Department of Education and Communities v Layton
[2012] NSWWCCPD 2
•18 January 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Department of Education and Communities v Layton [2012] NSWWCCPD 2 | ||||
| APPELLANT: | Department of Education and Communities | ||||
| RESPONDENT: | Yvette Layton | ||||
| INSURER: | TMF Allianz Australia Insurance Ltd | ||||
| FILE NUMBER: | A1-4441/11 | ||||
| ARBITRATOR: | Mr L Virtue | ||||
| DATE OF ARBITRATOR’S DECISION: | 30 September 2011 | ||||
| DATE OF APPEAL DECISION: | 18 January 2012 | ||||
| SUBJECT MATTER OF DECISION: | Assessment of ability to earn s 40(2)(b) of the Workers Compensation Act 1987; application of principles in Mitchell v Central West Health Service (1997) 14 NSWCCR 526; leave to appeal out of time s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998; fresh evidence on appeal s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | TurksLegal | |||
| Respondent: | Slater & Gordon Ltd | ||||
ORDERS MADE ON APPEAL: | The following orders are made: 1. Time to appeal is extended until 1 November 2011. 2. Paragraph 1 of the Arbitrator’s determination of 30 September 2011, in so far as it relates to the assessment of the worker’s entitlements under s 40 of the Workers Compensation Act 1987, is revoked and that issue is remitted to another Arbitrator for re-determination. 3. All other findings and orders of the Arbitrator are confirmed. 4. No order is made as to the costs of this appeal. | ||||
BACKGROUND TO THE APPEAL
Ms Layton was employed by the Department of Education and Communities as a school attendance officer. On 4 May 2006, Ms Layton stepped into a depression on a grass footpath in the course of her employment, and was injured.
Ms Layton claimed to have suffered injuries to her neck and back. Liability was initially accepted in respect of both injuries and voluntary payments of compensation were made until 1 July 2010.
On 4 December 2009, Ms Layton entered into a complying agreement pursuant to s 66A of the Workers Compensation Act 1987 (the 1987 Act), accepting lump sum compensation of $9,187.50 in respect of a seven per cent whole person impairment.
On 12 June 2010, Ms Layton was assessed by Associate Professor Oakeshott at Allianz’s request. Following the assessment by Associate Professor Oakeshott, Allianz issued a notice under s 74 denying liability for any further compensation on the basis that, at the time of the assessment, there was no objective clinical evidence of any physical injury or underlying pathology to the worker’s back, neck or limbs that could be attributed to the 4 May 2006 injury.
On 11 April 2011, Ms Layton lodged a claim for additional lump sum compensation in respect of 16 per cent whole person impairment, comprising 12 per cent whole person impairment of the lumbar spine and five per cent whole person impairment of the cervical spine. Although it is not clear from the letter of demand, I infer that the claim is based on an assessment by Dr O’Keefe, orthopaedic surgeon, on 9 November 2010.
On 31 May 2011, Ms Layton lodged an Application to Resolve a Dispute with the Commission. She claimed weekly compensation from 8 December 2010 to date and continuing, and lump sum compensation in respect of 16 per cent whole person impairment (less compensation previously paid in respect of the agreed seven per cent impairment) arising from the alleged injuries to her neck and back.
The Department filed a Reply to the Application, listing 15 issues in dispute.
The matter was referred to a Commission Arbitrator, who conducted a conciliation and arbitration hearing on 15 August 2011. At the hearing before the Arbitrator, the parties agreed that the only matters for determination by the Commission were:
(a) whether the worker suffered an injury to her neck as a result of the incident on 4 May 2006;
(b) the quantum of any entitlement to weekly compensation pursuant to s 40.
In a reserved decision delivered on 30 September 2011, the Arbitrator concluded that the applicant had sustained injuries to both her lumbar and cervical spines as a result of the incident on 4 May 2006. The Arbitrator determined that the worker remained partially incapacitated and awarded her compensation at the maximum payable to a single adult person from 8 December 2010.
