Ferraro v WGE Pty Ltd

[2005] NSWWCCPD 98

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Ferraro v WGE Pty Limited [2005] NSW WCC PD 98

APPELLANT:  Pasquale Ferraro

RESPONDENT:  WGE Pty Limited

INSURER:QBE Workers Compensation Limited

FILE NUMBER:  WCC17556-04

DATE OF ARBITRATOR’S DECISION:          5 January 2005

DATE OF APPEAL DECISION:  26 August 2005

SUBJECT MATTER OF DECISION:                Appeal Against Arbitrator’s decision to ‘strike-out ‘ Application; threshold dispute; jurisdiction.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant: Villari & Co Lawyers

Respondent: No appearance

ORDERS MADE ON APPEAL:  (1)       The Commission has no jurisdiction to

determine the Appeal, and the Appeal is not successful.

(2)       No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. Pasquale Ferraro (‘the Appellant’) suffered an injury to his neck and right arm in a fall at work on 8 November 2001, whilst employed by WGE Pty Limited (‘the Respondent’).

1. A Registered Agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) was filed on 6 March 2003 wherein the Appellant received pursuant to section 66 $16,000.00 in respect of 20% permanent loss of use of his right arm at or above the elbow, $2,000.00 in respect of 5% permanent impairment of his neck, and $9,000.00 for pain and suffering pursuant to section 67.

1. On 27 October 2004 the Appellant lodged an Application to Resolve a Dispute in the Workers Compensation Commission. The Application was for “Threshold Dispute for Work Injury Damages or Commutation” and in paragraph 4.4 of that Application, under the heading ‘Reason for Dispute’, the Appellant ticked “whether the degree of permanent impairment from the injury is at least 15%”. Annexed to the Application was a report from Dr Alan Searle dated 19 November 2002. The Appellant further noted in his Application that attempts to resolve a dispute were “by letter dated 17 September 2004 to QBE Insurance”.

1. A Reply was filed by the Respondent dated 19 November 2004 stating that the issue in dispute was “Threshold” and that “we have requested a supplementary report from our Medico-Legal Practitioner in order to request a WPI finding as this has not been previously provided”.

1. The Respondent said that it had requested a supplementary report from Dr Breit on 18 November 2004, which was expected within 14 days. No primary report from Dr Breit was included in the Respondent’s List of Documents attached to the Reply.

1. At a teleconference on 5 January 2005, the Arbitrator ordered that the matter be struck out for want of readiness. A Certificate of Determination to that effect issued on 14 January 2005.

1. On 11 March 2005 the Appellant lodged an Application to Appeal against Decision of Arbitrator claiming that the Arbitrator erred in law in her order to strike out the Application for want of readiness.

1. The Appellant seeks to have this order revoked and the proceedings revived, with an appropriate order referring the medical dispute to an Approved Medical Specialist.

1. No Notice of Opposition to the appeal has been lodged.

ON THE PAPERS REVIEW

1. The Appellant submits that the appeal may be decided on the papers. Having regard to practice directions 1 and 6, and in accordance with section 354(6) of the Work Place Injury Management & Workers Compensation Acts 1998 (‘the 1998 Act) I am satisfied that I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.

THE ARBITRATOR’S DECISION

1. The Statement of Reasons accompanying the Certificate of Determination notes the teleconference on 5 January 2005 where the parties were unable to resolve their dispute.

1. It reads as follows:

“To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the telephone conference.

A sound recording of the reasons given is not available to the parties.

The orders made are as follows:

1.        That the matter be struck out for want of readiness.”

1. The Arbitrator has not elaborated her reasons for striking out the Application. Teleconferences are not routinely recorded and consequently there is no transcript of the proceedings.

1. It is not clear from the brief statement by the Arbitrator whether she made a determination that the proceedings were a nullity in accordance with rule 6(4). Such a determination is a pre-requisite to the striking out of the claim (see Way v Newcastle City Council [2004] NSW WCC PD17 and Foreman v Moree Plains Shire Council [2004] NSW WCC PD 85).

THE SUBMISSIONS AND EVIDENCE

1. Under section 313 of the 1998 Act, a Claimant cannot commence court proceedings for the recovery of damages unless the degree of permanent impairment has been assessed by an Approved Medical Specialist under Part 7 of the 1998 Act.  Section 314(1) states that:

   “… there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:

   (a) The person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or

   (b)There is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable”.

1. The Appellant had not received a response to its letter to the Respondent’s Insurer dated 17 September 2004. The Respondent’s Reply listed the issues in dispute as “threshold”. In addition, the medical reports provided by both parties did not demonstrate that a whole person impairment was “fully ascertainable” such that, on that basis, clearly a dispute existed.

