (‘MAP’) processes are low cost and accessible remedies to parties dissatisfied, respectively, with an Arbitral or AMS decision.
Reconsideration is not necessary to correct obvious error in a Commission decision, as that power resides in the Registrar pursuant to section 294(3) of the 1998 Act. Nor does reconsideration offer the only remedy to a party who discovers ‘fresh evidence’ critical to its claims. Leave to file ‘fresh evidence’ and ‘additional evidence’ is specifically provided for on appeal to a Presidential Member (section 352(6) of the 1998 Act).
The consequences and effects of reading the discretionary power in section 350(3) of the 1998 Act very broadly do not accord with the intention of the legislature to establish a fair, fast and efficient dispute resolution process for workers compensation disputes (section 367 of the 1998 Act). To allow an unfettered right of reconsideration of Commission decisions potentially undermines the appeal process to a Presidential Member, fails to facilitate the goal of finality to the litigation, threatens the integrity of the dispute resolution process for ‘medical disputes’ and undermines the procedural framework in relation to the filing of evidence and submissions, which is prescribed in the Rules. The reconsideration of decisions such as procedural directions (for example; the filing of documents, adjournments, listing arrangements) has further potential to undermine the objective of timely determination of disputes.
Section 350(3) does not place a time limitation on the making of an application for reconsideration. The lapse of time since the decision was made is a factor relevant to the exercise of the discretion.
Section 350(3) does not expressly limit who should constitute ‘the Commission’ for the reconsideration. However, in my view, reconsideration by a different Arbitrator should be avoided in nearly all circumstances. The desirability of constituting a reconsideration request before the same Arbitrator is highlighted by this case, where, as Mr Comensoli submitted, “the Arbitrator was not the original Arbitrator in this matter and the only evidence before the Arbitrator from the original Arbitrator was the direction, her corresponding notes and referral to the Approved Medical Specialist”. The reconsideration was an even more difficult exercise because brief reasons for the decision of the First Arbitrator had not been recorded.
There will inevitably be circumstances where the Arbitrator who made the original decision is not available to entertain an application for reconsideration. These circumstances should however be rare, for example, where the Arbitrator no longer holds an appointment or where the Arbitrator is unavailable due to serious and unpredictable personal circumstances, including illness. Constitution of a reconsideration application before a different Arbitrator has the potential for unfairness, where dissatisfaction with the decision of one Arbitrator is sought to be cured by arguing the same case before a different Arbitrator on a reconsideration. If the reconsideration application is grounded by an allegation of ‘bias’ then the appropriate course is an appeal to a Presidential Member of the Commission.
It would also be inconsistent with the statutory scheme to read section 350(3) of the 1998 Act so broadly that it could encompass any member of ‘the Commission’ reconsidering the decision of another. The Registrar cannot reconsider a decision of an Arbitrator. The Registrar or an Arbitrator cannot, for example, reconsider a decision of a Presidential Member, nor should a Deputy President be empowered to reconsider a decision of the President. It is clear, as discussed above, that ‘the Commission’ cannot reconsider the decision of an AMS.
I have taken into account the breadth of the express terms of the discretionary power in section 350(3) of the 1998 Act, as well as its context and purpose within the ‘new’ dispute resolution process of the Commission set out in the Workers Compensation legislation. Viewing the principles stated by Walker J in Southern Tablelands within the Commission’s statutory context, the nature and extent of the discretionary power of the Commission to reconsider a decision should be exercised as follows:
· The power is wide and discretionary, however an application for reconsideration of a Commission decision should only be granted where there are exceptional circumstances so that the reconsideration is necessary to address a “manifest injustice” in the particular case.
· The member of the Commission who made the original decision should wherever possible, be constituted to hear an application for reconsideration of that decision.
· The factors relevant to the exercise of the discretion to reconsider a decision include whether:
o The reconsideration is consistent with the public interest in the finality of the litigation, including whether there has been undue delay in the making of the application for reconsideration.
o The reconsideration is sought on the basis of the same factual and legal issues that were before the original decision-maker. As Walker J said in Southern Tablelands “mistake or inadvertence by a party’s legal advisor is an insufficient ground to permit the exercise of the discretion”.
o An alternative statutory remedy is available to the party seeking reconsideration, i.e. by way of correction of obvious error; by appeal to a Presidential Member; by referral of a medical dispute to an AMS or appeal to a MAP.
o The application concerns a matter that has no substantive impact on the final determination of the rights and entitlements of the parties under the Workers Compensation Acts (for example, a procedural direction).
o The matter has previously been reconsidered on the same grounds.
o The application for reconsideration is frivolous, vexatious or otherwise lacking in merit.