The Commission issued a Certificate of Determination on 30 September 2011 in the following terms:
“1. The applicant is to be paid under section 40 of the Workers Compensation Act 1987 the maximum statutory rate allowable for a single adult worker from 8 December 2010 and continuing on the basis of partial incapacity resulting from injuries both to the applicant’s lumbar as well as the cervical spine in the employment incident of 4 May 2006.
2. Remit the matter to the Registrar for referral to an Approved Medical Specialist, preferably in Melbourne, to determine the extent of the applicant’s whole person impairment, if any, attributable to both the applicant’s injury to the back and injury to the neck.
3. This matter is certified as complex and the appropriate percentage increase for both parties is 15 per cent.”
The Department of Education and Communities has appealed the Arbitrator’s decision.
PRELIMINARY MATTERS
Monetary threshold
It is not disputed that the monetary thresholds in s 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) are satisfied.
Time
Pursuant to s 352(4), an appeal can only be made within 28 days after the making of the decision appealed against.
Ms Layton alleges that the appeal was lodged in contravention of s 352(4). Ms Layton submits that the Certificate of Determination was issued on 30 September 2011. The appeal against the decision was not filed in the Commission until 1 November 2011, that is, a period of 31 days elapsed after the Certificate of Determination was issued and the appeal was lodged.
The Department submits that the appeal is in time. It submits that the Certificate of Determination was issued on 30 September 2011, but was forwarded to TurksLegal at its document exchange address and, as a result of the public holiday on Monday 3 October 2011, it was not received until Tuesday 4 October 2011.
In the alternative, it is submitted, if leave is required, then an extension of time should be granted “on the basis that it is not possible for a party to consider a determination until it has been received and it is in the interests of justice that the time be extended to allow a period of 28 days from the date the determination is received”.
Ms Layton opposes the application for extension of time. She relies on the principles identified by McHugh J in Gallo v Dawson [1990] HCA 30; 93 ALR 479 (Gallo):
The first question is, is the appeal out of time? For the reasons below, it is my view that the appeal against the decision of the Arbitrator was lodged outside the 28-day time limit in s 352(4):
An appeal against an Arbitrator’s decision must be made within 28 days “after the making of the decision appealed against” (s 352(4));
An Arbitrator’s decision is made when the Commission “issues the parties to the dispute with a certificate as to the determination” (s 294(1) of the 1998 Act). See also r 16.2 of the Workers Compensation Commission Rules 2011;
A Certificate of Determination under s 294 was issued on 30 September 2011 and the reckoning of time for the purposes of s 352(4) is calculated from that date;
Section 36(1) of the Interpretation Act 1987 states;
“(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.”
Applying s 36 of the Interpretation Act 1987, the reckoning of time is calculated exclusive of the day the Certificate of Determination is issued. Therefore, in the present case, time commenced to run from 1 October 2011 and, allowing 28 days from that date, including 1 October 2011, would result in the last day for the filing of the appeal to fall on Friday 28 October 2011. The appeal was not lodged until 1 November 2011 and is therefore out of time by four days.
Although the Commission’s Rules (r 8.1) make provision for the service of documents and make special provision for service of documents by document exchange (r 8.1(7)), neither the Act nor the Rules provide that the “given date” under the Interpretation Act is the date of receipt of the Certificate of Determination. An appeal can only be made “within 28 days after the making of the decision” (s 352(4) of the 1998 Act).
Having determined that the appeal is lodged out of time, the next question is, should the time be extended?
Rule 16.2(12) of the 2011 Rules provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In Gallo, Justice McHugh said at 408:
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194–5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263–4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
For the following reasons, I am satisfied that time to appeal should be extended:
(a) I accept that the Certificate of Determination, having been issued on 30 September 2011 and having been forwarded to the appellant’s solicitors by document exchange, was, by reason of the public holiday on 3 October 2011, not received by the appellant’s solicitors until Tuesday 4 October 2011;
(b) No reasons have been advanced and no prejudice has been demonstrated by Ms Layton for refusing the application to extend time;
(c) The applicant, in my view, has a strongly arguable case, and
(d) I consider that, in the exceptional circumstances of this case, to lose the right to appeal would work a substantial and demonstrable injustice to the Department of Education and Communities.
