Evan John Woodbury v Peter Miles and Annie Miles (No.2)

[2008] NSWWCCPD 92

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.2) [2008] NSWWCCPD 92
APPELLANT:		Evan John Woodbury
RESPONDENTS:		Peter Miles and Annie Miles
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		WCC775-07
DATE OF ARBITRATOR’S DECISION:		14 May 2008
DATE OF APPEAL DECISION:		1 September 2008
SUBJECT MATTER OF DECISION:		Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998
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:		The decision of the Arbitrator dated 14 May 2008 is confirmed. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

1. 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 14 May 2008.

1. The Respondents to the Appeal are Peter Miles and Annie Miles (‘the Respondents Employers’).

1. The Appellant has also made application seeking leave to appeal against a decision of the same Arbitrator dated 6 March 2008 made in these proceedings (‘the first appeal’).  The Commission today published a determination of that appeal, the decision being that the Appellant’s application for leave to appeal the Arbitrator’s decision dated 6 March 2008 was refused (see Evan John Woodbury v Peter Miles and Annie Miles (No.1) [2008] NSWWCCPD 92 (‘Woodbury (No.1)’)).

1. As stated during the course of determination of the first appeal the Appellant’s conduct of these concurrent 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.

1. The determination of the first appeal included a summary of relevant background and factual matters concerning the Appellant’s alleged injury and his subsequent claims for compensation benefits against the Respondents.  Reference is made to that summary which appears between [1] and [14] of the determination concerning the first appeal.

1. It is considered appropriate to rely upon that summary of events for the purposes of this appeal as well as reproducing the chronology of events which have preceded the making of the first appeal application (Woodbury (No.1)) and this appeal from an arbitrator’s refusal to review a decision pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

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.

1. It may be seen from the above summary that the past history of these proceedings is complex and that findings of the Commission, Approved Medical Specialists and Medical Appeal Panels have been the subject of repeated challenge by the Appellant.  This complexity is compounded by the concurrent conduct of appeals.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 14 May 2008 records the Arbitrator’s orders as follows:

“The Commission determines:-

1.     The application for reconsideration is refused.

2.     No order as to costs.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

1. The determination which was the subject of the reconsideration application made on 6 March 2008 provided:-

“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

1. The Appellant has failed to identify the grounds upon which this appeal is brought.  Submissions dated 5 June 2008 are provided in support of the Application for Leave to Appeal however that document lacks clarity, is wide ranging and, to an extent, fails to logically develop argument challenging the Arbitrator’s determination in which reconsideration was refused.

1. It is reasonably clear that the relief sought by the Appellant includes not only a review of the Arbitrator’s decision to refuse reconsideration of his original determination but that the Appellant should be referred again to an AMS.  The Appellant in part submits (at paragraph 26 of Submissions dated 5 June 2008):

“The Applicant submits that the 2^nd Approved Medical Specialist and the 2^nd Medical Appeal Panel, have decided to cavil with the Determination of Arbitrator Whitelaw dated 16.06.2005, and in doing so, have made decisions based on speculation and in total disregard to the principles of natural justice and therefore it is submitted that the Applicant should be again referred to an Approved Medical Specialist to determine Whole Person Impairment in accordance with the determination of the Presidential Member.”

1. The issues in dispute in the appeal are:

(i)whether the Arbitrator erred in any relevant respect in his determination to refuse the application for reconsideration brought pursuant to section 350(3) of the 1998 Act, and

(ii)whether, on this appeal, the Appellant is entitled to the relief identified as being a further referral to an AMS.

ON THE PAPERS REVIEW

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. 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.

1. The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.

FRESH EVIDENCE

1. The Appellant in his Application filed with the Registry on 5 June 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 the 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 and the “late evidence”, being a further “Statement” of the Appellant dated 17 June 2008, is before the Commission in both this appeal and the concurrent appeal.

