Evan John Woodbury v Peter Miles and Annie Miles (No.1)
[2008] NSWWCCPD 91
•1 September 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Evan John Woodbury v Peter Miles and Annie Miles (No.1) [2008] NSWWCCPD 91 | |||||
| APPELLANT: | Evan John Woodbury | |||||
| RESPONDENTS: | Peter Miles and Annie Miles | |||||
| INSURER: | Employers Mutual NSW Limited | |||||
| FILE NUMBER: | WCC775-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 6 March 2008 | |||||
| DATE OF APPEAL DECISION: | 1 September 2008 | |||||
| SUBJECT MATTER OF DECISION: | Sections 329(2) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | McCabe Partners Lawyers | ||||
| Respondent: | Edwards Michael Lawyers | |||||
| ORDERS MADE ON APPEAL: |
| |||||
BACKGROUND TO THE APPEAL
This is one of two applications made by Evan John Woodbury (‘the Appellant’) seeking leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’). The decision which is the subject of this application is dated 6 March 2008 and the Application was lodged with the Registry on 14 April 2008.
The Respondents to the Appeal are Peter Miles and Annie Miles (‘the Respondents Employers’).
The Appellant has also made application seeking leave to appeal against a decision of the same Arbitrator made in these proceedings, the date of such determination being 14 May 2008. The application with respect to that appeal was registered with the Commission on 5 June 2008 and is a challenge to the Arbitrator’s determination made with respect to an application brought by the Appellant seeking “reconsideration” by the Arbitrator of his decision dated 6 March 2008. That appeal (Evan John Woodbury v Peter Miles and Annie Miles (No.2) [2008] NSWWCCPD 92 (‘Woodbury (No.2)’)) is to be the subject of a determination following consideration of the merits of the Appellant’s present application.
The Appellant’s election and manner of pursuing both appeals has given rise to considerable confusion with respect to relevant documentation, duplication of argument and complexity with respect to the task of addressing the issues raised for consideration by the Commission on each appeal. The merits of such an approach to proceedings such as the present is addressed hereafter.
The Appellant, who is presently 33 years of age, is a Rural Worker by occupation. He commenced employment with the Respondents on a date in 2001 as a Station Hand. In the course of his employment with the Respondents he, on 4 January 2002, fell whilst descending steps from a shearing shed causing injury and subsequent incapacity for work. It seems that there was a dispute between the Appellant and his Employers as to entitlement to certain workers compensation benefits which dispute was the subject of two applications brought by the Appellant in the Commission. Those applications were heard together by an Arbitrator (‘the first Arbitrator’) and a determination of that dispute was made on 16 June 2005. That determination (which was subsequently amended to delete reference to “a dependant spouse”) provided as follows:
“The determination of the Commission in this matter is as follows:
1. That the Respondent pay the Applicant weekly compensation at the statutory rate from 5 January 2002 to date under Section 37 of the Workers Compensation Act 1987 for a worker with a dependant spouse and two dependant children.
Such weekly payments to continue in accordance with the provisions of the Act.
2. That the Respondent pay the Applicant as lump sum compensation under Section 66 of the Workers Compensation Act 1987 as follows (for injuries on and from 1 January 2002), $17,000 in respect of 13% whole person permanent impairment.
3. That the Respondent pay the Applicant, as lump sum compensation under Section 67 of the Workers Compensation Act 1987, $27,500 in respect of pain and suffering.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
One of the various issues raised for determination in the last mentioned proceedings was the question as to whether the Appellant suffered an injury to his right knee in the subject fall. That question was determined in the Appellant’s favour by the first Arbitrator who stated (at paragraph 55 of his Statement of Reasons for Decision):
“55. Having regard to all of the evidence before me I conclude that the Appellant did injure his right knee in the accident of 4 January 2002. …”
Following that finding of fact the first Arbitrator proceeded to make an award with respect to lump sum entitlement as noted in paragraph 2 of his Determination set forth above. That lump sum entitlement was determined by the Arbitrator having regard to the content of a binding Medical Assessment Certificate (‘MAC’) issued by an Appeal Panel which accompanied that Panel’s Statement of Reasons made on 14 February 2005. That Certificate provided for the revocation of a MAC made by Dr Roger Pillemer which was issued on 28 August 2004. It is to be noted that the Panel’s revocation of Dr Pillemer’s MAC was founded upon a determination that Dr Pillemer had erred in determining a question in relation to causation of the subject knee injury. The Panel agreed with Dr Pillemer’s numerical calculation with respect to whole person impairment (‘WPI’), the two constituent elements being 6% WPI in respect of injury to the Appellant’s thoracic spine and 7% WPI in respect of injury to the Appellant’s right lower extremity. It is important in the context of the present appeal to note that the nominated body parts to be assessed both by Dr Pillemer and the Appeal Panel were as follows:
·Cervical spine
·Right upper extremity
·Left upper extremity
·Thoracic spine
·Lumbar spine
·Left lower extremity
·Right lower extremity
Findings of impairment were made, as noted above, only in relation to the Appellant’s thoracic spine and right lower extremity.
