Fletchers International Exports Pty Limited v Regan
[2004] NSWWCCPD 7
•5 February 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7
APPELLANT: Fletchers International Exports Pty Limited
RESPONDENT: Andrew James Regan
FILE NUMBER: WCC11680-2003
DATE OF ARBITRATOR’S DECISION: 26 September 2003
DATE OF APPEAL DECISION: 5 February 2004
SUBJECT MATTER OF DECISION: Admission of Specialist Medical Reports, Workers Compensation Regulation 2003, Referral to Approved Medical Specialist, Errors of law and fact.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue and Associates, Solicitors
Respondent: White Barnes Solicitors
ORDERS MADE ON APPEAL: Leave to appeal against the decision of an Arbitrator dated 26 September 2003 is granted.
The parties in proceedings before the Commission may rely upon only one medical report in any particular specialty, including one Orthopaedic Surgeon’s report and one Surgeon’s report.
BACKGROUND
On 24 November 2003 Fletchers International Exports Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 September 2003.
The Respondent to the Appeal is Andrew James Regan (‘the Respondent Worker’).
The Respondent Worker filed submissions in reply to the appeal on 16 December 2003.
This matter was referred to me for review on 20 January 2004.
THE DECISION UNDER REVIEW
The Arbitrator determined that the Appellant Employer (the Respondent in the arbitral proceedings) was precluded from having three medical reports in the specialty of orthopaedic surgery admitted in the proceedings. The reasons for the refusal were briefly stated in the document marked ‘Direction’ as follows:
“The Applicant objected to the use of more than one Orthopaedic Surgeon’s Report by the Respondent. Section 51F of the Workers Compensation (General) Regulations 1995 provides that only one Medical Report in any one specialty may be admitted on behalf of a party to the proceedings.
The Respondent, in fact, has submitted Reports by a number of qualifying doctors ranging in date from 20.9.01 to 14.6.03 and I uphold the objection by the Applicant to the use of more than one Orthopaedic Surgeon’s Report in the circumstances.”
The Arbitrator, with the consent of the employer, admitted the report of Dr Lloyd Hughes, Orthopaedic Surgeon. The reports of Dr Alan Innes-Brown (Orthopaedic Surgeon), Dr Kim Edwards (Surgeon) and Dr Robert Perrett (Surgeon), were not admitted.
The Arbitrator also determined that the reports not admitted were not to be included in the material referred to an Approved Medical Specialist (‘AMS’) for assessment of the degree of the worker’s permanent impairment.
ISSUES IN DISPUTE
The issues in dispute are:
1. Is the appeal within time, or should an extension of time be granted?
2. Does the appeal meet the threshold criteria for the grant of leave set out in section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)?
3. If the answer to 1 and 2 is ‘yes’, did the Arbitrator err in refusing to allow the Employer to file the additional medical reports and to refer them to the AMS?
The Appellant submits that the Arbitrator’s decision should be revoked and that a new decision “to the effect that all of the material lodged and submitted by or on behalf of the employer should be referred to the AMS for consideration by that AMS”.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
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.
The Appellant submits that the matter should be dealt with on the papers only if leave is granted and the appeal is allowed.
The Respondent submits that the whole of the matter is capable of determination on the papers.
The decision to determine a matter on the papers requires satisfaction that ‘sufficient information’ has been supplied to enable a proper decision to be made. To this end the Appellant Employer’s submission is misguided. Either it has the view that sufficient information is before the Presidential Member on the appeal, or it does not. It is in the Appellant Employer’s interest to ensure that this information is before the Commission. To imply that the Commission has sufficient information, but only to make a decision in the Appellant’s favour, is to misunderstand section 354(6) of the 1998 Act.
The issues in this appeal are not complex and are clear on the face of the documents before me. Having regard to the Commission’s Practice Directions (see No.1 and No. 6) and the documents that are before me, 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
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.
Time
The appeal was not lodged within 28 days of the Arbitrator’s decision.
The Commission file contains the decision of the Arbitrator, dated 26 September 2003.
On 31 October 2003 the worker’s legal representative wrote to the Registrar asking whether the determination had been made and, if so, for a copy.
A copy of the Arbitrator’s decision was sent to the parties on 10 November, clearly outside of the applicable appeal period of 28 days.
Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that an extension of time for the filing of an appeal may be ordered in exceptional circumstances.
In the circumstances of this matter I order that the time for making the appeal be extended to 24 November 2003.
Monetary Threshold
The Appellant Employer submits that, as the decision does not involve an award of compensation, “the provisions of s.352(2) have no application” and purports to rely upon the decision of this Commission in Mawson v Fletcher International Exports Pty Limited [2002] NSW WCC PD 5 to support this view.