1. As was observed in the course of determination of the concurrent appeal the Appellant has failed to comply with relevant procedural requirements. The content of the Applicant’s further Statement included historical matters not in dispute between the parties as well as 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.  It was also observed there that the Appellant has furnished no evidence or argument as to why that fresh evidence could not, with due diligence, have been presented before the Arbitrator.  Leave to adduce that evidence was refused in the concurrent appeal and, for the reasons there expressed, leave is refused to admit that evidence as fresh evidence on this appeal.

EVIDENCE AND SUBMISSIONS

1. The evidence before the Commission was summarised in the course of the determination of the concurrent appeal (between [38] and [47] of that decision).  It is not proposed to repeat the material appearing in the aforementioned paragraphs and reference should be made to that summary of the evidence. 

Appellant’s Submissions

1. The Appellant’s submissions in support of the application for reconsideration of the Arbitrator’s decision made pursuant to section 350(3) of the 1998 Act are to be found in Written Submissions bearing date 2 April 2008 signed by the Appellant’s solicitor. The form of that document does not conform to relevant procedural requirements. The Appellant’s solicitors apparent misapprehension of relevant procedure has again contributed to the state of confusion surrounding these proceedings generally. The Registrar’s Guideline dated 22 October 2007 provides guidance to parties and their legal representatives with respect to appropriate procedure concerning requests for reconsideration. It is there stated (at page 3):

“APPLICATIONS FOR RECONSIDERATION

There is no specific form for making an application for reconsideration under sections 329(1A), 350(3) or 378.  Parties may make application by way of letter that includes the following information:-

·The matter that is the subject of the application for reconsideration;

·The basis upon which a reconsideration is sought;

·Where relevant, the special circumstances which justify any delay in the making of the application for reconsideration;

·Where relevant, submissions addressing why the decision should be the subject of reconsideration rather than appeal;

·The date of service of the application on any other party to the proceedings.

The application for reconsideration should be made as soon as practicable after the party making the application becomes aware of the basis for seeking reconsideration.  It should be served on the other parties prior to lodgement with the Commission, together with a notification to the parties served that they have 21 days in which to reply.”

1. Notwithstanding the form of those submissions it is reasonably clear that the Appellant argues that he has been denied procedural fairness.  That assertion appears to be founded upon the Arbitrator’s reliance upon the contents of the MAP determination dated 26 September 2007 which assessment in earlier submissions is challenged.

1. It is further submitted that the Arbitrator failed “to exercise his statutory duty to lawfully and fairly determine the matter in dispute”.

1. It is also argued on behalf of the Appellant that the Arbitrator has erred in law.  It is put on behalf of the Appellant that that error has been committed given that the Arbitrator “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”.

1. The Appellant’s submissions proceed to challenge both the opinion of Dr Ashwell and that of the MAP upon suggested inconsistency between findings of fact made by the first Arbitrator and observations and conclusions of both Dr Ashwell and the MAP.

1. The Appellant’s submissions conclude with a summary of the relief sought in the following terms:

“Therefore, in accordance with the above submissions, and having regard to the matters raised above, the applicant seeks a reconsideration pursuant to section 350(3) of WIM Act 1998, to ensure justice is served between the applicant and the respondent.”

Respondent’s Submissions

1. Submissions put to the Arbitrator on behalf of the Respondents with respect to the application for reconsideration are contained in correspondence dated 9 April 2008 which is before the Commission.  The Respondent suggests that the reconsideration application includes that which appears “to be a confused challenge to previous Medical Assessment Certificates issued by the Approved Medical Specialist and the Medical Appeal Panel”.

1. Reference is made by the Respondents to relevant authority concerning the nature of the power to reconsider and it is argued that in the absence of relevant new material and in the absence of any material that could not have been raised earlier, the reconsideration request should be refused.

1. The Respondent further submits at paragraph 6 of that correspondence:

“6.     To the extent that the Application for Reconsideration attempts to challenge previous Medical Assessment Certificates or Certificates issued by the Medical Appeal Panel, the Respondent submits that the Commission has no jurisdiction to amend or revoke decisions emanating from either an Approved Medical Specialist or a Medical Appeal Panel:-  Jopra (sic) Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50; Target Australia v. Mansour [2006] NSW WCC PD 286.”

