Devine v Coles Supermarkets Australia Pty Ltd
[2003] NSWWCCPD 28
•28 October 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Peter Devine v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCPD 28 |
| APPELLANT: | Peter Devine |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| INSURER: | Coles Myer Ltd, |
| FILE NO: | WCC 8801-2003 |
| DATE OF ARBITRATOR’S DECISION: | 31 July 2003 |
| PRESIDENTIAL MEMBER: | Deputy President Dr Gabriel Fleming |
| DATE OF APPEAL DECISION: | 28 October 2003 |
| SUBJECT MATTER OF THE DECISION: | Application for Leave to appeal against a decision of an Arbitrator, Restrictions on Medical Reports in Commission proceedings, permissible update, Compliance with Regulations and Rules. |
HEARING: | On the Papers |
| REPRESENTATION: | Appellant: White Barnes Solicitors |
| Respondent: Lander & Rogers Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator to admit the report of Dr Noll, dated 30 December 2002, is revoked. 2. The decision of the Arbitrator to admit the report of Dr Smith, dated 30 June 2003, is revoked. 3. The Respondent has until 4 November 2003, being seven days from the date of this decision, to identify the medical report in the specialty of Orthopaedic Surgery, that it intends to introduce in evidence in the proceedings. 4. The matter is to be referred to an Approved Medical Specialist on 11 November 2003. |
THE APPEAL
On 5 August 2003, Peter Devine (‘the Appellant’), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision made by an Arbitrator on 31 July 2003. The Respondent to the appeal is Coles Supermarkets Australia Pty Ltd (‘the Respondent’) and the relevant insurer is Coles Myer Limited (‘the Insurer’).
Mr Devine injured his back in May 2002 when working for the Respondent on a casual basis as a butcher. His substantive dispute before the Commission concerns a claim for compensation from the Respondent in the form of weekly benefits and a lump sum for permanent impairment.
This appeal concerns the filing of specialist medical reports. The Appellant seeks leave to appeal against ‘a decision’ of the Arbitrator. However there appears to be three ‘decisions’ that are in dispute, namely, the decisions of the Arbitrator to admit the following medical reports, filed by the Respondent,
(1) Dr Meachin, Orthopaedic Surgeon, dated 9 May 2003,
(2)Dr Smith, Orthopaedic Surgeon, dated 30 June 2003, and
(3)Dr Noll, Orthopaedic Surgeon, dated 30 December 2002.
The Appellant filed submissions on the appeal, dated 22 September 2003, in accordance with the Commission’s Practice Direction No. 6. The Appellant seeks to have the Arbitrator’s decision revoked on the grounds that “ . . the Arbitrator did not give due weight and consideration to the matters raised by the Applicant before reaching her decision” (sic) and that “. . . the Arbitrator erred in the exercise of her discretion in reaching her decision”. Alternatively, the Appellant seeks leave to file two further Orthopaedic Surgeon reports of its own.
The Respondent lodged a Reply to the appeal on 13 August 2003 and further submissions, (in accordance with Practice Direction No. 6), on 23 September 2003. The Respondent submits that the decision of the Arbitrator should be confirmed.
The appeal was referred to me for review on 14 October 2003.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as follows:
352Appeal 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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Arbitrator’s decision was made on 31 July 2003 and the appeal was lodged within 28 days of that decision, that is, on 5 August 2003, in compliance with section 352(4) of the 1998 Act. The appeal is therefore made within time.
The nature of the decision appealed against raises the issue of whether it is within the scope of the threshold test in sub-section 352(2)(a) and (b) of the 1998 Act. No amount of compensation is at issue in the appeal and there is therefore no scope for the application of section 352(2)(b) (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
Section 352(2) refers to the ‘amount at issue on the appeal’. This ‘amount’ may be different from the amount of compensation at issue in the dispute as a whole, although in this case I accept that it is the same. The Appellant’s claim is for weekly compensation from 15 September 2002 and continuing, and for a lump sum for permanent impairment, of $10,000.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
354 Procedure before Commission
(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.