It goes without saying that an application for reconsideration must be supported by submissions that cogently and substantively address these issues.
The reconsideration decision of the Second Arbitrator must be considered in light of these principles.
Proceedings Before the Second Arbitrator
On 18 July 2005 the Second Arbitrator held a telephone conference and, as noted above, directed that the matter be adjourned to 12 August 2005.
On 22 July 2005 the Department filed an ‘Application to Admit Late Documents’ being an ‘Amended Reply’. In this ‘Amended Reply’ the Department again puts the entire question of ‘injury’ in issue and seeks specifically to address Mr Comensoli’s claim to have suffered an additional injury on 17 August 2001. The Department submitted that the addition of this injury to Mr Comensoli’s Application had been made by the First Arbitrator over its objection, and that as a result of the amendment to the Application it should be allowed to amend its ‘Reply’. Substantially, the Department argued that, in the absence of a claim in relation to the injury of 17 August 2001 being “duly made” upon it, in accordance with the 1998 Act, the Commission and the AMS did not have jurisdiction to make “any findings or judgements in relation to” it.
The Department, in the ‘Amended Reply’ states that it understood the amendment to Mr Comensoli’s Application to also include “an additional claim pursuant to Section 60 of the Act as a result of possible future surgery to the Applicant’s left knee which had previously been injured outside the work environment but which had been aggravated as a result of the Applicant’s altered gait”. There is nothing in the documents before me to establish that this additional claim was included in the amendment to the Application. It is not referred to expressly in the First Arbitrator’s directions of 1 March 2005.
The Second Arbitrator gave his decision (set out in [13] above) on 12 August 2005. A transcript of the reasons for the decision, given orally on that day, is before me. The Second Arbitrator read onto the record some ‘contemporaneous notes’ of the First Arbitrator, allegedly made at the telephone conference of 1 March 2005. It is clear from the transcript that the parties did not have a copy of these ‘notes’ and had not previously been aware of them (it is not common practice, nor is it desirable, for Arbitrators to leave their personal handwritten working ‘notes’ on the Commission file). The parties were invited to make oral submissions, following the disclosure of the First Arbitrator’s ‘notes’.
The Second Arbitrator framed the issues that he considered he had to decide as follows:
“ . . . was the matter by consent? If it was by consent, then has the respondent effectively waived the statutory requirements for the procedural steps that need to be taken to properly make a claim, and, of course, if it wasn’t by consent, what . . . jurisdiction do I have to deal with the matter, and assuming I do have jurisdiction under section 350 [of the 1998 Act] . . .what effect does that have on the medical assessment certificate, . . . the results of which are presumed to be conclusive under section 326 of the 1998 legislation” (at page 5 of the transcript).
The Second Arbitrator noted the reconsideration power in section 350(3) and concluded that:
“. . . Commission in 350 has been found to mean ‘as constituted by an Arbitrator or Presidential Member’. It does not mean an appeal panel constituted under section 328, and that’s Campbelltown City Council v Vegan, which is (2004) New South Wales Supreme Court 1129 . . . That gives me the power to reconsider an earlier decision of the Commission, which the decision of the Arbitrator to permit this amendment clearly was. I therefore reconsider it, and, having reconsidered it, I disallow that amendment, including an injury on 17 August 2001 to the left leg.” (transcript at page 9)
It is not clear to me how the case of Campbelltown City Council v Vegan [2004] NSWSC 1129 has any relevance to the exercise of discretion pursuant to section 350(3) of the 1998 Act. The fact that a MAP is not constituted as ‘the Commission’ is not relevant to the exercise of the power by the Commission to reconsider a decision, other than for the proposition that an Arbitrator has no power to review a MAC. This fact does not give rise to jurisdiction in an Arbitrator to reconsider the decision of another Arbitrator. The ‘Commission’ is defined in section 368 of the 1998 Act, and consists of the President, the two Deputy Presidents, the Registrar and the Arbitrators. Section 350 allows any member of the Commission, potentially, to exercise the power of reconsideration.
In my view the application for reconsideration in this matter should have been referred to the Arbitrator who made the decision under reconsideration, i.e. the First Arbitrator. There is nothing in the documents to indicate that the First Arbitrator was unavailable or that she had declined to hear the reconsideration. This is a matter to be considered by the Registrar when constituting the Commission (section 375 of the 1998 Act). The error in referring the matter to the Second Arbitrator does not fall upon him. Having the matter before him, the question is did he err in exercising the power of reconsideration pursuant to section 350 of the 1998 Act?
