Falcon v Narellan Enterprises Pty Limited - [2003] NSWWCCPD 34

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Rania Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34
APPELLANT:	Rania Falcon
RESPONDENT:	Narellan Enterprises Pty Limited
INSURER:	Zurich Australian Workers Compensation Limited as managed by NRMA Workers Compensation (NSW) Pty Limited
FILE NO:	WCC 9637-2003
DATE OF ARBITRATOR’S DECISION:	22 July 2003
DATE OF APPEAL DECISION:	21 November 2003
SUBJECT MATTER OF DECISION:	Application for Leave to appeal against a decision of an Arbitrator, Discretion to Admit Late Documents, Compliance with Rules.
PRESIDENTIAL MEMBER:	Deputy President Dr Gabriel Fleming
HEARING:	On the Papers
REPRESENTATION:	Appellant: White Barnes Solicitors
Respondent: Rankin & Nathan Solicitors
ORDERS MADE ON APPEAL:	Leave to appeal is granted, only in relation to the following decisions: That the time for filing the Reply, the attached Directions for Production and the medical reports of Dr Simmons dated 31/3/03 and 13/5/03 is extended to 18 July 2003. That the Applicant not be granted leave to obtain and rely upon its own medico-legal report in reply to Dr. Simmons’ reports dated 31 March 2003 and 13 May 2003. The decision of the Arbitrator is confirmed The matter is referred to the Registrar for further directions.

THE APPEAL

Rania Falcon (‘the Appellant’) lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 22 July 2003. The Respondent to the appeal is Narellan Enterprises Pty Limited (‘the Respondent’) and the Insurer is Zurich Australian Workers Compensation Limited, currently managed by NRMA Workers Compensation (NSW) Pty Limited (‘the Insurer’).
The Appellant claims weekly benefits compensation and lump sum compensation for permanent impairment.
The Application to Appeal was not date stamped in the Commission but on its face, states that it was served on the Respondent on 7 August 2003.
Further submissions from the Appellant, in accordance with Practice Direction No. 6, were received from the Appellant on 17 September 2003.
The appeal was registered in the Commission on 19 September 2003.
The Respondent filed submissions in reply to the appeal on 9 October 2003 and 27 October 2003.
The appeal was referred to me for review on 3 November 2003.

THE DECISION UNDER REVIEW

The Order issued by the Commission on 22 July 2003 sets out the decision of the Arbitrator as follows:
1.Pursuant to Rule 13(1), the Commission orders that the time for filing the Reply, the attached Directions for Production and the medical reports of Dr Simmons dated 31/3/03 and 13/5/03 is extended to 18 July 2003.
2.By consent the Applicant is given leave to file and serve an amended statement dealing with the s67 claim and the issues raised in Dr Simmons’ reports within 14 days.
The Appellant claims that the Arbitrator also made “certain oral orders as follows:
3.That the Respondent need not amend its Reply to properly reflect the issues in dispute between the parties.
4.That the Applicant not be granted leave to obtain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWWCCPD 34
Decision Date: 21 November 2003

CaseChat Overview and Summary

In the case of Falcon v Narellan Enterprises Pty Limited, the applicant, Falcon, sought leave to appeal against a decision of an Arbitrator made by the Workers Compensation Commission. The primary issue for the Commission was whether the application met the statutory criteria for granting leave to appeal, as outlined in section 352 of the Workers Compensation Act 1998. Specifically, the Commission had to consider whether the compensation at issue on the appeal met the threshold amount of at least $5,000 and was at least 20% of the amount awarded in the decision appealed against.

The Commission noted that the appeal was lodged within the required 28-day period after the Arbitrator's decision. The Arbitrator's decision did not directly concern an award of compensation, but the total compensation claimed in the substantive proceedings was well above the $5,000 threshold. The Commission found that the substantive compensation claim satisfied subsection 352(2)(a) of the 1998 Act. However, the Commission also had to determine whether the purported orders issued by the Arbitrator qualified as "decisions" under the Act. The Commission concluded that some of the purported orders did not meet the statutory definition of a decision and were therefore not valid.

Ultimately, the Commission granted leave to appeal in relation to specific decisions made by the Arbitrator, including an extension of time for filing the Reply, the attached Directions for Production, and medical reports, as well as the refusal to allow the applicant to obtain and rely on its own medico-legal report. The decision of the Arbitrator was confirmed in other respects, and the matter was referred to the Registrar for further directions.