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 of this matter.
MEDICAL EVIDENCE IN COMMISSION PROCEEDINGS
The establishment of the Workers Compensation Commission on 1 January 2002 represents a significant change in the way in which workers compensation disputes in NSW are to be resolved. The Commission’s jurisdiction, practices, and procedures are governed by the Workers Compensation Acts (the Workers Compensation Act 1987 (‘the 1987Act’) and the 1998 Act), the Workers Compensation (General) Regulation 1995, and the Workers Compensation Commission Rules 2003. In addition the Commission’s Registrar has issued ‘Guidelines’, and the President has issued Practice Directions, that govern particular aspects of the Commission’s dispute resolution processes.
The 1998 Act
The objectives of the Commission are set out in section 367 of the 1998 Act as follows:
367 Objectives of Commission
(1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b)to reduce administrative costs across the workers compensation system,
(c)to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d)to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f)to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2) In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.
Proceedings in the Commission are conducted with as little technicality and formality as possible (section 354 of the 1998 Act). The Commission is not bound by the rules of evidence and may inform itself as it thinks fit in the circumstances of each case. The Commission, constituted by an Arbitrator, has a duty to use its best endeavours to bring the parties to the dispute to a settlement acceptable to all of them (section 355 of the 1998 Act). When informing itself on any matter the Commission must bear in mind that evidence should be logical and probative, relevant to the facts and issues in dispute, not speculative nor offered by unqualified witnesses (Rule 70).
Section 127 of the 1998 Act provides as follows:
127 Admissibility of medical reports
(1) A medical report is admissible in proceedings before the Commission.
(2) Subsection (1) is subject to any provision of the regulations relating to the giving of notice of the admission of the medical report.
(3) Subsection (1) is also subject to any provision of the regulations relating to the number of medical reports that may be admitted in connection with a claim or any aspect of a claim.
(4) A medical practitioner whose medical report is admissible under subsection (1) may be required, in accordance with the regulations, to attend and be cross-examined on the contents of the report.
(5) In proceedings relating to the making of an interim award, a medical practitioner whose medical report is admissible in evidence under subsection (1) may not be required to attend and be cross-examined on the contents of the report without the leave of the Commission given in any case where the Commission is satisfied there is a real issue as to whether the worker is entitled to receive compensation from any of the parties.
(6) In this section, medical report means any written report of a medical practitioner relating to the worker.
Section 294A of the 1998 Act provides as follows:
294A Rules and regulations concerning medical evidence
(1) The Rules and the regulations may make provision for or with respect to:
(a) the disclosure, by the furnishing of copies of reports or otherwise, of the nature of the expert medical evidence to be given in evidence before the Commission (including the exclusion of any such evidence for non-compliance with any requirement for the disclosure of the nature of the evidence), and
(b) the disclosure of medical reports (including X-rays and the results of other tests) to approved medical specialists (including the exclusion of any such medical report for non-compliance with any requirement for the disclosure of the medical report), and
(c) limiting the number of medical reports in connection with a claim or any aspect of a claim and, in particular, limiting the number of medical reports that may be admitted in evidence in proceedings before the Commission, and
(d) limiting the number of expert witnesses that may be called by any party and otherwise restricting the calling of expert witnesses by a party.
(2) This section only authorises Rules in connection with proceedings before the Commission.
Workers Compensation (General) Regulation 1995
Part 10 of the Workers Compensation (General) Regulation 1995 (‘the Regulation’) provides for ‘Restrictions on obtaining medical reports’ in proceedings before the Commission.This Regulation was applicable to all stages of the current proceedings. The Regulation has now been amended and is the Workers Compensation Regulation 2003. It is critical that all parties fully appreciate the limitations on the filing of medical evidence in Commission proceedings and to this end I set out below the relevant Regulations in full.
43Restrictions on number of medical reports that can be admitted(1) In any proceedings on a claim:
(a) only one medical report in any particular specialty may be admitted on behalf of a party to the proceedings, and
(b) a medical report in a specialty may not be admitted on behalf of a party to the proceedings if another medical report in that specialty has already been admitted on behalf of the party in any other proceedings on the claim or in proceedings on a related claim.