It can be seen from my view on the nature and breadth of the power to reconsider a decision under section 350 of the 1998 Act, that the Second Arbitrator erred in exercising the power to reconsider the decision. As set out above, the discretion conferred on ‘the Commission’ to reconsider a decision previously made, is not at large. It must be considered within the context and purpose of the statute. This is not a case where the reconsideration was sought on the basis of fresh evidence. The parties simply sought to re-argue an issue that had previously been determined by the First Arbitrator. Further, the effect of the First Arbitrator’s decision had crystallised in that the medical dispute had already been referred to an AMS and had been the subject of an issued MAC. The original decision was made on 1 March 2005 and neither party sought to have the matter reconsidered until it was before the Second Arbitrator in July 2005. The parties had a right of internal appellate review to a Presidential Member, and review of the MAC by a MAP open to them, which they did not pursue. These are rights that, as both parties were legally represented, should have been known to them and acted upon, in the case of an appeal to a Presidential Member, within 28 days of the decision of the First Arbitrator. In this case the Department waited until the medical dispute had been referred to an AMS and the MAC had been issued.
It follows that the decision made by the Second Arbitrator disallowing the amendment made by the First Arbitrator, pursuant to the power of reconsideration in section 350(3) of the 1998 Act, must be revoked (Order 1). However the decision should also be revoked on other grounds. The Second Arbitrator did not consider the failure of the First Arbitrator to properly determine liability in relation to all of the injuries claimed, prior to referral to the AMS, nor did he uncover the defects in the evidence disclosed to the AMS.
The Second Arbitrator also determined that the MAC was, in part, a nullity, because of the failure to comply with section 325 of the 1998 Act. Despite the fact that an incorrect date of injury (14 April instead of March 2003) was detailed in the referral and that the AMS did not have the whole of the relevant evidence disclosed to him, the Second Arbitrator considered that the “referral was clear enough” (transcript at page 11). The Arbitrator considered that the apparently incorrect history given of the 17 August 2001 injury, relied upon by the AMS, was sufficient to “vitiate the MAC in so far as it relates to the binding nature of the finding in relation to the injury of 17 August 2001”. Having made that finding he questioned whether the power to declare the MAC a nullity rested only with a Presidential Member of the Commission on appeal. In my view this power does rest only with a Presidential Member. Where the Arbitrator’s decision is found to be affected by an invalid MAC a Presidential Member may interfere with that decision by way of review, on appeal. It is in the exercise of a Presidential Member’s power to review the Arbitrator’s decision that the validity, and binding nature, of the MAC is considered.
Neither a Presidential Member nor an Arbitrator have the power to review a MAC, this rests with a MAP, and only where clearly proscribed threshold considerations are met to the satisfaction of the Registrar. Where an Arbitrator constituted to determine a dispute is faced with a MAC that is clearly invalid, because of non-compliance with the requirements of the 1998 Act, two procedural courses are available to the Arbitrator, depending upon the nature of the issue affecting the MAC. The Arbitrator may refer the matter back to the AMS so that the defect in the MAC can be addressed (section 329 of the 1998 Act) or may advise the parties to consider their right of appeal to a MAP (section 327 of the 1998 Act). It follows that the Second Arbitrator’s order declaring the MAC to be a nullity in relation to the injury of 17 August 2001 should be revoked (Order 2). Given that the medical dispute must now be again referred to an AMS, the order in relation to lump sum compensation made pursuant to the MAC should also be revoked (Order 3).
In the circumstances of this particular case what could the Second Arbitrator have done to get this matter back on track? Regardless of the First Arbitrator’s direction to allow the Application to be amended, ‘liability’ remained to be determined and the Second Arbitrator had the power to do so (this is not a reconsideration but an original decision). Assuming the Second Arbitrator determined that the Department was not liable for the alleged injury of 17 August 2001 (consistent with his expressed findings because of a failure to make a claim) then he could have made that finding. He could also have made findings in relation to the other two frank incidents that were the subject of the claim. It was then open to him to refer the matter to an AMS, either the same or a different AMS, pursuant to section 329(1)(b) of the 1998 Act. In doing so he could have made clear directions as to the evidence to be disclosed to the AMS and, effectively, cured the defects of the earlier referral. In making this observation I accept that this is a cumbersome way to deal with this dispute and that, had the conduct of the proceedings been better managed at an early stage, it would not have been necessary.
The Second Arbitrator’s orders in relation to costs are not under challenge in the appeal and are confirmed (Orders 4, 5 and 6).
THE DECISION ON REVIEW
A number of critical issues relevant to this review are not in dispute, namely, that:
·Mr Comensoli was employed by the Department at the time of the alleged ‘first’ injury on 17 August 2001.
·At no time has Mr Comensoli made a claim upon the Department, in accordance with the requirements of the Workers Compensation Acts, in relation to an injury on 17 August 2001.