I therefore extend time to appeal until 1 November 2011.
ON THE PAPERS REVIEW
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.”
Both parties have submitted that the appeal can be decided solely on the basis of the written submissions, without a formal hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties, 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.
FRESH EVIDENCE
The appellant seeks to tender as fresh evidence on appeal the Medical Assessment Certificate assessment of degree of permanent impairment issued by Approved Medical Specialist, Dr Edward Schutz, on 6 December 2011.
Pursuant to the Certificate of Determination of 30 September 2011, Ms Layton was referred to an Approved Medical Specialist, Dr Schutz, for an assessment of the degree of permanent impairment, if any, attributable to the injuries to her neck and back. Dr Schutz examined the worker on 22 November 2011. Having undertaken an assessment in accordance with AMA 5 and the WorkCover Guides for the Evaluation of Permanent Impairment, Dr Schutz assessed that the worker suffered from a nil per cent whole person impairment in respect of both the cervical and lumbar spines, resulting in a combined value of zero per cent whole person impairment.
The appellant submits that the Medical Assessment Certificate was not published until 6 December 2011 and it was not received until 7 December 2011. Thus, it was not available to the appellant and could not reasonably have been obtained by the appellant before the application to appeal against the decision of the Arbitrator was filed.
Further, the appellant submits that the Medical Assessment Certificate contains further evidence that is relevant to the matters to be determined on appeal, and it is the report from the most recent medical examination of the worker. The appellant submits that, if leave is not granted to rely on this evidence, the appellant will suffer substantial injustice. No attempt has been made by the appellant to identify why the medical certificate is relevant to the matters to be determined on appeal.
Ms Layton’s solicitors wrote to the Registrar on 19 December 2011 to object to the Medical Assessment Certificate being admitted as late evidence on the appeal. No submissions were advanced in support of the opposition to the admission of fresh evidence.
The admission of “fresh evidence” or “additional evidence” on appeal is governed by s 352(6) of the 1998 Act, which provides as follows:
“(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.”
The application to rely on fresh evidence is refused. As I have determined that the matter must be re-determined in any event, there is no injustice if the document is not admitted on appeal. At the re-determination, each side will be free, subject to the Commission’s Rules and the Workers Compensation Regulation 2010, to tender such further evidence as they consider necessary. Parties are reminded that applications to rely on fresh evidence must be supported by submissions that address the terms of s 352(6). Neither party has complied with the terms of s 352(6) in this case.
ISSUES IN DISPUTE
The issues in dispute on the appeal are whether the Arbitrator erred:
(a) By failing to determine the dispute in relation to the worker’s entitlement to workers compensation under s 40 of the 1987 Act in accordance with the decision of the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell);
(b) By failing to consider all available evidence in relation to the issue of the worker’s capacity for work;
(c) By failing to provide any reasons for his determination of the dispute under s 40.
The appellant has not appealed the Arbitrator’s finding that Ms Layton suffered an injury to her neck in the fall on 4 May 2006.
ABILITY TO EARN
After the fall on 4 May 2006, Ms Layton was off work for a period of time, although she is unable to recall precisely how long she remained off work. On a date which has not been identified in the evidence, but which apparently occurred soon after the injury on 4 May 2006, Ms Layton reduced her working hours to three days per week, working Mondays, Wednesdays and Fridays. She said that she did this so that she had a day in between each working day to rest. Although she struggled to cope, this arrangement apparently continued until August of 2009.
Ms Layton’s appointment as a school liaison officer within the Department was for a limited period (although her employment as a classroom teacher was not so limited). She was cognisant of the fact that her position would be re-advertised towards the end of 2009. Because of concern that her prospects of re-employment would be prejudiced if she was only able to work three days per week, by August of 2009, she had upgraded her working hours to four days per week. In September 2009, she further upgraded her working hours to five days per week, with certain restrictions. She did this, she says, in an attempt to enhance her prospects of re-appointment.