Orders

Orders of the court

Leave to appeal is granted, only in relation to the following decisions:

That the time for filing the Reply, the attached Directions for Production and the medical reports of Dr Simmons dated 31/3/03 and 13/5/03 is extended to 18 July 2003.

That the Applicant not be granted leave to obtain and rely upon its own medico-legal report in reply to Dr. Simmons’ reports dated 31 March 2003 and 13 May 2003.

The decision of the Arbitrator is confirmed

The matter is referred to the Registrar for further directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of 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 Respondent has not challenged whether the appeal was filed in time, in accordance with Subsection 352(4) and Rule 77 of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’). The Arbitrator’s decision was made on 22 July 2003 and the Order was issued on the same day. On the basis of the documents before me I find that the appeal was lodged within 28 days of that decision, i.e. on 7 August 2003, in compliance with subsection 352(4) of the 1998 Act. The decision of the Arbitrator in this matter does not concern an award of compensation. Subsection 352(2)(b) of the 1998 Act therefore has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5). However the substantive proceedings in the Commission remain on foot, and the ‘amount of compensation at issue on the appeal’ may be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (Robert Grimson v Integral Energy [2003] NSW WCC PD 29). In this case the worker’s claim for compensation is for a lump sum amount of compensation in relation to an injury to her left leg, and payments of weekly compensation from 24 December 2002, and continuing. This is, in total, an amount far in excess of $5,000. I find that subsection 352(2)(a)of the 1998 Act is satisfied. As noted above, the Orders issued in writing by the Arbitrator on 22 July 2003 do not contain the purported ‘decisions’ set out as 3, 4, 5 and 6 above. Other than the assertions of the Appellant’s legal representative, I have no evidence that these purported orders were in fact made by the Arbitrator. In the event that they were made, I am not satisfied that they are ‘decisions’, as that word is defined under subsection 352(8) of the 1998 Act. Taking each purported order in turn:3.That the Respondent need not amend its Reply to properly reflect the issues in dispute between the parties.This is not a matter that requires a ‘decision’ by an Arbitrator. It is a matter for the Respondent whether or not to amend its Reply. Any direction made by the Arbitrator to this effect is not a ‘decision’ in that it does not determine any issue; it remains for the Respondent to decide whether or not to amend the grounds of its Reply.4.That the Applicant not be granted leave to obtain and rely upon its own medico-legal report in reply to Dr. Simmons’ reports dated 31 March 2003 and 13 May 2003.No written order to this effect was issued by the Arbitrator, but, for the purposes of this appeal, I accept that the refusal to grant any such application for leave may have been a matter that was not reduced to writing. The response of the Appellant to the filing of Dr Simmons’ reports was clearly a matter at issue before the Arbitrator. Order 2 above, which is expressed to be made ‘by consent’ of the parties, allows the Applicant/Appellant to file and serve an amended statement in response to the issues raised by Dr Simmons’ reports. 5.That the Applicant’s claim for lump sum entitlements not be referred to an Approved Medical Specialist.The meaning of this purported order is not clear. Subsection 65(3) of the Workers CompensationAct 1987 (‘the 1987 Act’) provides that, if there is a dispute about the degree of permanent impairment, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an Approved Medical Specialist (‘AMS’). Subsection 293(2) of the 1998 Act provides that the Registrar must refer such a dispute to an AMS. The Arbitrator must therefore, in the absence of the parties’ agreement to settle the dispute about the degree of permanent impairment, refer the matter to an AMS prior to making a determination. In such cases an order made by an Arbitrator, in the absence of the issue of a ‘Medical Assessment Certificate’ by an AMS, would be infected by jurisdictional error and effectively result in no decision having been made at all (Inghams Enterprises Pty Limited v Zarb [2003] NSW WCC PD 15). In fact, in this case the Commission wrote to the parties on 7 August 2003 advising that the matter would be referred to an AMS.6.That the matter be stood over generally and scheduled for a further teleconference to be advised by the Commission in due course.This purported order of the Arbitrator is purely procedural and does not affect the substantive rights of the parties. It does not concern an amount of compensation at issue in the original dispute, or on appeal (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5). There is no written record of any such order being made and, if it were, such an approach is inconsistent with the Commission’s usual practice and procedure, as set out in the ‘Registrar’s Guideline for the Conciliation / Arbitration Process in the Workers Compensation Commission’. Upon receipt of the relevant documents the Commission should either set the matter down for a conciliation conference and arbitration hearing, or refer the medical dispute to an AMS for the issue of a Medical Assessment Certificate. There is no record on the Commission file to indicate that the matter was to be ‘stood over generally’.

Ratio Decidendi

Legal Principle Established

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