·The description of the injury of 17 August 2001 in the MAC does not accord with the description of the injury sought to be added to the Application by way of amendment.
The Commission does not have jurisdiction in relation to the claimed injury of 17 August 2001. I agree with the Department’s submission on appeal, that whether or not it consented to the amendment of Mr Comensoli’s Application to include the additional injury is not relevant. Mr Comensoli’s submission on appeal, that “the matter being referred to an Approved Medical Specialist by consent waived any right as to the statutory time limits the Respondent had concerning section 281 and section 289” of the 1998 Act is misguided. Section 281 requires an Employer/Insurer to determine a claim for lump sum compensation within certain time limits. Section 289 places “Restrictions as to when a dispute can be referred to the Commission”. The parties cannot, by consent, simply confer jurisdiction on the Commission to hear a dispute, where it would otherwise not have jurisdiction to do so because of a failure to comply with the statutory scheme in relation to the making and determination of claims for workers compensation.
The Workers Compensation Acts set out a comprehensive statutory scheme for the notification of injuries and the making of a claim for workers compensation in relation to an injury that ‘arises out of or in the course of employment’. The Commission does not have jurisdiction to hear a dispute about workers compensation where no claim has ever been made on the employer (Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSW WCC PD 8; Tan v National Australia Bank Limited [2006] NSWWCCPD 115). I agree with the Department’s submission on this point. The failure to notify the employer of an injury and to make a claim, in any form, are not matters that can be excused pursuant to section 260(5) of the 1998 Act.
A number of errors, as set out above, affect the validity of the MAC. These errors cannot be cured by application to a MAP because they include a failure to properly refer the matter to the AMS and to refer the relevant documents upon which he could have made a proper assessment of the degree of permanent impairment arising from any compensable injuries. The result is that the MAC does not strictly comply with section 325 of the 1998 Act and is invalid (Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50). Given the errors in the referral to the AMS it is not fair or reasonable to invalidate only those parts of the MAC dealing with the injury of 17 August 2001. The errors made by the First Arbitrator and in the referral to the AMS infect the whole of the MAC and render it invalid in its entirety.
The result of the revocation of the decision of the Second Arbitrator is that the decision of the First Arbitrator remains on foot. The First Arbitrator’s decision is not the subject of this appeal. However, for the reasons stated above, it is my view that the First Arbitrator had no jurisdiction over the injury of 17 August 2001 and therefore erred in allowing the amendment to the Application to permit its addition. Her orders in relation to this (Orders 1, 2, and 3) are therefore of no effect (Australian Traineeship Systems Cargill Meat Processes Pty Limited v Ramage [2004] NSWWCCPD 31).
The issue of ‘liability’ for the injuries claimed in the original ‘Application to Resolve a Dispute’, i.e. on 14 March 2003 and 18 November 2003, remains to be determined prior to the medical dispute being referred to an AMS. It would have been preferable to determine this issue on appeal, however there are no submissions on liability in the papers that are before me and it is ultimately more economical and timely if the matter is referred back to an Arbitrator so that following the determination of liability the referral to an AMS for assessment of the medical dispute can be properly framed. The status of late documents, including late evidence and the late ‘Reply’ should be properly determined prior to referral to an AMS. While making no criticism of the AMS who issued the MAC, in my view the medical dispute should be referred to a different AMS, who, with the benefit of all of the relevant documents and relevant findings on injury, can make a fresh assessment.
The Directions made by the First Arbitrator in relation to the filing of late documents and referral of those documents to the AMS (Orders 4-7) have clearly been overtaken by later events, including the orders of the Second Arbitrator and this appeal. There will likely be a need for further directions to clarify the documents that are in evidence and that are to be disclosed to the AMS (in accordance with the 1998 Act, the Rules and the Regulations). It is imperative that Mr Comensoli file a statement of his evidence and I propose to make a direction to that effect.
The referral of the medical dispute to the AMS should be in clear terms that identify exactly the ‘matters’ upon which an assessment is requested (section 319 and 325 of the 1998 Act) and the evidence which is to form the basis of the assessment (section 325 of the 1998 Act), subject to the AMS calling for further information.
DECISION
The decision of the Arbitrator, contained in Orders 1, 2 and 3 of the Certificate of Determination dated 12 August 2005, is revoked and the following decision is made in its place:
1.Mr Comensoli is to file a statement of his evidence within ten days of the date of this decision.
2.The matter is referred to a different Arbitrator for determination in accordance with these reasons and for referral to an Approved Medical Specialist.
COSTS
Mr Comensoli has been successful on the appeal. The appropriate order is that the Respondent is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
5 July 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
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