Also of significance in this appeal is the first Arbitrator’s finding as stated under the heading ‘Summary’ (at paragraph 61 of his Statement of Reasons for Decision):
“SUMMARY
61. In summary the resolution of the issues in dispute is as follows:
“On 4 January 2002, the Applicant received an injury to his cervical, thoracic and lumbar spine, his right and left upper extremities, right and left lower extremities arising out of or in the course of his employment as a farm labourer with the Respondent. …”
It may be seen from the summary which I have attempted to outline that, following the proceedings heard before the Commission in 2005, the Appellant had succeeded in establishing as fact those injuries alleged as above summarised, as well as his entitlement to compensation benefits as provided in the first Arbitrator’s Certificate of Determination set forth in [5] above.
Following the Commission proceedings conducted in 2005 the Appellant remained incapacitated as a result of the subject injuries and, from time to time, sought medical and hospital treatment with respect to those injuries. That treatment included a surgical procedure conducted by Dr Yong Liaw, Orthopaedic Surgeon, being “right knee arthroscopy, patellar chondroplasty and ACL reconstruction”. That treatment was rendered at Port Macquarie Private Hospital on 15 September 2005. The Appellant has remained absent from work since conduct of this procedure.
By letter dated 23 October 2006 the Appellant’s Solicitors gave notice of claim to the Respondents which was stated as follows:-
“The Applicant claims the following:
1) 18% Whole Person Impairment 24,500.00
Pain and suffering 10,000.00
Total $34,500.00
=======
2) Medical expenses:
The Applicant seeks a general order for medical expenses and will make enquiries with the Health Insurance Commission to determine the full extent of the Applicant’s out of pocket expenses.”
The Appellant’s solicitors forwarded a similar notice of claim to the Respondents’ Insurer on the same date. Those letters were accompanied by a draft Application to Resolve a Dispute (‘ARD’) and four reports from Dr Endrey-Walder. It is to be noted that the correspondence did not contain any plain statement that the lump sum claims being made were in respect of a “further” claim, that is, a claim in addition to the sums provided for in the Commission’s Determination dated 16 June 2005.
It appears that the Appellant’s fresh claim was the subject of dispute between the parties and accordingly an ARD was filed on behalf of the Appellant in the Commission on 9 February 2007. That ARD was the subject of amendment on 11 February 2008 when the matter was listed for conciliation/arbitration hearing before an Arbitrator. In its amended form the ARD sought orders with respect to an alleged entitlement of the Appellant to lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator permitted amendments to paragraph 5.7 of the ARD, noted at paragraph 8 of his Statement of Reasons (‘Reasons’) which accompanied his Certificate of Determination dated 6 March 2008. It must be stated at the outset that the form of the ARD was both confusing and to an extent misleading and in particular lacked precision as to the nature of the claim being pressed on behalf of the Appellant. What is clear is that a claim for permanent impairment was made with respect to the following matters as stated in paragraph 5.7 of the ARD:
Date of Injury Body Parts/Systems Claimed Percentage
04.01.02 Right knee 4%
Thoracic spine additional 6%
Pain and suffering Additional
It is to be noted that the sum of $10,000 was claimed with respect to the alleged additional pain and suffering and a sum of $24,500 appears to have been claimed with respect to the quantified percentage impairments. These sums appeared before the amendment allowed by the Arbitrator and were not the subject of any subsequent amendment application and bear no relationship to figures which were mentioned during the course of submissions on behalf of the Appellant put by Counsel at the arbitration hearing.
On 14 April 2008 the Appellant sought leave to bring this appeal against the Arbitrator’s Decision dated 6 March 2008.
Following is a chronology of events leading to the making of this appeal application under section 352 of the 1998 Act and the concurrent appeal (Woodbury(No.2)).
2001 Appellant employed by Respondents as Station Hand.
4 January 2002 Appellant allegedly injured in fall in course of employment.
5 December 2003 Appellant lodged Application to Resolve a Dispute (‘ARD’) matter no. 19007-03.
11 February 2004 Appellant lodged a second ARD matter no. 2824-04.
28 August 2004 Medical Assessment Certificate (‘MAC’) of Dr Pillemer. Determination of 6% whole person impairment (WPI) with respect to the Appellant’s thoracic spine and a 7% WPI in respect of his right lower extremity. Dr Pillemer’s certificate as to total percentage WPI was 6% given his view that the Appellant’s right knee injury was not related to the work injury.
14 February 2005 Medical Appeal Panel (MAP) determined 13% WPI given its conclusion that Dr Pillemer had erred in addressing a question of causation concerning the right knee injury.
17 May 2005 Both ARDs heard together before an Arbitrator (the first Arbitrator).
16 June 2005 The first Arbitrator determined the dispute and issued a Certificate of Determination. Reasons accompanying that determination included findings of fact in the Appellant’s favour with respect to the allegation of knee injury and further found that the Appellant had “received an injury to his cervical, thoracic and lumbar spine, his right and left upper extremities, right and left lower extremities arising out of or in the course of his employment as a farm labourer with the respondent”. The first Arbitrator proceeded to make awards for weekly benefits, medical expenses and lump sums (the latter being in accordance with the binding MAP determination).