Submissions on this appeal

1. The Appellant’s submissions on this appeal are to be found in a document signed by the Appellant’s solicitors dated 5 June 2008 which accompany the Application for Leave to Appeal.  It is there argued that given suggested conflict between the findings of fact of the first Arbitrator and the contents of Dr Ashwell’s assessment and that of the MAP the Arbitrator should, on the reconsideration application, have referred the medical dispute between the parties to another Approved Medical Specialist ‘to determine whole person impairment in accordance with the determination of the Presidential Member”.

1. The Respondents in submissions dated 24 June 2008 filed in opposition to this appeal argue that, given the existence of the concurrent appeal, this appeal from the “reconsideration” decision is “essentially superfluous”.  It is stated that if the Appellant succeeds in the concurrent appeal, no reconsideration is required.  It is further put that should the Appellant fail in the concurrent appeal it follows that “the grounds of appeal were unmeritorious and that this is a determinative factor in relation to the exercise of discretion for the purposes of the decision dated 14 May 2008”.  The submissions proceed to assert that no error in any relevant sense has been demonstrated by the Appellant and that the Arbitrator’s refusal to reconsider was a correct decision on the evidence.  The Respondent seeks an order with respect to costs.

DISCUSSION AND FINDINGS

1. This appeal is brought pursuant to the provisions of section 352 of the 1998 Act.  Sub-section (5) of that section provides:

“(5)   An appeal under this section is to be by way of review of the decision appealed against.” 

1. The nature of such a “review” was discussed, with reference to particular authority, at [67] to [69] of the determination made today in respect of the concurrent appeal.  The parties attention is drawn to the contents of those paragraphs.

1. This appeal concerns a review of an Arbitrator’s decision with respect to a request made on behalf of the Appellant for a review by that Arbitrator of his determination made on 6 March 2008. Before proceeding to determine the merits of the present appeal it is necessary to examine the Commission’s power to reconsider a decision which is granted by the provisions of section 350(3) of the 1998 Act.

1. Section 350 of the 1998 Act provides:

“350  Decisions of Commission

(1)   Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.

(2)   A decision of or proceeding before the Commission is not:

(a)to be vitiated because of any informality or want of form, or

(b)liable to be challenged, appealed against, reviewed, quashed or called into question by any court.

(3)   The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

1. The discretion granted the Commission pursuant to section 350(3) has been the subject of examination and discussion by Roche ADP (as he then was) in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (‘Samuel’).  That discussion addressed relevant authorities concerning the grant of similar power with respect to review contained in the Workers Compensation Act 1926 (‘the 1926 Act’) and the Compensation Court Act 1984 (‘the Court Act’) as well as similar provisions relating to review contained in the provisions of other legislative schemes. That discussion is to be found at paragraphs [39] to [58] of the determination in Samuel.

1. The views of the Commission as expressed in Samuel were considered by Snell ADP in Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160 (‘Nan’).  The nature and scope of the power to reconsider was addressed and a view differing to that of the Commission as expressed in Samuel, namely that of Fleming DP in Comensoli v Department of Juvenile Justice [2006] NSWWCCPD 138 (‘Comensoli’) was also considered.  Following discussion of those authorities Snell ADP expressed the view that he was inclined to the view as expressed in Samuel.  I respectfully agree with those views expressed by the Presidential members in both Samuel and Nan.

1. The views of the Commission in Samuel were summarised at [58] of the determination where it was stated:

“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:

1.  the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);

2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;

3.  whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);

4.  one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);

5.  reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);

6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;

7.  depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1991] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);

8.  a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and

9.  the Commission has a duty to due (sic) justice between the parties according to the substantial merits of the case (‘Hilliger’) and section 354(3) of the 1998 Act).” 