1. A medical dispute is defined under section 319 of the 1998 Act as including “the degree of permanent impairment of the Worker as a result of an injury”.

1. Section 321(1) of the 1998 Act provides that “a medical dispute may be referred for assessment under this Part by a Court, the Commission or the Registrar, either of their motion or at the request of a party to the dispute”. As the Appellant submits, there is no qualification to this entitlement.

1. The parties are entitled to submit any medical reports written in accordance with the requirements of the 1998 Act to an Approved Medical Specialist for consideration.

1. There is no requirement that a party submit a medical assessment of whole person impairment to an Approved Medical Specialist to determine a “threshold” dispute. The Approved Medical Specialist is an independent assessor who is empowered under section 324 of the 1998 Act to seek information he or she considers necessary or desirable for the purposes of assessing a medical dispute, but there is no requirement that a particular ‘form’ of medical report or document must or indeed may be provided to that specialist.

1. The Application to Resolve a Dispute form itself specifically provides for “Threshold Dispute for Work Injury Damages or Commutation”.

JURISDICTION AND LEAVE TO APPEAL

1. The jurisdiction of the Commission is defined in section 105 of the 1998 Act as follows:

“105(1)        Subject to this Act, the Commission has exclusive jurisdiction

to examine, hear and determine all matters arising under this Act and the 1987 Act.

(2)The Commission does not have that jurisdiction in respect of matters

arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act”.

1. Part 6 of Chapter 7 of the 1998 Act deals with work injury damages. Section 313 provides as follows:

“If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7”.

In other words, the Commission has the jurisdiction to refer a question of permanent impairment to an approved medical specialist. That falls within the province of the Registrar. An arbitrator, in accordance with section 105 referred to above, has no jurisdiction to make a determination on an issue involving an “award of damages”. 

1. In Programmed Maintenance Services Limited v Barter [2005] NSW WCC PD 42, Deputy President Byron determined that a decision as to whether a threshold dispute exists within the meaning of section 314 of the 1998 Act is a decision in relation to a claim for damages not compensation and accordingly, section 352 of the 1998 Act does not enable a party to appeal in relation to such a decision to the Commission constituted by a Presidential Member.

1. In that case, the Arbitrator had determined that a threshold dispute existed. The Appellant employer submitted that the Arbitrator erred in finding that a threshold dispute existed for the purposes of section 314 of the 1998 Act because a claim for common law damages was not duly made (see section 282 of the 1998 Act referred to earlier) and that the proceedings were therefore commenced invalidly. The Respondent Worker submitted that the  Commission had no jurisdiction to determine the appeal because the monetary threshold provisions of section 352(2) of the 1998 Act were not satisfied. Ultimately, Deputy President Byron agreed with the Respondent Worker’s submissions, but not so much for the reasons put forward by the Respondent Worker, that is, that the matter before the  Arbitrator was confined to the resolution of a threshold question so that the determination did not relate to either damages or compensation. In a discussion as to the interpretation of “damages” and “compensation”, Deputy President Byron concluded that ‘damages’ does not include “compensation” and therefore section 352 of the 1998 did not apply to a dispute in connection with a claim for damages.

1. The present case sought a determination of a “threshold” issue for the purposes of commencing common law proceedings. The Arbitrator, confined to determining “compensation” claims, had no jurisdiction to determine the matter. Accordingly, the Arbitrator had no power to strike out the proceedings such that her order to do so is null and void, and the proceedings ought to remain on foot. I do not know whether the Appellant has complied with the requirements of section 282 of the 1998 Act; certainly that has not been raised by the Respondent in its Reply. Similarly, in light of Barter’s case, I too have no jurisdiction to deal with the appeal. It appears that there has been an error by the Registry such that the application, when filed, ought to have been referred by the Registrar to an Approved Medical Specialist for determination.

1. Since neither the Arbitrator nor I have jurisdiction to deal with the matter, it follows that it is not necessary for me to consider whether or not there has been compliance with the provisions of section 352 of the 1998 Act in determining whether or not leave to appeal should be granted.  The Commission has no jurisdiction to determine the appeal and it should simply be dismissed.

CONCLUSION

1. The Arbitrator erred in striking out the proceedings without having first made a determination that the proceedings were a nullity, but further, the Arbitrator had no jurisdiction to determine the matter in the first place, and as a consequence, the proceedings remain on foot.

1. Finally, I too have no jurisdiction conferred by the Statute to determine this appeal.

DECISION

1. The Commission has no jurisdiction to determine the appeal, and the appeal is unsuccessful.

COSTS

1. No order as to costs of the appeal.

Deborah Moore

Acting Deputy President

26 August 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE