Fine Meats (Boners PM) Pty Ltd v Hart

[2007] NSWWCCPD 164

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164

APPELLANT:  Fine Meats (Boners PM) Pty Ltd

RESPONDENT:  Dean Hart

INSURER:CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC15518-06

DATE OF ARBITRATOR’S DECISION:          2 March 2007

DATE OF APPEAL DECISION:  31 July 2007

SUBJECT MATTER OF DECISION: Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998; meaning of “relevant medical specialty” in the WorkCover Guides for the Evaluation of Permanent Impairment

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Moray & Agney

Respondent:   Galland Elder Lulham

ORDERS MADE ON APPEAL:  Leave to appeal the Arbitrator’s determination dated 2 March 2007 is refused.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 8 September 2005 Dean Hart (‘the Respondent Worker/Mr Hart’) suffered injury to his right foot, knee and lower back when a pallet jack ran over his foot. By letter dated 30 June 2006 Mr Hart’s solicitors claimed compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of 16% whole person impairment together with compensation for pain and suffering under section 67. The claim was supported by a report from Dr Lawson, consultant physician, dated 16 June 2006.

1. By letter dated 13 September 2006 CGU Workers Compensation (NSW) Limited (‘CGU’) declined to make any offer of settlement on the basis of a report from Dr Panjratan dated 3 April 2006 which assessed Mr Hart to have no entitlement to “any impairment” because he had a normal range of movement in his injured ankle.

1. In Mr Hart’s Application to Resolve a Dispute (‘the Application’), registered in the Commission on 3 October 2006, he claimed lump sum compensation as per the particulars provided on 30 June 2006.  By its Reply filed on 9 November 2006 Fine Meats (Boners PM) Pty Ltd (‘the Appellant Employer’) disputed the extent of Mr Hart’s whole person impairment and alleged that the claim was not maintainable because it had not been “duly made by serving a medical report from a WorkCover trained assessor of permanent impairment in the relevant area of specialty”.  Essentially, the issue in dispute was whether Mr Hart’s claim had been duly made in light of the fact that his injuries consisted of fractures and Dr Lawson is a physician and not an orthopaedic surgeon or a general surgeon.

1. The matter was listed for teleconference before a Commission Arbitrator on 12 December 2006 when the parties were directed to provide written submissions on the issue of whether Dr Lawson was appropriately qualified.  The Appellant Employer filed its submissions on 3 January 2007 and the Respondent Worker filed his on 22 January 2007.

1. In a Statement of Reasons for Decision (‘Reasons’) dated 2 March 2007 the Arbitrator rejected the Appellant Employer’s argument and issued a Certificate of Determination making the following determination:

“1.      That the Applicant be referred to an Approved Medical Specialist.”

1. By an Appeal Against Decision of Arbitrator (‘the appeal’) filed on 20 March 2007 the Appellant Employer seeks leave to appeal this determination.

PRELIMINARY MATTERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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. 

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in agreeing with the Respondent Worker’s submissions that it was not necessary for Dr Lawson to be a specialist general surgeon or orthopaedic surgeon in order to give an assessment of whole person impairment under the legislation and whether the Arbitrator failed to give adequate reasons for his determination.

1. A preliminary issue also arises as to whether the appeal concerns a matter of an interlocutory nature and, if it is, whether leave to appeal can be granted.

LEAVE TO APPEAL

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.

Time

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

Monetary Threshold

1. Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:

“352 Appeal 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.

(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.

(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.
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.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.

Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.

(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)

1. The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’.  Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.

1. Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”.  The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.  In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:

“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”

1. In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 it was held at [27] that:

“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21)).”

1. As no compensation has been awarded in this matter the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. Mr Hart claimed lump sum compensation totalling $32,250.00. Therefore, the quantum of compensation “at issue” on appeal exceeds the $5,000.00 threshold in section 352(2)(a). As no compensation has yet been awarded it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCCPD 5).

1. Therefore, the monetary thresholds in section 352(2) are satisfied.

Interlocutory Order

1. Under Clause 200B of the Workers Compensation Regulation 2003, as amended, “for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.

1. Under Schedule 6 Part 18J Clause 5 of the 1987 Act the above amendments to section 352 “apply in respect of a claim for workers compensation made before the commencement of the amendments.”

1. The wording of Schedule 6 Part 18J Clause 5 quoted above is in clear and unambiguous language. The relevant amendments to section 352 apply “in respect of a claim for workers compensation made before the commencement of the amendments” (emphasis added). The term ‘claim’ is defined in section 4 of the 1998 Act to mean “a claim for compensation or work injury damages that a person has made or is entitled to make”. In the present matter the Appellant Worker made a claim for compensation on 30 June 2006. Therefore, it is my view that the amendments to section 352 made by the amending Act apply to the present appeal (see P & O Ports Limited v Hawkins [2007] NSWWCCPD 87).

1. The distinction between a ‘final’ and ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. His Honour added at 207:

“Thus, no golden thread of logic runs through the cases.  There are common features in the rulings.  But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another.

The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.”

1. His Honour quoted from Gibbs J (as he then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444 where his Honour said that the established view in Australia was that what is interlocutory:

“…depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?”

1. The order made in the present matter has not finally disposed of any rights but has merely determined that the assessment of the claim for lump sum compensation may be referred to an AMS for assessment. 

1. It follows that as no final order has been made, the Arbitrator’s determination is not a ‘decision’ under section 352 of the 1998 Act and leave to appeal is refused.

ALTERATIVE

1. If I am wrong on the ‘interlocutory issue’, it is appropriate that I deal with the substantive grounds of appeal.

1. The Appellant Employer’s argument is that to make a claim for lump sum compensation under the WorkCover Provisional Liability and Claims Guidelines (‘the Claims Guidelines’) a worker must comply with Part 2 Rule 6.11.7 which provides:

“6.11 To make a claim for permanent impairment or lump sum damages
the worker must provide relevant particulars about a claim…. The relevant particulars to be provided to the insurer are:
…

6.11.7 A medical report completed as described in WorkCover
Guidelines on Assessment of Permanent Impairment.”

1. The WorkCover Guides for the Evaluation of Permanent Impairment (‘the Permanent Impairment Guides’), issued under section 376 of the 1998 Act, and in force at the time of the current claim, provided at page five:

“The Act requires that assessments of permanent impairment be made in accordance with these Guides. Medical specialists trained in the use of the WorkCover Guides are to assess the degree of permanent impairment arising from a work related injury or condition.” (emphasis added)

1. And at page nine:

“Medical assessors

An assessor will be a registered medical practitioner with qualifications in the relevant medical specialty who has undertaken the requisite training in use of the WorkCover Guides.  A list of trained medical assessors may be obtained from the WorkCover website.” (emphasis added)

1. Section 376(1)(a1) of the 1998 Act provides:

“376 Issue of guidelines

(1) The Authority may issue guidelines with respect to the following:

…….

(a1) the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury,”

1. It is submitted that the “intention and the effect of the inclusion in the Permanent Impairment Guides of a requirement that such an assessment by carried out by ‘a registered medical practitioner with qualifications in the relevant medical specialty’ is that such claims must be supported by a doctor who practices in the area of specialty which is relevant to the injury in question” (Appellant Employer’s submissions, paragraph 14).

1. Mr Hart’s injuries consisted of multiple fractures in his right foot and ankle with pain in his right knee, hip and low back.  He was treated in plaster for about six to eight weeks, after which he was on crutches for another couple of weeks.  It is argued that the only areas of ‘relevant medical specialty’ for the assessment of his whole person impairment are ‘general surgery’ or ‘orthopaedic surgery’ and that, as Dr Lawson is a physician, he does not possess ‘qualifications in the relevant specialty’ and, therefore, the Respondent Worker’s claim has not been duly made and the Commission has no jurisdiction to determine the claim.

1. Reliance is placed on the decision of St Vincent de Paul Society v Ford [2005] NSWWCCPD 129 where it was stated at [47]:

“The somewhat tortuous path that is required to reach this conclusion is, in summary from the details above, as follows:

• The WorkCover Authority is empowered to issue guidelines as to the assessment of permanent impairment and the requirements placed on medical practitioners who are permitted to make an assessment of permanent impairment (section 376 of the 1998 Act).

• The 1998 Act and the ‘WorkCover Provisional Liability and Claims Guidelines’ provide that to make a claim for lump sum compensation for permanent impairment the worker must provide relevant particulars including ‘a medical report completed as prescribed in ‘WorkCover Guidelines on Assessment of Permanent Impairment’...’(section 282 of the 1998 Act and Rule 6 of Part 2 of the Guidelines).

• The ‘WorkCover Guidelines for the Evaluation of Permanent Impairment’ provide that only a ‘medical assessor’, with qualifications and training as prescribed, is to assess the degree of permanent impairment arising from a work related injury or condition.

• A claim for compensation must be made in accordance with the Guidelines (section 260(1)(a) of the 1998 Act).

• If a claim for lump sum compensation for permanent impairment is not accompanied by the relevant particulars, i.e. in this case the report of a WorkCover trained and registered medical assessor, the claim is not duly made.

• The failure to make a claim as required will be a bar to the recovery of compensation, unless that failure is due to “ignorance, mistake or other reasonable cause, or a minor defect in form or style” (section 260(5) of the 1998 Act).”

1. The Appellant Employer’s argument turns on the meaning of the phrase ‘with qualifications in the relevant medical specialty’.  Each side has made submissions as to the dictionary definition of ‘physician’.  The Appellant Employer has also attached to its submissions an extract from the website of The Royal Australasian College of Physicians which provides a detailed summary of the areas of medicine in which physicians are trained.  The website also notes:

“Physicians are often called medical specialists.  They are doctors who have completed an extra eight years or more of training after their initial university medical training.  Patients are generally referred to a physician or paediatrician by a general practitioner seeking expert medical advice.

Physicians often choose to specialise in a particular area of medicine.  You may know physician by their main area of specialty such as cardiologists, oncologists, gastroenterologists, general physicians, occupational physicians, rehabilitation physicians.”