I respectfully agree with the Commission’s analysis and opinions as above summarised.

1. In the present case the Appellant has unsuccessfully sought to adduce what is described as “late documents” in both this appeal and the concurrent appeal.  Given the rejection of that evidence the Appellant is presently left with a challenge to the Arbitrator’s determination, which he seeks to have reconsidered, founded upon suggested error of law and denial of natural justice.  In those circumstances, adopting the view of the Commission as expressed in Samuel, the appropriate procedure with respect to challenge of the Arbitrator’s determination is by way of appeal brought pursuant to section 352 of the 1998 Act.  This course has been pursued by the Appellant in the concurrent appeal and such challenge was unsuccessful.  The reasons for the failure of that appeal address all matters which require consideration on the present appeal.  Given that the Appellant’s arguments were rejected on determination of the concurrent appeal it follows that the present appeal must also fail.  An examination of the merits of the challenge to the Arbitrator’s determination dated 6 March 2008 involves identical issues in any assessment as to whether review of his refusal to reconsider that determination is appropriate.  I accept the Respondent’s submission that this appeal is “essentially superfluous”.

1. It is apparent that the Appellant in presenting the concurrent appeals and seeking relief including a referral for reconsideration of the medical dispute which has been determined by both an AMS and a MAP is seeking to challenge what is, in the present matter, a binding determination made in accordance with Part 7 of the 1998 Act.  The appeal process under section 352 of the 1998 Act is not the appropriate means of challenging a binding MAC in circumstances where the invalidity of that MAC cannot be made out.  For the reasons expressed during the course of determination of the concurrent appeal I am of the view that there can be no challenge to the validity of the subject MAC.

1. It is to be noted that the Appellant has exercised his right to have the MAP Determination issued on 26 September 2007 reconsidered.  That application was refused.  It is that procedure, supplemented by any relief that may be afforded by the application of the general law, that is appropriate to a challenge of such a determination.

1. For the reasons as stated in the course of determination of the concurrent appeal I, in the present matter, reject the Appellant’s submissions as to error of law and denial of natural justice.  In the circumstances, the Arbitrator’s determination must stand.

DECISION

1. The appeal is unsuccessful.  The decision of the Arbitrator dated 14 May 2008 is confirmed.

COSTS

1. The Respondents in Submissions dated 24 June 2008 seek an order for costs with respect to this appeal.  It is stated that such an order is appropriate “having regard to the history of the matter detailed in Submissions dated 9 April 2008 and apparent from the documents presently with the Commission … “.  The Submissions dated 9 April 2008 were those put on behalf of the Respondents to the Arbitrator opposing any reconsideration of his determination dated 6 March 2008.

1. The Appellant has not responded to the application for costs made in the Respondents’ Notice of Opposition to the Appeal.

1. It is apparent, having regard to the form of the Submissions dated 2 April 2008 prepared on behalf of the Appellant by his solicitor, that those representing the Appellant were aware at the time of institution of this appeal of the decision of the Commission in Samuel. A proper appreciation of what was stated by the Commission in that matter (at [58]) would have alerted a prudent practitioner to the appropriate course for a challenge such as the present to have been one by way of an Application for Leave to Appeal pursuant to section 352 of the 1998 Act. It is my view that the duplication of proceedings has resulted in unnecessary expenditure of both time and costs.

1. The Commission is granted a wide discretion with respect to determinations of liability for costs as provided in section 341 of the 1998 Act.  Section 341(4) provides:-

“(4)The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.”

1. No argument has been advanced on behalf of the Respondents that the claim was “frivolous or vexatious, fraudulent or made without proper justification” within the meaning of the above sub-section.  The view expressed as to the imprudence of the conduct of concurrent appeals noted above does not, in my view, constitute serious neglect, serious incompetence or serious misconduct within the meaning of section 344 of the 1998 Act.

1. In the circumstances the Respondents’ application for costs is refused.  No order as to costs is to be made as against either the Appellant or his legal representative.

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