15 September 2005 Appellant underwent “right knee arthroscopy, patella chondroplasty and ACL reconstruction” (Dr Y. Liaw).
9 February 2007 ARD registered with Commission on behalf of the Appellant claiming entitlement to lump sums in respect of alleged further impairment and pain and suffering.
12 April 2007 MAC issued by Dr Ashwell certifying 10% WPI comprising 6% WPI regarding thoracic spine and 4% WPI regarding right lower extremity.
26 September 2007 MAP determination by Arbitrator McGruther and Drs George Weisz and Peter Burke. The MAP decision, whilst critical of Dr Ashwell’s observations concerning “causation”, confirmed the MAC issued by him.
15 October 2007 Request by Appellant for Reconsideration of MAP decision dated 26 September 2007 (section 378 of the 1998 Act).
15 October 2007 The Appellant makes application to have a Question of Law with respect to the MAP determination in September 2007 to be referred for consideration by the President.
November 2007 Decision taken by the Arbitrator not to refer the Question of Law as sought by the Appellant.
3 December 2007 MAP refused request to reconsider its decision.
11 February 2008 ARD heard by an Arbitrator of the Commission.
6 March 2008 Certificate of Determination issued providing for an award for the Respondent in respect of the alleged entitlement to further lump sums.
2 April 2008 An application was made on behalf of the Appellant for reconsideration by the Arbitrator, under section 350(3) of the 1998 Act, of his determination dated 6 March 2008.
14 April 2008 Application for leave to appeal Arbitrator's decision
dated 6 March 2008 lodged on behalf of the Appellant.14 May 2008 Arbitrator determines the Appellant’s Application for Reconsideration and same is refused.
5 June 2008 An Application for Leave to Appeal against the Arbitrator’s decision dated 14 May 2008 is lodged with the Commission on behalf of the Appellant.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 March 2008 records the Arbitrator’s orders as follows:
“The Commission determines:-
1. Award for the Respondent in respect of the Applicant’s claim pursuant to Section 66 & 67 of the Workers Compensation Act, 1987 following a determination of the Medical Appeal Panel dated 26 September, 2007.
2. No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Was the Appellant denied procedural fairness by the Arbitrator?
(ii)Did the Arbitrator err in law by failing to identify and determine the relevant issues between the parties?
(iii)Is the Appellant entitled, on this appeal, to an order referring the medical dispute between the parties to an Approved Medical Specialist for assessment pursuant to section 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the ‘1998 Act’) and/or section 378 of that Act?
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.”
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.
FRESH EVIDENCE
The Appellant in his Application filed with the Registry on 14 April 2008 stated that he did not seek leave to rely upon fresh evidence or evidence in addition to or in substitution for, the evidence received in relation to the decision appealed against (see para 2.4 of Application). Notwithstanding that notation, there is before the Commission a document headed ‘Application to Admit Late Documents’ which was registered with the Commission on 26 June 2008. That document listed the “late evidence” as being a ‘Further Statement’ of the Appellant dated 17 June 2008, a copy of which was attached. The Respondent in submissions received in the Registry on 18 July 2008 opposes the admission of the subject Statement.
Questions relating to the admission of “fresh evidence” on appeal are governed by the provisions of section 352(6) of the 1998 Act and procedure is governed by the contents of Practice Direction No.6. In this matter it must be stated that the procedural requirements with respect to applications for the admission of fresh evidence on appeal have not been complied with by the Appellant. The document filed on behalf of the Appellant is one appropriate to circumstances where a party wishes to adduce late evidence in the course of conduct of an Application to Resolve a Dispute.
A perusal of the Appellant’s Statement dated 17 June 2008 reveals that a large number of historical matters are raised, many of which are not in dispute between the parties. The Statement also, in part, contains clinical detail which, though some are addressed in the medical evidence, should, in my view, be excluded as being evidence requiring expert opinion with respect to which the Appellant is not qualified.
There is no material before the Commission which the Appellant relies upon to demonstrate that the “fresh evidence” could not with reasonable diligence have been obtained by the Appellant and tendered in the proceedings before the Arbitrator. That matter is one of the fundamental requirements specified in Practice Direction No.6 concerning applications for leave to adduce “fresh evidence”.
Having regard to the Appellant’s failure to comply with the procedural requirements relating to the admission of fresh evidence, the content of the Appellant’s Statement dated 17 June 2008, the absence of any evidence or argument as to why that evidence could not, with due diligence, have been presented before the Arbitrator and the Respondent’s arguments in opposition to the admission of that Statement I conclude that leave to adduce that evidence should be refused.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
Part 16.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Rule (11) of that Part provides:
“(11) 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.”
The Appellant’s appeal application was filed with the Registry of the Commission on 14 April 2008. The decision appealed against was made, in terms of section 352(4) of the 1998 Act, on 6 March 2008. It can be seen that the Appellant’s Application is in breach of the time requirements in that it was filed after expiration of the period fixed by the 1998 Act and the Rules (Part 16.2(1)).
It is to be noted that, notwithstanding failure on the part of the Appellant to comply with the time requirements as noted above, there were no submissions addressing the question of “extension of time” as required by the Rules. It appears from documents before the Commission that this omission, and other matters, were raised in correspondence dated 17 April 2008 forwarded on behalf of the Registrar to the Appellant’s solicitors.
The Appellant’s solicitors replied to the Registrar’s correspondence by letter dated 23 April 2008. That correspondence included what appears to be an attempt at compliance with the requirements of rule 16.2(12). The Appellant’s submission asserts, in part, that:
“There has been no prejudice to the Respondent in altering the Applicant (sic) appeal from the section 350(3) of WIM Act 1998 Application, to include an appeal under section 378 and/or 329 of WIM Act 1998.”
To enable a proper understanding of the last mentioned submission put on behalf of the Appellant it is necessary to examine the content of the Appellant’s appeal application filed on 14 April 2008. Attached to that Application was a document signed by the Appellant’s solicitors dated 11 April 2008. Reference is there made to the decision of Deputy President Roche in the matter of Morris v The University of NSW [2008] NSWWCCPD 31 (‘Morris’). It appears that reliance is placed by the Appellant upon the decision of Morris to found what is expressed as being a “request” for, what is described as “a Reconsideration” of a decision pursuant to section 378 of the 1998 Act as well as a “request” made pursuant to section 329 of the 1998 Act that the relevant medical assessment be referred “to the Approved Medical Specialist for reconsideration”.
The Appellant, in the context of addressing the “time” limitation issue states:
“It is submitted that in the interest of natural justice, that this matter be reconsidered and determined on its merits under sections 378 and/or 329 in addition to the application for reconsideration made under section 350.”
It may be observed from the summary of the documentation which I have attempted to outline that the manner in which the Appellant has approached this appeal has given rise to considerable confusion.
The immediate question to be addressed is whether the Commission should grant an extension of time in which to bring this appeal. The discretion to grant such an extension may only be exercised once a party satisfies the Commission, in exceptional circumstances that to lose the right to seek leave to appeal would work demonstrable and substantial injustice (see Rules Part 16.2(11)).
Leaving aside, for the moment, the question as to the existence or otherwise of such exceptional circumstances, the manner in which any such discretion is to be exercised may be guided by the often cited passage from the Judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’):
“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.” (at 480)”
It may be seen that, fundamental to the exercise of the Commission’s discretion to extend time are the questions as to whether there exist exceptional circumstances concerning non-compliance with the time requirements and, further, a consideration of the prospects of the Appellant succeeding in the appeal. The question of leave to appeal is to be addressed hereunder following a consideration of the evidence and argument raised by the parties.
EVIDENCE AND SUBMISSIONS
The Arbitrator, at paragraph 12 of his Reasons, noted:
“12. The following documents were taken in evidence before the Commission and taken into account in making this determination:
(1)Application to Resolve a Dispute and attached documents.
(2)Reply to Application to Resolve a Dispute and attached documents.”
Included among the documents relied upon by the Appellant before the Arbitrator were a great many medical reports from various practitioners as well as a MAC issued by Dr Pillemer which related to an examination which occurred on 7 June 2004 and which was, apparently, dated 28 August 2004. That MAC was the subject of an appeal which was upheld by the Appeal Panel comprising Arbitrator Douglas and Drs Brian Noll and Michael Gliksman. The Appeal Panel MAC and an accompanying Statement of Reasons for Decision dated 14 February 2005 were before the Arbitrator.
Dr Pillemer certified that the Appellant suffered a 6% WPI with respect to his thoracic spine and a 7% WPI in respect of his right lower extremity. Dr Pillemer’s certification as to total percentage WPI was 6%, given his view that the Appellant’s right knee injury was not related to the work injury.
The Appeal Panel agreed with Dr Pillemer’s percentage assessments however ultimately certified as to a 13% WPI given its conclusion that Dr Pillemer had erred in addressing a question of causation concerning the right knee injury. Upon proof of the knee injury, orders in favour of the Appellant were made in accordance with the binding certification of the Appeal Panel’s MAC.
The Appellant’s claim which is the subject of this appeal was in respect of an alleged further impairment suffered by him as a result of the subject work injury, that is an impairment in addition to that in respect of which he received payment from the Respondent following the Commission’s award of 16 June 2005. In the circumstances the matter was referred for assessment in accordance with Part 7 of the 1998 Act. The Approved Medical Specialist to whom the matter was referred was Dr JRS Ashwell and the details of matters referred for assessment were stated as follows:
“ • Thoracic spine, cervical spine, lumbar spine, left and right lower extremities, left and right upper extremities.”
It may be seen that the terms of referral were identical to those made to Dr Pillemer prior to his certification in 2004.
Dr Ashwell’s MAC and his substantive report are before the Commission. I note in passing that the date of assessment is noted in the MAC as being 12 April 2007 whereas the date of the substantive report which relates to an examination and assessment which took place on 12 April 2007 is dated 23 April 2007.
It was Dr Ashwell’s opinion that the Appellant had, relevantly, suffered a 6% WPI with respect to his thoracic spine and a 4% WPI with respect to his right lower extremity. In the circumstances the MAC certified a total percentage WPI of 10%.
Dr Ashwell’s assessment was the subject of an appeal which was conducted by Arbitrator McGruther and Drs George Weisz and Peter Burke. The Appeal Panel decision was delivered on 26 September 2007 and a copy of the Panel’s Statement of Reasons for Decision is before the Commission. The Appeal Panel, whilst critical of Dr Ashwell’s observations concerning ‘causation’, confirmed the MAC issued by him. That Determination by the MAP was, on 15 October 2007, the subject of an application by the Appellant for reconsideration. The Appeal Panel,other than correcting an "error in text" declined to "amend the MAP" by Determination made 3 December 2007.
It is clear from the matters set forth in Dr Ashwell’s substantive report and the Reasons for Decision issued by the Appeal Panel that both Dr Ashwell and the members of the Appeal Panel were aware of the earlier certification by Dr Pillemer and the findings of the earlier Appeal Panel which considered Dr Pillemer’s certification.
It may be seen from the above summary that there was before the Arbitrator in the present matter a MAC issued in February 2005 confirming a 13% WPI and a MAC issued by Dr Ashwell certifying as to a 10% WPI dated 12 April 2007 which was subsequently confirmed by an Appeal Panel. The terms of reference with respect to the assessments carried out by each of the Approved Medical Specialists and the Appeal Panels were in identical terms.
There is before the Commission a transcript of the proceedings conducted before the Arbitrator on 11 February 2008. That document contains a record of submissions made on behalf of each party by Counsel then appearing. It was argued before the Arbitrator that the assessments certified by Dr Ashwell and confirmed by the Appeal Panel were binding in terms of section 326(1) of the 1998 Act and it was put in argument (transcript page 3, line 12):
“The primary contention and submission, therefore, is that that assessment of Dr Ashwell, prima facie, without any challenge, is binding and, regardless of any previous assessment or any compensation awarded, the claimant must be awarded that 6% of the thoracic spine and 4% of the right leg pursuant to section 66.”
Counsel had earlier made reference to a decision of an Arbitrator in the matter of Rowe v John Baker Contracting Pty Limited and relied on that decision in support of her contention that the binding certificate, whilst it remains unchallenged, entitles the Appellant to payment pursuant to section 66 of the 1987 Act.
The Respondent, understandably, argued that in seeking payment in accordance with Dr Ashwell’s certification the Appellant was in effect asking the Commission to “double-compensate” the Appellant given the existence of the earlier award in respect of 13% WPI and payment in accordance with the award.
I note that an alternative submission was put to the Arbitrator on behalf of the Appellant that, upon some unspecified basis there should be a finding by the Arbitrator that the MAC is “not binding”. It was then put that the Appellant would, by reason of operative treatment received since the last award and its consequences, be entitled to an award in respect of either 1 or 3% WPI with respect to the right leg. Such argument has not been pursued on this appeal.
Appellant’s Submissions on Appeal
As noted above the Appellant has not identified specific “grounds of appeal” and submissions are expressed in very wide ranging terms with little, if any, reference to the Arbitrator’s Reasons. Following reference to the matter of Morris in the course of submissions accompanying the Application for Leave to Appeal the Appellant records a “request” for “a 378 reconsideration of a decision …”. That submission lacks precision and, significantly, the Appellant fails to plainly identify the “decision” which he seeks to have reconsidered.
Those submissions also record a “request” expressed to be made pursuant to section 329 of the 1998 Act, that the medical dispute be referred for further medical assessment.
Also attached to the Appellant’s Application was a copy of Submissions dated 2 April 2008 made on behalf of the Appellant with respect to a “reconsideration pursuant to section 350(3) of the 1998 Act”. Those submissions summarise the history of proceedings between the parties as well as the findings of the Approved Medical Specialists and the Appeal Panels. It is asserted on behalf of the Appellant that the Appellant had:
“…not been awarded lump sum compensation with regards (sic) to the ongoing effects of the tears of the cruciate ligament or the ACL reconstruction and chondrectomy of the patellar or the mild narrowing of the medial tibiofemoral joint space.” (at page 9 of Submissions dated 2 April 2008)
The Appellant proceeds to assert that the Arbitrator’s determination, in entering an award for the Respondent, “results in the Applicant (sic) being denied procedural fairness”.
Those written submissions also included the suggestion that the Arbitrator “committed an error of law” given that, in the course of his Reasons he:-
“identified the wrong issue, asked the wrong questions, ignored relevant material in a way that affects his exercise of power and therefore made an error of law.”