In late 2009, Ms Layton’s position as a liaison officer was advertised. She applied, but no-one was appointed to the position. In early 2010, the position was re-advertised, and Ms Layton was unsuccessful. This meant that, at the beginning of the school term in 2010, she returned to duties as a classroom teacher. She says that she was unable to cope with the demands of classroom teaching, particularly the extended periods of standing. After a few days, she went on long service leave. With the exception of four days prior to Easter 2010, Ms Layton has not worked since February 2010.
After noting that the worker’s counsel conceded that Ms Layton is not claiming total incapacity but, rather, partial incapacity, the Arbitrator dealt with the question of her entitlement to weekly compensation at [34] of the Statement of Reasons. He said:
“I have no difficulty in accepting that the applicant suffers ongoing partial incapacity as a result of injuries occurring on 4 May 2006. The parties have agreed that the comparable earnings at the present time are $1,556.93 per week and taking into account all available medical as well as the lay evidence I have no hesitation in accepting the applicant’s counsel’s submissions to the effect that the section 40 entitlement would equate in monetary terms to the weekly rate of a single adult person who is totally incapacitated. Importantly, I have determined that the applicant’s maximum earning capacity would not exceed $1,000 per week.” (emphasis added)
The appellant’s submission is that the Arbitrator erred by failing to assess the compensation payable under s 40 in accordance with the decision in Mitchell.
The Court of Appeal in Mitchell set out five steps which must be taken in making an award under s 40 of the 1987 Act:
(a) Determine in accordance with s 40(2)(a) the weekly amount that the worker would have been earning but for the injury;
(b) Determine in accordance with s 40(2)(b) the weekly amount that the worker is earning or would be able to earn in suitable employment (the determination of this amount is subject to the matters referred to in s 40(3));
(c) Subtract the figure calculated at step (b) from that calculated at step (a);
(d) Decide in accordance with s 40(1) whether and to what extent the reduction so calculated appears proper in the circumstances of the case and exercise that discretion accordingly;
(e) Make an award in the amount arrived at in step (d).
Mr Mitchell had been employed by the respondent in the care of elderly patients. His work involved an amount of physical activity in handling and moving particular patients. He alleged a series of work-related injuries that had left him with a permanent impairment of his left leg. Mr Mitchell had returned to work after each of the occurrences and worked until October 1994 with some variation of his duties. He ceased work in October 1994 as a consequence of a diagnosis of cancer of the prostate (the condition was unrelated to his employment). Egan A-CCJ found that there was a continuing incapacity as a consequence of the work-related injuries unrelated to the cancer of the prostate. Egan A-CCJ had before him evidence as to the award earnings for workers in Mr Mitchell’s pre-injury employment. There was evidence that, four years prior to commencing work as a psychiatric nurse, he had worked as an office manager and as an accountant. No other evidence was given or elucidated in cross-examination as to the remuneration earned in that particular employment. The relevant part of his Honour’s decision in relation to his assessment of the worker’s ability to earn is in these terms:
“However, it does seem to me that in relation to all of these possibilities that the applicant would not be able to earn more than $700 per week, bearing in mind his age and locality of where he lives.”
Dealing with the complaint that his Honour misdirected himself by assessing the worker’s ability to earn in this way, the Court of Appeal said (at 532):
“The appellant correctly points out that section 40(2)(b) speaks of ‘the average weekly amount’. The appellant accepts that, since section 40(2)(b) is dealing with a question of earning capacity, the Court is obviously required to presume that the worker will maximise his or her available opportunities. Nevertheless what is ultimately to be sought is a weekly average.
An appellate court should approach these matters with a disposition against finding that an experienced judge of a specialist court would misapply a frequently encountered provision such as section 40. However, the critical finding by the trial Judge was ‘ … that the applicant would not be able to earn more than $700 per week … ’. The requirement of the statute (section 40(2)(b)) was to determine ‘the average weekly amount that the worker … would be able to earn in some suitable employment, from time to time after the injury … ’. The emphases are added.
The meaning conveyed by his Honour’s words delineates the establishment of a ceiling rather than, as the statute required, evaluation of a level of ability. The apparent departure from compliance with the prescription of section 40(2)(b) entitles the appellant, in our opinion, to judgment that his challenge has been made good in this regard.”
Ms Layton submits that the Arbitrator made no error in his approach to the s 40 assessment. Ms Layton’s submissions on this point are dealt with at [15] and [18] of the Notice of Opposition, and are in these terms:
“15.The Arbitrator renumerates the issues for determination at paragraph 10 demonstrating that he is fully conversant with the requirements before him. At page 3 of his determination the Arbitrator renumerates the documents presently before him … ”
“18.The Arbitrator makes a finding that the applicant could not earn more than $1,000.00 per week and the Arbitrator exercises his discretion to the [sic] give the applicant worker an award for a single person at the maximum statutory rate.”
The Arbitrator’s approach to his assessment of the average weekly amount which the worker is earning or would be able to earn in some suitable employment (s 40(2)(b)) is in error. By assessing a ceiling rather than, as the statute requires, an evaluation of a level of ability, the Arbitrator made precisely the same error as the trial judge made in Mitchell. For these reasons, this ground of appeal is made out, and the appeal must succeed. Having regard to the above, it is unnecessary to consider the remaining grounds of appeal.
RE-DETERMINATION
Having determined as I have that the appeal must succeed, it follows that the dispute must be re-determined.
In Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1, the Court of Appeal held at [28] that the power in s 352(7) to either revoke and substitute a decision or remit the matter to an Arbitrator “is a matter within the reasonable discretion of the Presidential member having regard to the overriding objectives of the legislation in providing a fair, cost effective and timely means of resolving workers compensation claims”. The Court of Appeal in that matter expressed the view that, if an appeal is upheld, it is preferable, if possible, that the Presidential member finally determine the matter.
It is evident from the way in which the case was prepared and argued, and from the Arbitrator’s Statement of Reasons, that the principal issue in the case concerned the worker’s alleged injury to the neck and, in particular, whether that injury arose out of or in the course of the worker’s employment. There is a paucity of evidence dealing with the weekly amount the worker would be able to earn in some suitable employment (s 40(2)(b)). Apart from the Medical Assessment Certificate issued on 6 December 2011 (which does not deal directly with the issues concerning the worker’s ability to earn), the most recent medical report dealing directly with the issue is the report of Associate Professor Fearnside dated 8 March 2009.
The most recent report tendered by the worker was the report of her treating general practitioner, Dr Saluga, dated 12 April 2011, which again does not deal directly with her ability to earn.
The only evidence available from Ms Layton as to her current capacity for work is that she feels unable to return to suitable duties until she receives appropriate treatment. Whether the worker remained fit to work three days per week, as she had for several years following the injury, remains unclear.
The worker’s evidence is that she resigned her employment on 7 March 2011 because of advice she received from her union that, if her claim was successful, she could be liable to refund to the Department a substantial sum in “concessional leave” paid to her during her absences from work. She also said that, because of her financial position, she was forced to resign to access her superannuation entitlements.
In the circumstances, I do not consider that I have sufficient information to re-determine the worker’s entitlement to weekly compensation, and therefore I propose to remit the matter to another Arbitrator for rehearing on the question of the assessment of the worker’s entitlement to weekly compensation under s 40 of the 1987 Act.
The Arbitrator’s determination that the worker is partially incapacitated arising from injuries to the worker’s lumbar spine and cervical spine as a result of the injuries sustained on 4 May 2006 shall stand.
DECISION
The following orders are made:
1. Time to appeal is extended until 1 November 2011.
2. Paragraph 1 of the Arbitrator’s determination of 30 September 2011, in so far as it relates to the assessment of the worker’s entitlements under s 40 of the Workers Compensation Act 1987, is revoked and that issue is remitted to another Arbitrator for re-determination.
3. All other findings and orders of the Arbitrator are confirmed.
COSTS
No order is made as to the costs of this appeal.
Judge Keating
President
18 January 2012
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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