(2) Despite subclause (1) (b), a medical report in a specialty may be admitted in proceedings even if another medical report in that specialty has already been admitted in other proceedings on the claim or a related claim if:
(a) the medical report to be admitted is a permissible update (under clause 44) of the medical report already admitted in the other proceedings, or
(b) the proceedings are lump sum compensation proceedings and the other proceedings were not lump sum compensation proceedings, but only so as to allow the admission of a medical report provided by the same medical practitioner who provided the medical report already admitted in the other proceedings.
(3) The medical report allowed to be admitted under subclause (2) (b) can however be provided by another medical practitioner if the medical practitioner who provided the medical report already admitted in the other proceedings has ceased (permanently or temporarily) to practise in the specialty concerned.
(4) Subclause (2) operates only as an exception to subclause (1) (b) and does not affect the requirement under subclause (1) (a) that only one medical report in a particular specialty may be admitted in proceedings on behalf of a party.
(5) For the purposes of this clause, a medical report in more than one specialty is to be regarded as a medical report in each of those specialties.
(6) In this clause:
lump sum compensation proceedings means proceedings on a claim for compensation under Division 4 of Part 3 of the 1987 Act (whether or not the proceedings are also proceedings on a claim for any other compensation).
related claims are claims or further claims for compensation in respect of the same injury, whether or not the claims are in respect of the same kind of compensation
44Permissible updates of medical reports
(1) A medical report (the update report) is a permissible update of another medical report (the original report) if the update report is provided for the purpose of updating the original report and is provided:
(a) more than 6 months after the original report was provided, or
(b) because there has been a further material change in the worker’s condition.
(2) The update report must have been provided by the medical practitioner who provided the original report except when that medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the update report can be provided by another medical practitioner.
(3) The update report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the permissible update.
45 Restrictions on recovery of cost of medical reports
(1) A party to proceedings on a claim is not entitled to be paid for or recover the cost of obtaining a medical report in connection with the claim unless the report:
(a) has been admitted in those proceedings on behalf of the party, or
(b) is a claims management phase report (as provided by subclause (2)).
(2) The following medical reports are claims management phase reports:
(a) a medical certificate that accompanies a claim for weekly payments of compensation,
(b) a medical certificate that accompanies an initial notification of injury,
(c) any medical report provided by a medical practitioner as part of and in the course of treatment of the injured worker by the medical practitioner,
(d) any medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to a requirement of the employer in accordance with section 119 of the 1998 Act.
(3) In this clause:
(a) a reference to a claim includes an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and
(b) a reference to proceedings on a claim includes proceedings in respect of the payment of provisional weekly payments of compensation under that Part.
46Medical treatment not affected
This Part does not affect any entitlement of an injured worker to be paid for or recover the cost of obtaining medical treatment.
47Reports of medical panels and referees not affected
(1) This Part does not apply in respect of:
(a) a medical report provided in respect of the examination of an injured worker by a medical panel or medical referee in connection with an existing claim, or
(b) a medical report provided for the purposes of section 121 of the 1998 Act in connection with an existing claim by an approved medical specialist under that section, or
(c) a medical report provided by an approved medical specialist under Part 7 of Chapter 7 (Medical assessment) of the 1998 Act in respect of the assessment of a new claim.
(2) In this clause:
existing claim and new claim have the same meaning as in Chapter 7 of the 1998 Act.
48 Transitional
(1) This Part applies only in respect of proceedings commenced on or after 23 February 2001. In its application in respect of those proceedings, this Part extends to medical reports obtained before that date (subject to subclause (2)).
(2) Clause 45 (Restrictions on recovery of cost of medical reports) does not apply in respect of a medical report that was obtained before 23 February 2001, or that was obtained on or after that date as a result of an appointment made before that date.
(3) Clauses 43 and 44 extend to proceedings on a new claim or new claim matter commenced before 28 February 2003, but:
(a) do not affect the use of a report in evidence in proceedings if the report was admitted in the proceedings before that date, and
(b) do not prevent the recovery of costs under Schedule 6 for more than one report in a specialty that was obtained before that date, or as a result of an appointment made before that date.
(4) In this clause, new claim has the same meaning as in Chapter 7 of the 1998 Act.
The express intention of the relevant provisions of the 1998 Act, and the Regulations is clear, namely to limit the number of medical reports that are to be admitted in proceedings in the Workers Compensation Commission.
Workers Compensation Commission Rules 2003
At the time of filing of the Application and Reply in this matter the InterimWorkers Compensation CommissionRules 2001 (‘the Interim Rules’) applied. These rules were revised as and from 1 July 2003, when the Workers Compensation CommissionRules 2003 (‘the 2003 Rules’) came into force.
Interim Rule 48 governed the filing of medical reports and provided as follows:
48Submission of medical evidence
(1) In any proceedings on a claim:
(a)only one medical report in any particular specialty may be admitted on behalf of a party to the proceedings, and
(b)a medical report in a specialty may not be admitted on behalf of a party to the proceedings if another medical report in that specialty has already been admitted on behalf of the party in any other proceedings on the claim or in proceedings on a related claim.
(2) Despite subrule (1) (b), a medical report in a specialty may be admitted in proceedings even if another medical report in that specialty has already been admitted in other proceedings on the claim or a related claim if:
(a)the medical report to be admitted is a permissible update (under this rule) of the medical report already admitted in the other proceedings, or
(b)the proceedings are lump sum compensation proceedings and the other proceedings were not lump sum compensation proceedings, or
(c)the medical report to be admitted is prepared pursuant to a direction by the Registrar or the Commission constituted by an arbitrator to the medical practitioner who prepared the report already admitted in the other proceedings to revise that report in light of the medical reports submitted by the other parties to the proceedings.
(3) Subrule (2) operates only as an exception to subrule (1) (b) and does not affect the requirement under subrule (1) (a) that only one medical report in a particular specialty may be admitted in proceedings on behalf of a party.
(4) For the purposes of this rule, a medical report in more than one specialty is to be regarded as a medical report in each of those specialties.
(5) A medical report (the update report) is a permissible update of another medical report (the original report) if the update report is provided for the purpose of updating the original report and is provided:
(a)more than 6 months after the original report was provided, or
(b)because there has been a further material change in the worker’s condition.
(6) The update report must have been provided by the medical practitioner who provided the original report except when that medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the update report can be provided by another medical practitioner.
(7) The update report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the permissible update.
(8) This rule does not apply in respect of a medical report provided in respect of the examination of an injured worker by an approved medical specialist under section 322.
Interim Rule 5 provided that the Commission may dispense with compliance with any of the requirements of the Rules.
At the time of the Arbitrator’s purported decision to admit the three further medical reports the relevant rules were contained in the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’).
In so far as they concern the issues involved in this case, there is no significant difference between the Interim Rules and the 2003 Rules in relation to the requirements for filing of an Application, Reply and documents relied upon by the parties. Rules 38, 39 and 40 of the 2003 Rules, provide as follows
38 Material to be lodged with application
(1) For the purposes of section 290 of the 1998 Act, the applicant must lodge and serve with the application to resolve a dispute all information and documents on which the applicant proposes to rely and that are in the possession or control of the applicant at that time.
(2) Subject to subrules (3) - (5), an applicant may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a) the applicant has lodged and served with the application for dispute resolution, or, as the case may require, any response, in the proceedings, a statement revealing:
(i)the specific nature of the evidence, and
(ii)the reliance the applicant intends to place on the evidence, and
(iii)the reasons why the evidence is not available at the time of service, and
(iv) the time it is expected to be available, and
(b)the evidence is served on all other parties, and lodged, as soon as practicable after the evidence becomes available.
(3) The Commission may, for the avoidance of injustice, allow an applicant to introduce evidence that the applicant would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where an applicant wishes to rely on a document produced as required by a direction issued under section 357 of the 1998 Act, and claims that the applicant was:
(a)unaware of the relevant information in the document, or
(b) unable to obtain possession of the document,
at the time the applicant lodged the application to resolve a dispute, or, as the case may require, any response, in the proceedings, the applicant must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings a statement revealing:
(c)the specific nature of the information, and
(d)the reliance the applicant intends to place on the information.
(5) Without limiting subrule (3), where an applicant complies with subrule (4) in respect of any information, the Commission may allow the applicant to introduce evidence of that information.
39 Reply by respondent
(1) The respondent in any proceedings must, within 21 days from the date of registration of the application to resolve a dispute in the proceedings, lodge a reply to the application and serve a sealed copy of the reply on the applicant and any other party to the proceedings.
(2) If the applicant is an employer (but not a self-insurer), the respondent must serve the reply on both the employer and the employer’s insurer.
(3) Without leave of the Commission, the failure of a worker to notify of an injury as required by the Workers Compensation Acts may not be raised as an issue in the reply by the respondent if that issue has not been included in the notice given in accordance with section 74 of the 1998 Act.
40 Material to be lodged by respondent(1) For the purposes of section 290 of the 1998 Act, the respondent must lodge and serve with the reply all information and documents on which the respondent proposes to rely that have not been lodged with the application to resolve a dispute in the proceedings and that are in the possession or control of the respondent at that time.
(2) Subject to subrules (3) – (5), a respondent may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a)the respondent has lodged and served with the reply a statement revealing:
(i)the specific nature of the evidence, and
(ii)the reliance the respondent intends to place on the evidence, and
(iii)the reasons why the evidence is not available at the time of service, and
(iv)the time it is expected to be available, and
(b)the evidence is served on all other parties and lodged as soon as practicable after the evidence becomes available.
(3) The Commission may, for the avoidance of injustice, allow a respondent to introduce evidence that the respondent would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where a respondent wishes to rely on a document produced as required by a direction issued under section 357 of the 1998 Act, and claims that the respondent was:
(a)unaware of the relevant information in the document, or
(b)unable to obtain possession of the document,
at the time the respondent lodged the reply in the proceedings, the respondent must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings a statement revealing:
(c)the specific nature of the information, and
(d)the reliance the respondent intends to place on the information.
(5) Without limiting subrule (3), where a respondent complies with subrule (4) in respect of any information, the Commission may allow the respondent to introduce evidence of that information.
At the time of the Arbitrator’s decisions in relation to the admission of the medical reports Rule 68 of the 2003 Rules was in effect, which provides as follows;
68 Medical reports
(1) This rule applies to medical reports to which the restrictions in clause 51F of the Workers Compensation (General) Regulation 1995 apply.
(2) Where the documents to be lodged by a party to any proceedings as required by rule 38(1), 40(1), 42(1) or 44(2) include more than one medical report in any particular specialty, the party must include with the reports a clear indication in writing as to which of the reports the party will introduce in evidence in the proceedings.
(3) Where a party to any proceedings, in accordance with these rules, proposes to rely on a medical report that was not included in the documents lodged by the party as required by rule 38(1), 40(1), 42(1) or 44(2) in lieu of a medical report that was so included, the party must so inform the Registrar and the other parties to the proceedings, in writing, as soon as practicable.
Rule 6 (2003 Rules) provides that “. . .the Commission may if it thinks fit on terms dispense with compliance with any of the requirements of these rules”.
Discussion
The application of the Act, Regulations and Rules outlined above reveals that an Arbitrator does not have a discretion to allow more than one medical report in any particular specialty to be filed by a party to a dispute in proceedings in the Commission. While Rule 6 of the 2003 Rules provides for dispensation from the Rules, this cannot apply to rules that simply give effect to the requirements of the Regulations. To do so would be to effectively allow Arbitrators to dispense with compliance with the Regulations, which they are not empowered to do.
A party who files more than one report in any particular speciality must comply with the procedural requirements of Rule 68 and inform the Registrar which of the reports is to be introduced in evidence in the proceedings.