The Respondent has attached to its Notice of Opposition to this appeal Submissions prepared on its behalf by Counsel dated 30 April 2008. Those submissions outline the relevant history of the proceedings and assessments by various Medical Practitioners and it is put that the Appellant’s argument that Dr Ashwell’s assessment is in respect of “additional losses” is erroneous. It is argued that, on the evidence, there has been an improvement in the Appellant’s leg disability since the surgery which occurred in September 2005, that the Arbitrator’s reasoning with respect to relevant principle including the application of section 329(2) of the 1998 Act were correct and the Respondent opposes the reviews as sought by the Appellant in his Submissions.
The Appellant has replied to the Respondent’s submissions which are recorded in a document dated 5 June 2008 signed by the Appellant’s Solicitor. Those submissions include argument challenging the submission made on behalf of the Respondent that the Appellant had experienced a substantial improvement following right knee surgery. Attention to the medical evidence is given in support of that assertion. It is submitted (at page 9 of Submissions dated 5 June 2008) that:
“The Applicant (sic) should be sent for re-examination in accordance with the decision of Acting President Michael Snell in Peter Duncan v RTA and Sungate Pty Limited, determined on 15 May 2007.”
DISCUSSION AND FINDINGS
As noted above the Appellant has not identified with any particularity those grounds upon which this appeal is brought. Documentation which is attached to his Application with respect to the appeal include written submissions which address a multiplicity of evidentiary matters and which, broadly speaking, seek to demonstrate error on the part of the Arbitrator having regard to the state of the evidence upon which he relied in reaching his decision. These submissions lack clarity however it is clear that the Appellant’s complaint is founded upon the Arbitrator’s reliance upon the content of the Medical Appeal Panel Decision made on 26 September 2007 which led him to conclude that there should be an award for the Respondent.
At page 10 of Submissions dated 2 April 2008 the Appellant makes reference to the Arbitrator’s award and proceeds to state:
“This determination results in the Applicant being denied procedural fairness. The Applicant seeks the review of the determination by Arbitrator Messenger dated 6/3/2008.”
It should be noted that these submissions relied upon by the Appellant are in identical form to those relied upon in the Appellant’s concurrent challenge to the Arbitrator’s determination with respect to an application for reconsideration brought pursuant to section 350(3) of the 1998 Act.
The Appellant’s argument concerning the suggested denial of procedural fairness appears to be founded upon an assertion that the determination was not based upon “logically probative and relevant material”. It is also put on behalf of the Appellant, it seems in relation to the assertion concerning denial of procedural fairness, that the Arbitrator failed to exercise his statutory duty to lawfully and fairly determine the matter in dispute. These submissions follow a detailed examination of much of the medical evidence before the Arbitrator with particular emphasis given to the findings of the two Approved Medical Specialists, Drs Pillemer and Ashwell, as well as the findings of each Medical Appeal Panel which reviewed the assessments made by those practitioners. The analysis of that evidence and the accompanying argument, whilst not expressly stated, appears to challenge the validity of Dr Ashwell’s assessment and the confirmation of that assessment subsequently made by the Appeal Panel.
It appears that, whilst not expressly stated, the Appellant is seeking to mount a challenge in this appeal to the validity of the assessments above mentioned as a means of challenging the Arbitrator’s determination in a manner similar to that which was adopted by the Appellant in the matter of Jopa Pty Limited v Edenden [2004] NSWWCCPD 50 (‘Jopa’) where it was stated by Deputy President Fleming (at paragraphs 37 and 38):
“37.While there is no appeal against a MAC to a Presidential Member, where a determination is made in reliance upon an invalid or defective MAC, the determination may be infected with the error. This has occurred in this case. The Registrar’s delegate appears (though without reasons it cannot be stated with certainty) to have accepted that he was bound by the MAC of Dr Breslin, without any inquiry as to its correctness or compliance with section 325 of the 1998 Act. The orders contained in the Certificate of Determination are expressed to be made “…following the issue of a [sic] Medical Assessment Certificate by Approved Medical Specialists, Drs Pillemer and Breslin, issued to the parties on or about 19 November 2003”.
38.The Medical Assessment Certificate of Dr Breslin does not comply with Section 325(1) and (2) and is therefore invalid. It follows that Order 2 in the Certificate of Determination made in reliance upon it, namely that the Respondent pay $7500 lump sum compensation for a 15% permanent impairment, is similarly invalid. The decision-maker has made an error of law. While this alone may be sufficient to render the decision a nullity, there are other issues that arise in this matter which go to the validity of the whole of the Certificate of Determination. These are discussed further below.”
The Appellant’s attack upon Dr Ashwell’s MAC and the subsequent findings of the Medical Appeal Panel is founded upon the conflict between the findings with respect to injury made by the first Arbitrator as noted above at [8] and Dr Ashwell’s conclusion as expressed in paragraph 10 of the MAC:
“I believe the only injuries that were suffered at the time of the work injury on 4 January 2002 were to the thoracic spine and right knee. There is general agreement in the medical reports on this matter ….”
The question of conflict between the findings of fact by the Arbitrator and the expression of opinion by Dr Ashwell was addressed when, on the application of the Appellant, Dr Ashwell’s certificate was referred to the Medical Appeal Panel. That argument was addressed under the heading ‘Causation’ during the course of the MAP’s Statement of Reasons for Decision:
“Causation
26.10The Appellant submits that the AMS was incorrect in making causation determinations relative to the left and right lower and upper extremity injury observations arising from the injury of 4 January 2002, causation having already been determined by the Arbitrator on 16 June 2005. The Panel agrees with this element of contention.
26.11The Panel accepts that the AMS ventured unwisely into issues of causality and was misguided with reference to his function to do so. However, it is clear to the Panel nonetheless that the AMS assessed impairment with reference to all of the body parts referred for assessment, including of the left and right upper and lower extremities.
26.12Amongst other observations of the AMS, the Panel noted that, notwithstanding commentary by the AMS relative to causation, he nonetheless still assessed the subject body part areas. It appears to the Panel that the content of the MAC affirms this including:
· ‘10a .. I have assessed his cervical, thoracic and lumbar spine, left and right upper extremity and left and right lower extremity ..’ (emphasis here is that of the Panel);
· ‘10b .. Examination of his left lower extremity and both upper limbs did not reveal any abnormality or loss of movement and therefore rated 0% impairment’
(all at page 7 of MAC).
26.13As stated, it is clear to the Panel that the AMS did in fact consider, and assess, (amongst other body parts) the left and right upper and lower extremities, including in the conclusions reached referred to above. In any event, the Panel has determined its own review on this element of matters, and on the basis of the prior Arbitral liability findings in any event made (and with reference to all body parts referred to the AMS). The Panel on this appeal has independently determined upon them based upon its own review including as to WPI assessment.”
The Panel proceeded to confirm Dr Ashwell’s conclusions as to whole person impairment.
It may be seen that the error, identified by the Appellant to be found in the Statement of Dr Ashwell’s Reasons for Assessment, has been addressed by the Appeal Panel. It was the Appeal Panel’s conclusion that having regard to the manner in which Dr Ashwell’s assessment was conducted, the body parts addressed during the course of that assessment by that practitioner and notwithstanding the error with respect to “causation”, his conclusions were to be confirmed. In those circumstances I reject the Appellant’s submission contained at page 12 of Submissions dated 2 April 2008 where it is stated:
“In light of his determination of injury and his medical analysis of the injuries, it is clear that the AMS’s opinion was clearly affected, and so is the integrity of the MAP, which supported Dr Ashwell’s (the Approved Medical Specialist) opinions.”
There is no reference in the Appellant’s submissions to any suggested invalidity of either the MAC of Dr Ashwell or the findings of the Appeal Panel, founded upon any provision contained in Part 7 of the 1998 Act. It is my view that the Appeal Panel’s approach to the Appellant’s complaint with respect to Dr Ashwell’s finding affords the Appellant no basis upon which it could be argued that the assessment is “invalid”. It follows that any attack upon the Arbitrator’s decision made upon reliance of such assessment must fail.
The Appellant’s assertion that he had been denied procedural fairness at the hearing before the Arbitrator is made without any particular reference to the manner of conduct of the arbitration hearing and appears to be founded entirely upon the Arbitrator’s reliance upon the binding conclusions of the Medical Appeal Panel. In my view there is no basis to argue, as the Appellant has attempted, that reliance upon that evidence was in some way a demonstration of denial of natural justice.
It is bluntly asserted on behalf of the Appellant that the Arbitrator had failed to exercise his statutory duty to lawfully and fairly determine the matter in dispute. This submission is not developed and I note that no effort has been made to analyse the Arbitrator’s Reasons in support of such argument. The Appellant’s argument must be rejected.
The Appellant in submissions suggests that the Arbitrator committed an error of law in that he:
“has identified the wrong issue, asked the wrong questions, ignored relevant material in a way that affects his exercise of power and therefore made an error of law.”
This submission is followed by a detailed analysis of the medical evidence before the Arbitrator. Those submissions, with respect, lack clarity and, to an extent, are not presented in a logical fashion. It is not possible to discern from those submissions the nature of the suggested “error of law”. The submissions place much emphasis on criticism of the findings and conclusions of both Dr Ashwell and the Medical Appeal Panel. I am unable to discern from the argument as presented any basis upon which the Arbitrator’s decision could be challenged by reason of suggested error of law. In the circumstances such submission must be rejected.
It remains to be considered whether the “relief” claimed by the Appellant being referral for assessment pursuant to section 329 and/or section 378 of the 1998 Act should be made. No attention has been given in the course of the Appellant’s submissions to the question as to whether on this appeal, the Commission has power to make such order or direction.
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, in the course of considering the nature of the part of the exercise by a Presidential member conducting a review it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
Section 352(7) provides:
“(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the arbitrator concerned, or to another arbitrator, for determination in accordance with any decision or directions of the Commission.”
Having regard to the nature of the “review” and the powers of the Commission on appeal as set forth above I conclude that conduct of this appeal by the Appellant with a view to obtaining re-assessment as noted in [66] above is misconceived. The appropriate procedure (as observed by Roche DP in Morris at [34]), for requests for reconsideration under those sections is set forth in the Registrar’s Guideline dated 22 October 2007 which concerns such referrals. Whilst it may be arguable that the Commission, on an Appeal such as the present, has power to refer a MAC for reconsideration pursuant to section 329 or section 378 of the 1998 Act, the view expressed at [62] as to the validity of the subject MAC and the absence of any persuasive argument with respect to reconsideration, would, in my opinion, defeat any such application.
