Cottons Glass & Aluminium Pty Limited v Handsaker
[2006] NSWWCCPD 205
•25 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Cottons Glass & Aluminium Pty Limited v Handsaker [2006] NSWWCCPD 205
APPELLANT: Cottons Glass & Aluminium Pty Limited
RESPONDENT: Barry Handsaker
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC3978-06
DATE OF ARBITRATOR’S DECISION: 24 May 2006
DATE OF APPEAL DECISION: 25 August 2006
SUBJECT MATTER OF DECISION: Duly making a claim; section 260 Workplace Injury Management and Workers Compensation Act 1998; Part 2 WorkCover Provisional Liability and Claims Guidelines
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Bale Boshev Lawyers
ORDERS MADE ON APPEAL: The proceedings commenced by the Applicant in this matter were commenced in breach of the provisions of the Workplace Injury Management and Workers Compensation Act 1998 and the WorkCover Provisional Liability and Claims Guidelines December 2001, and, as a result, are a nullity as the Commission does not have jurisdiction to hear and determine the claim. The proceedings are struck out.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 24 May 2006 Cottons Glass & Aluminium Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 May 2006.
The Respondent to the Appeal is Barry Handsaker (‘the Respondent Worker/Mr Handsaker’).
The Respondent Worker was born on 22 April 1941 and is now 65 years old. On 4 November 1999 he was carrying large shop front window with a co worker when the co worker slipped and lost his grip causing the window to fall. As a result Mr Handsaker was left holding the whole of the heavy window. The window fell causing an abrasion to his right forearm and jarring his wrists. Whether the Respondent Worker also injured his shoulders in the accident or as a result of the nature and conditions of his employment is disputed.
He continued to work but had difficulty with increasing weakness in both wrists, his right wrist worse than the left. He ultimately stopped work and brought a claim for compensation in the Compensation Court of NSW (matter 5837/02) (‘the First Application’). That claim was settled on 24 June 2003 for a payment of $18,750.00 in respect of a 25% loss of use of the right arm below the elbow, $7,000.00 in respect of a 10% loss of use of the left arm below the elbow, $1,000.00 in respect of 2% severe bodily disfigurement and $8,250.00 in respect of pain and suffering under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The accident has been the subject of further applications in the Commission as follows: WCC7310-03, WCC875-05, WCC14680-04 and WCC15089-05. All of these claims have been discontinued. Before it was discontinued, Matter 7310-03 was the subject of two Medical Assessment Certificates (‘MACs’) prepared by Dr Ostinga. The first was after an examination on 8 September 2003 and the second after an examination on 11 January 2005. The purpose of matter 7310-03 was to assess if the Respondent Worker met the 15% whole person impairment threshold in order to bring a claim for common law damages.
The latest Application to Resolve a Dispute (matter 3978-06) (‘the latest Application’) was registered with the Commission on 15 March 2006 and is the subject of this appeal. This Application alleges injury to the Respondent Worker’s “left arm and right arm” due to the injury on 4 November 1999 and due to nature and conditions of employment up to that date. It seeks lump sum compensation under sections 66 and 67 of the 1987 Act in respect of an alleged 20% loss of efficient use of the Respondent Worker’s left arm at or above the elbow as a result of the alleged injuries.
By its Reply filed on 5 April 2006 the Appellant Employer denied injury, disputed the Respondent Worker’s entitlement to lump sum compensation, and, among other things, alleged that Dr Bracken failed to “assess permanent loss of efficient use of the left arm below the elbow”.
The latest Application came before an Arbitrator for a teleconference on 24 May 2006 when certain orders were made by the Arbitrator amending the Reply by deleting paragraph one (denying injury) and refusing the Appellant Employer leave to rely on two Medical Assessment Certificates obtained in matter 7310-03. It is also alleged that the Arbitrator wrongly refused to dismiss the Application because of an alleged failure to comply with section 260 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and refused to list the case for an Arbitration hearing on the issue of injury.
The Appellant Employer seeks leave to appeal these orders.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The thresholds in section 352(2) state that the Commission is not to grant leave to appeal unless the amount of compensation “at issue” on appeal is “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed”.
The present case concerns interlocutory orders and no compensation amount has been awarded. However leave to appeal may still be granted if the appeal has the real capacity to put the award of compensation in issue in the appeal. In Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 (‘Regan’) it was noted at [27]:
“27. While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an “amount of compensation at issue on the appeal” to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCC PD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”
In Regan it was held that a decision concerning the admission of medical reports and the consequential referral to an AMS had the potential to “put the amount of compensation claimed by the Appellant in issue” (Regan at [28]).