RELEVANT FACTS AND SUBMISSIONS
The issues for determination in the appeal are restricted to procedural matters. It is not necessary to canvass the facts relevant to the substantive issues of the Appellant’s claim for workers compensation.
The Application to Resolve a Dispute (‘the Application’) was filed in the Commission on 9 April 2003. It set out Mr Devine’s claim for compensation for permanent impairment and weekly benefits from 15 September 2002 to date and continuing. Attached to the Application, in accordance with Interim Rule 16(1) (Rule 38 of the 2003 Rules), were statements of Mr Devine, copies of correspondence, copies of relevant WorkCover medical certificates, and two medical reports, one from Dr Harrison, Orthopaedic Surgeon, dated 16 September 2002, and another from Dr Phillips, Radiologist, dated 16 November 2002. The Application stated that Mr Devine intended to rely on a number of documents that were not yet available, specifically, documents produced under Directions to Produce to be issued to the Respondent and Dr New, an MRI scan, a further medical report from Dr Harrison and ‘comparable wage records’ requested from the Respondent.
There was no statement attached to the Application, in accordance with Interim Rule 16(2)(a) (Rule 38 of the 2003 Rules), setting out the matters required by that Rule, in particular, the specific nature of the evidence, the reliance the applicant intended to place on the evidence and the reasons why the evidence was not available at the time of service of the Application.
A Certificate of Service of the Application was filed on 11 April 2003, attesting to service on 10 April 2003.
On 24 April 2003 the Respondent filed a ‘Reply to the Application for Dispute Resolution’, in accordance with Interim Rule 27 (Rule 40 of the 2001 Rules). Attached to the Reply were copies of a number of relevant WorkCover medical certificates, copies of correspondence, an ‘Incident Investigation Report’ dated 3 June 2002, a report of Dr Phillips, Radiologist, dated 16 November 2002, an Injury Management Plan dated 22 July 2002, and three medical reports, one from Dr Meachin, Orthopaedic Surgeon, dated 10 July 2002, one from Dr Price, Occupational Health Physician, dated 8 October 2002, and another from Dr Noll, Orthopaedic Surgeon, dated 13 December 2002. The Respondent stated that it intended to rely on other documents that were not yet available, specifically, a further report of Dr Meachin and a ‘List of Payments’.
There was no statement attached to the Reply, in accordance with Interim Rule 27(2)(a) (Rule 40 of 2003 Rules), setting out the matters required by that Rule, in particular, the specific nature of the evidence, the reliance the Respondent intended to place on the evidence and the reasons why the evidence was not available at the time of service of the Reply.
A Certificate of Service of the Reply was filed on 24 April 2003, attesting to service on 23 April 2003.
In accordance with the ‘Registrar’s Guideline for the Conciliation/Arbitration Process in the Workers Compensation Commission’ the dispute was listed for a telephone conference before an Arbitrator on 31 July 2003. It was at this telephone conference that, according to the Appellant, and not contradicted by the Respondent, the Arbitrator made three ‘decisions’ (see section 352(8) of the 1998 Act), namely to allow the Respondent to file, and rely upon,
(1) an updated report of Dr Meachin,
(2)a further report by Dr Smith, Orthopaedic Surgeon, and
(3)the report of Dr Noll, Orthopaedic Surgeon, in addition to the reports of Dr Meachin and Dr Smith.
The Appellant submits that the Respondent is not entitled to rely upon the reports of Drs Smith and Noll, because to do so infringes Rules 40 and 68 of the 2003 Rules (Interim Rules 27 and 48). The Respondent’s Reply made no reference to the report of Dr Smith. The Appellant contends that his attendance upon Dr Smith, at the request of the Respondent, was in relation to proposed surgery only, and not relevant to the current proceedings. Further, to allow these three reports to be relied upon infringes Rule 68 because Drs Smith, Noll and Meachin are all Orthopaedic Surgeons. The Appellant claims that the Respondent’s failure to indicate which report is to be relied upon infringes Rule 68(2).
The Appellant claims that he would suffer a substantial injustice if the reports of the three doctors were admitted, as he has, in compliance with the Commission’s Rules, relied upon only one opinion of a medical expert to support his claim. If the Arbitrator’s decision is confirmed the Appellant seeks leave to submit reports from two further Orthopaedic surgeons.
The Respondent submits that at the time of filing the Reply it was not in possession of reports from Dr Smith, dated 30 June 2003, and Dr Meachin dated 9 May 2003, and therefore was not in a position to file them in the proceedings. The Respondent’s intention to rely upon an updated report by Dr Meachin was referred to in the Reply. The Respondent submits that all the evidence filed should be put to an Approved Medical Specialist, in order that he or she may make their own assessment of Mr Devine. The Respondent argues that no prejudice or injustice would result to the Appellant by following this course.
DISCUSSION AND FINDINGS
Record of the Decisions and Brief Reasons
There is no written record of the Arbitrator’s purported decisions, or any written reasons for them, on the Commission file. Clearly they do not amount to a final determination of the dispute and thus a Certificate of Determination, pursuant to section 294 of the 1998 Act, and a statement of reasons, pursuant to Rule 73, have not been issued.
It is consistent with the nature of the proceedings, and the objectives of the Commission, that lengthy, written reasons for an interlocutory decision such as this are not necessary. However, without any written record of the decision, nor any written reasons, however brief, the task of review by a Presidential member under section 352 of the 1998 Act is difficult. The powers of the Presidential member to revoke or substitute a new decision are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error: Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6, Allesch v Maunz (2000) 203 CLR 172. It is thus essential that the Arbitrator at least record the decision, and brief reasons for it, on the Commission file. These reasons should state clearly why leave was granted, the Arbitrator’s consideration of the law and of matters raised in any relevant Practice Direction (in this case Practice Direction No. 9) and any other relevant factors that have been taken into account. The Arbitrator’s purported decisions in this matter were made on 31 July 2003, some two and a half months prior to the determination of this appeal. In the circumstances I do not believe it would be reasonable, or fair, to now request the Arbitrator to reduce to writing her reasons for the decisions.
Both parties are in agreement as to the three decisions that were purportedly made by the Arbitrator, i.e. in relation to the admission of three further medical reports. In reviewing these decisions I propose to consider the relevant facts and law in order to determine whether they should be confirmed, or revoked and another decision made in its place. I have reviewed the contents of the Commission’s file, which includes the documents that were before the Arbitrator, and taken into account the submissions of the parties on appeal. It is not fair or reasonable, nor the obvious intention of the legislation, to deny the Appellant a right of appeal because of the Arbitrator’s failure to record the decision, and reasons for it. In any event, as will become obvious from these reasons, the matters in dispute were not such that the Arbitrator was empowered to exercise any discretion in relation to them, for whatever reason.
It is appropriate to deal with each of the three decisions separately as they may attract the operation of different Regulations and Rules.
The Report of Dr Noll, 30 December 2002
The report of Dr Noll, Orthopaedic Surgeon was filed with the Respondent’s Reply. Interim Rule 48 applied at that time. It was filed at the same time as the report of Dr Meachin, also an Orthopaedic Surgeon. Dr Noll’s report addresses the issues that arise as a result of the alleged injury to Mr Devine’s back. Dr Meachin’s report addresses the same issues.
The filing of two medical reports from the same specialty is clearly in breach of Regulation 43 and Interim Rule 48. As stated above, the discretion to dispense with the application of the Rules (Interim Rule 5, and Rule 6 of the 2003 Rules) does not, and cannot, authorize a breach of the Regulations.
The report was not filed pursuant to a direction of the Registrar or the Commission (Rule 48(2)(c)) nor is it a ‘permissible update’ (Rule 48(2)(a)).
The Report of Dr Meachin, 9 May 2003
There is no dispute that the Respondent referred to an intention to rely upon the updated report of Dr Meachin in the Reply filed on 24 April 2003. This statement partly met the requirements of Interim Rule 27(2)(a), but, as noted above, the requisite statement was not filed.
The report of 9 May 2003 is a ‘permissible update’ under Interim Rule 48(2)(a) and Regulation 44.
If the Respondent chooses to rely upon Dr Meachin to provide expert evidence in the specialty of Orthopaedic Surgery, then the report of 9 May 2003 may be relied upon in accordance with the Rules. No order or direction of the Commission is required to this effect.
In the event that the Respondent chooses to rely upon a report from a different Orthopaedic Surgeon, then both the original report of Dr Meachin dated 10 July 2002, and the updated report of 9 May 2003, would not be permitted by the Rules and the Regulations.
The Report of Dr Smith, 30 June 2003
The Respondent also seeks to rely upon the report of Dr Smith, Orthopaedic Surgeon, dated 30 June 2003. Dr Smith’s report deals with the same issues as the other expert reports, namely the issues that arise as a result of the alleged injury to Mr Devine’s back.
The report was not filed pursuant to a direction of the Registrar or the Commission (Rule 48(2)(c)) nor is it a ‘permissible update’ (Rule 48(2)(a)).
This report gives rise to the same issues as that of Dr Noll, namely that the filing of two (in this case three) medical reports from the same specialty is clearly in breach of Regulation 43 and Interim Rule 48. As stated above, the discretion to dispense with the application of the Rules (Interim Rule 5, and Rule 6 of the 2003 Rules) does not, and cannot, authorize a breach of the Regulations.
Report of Dr Meachin dated 14 August 2003
In submissions filed on 23 September 2003, the Respondent has sought to file a further report of Dr Meachin, dated 14 August 2003. I note that this report was made in reference to a letter to Dr Meachin from the Respondent on 11 August 2003, some two weeks after the decisions that are the subject of this appeal were made. The admission of this report was not in issue before the Arbitrator, nor do the documents record any request made to the Arbitrator in relation to this report. I do not propose to consider the filing of this report. This is a matter to be determined by the Arbitrator at first instance, in accordance with the applicable law and these reasons.
Summary
Rule 68 and Part 10 of the Regulations restrict the number of medical reports that can be relied upon in proceedings before the Commission. An Arbitrator has no discretion to allow more than one medical report in any particular specialty to be admitted on behalf of a party in proceedings before the Commission, unless that report is a ‘permissible update’ as defined by the Regulations. The Respondent may rely on only one medical report from the specialty of Orthopaedic Surgery. It is now a matter for the Respondent to identify which of the three Orthopaedic Surgeons’ reports it wishes to rely upon.
The decisions of the Arbitrator are revoked, however it is not necessary to make new decisions in their place. This matter is resolved by the proper application of the Regulations and the Rules 2003.
I propose to make directions in relation to this issue and the timely progress of the matter, which now must be the subject of a referral to an Approved Medical Specialist for the purpose of determination of permanent impairment.
COSTS
Section 345 of the Act provides, relevantly, that:
345Costs Penalties Where Appeal Unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1000 or such other amount, as may be prescribed by the Regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
There is difficulty in the application of these provisions to the circumstances of this case because the quantum of Mr Devine’s claim was not the issue determined by the Arbitrator at first instance. While the amount of compensation at issue on the appeal (section 352(2) of the 1998 Act) was relative to the amount of the Appellant’s claim on the Respondent, the amount of compensation ultimately to be paid to Mr Devine remains to be determined.
In the circumstances it is appropriate for no order to be made as to costs at this stage. The parties are urged to come to an agreement as to costs, taking into account the terms of section 345 and the final determination of the matter, by agreement or by order of an Arbitrator. Failing that a further application for costs may be made.
DECISION
The decision of the Arbitrator to admit the report of Dr Noll, dated 30 December 2002, is revoked.
The decision of the Arbitrator to admit the report of Dr Smith, dated 30 June 2003, is revoked.
The Respondent has until 4 November 2003, being seven days from the date of this decision, to identify the medical report in the specialty of Orthopaedic Surgery, that it intends to introduce in evidence in the proceedings.
The matter is to be referred to an Approved Medical Specialist on 11 November 2003.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming Workers Compensation Commission
Registrar Date:
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