It is to be noted that the Appellant has placed reliance upon the decision of Acting Deputy President Snell in Duncan v RTA and Anor [2007] NSWWCCPD 113 (‘Duncan’) in support of his application to have a re-assessment of his entitlement to whole person impairment lump sums (Appellant’s Submissions dated 5 June 2008 in reply to the Respondent’s Opposition). It is my view that nothing in the decision of Duncan would support the granting of the relief as sought. The Commission in Duncan, having considered the decision appealed against, proceeded to redetermine the appellant worker’s rights. Included in those rights as claimed were entitlements to lump sums. Whilst there had been earlier assessments by Approved Medical Specialists, the Commission concluded that those assessments were inappropriate having regard to the findings made on re-determination. It was in that context that the Commission remitted the matter for determination with a direction that there be a re-assessment in appropriate terms conducted by an AMS.
Both at the hearing before the Arbitrator and on this appeal the Appellant argues that, given the binding nature of the assessment confirmed by the Medical Appeal Panel (‘MAP’)on 26 September 2007, “… the Arbitrator should have awarded the 10% whole person impairment”. Each of the parties have treated the application before the Arbitrator as being in respect of an alleged further impairment in terms of section 66 of the 1987 Act. As required by the terms of Part 7 of the 1998 Act the dispute was referred for assessment. The terms of referral for that assessment included reference to those parts of the body which had been earlier assessed by both an AMS and a MAP prior to the first Arbitrator’s determination of the question of liability. It may be seen from the assessments that the latter confirmed all findings with respect to the earlier assessment save that the second assessment determined a 4% WPI in respect of the right leg whereas the first assessment determined a 7% WPI with respect to that limb.
In the course of his Reasons the Arbitrator addressed the content of those assessments, together with the operation of section 329(2) of the 1998 Act (paragraphs 23 – 26):
“23.The MAC of Dr J R S Ashwell is a second assessment of the permanent impairment flowing from a work injury on 4 January, 2002. This second assessment by Dr J R S Ashwell follows two operations carried out on the Applicant’s right knee. The first operation was a partial medial meniscectomy on 23 September, 2007(sic). At that operation he was also diagnosed with suffering an anterior cruciate ligament tear. A second operation was undertaken by Dr Yong Liaw, Orthopaedic Surgeon, on 5 September, 2007(sic) when he underwent an ACL reconstruction and crondectomy of the patella.
24.I am of the view that the Applicant’s claim would only have merit if Dr Ashwell and the Medical Appeal Panel had certified a higher impairment of the right knee and thoracic spine than was given by the Medical Appeal Panel in paragraph 1 of their MAC of 14 February, 2005.
25.My principal reason for declining the Applicant’s claim in these proceedings is based on the provisions of Section 329(2) of the 1998 Act. The relevant provision is as follows:-
“329 Referral of matter for further medical assessment or reconsideration
“(1)
(2)A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.
26.The legislation in Section 329(2) refers to medical assessments under Part 7 of the Act. The Applicant’s claim in these proceedings clearly falls within this sub section. These matters were referred again for further AMS assessment by the Commission (see paragraph 2 of the MAC Certificate of Dr J R S Ashwell). The latter MAC Certificate must prevail as the matters or body parts referred for AMS assessment were identical. There are inconsistencies between the two MAC Certificates and the second MAC Certificate must prevail over the first MAC Certificate to the extent of that inconsistency. As the percentage impairment is less than the first Certificate the Applicant must fail in his claim for further compensation pursuant to the second Certificate.”
I agree with the conclusion of the Arbitrator as set forth above and would reject the Appellant’s argument that Dr Ashwell’s confirmed assessment in some way entitles him to payment of a further 10% whole person impairment sum. I note that the Appellant has made no submission with respect to the apparent misstatement of dates of surgery made by the Arbitrator.
It may be seen that, following a review of the Arbitrator’s determination and those arguments raised on behalf of the Appellant, I have concluded that the Arbitrator’s ultimate conclusions were correct. It is therefore plain that the appeal would fail.
Whilst I am of the view that it may be arguable that “exceptional circumstances” in a relevant sense existed prior to the filing of the Appellant’s Application herein which caused delay to the pursuit of the appeal, my conclusion that the appeal has no merit leads me to the inevitable conclusion that leave must be declined.
DECISION
Accordingly leave to appeal the Arbitrator’s decision dated 6 March 2008 is refused. The Application for Leave to Appeal fails.
COSTS
It is to be noted that whilst the Respondent in concurrent appeal proceedings referred to above at [3] has made an application for costs of that appeal, no such application has been made in the present matter. In the circumstances I make no order as to costs of this appeal.
KEVIN O’GRADY
Acting Deputy President
1 September 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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