In the present case the Appellant Employer submits, among other things, that the Arbitrator erred in failing to dismiss the Application because of a non compliance with section 260 of the 1998 Act. If that argument is upheld the Application will be struck out. In addition, the admission of certain medical reports and the deletion of ‘injury’ as an issue in the Reply has a real capacity to put the award of compensation in issue in the appeal.
The Respondent Worker submits that there is no power to grant leave to appeal in interlocutory matters. No authorities are cited in support of this submission which is clearly contrary to Regan and several other Presidential decisions on point.
In the circumstances of the present case and having regard to the quantum of compensation claimed, I believe that the orders the Arbitrator made, or declined to make, have a real capacity to put the award of compensation in issue in the appeal and it is appropriate to grant leave to appeal.
No award of compensation has yet been made and, therefore, the second limb of section 352(2) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.
THE DECISION UNDER REVIEW
The orders under review were made at a teleconference on 24 May 2006 and no Certificate of Determination has been issued in respect of them. The following orders were made and are now challenged on review:
“1.the Respondent’s Application at the teleconference on 24 May 2006 for leave to file a Medical Assessment Certificate (MAC) from previous proceedings involving the worker is refused.
2.that the Reply is amended to delete the issue of injury at Part 3.”
In addition, the Arbitrator declined the Appellant Employer’s application that the matter be dismissed because of a failure to comply with section 260 of the 1998 Act.
Though there is no formal order on file, the Arbitrator also ordered that the matter be referred to an Approved Medical Specialist (‘AMS’) for assessment of the Respondent Worker’s loss of efficient use of the left arm at or above the elbow. An appointment with the AMS for 19 July 2006 was cancelled pending the outcome in this appeal.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to dismiss the Respondent Worker’s claim because of a failure by the Respondent Worker to duly make a claim under the provisions of section 260 of the 1998 Act and rule 6.11 of the WorkCover Provisional Liability and Claims Guidelines December 2001 (‘the Guidelines’) (‘failing to dismiss the claim’);
(b)wrongly deleting the issue of injury by deleting paragraph one of Part 3 from the Appellant Employer’s Reply dated 5 April 2006 (‘amending the Reply’);
(c)refusing to list the claim for an Arbitration hearing to determine the issue of injury (‘refusing a hearing’), and
(d)refusing to allow into evidence two Medical Assessment Certificates (‘MACs’) prepared by an Approved Medical Specialist (Dr Ostinga) on 8 September 2003 and 11 January 2005 in relation to earlier related proceedings between the same parties (‘late evidence’).
FRESH EVIDENCE
Whilst the Appellant Employer seeks leave to introduce new evidence on appeal, the conclusion I have reached as to the ultimate outcome of this case makes it unnecessary for me to determine this application.
SUBMISSIONS AND FINDINGS
Failing to Dismiss the Claim
The Appellant Employer submits that Mr Handsaker has not “duly made a claim” as required by the 1998 Act and in accordance with the Guidelines. Before considering this submission it is necessary to consider the relevant legislation and Guidelines.
A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless certain preliminary steps have been taken. A claim must be made in accordance with section 260 of the 1998 Act. That section provides:
“260 How a claim is made
(1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
(2) The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form part of a claim,
(f) such other matters as may be prescribed by the regulations.
(3) Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.
(4) The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim:
(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,
(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
(7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.”
Rule 1.2 in Part 2 of the Guidelines provides that “a worker must make a claim for permanent impairment”. Part 2 rule 6.11 of the Guidelines deals with the making of a claim for permanent impairment and provides:
“6.11 To make a claim for permanent impairment or lump sum damages
the worker must provide relevant particulars about a claim.
Relevant particulars about a claim are full details of the following,
sufficient to enable the insurer, as far as practicable, to make a
proper assessment of the claimant’s full entitlements on the claim.
The relevant particulars to be provided to the insurer are:
6.11.1 The minimum information listed in Part 2, rule 6.1 to 6.7;
and
6.11.2 all impairments arising from the injury; and
6.11.3 any previous injury, or any pre-existing condition or
abnormality, to which any proportion of an impairment is
or may be due (whether or not it is an injury for which
compensation has been paid or is payable under Division
4 of Part 3 of the 1987 Act);and
6.11.4 in the case of a claim for work injury damages, any
economic losses and other losses that are being claimed
as damages; and
6.11.5 information relevant to a determination as to whether or
not the degree of permanent impairment resulting from
the injury will change; and
6.11.6 in the case of a claim for lump sum compensation, details
of all previous employment to the nature of which the
injury is or may be due.
Reference section 282.
6.11.7 A medical report completed as described in WorkCover
Guidelines on Assessment of Permanent Impairment.