1. At the conclusion of Dr Lawson’s report he set out a summary of his qualifications and experience as follows:

“My full name is John Burton Lawson.  My practice is situated at 231 Macquarie Street, Sydney.

I am a consultant physician, graduating University of Sydney 1962, MB BS.  I am a Fellow of the Royal College of Physicians – 1967.

I have trained at Sydney Hospital, Sydney, Concord Hospital, Sydney and Brompton Hospital, London.

Former Public Hospital appointments have included Concord, Royal North Shore, Ryde Hospital, Balmain Hospital and the former Rehabilitation Hospital, Mt Wilga.

I am a Member of Thoracic Society of Australia and New Zealand and a Consultant in Respiratory Medicine.

I have been a Consultant Physician in private practice, general medical respiratory medicine and medico-legal practice since 1972.

I have been a medico-legal consultant for over thirty years, covering all aspects of work and occupational health and injury, as well as other aspects of trauma, medicine, [and] rehabilitation.

I am certified for Motor Accident Authority and WorkCover assessment.”

1. I do not accept the Appellant Employer’s submissions.  They overlook the fact that the Permanent Impairment Guides do not dictate that a particular specialty should be qualified for any particular injury.  That choice is left to the parties or their legal advisers.  There is no rule of law or procedure that an orthopaedic surgeon must assess a person with a fractured leg, but it would certainly accord with good practice and common sense.  Each case will have to be assessed according to its particular circumstances. 

1. It is enough that the selected doctor has ‘qualifications’ in the ‘relevant medical specialty’.  As a specialist who has worked in “all aspects of work and occupational health and injury, as well as other aspects of trauma, medicine, [and] rehabilitation” for over 30 years and has conducted the appropriate WorkCover training, Dr Lawson was and is well qualified to provide a whole person impairment assessment in this matter.  The fact that he is a physician and not an orthopaedic surgeon is, in the circumstances of this case, of no consequence as no question arises as to the need for surgery.  As the Respondent Worker points out in his submissions, a physician is defined in the Shorter Oxford Dictionary at page 2197 as “a person who practices medicine, esp. non-surgical medicine; a specialist in medical diagnosis and treatment; spec. one with a legal qualification to practice”.  Accepting this definition (as I do), a physician, with appropriate experience and training, is one of a number of ‘relevant medical specialties’ that Mr Hart’s solicitor could have qualified in this matter.

1. It is also relevant to note that the purpose of the assessment made by Dr Lawson was to provide an assessment so a claim could be made so that the Appellant Employer could consider its position.  It was not a binding assessment and has limited, if any, evidentiary weight on the issue of the assessment of Mr Hart’s whole person impairment which will ultimately be assessed by an AMS whose assessment will, subject to there being no dispute as to injury, be binding on the parties.  What Dr Lawson was required to do was to assess Mr Hart’s whole person impairment according to the Permanent Impairment Guides.  He did that.  The purpose of the guides is to ensure an “objective, fair and consistent method for evaluating the level of permanent impairment” (see the Permanent Impairment Guides, page five). 

1. The Permanent Impairment Guides “are meant to assist suitably qualified and experienced medical practitioners to assess levels of permanent impairment” (emphasis added) (see the Permanent Impairment Guides, page seven).  In my view Dr Lawson is a suitably qualified and experienced medical practitioner who is eminently well placed to provide a whole person impairment assessment in accordance with the Permanent Impairment Guides.  I note in particular that:

a)he is a duly qualified specialist with many years of post graduate training;

b)he has held an appointment at the Rehabilitation Hospital, Mt Wilga;

c)his years of experience in all aspects of work and occupational health and injury, as well as other aspects of trauma medicine, and

d)he is a trained and certified WorkCover assessor.

1. In light of the above, to suggest that because Dr Lawson is a physician and not an orthopaedic surgeon he is not qualified to provide an assessment of whole person impairment is an artificial and specious argument.  I reject it.  The Respondent Worker’s claim was duly made and the matter is properly before the Commission and can and should proceed to be assessed by an AMS, as was determined by the Arbitrator.

1. In my view the above conclusion is reinforced by the fact that proceedings in the Commission are to be conducted with as little “formality and technicality as the proper consideration of the matter permits” and that the Commission is to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (see section 352(1) and (3) of the 1998 Act). To accept the Appellant Employer’s argument would be to adopt a technical approach to the claim that would be contrary to good conscience and the substantial merits of the case. I decline to do so.

1. The Appellant Employer also challenges the Arbitrator’s Reasons as being inadequate. In order to enliven this ground the inadequacy must be such that the Commission did not exercise its jurisdiction in accordance with law (see YG & GG v Minister for Community Services [2002] NSWCA 247). In light of the above reasons it is not necessary for me to deal with this issue save to say that whilst the basis for the Arbitrator’s decision was stated (he accepted the Respondent Worker’s submissions), it would have been more helpful if he had expressly stated that the acceptance of those submissions meant that he also found that the claim was duly made and that the Commission has jurisdiction to allow the claim to proceed to assessment by an AMS.

DECISION

1. Leave to appeal the Arbitrator’s determination dated 2 March 2007 is refused.

COSTS

1. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

Bill Roche

Deputy President  

31 July 2007

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

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