Reference section 282, regulation clause 39”
Section 282 of the 1998 Act provides:
“282 Relevant particulars about a claim
(1) The relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim:
(a) the injury received by the claimant,
(b) all impairments arising from the injury,
(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),
(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,
(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,
(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,
(g) such other matters as the WorkCover Guidelines may require.
(2) If the employer requires the claimant to submit himself or herself for examination by a medical practitioner provided and paid for by the employer, the claimant is not considered to have provided all relevant particulars about the claim until the worker has complied with that requirement.
(3) The insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.
(4) In this section, injury is not limited by the meaning given by section 4.”
It is also necessary to consider Part 4 of the 1998 Act which applies to “a dispute in connection with a claim for compensation” (section 287(1)) and provides certain restrictions as to when a dispute can be referred to the Commission. So far as lump sum claims are concerned, section 289(3) provides:
“289 Restrictions as to when a dispute can be referred to the Commission
(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.” (emphasis added)
The above provisions make it clear that an Application can only be lodged with the Commission if a claim has been made and liability for the claim is disputed by the person on whom the claim is made (see Procedural Tables 4.75). In the present case there is no evidence that the Respondent Worker has ever made a claim as required by the 1998 Act and by the Guidelines. The only documents attached to the latest Application are a report from Dr Bracken dated 11 August 2004 and a short statement from Mr Handsaker dated 10 January 2006. Dr Bracken’s report refers to two earlier reports prepared by him relating to Mr Handsaker, the first dated 20 June 2001 and the second dated 18 July 2002. The July 2002 report has been attached to the Reply but the June 2001 report has not been produced by either party. Under ‘Attempts to resolve dispute’ in Part 3 of the latest Application the word ‘correspondence’ has been written, but no correspondence has been attached.
In these circumstances I do not believe the latest Application is properly before the Commission. This situation was considered in Kurrajong Holdings t/as The Gardeners Inn v Carette [2004] NSWWCCPD 8 (‘Carette’) where it was held at [58-60]
“58. The Act and the Guidelines do not provide for the lodgement of an application to resolve a dispute in the Commission in the absence of the making and determination of a claim by the worker on the relevant employer and insurer. This is the case regardless of the fact that the Commission may have determined an application for an Interim Payment Direction.
59. On the documents before me on the appeal, and the submissions of the parties, I am satisfied that the Appellant Employer’s submission, that no claim has ever been properly made in this matter, is correct. The Arbitrator therefore did not have jurisdiction to determine the dispute.
60. This means that the orders are a nullity. If the Respondent Worker seeks to claim compensation from the employer a claim must now be made in accordance with the provisions of the 1998 Act and the Guidelines.”
In my opinion the same situation applies in the present case as no claim has ever been made. The Respondent Worker argues that this issue was not raised in the Reply. That is correct, but the Commission is not a court and is not bound by strict rules of pleadings. One of the purposes of having an early teleconference is to enable relevant legal or other threshold issues to be identified (see Procedural Tables 4.125). At the teleconference on 24 May 2006 the Appellant Employer disputed that the claim had been ‘duly made’. As there is no transcript of the proceedings at the teleconference it is impossible for me to know exactly what points were raised and how they were argued, but it is clear that the question of compliance with section 260 and the Guidelines was raised. Though no reasons have been provided on this issue, it is also clear that the Arbitrator ruled against the Appellant Employer on this issue. In my opinion the Arbitrator made an error of law in doing so in circumstances where the Respondent Worker had not complied with either the 1998 Act or the Guidelines. Though I have not formed a concluded view, I doubt that the insurer or Appellant Employer can waive compliance with the above provisions (as is suggested in section 260(6)) as they raise threshold jurisdictional issues that must be satisfied before the Commission can be properly seized of a matter.
In Carette the order made in favour of the worker under section 38 of the 1987 Act was held on appeal to have been made without jurisdiction as the proceedings were a nullity. In my opinion a similar order should be made in the present case.
In these circumstances it is not necessary or appropriate to consider the other grounds of appeal. I should add that in the event that a further Application is issued by the Respondent Worker, it would be prudent if both parties gave some thought and care to the preparation of their documents before they are filed with the Commission.
DECISION
The orders made by the Arbitrator on 24 May 2006 are revoked and the following order made:
“The proceedings commenced by the Applicant in this matter were commenced in breach of the provisions of the Workplace Injury Management and Workers Compensation Act 1998 and the WorkCover Provisional Liability and Claims Guidelines December 2001, and, as a result, are a nullity as the Commission does not have jurisdiction to hear and determine the claim. The proceedings are struck out.”
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
25 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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