In the alternative, the Appellant Employer submits that the award of the Arbitrator concerned a “potential amount of compensation” in excess of $5,000 and “100% of any potential amount awarded consequent upon the Arbitrator’s interlocutory decision”.
The Respondent Worker takes no issue as to the competency of the application for leave to appeal.
The application of the threshold requirements of section 352(2)(a) and (b) of the 1998 Act has been considered by the Commission in a number of matters (see Mawson v Fletcher International Exports Pty Limited [2002] NSW WCC PD5, ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21, Ingram v Norco Co-operative Limited [2003] NSWWCC PD1, Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD3, Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSWWCC PD5, Workcover Authority v Riordan [2003] NSWWCC PD13 and Grimson v Integral Energy [2003] NSWWCC PD29).
As noted in Grimson v Integral Energy [2003] NSWWCC PD29:
“16. . . . There is, generally, a need to reconcile this section [352(2)] with the broad definition of ‘decision’ in subsection 352(8), which encompasses interim awards, rulings and directions. Consistent with this definition it is possible to appeal against an interlocutory decision, involving no monetary ‘award’.
While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an “amount of compensation at issue on the appeal” to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCC PD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34) do not meet this threshold criterion. 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] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).
In this matter the Arbitrator’s decision concerns the admission of medical evidence and the consequent referral of the medical dispute to an Approved Medical Specialist (‘AMS’). The determination of certain medical issues by an AMS is binding on the parties, subject only to appeal to a Medical Appeal Panel. In these circumstances I accept that the evidence that is before the AMS is likely to be of critical importance to his or her determination of the medical issues. In this sense the decision clearly has the potential to put the amount of compensation claimed by the Appellant in issue (see also Devine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28).
I find that the amount of compensation at issue on the appeal is over $5,000 and meets the threshold test in section 352(2) of the 1998 Act.
Leave to appeal against the decision of the Arbitrator, dated 26 September 2003, is granted.
SUBMISSIONS
The Appellant Employer submitted that the Arbitrator’s decision should be set aside on the following grounds:
1. The decision/direction of the Arbitrator contain (sic) clear errors of law, errors of fact and errors in the exercise of a discretion.
2. The Arbitrator has purported to make a decision based on facts for which there was no evidence or in the alternative, no adequate evidence. In addition the Arbitrator asserted as fact, that which was not fact.
3. The Arbitrator purported to make a decision in respect of issues which were not the subject of any application to the Arbitrator by either party such that the Arbitrator did not have any jurisdiction to make the decision to the extent that it related to a matter which was not the subject of any application (sic).
4. The Arbitrator has failed to give any or in the alternative and/or in addition any adequate reasons.
5. The purported reasons of the Arbitrator are not only either non-existent or inadequate but the absence or inadequacy of the reasons clearly demonstrate that the Arbitrator has failed to exercise his duties, obligations and discretion’s fairly and lawfully and appropriately.
6. The Arbitrator’s apparent identification of a wrong or non-existed (sic) issue clearly constitutes an error of law going to the jurisdiction of the Arbitrator.
7. The numerous errors made by the Arbitrator are clearly such as have resulted in the Arbitrator failing to properly exercise jurisdiction, failing to properly determine the issue before the Arbitrator and failing to exercise a discretion properly or at all.
In support of these grounds the Appellant Employer states that all material lodged with the Reply and any additional material lodged with the Commission, in this case numerous medical reports and other documents, should be provided to the AMS. The Appellant Employer contends that Drs Edwards and Perrett are not of the same specialty as Drs Innes-Brown and Hughes, the former being ‘Surgeons’ and the latter being ‘Orthopaedic Surgeons’.
The Appellant Employer submits that the Arbitrator had no power to exclude the report of Dr Innes-Brown from referral to an AMS; being empowered only to “exclude the report from being admitted in the proceedings”.
The Appellant Employer submits that it was inappropriate for the Arbitrator to determine the admission of medical evidence at a telephone conference, as this issue is relevant only if the matter proceeds to Arbitration. In addition, the Appellant Employer submits that the Arbitrator failed to take its submissions into account in making the decision.
The Respondent Worker submits that there had been no error made by the Arbitrator and that the decision should stand. The submissions may be summarised as follows:
· The Respondent’s reply is clearly in breach of Rule 68 of the Rules. There are duplications of doctor’s reports in the same specialty in the employers ‘Reply’.
· The prohibition on more than one medical report from the same specialty is mandatory (section 127 of the 1998 Act and Regulation 43 of the Workers Compensation Regulations 2003 (‘the Regulations’)).
· The worker would be disadvantaged if the relevant limits on medical reports were not applied as the cost of obtaining numerous medical reports is great.
· The same considerations apply to the referral of medical reports to the AMS as applies to admission of reports in the proceedings. There is no distinction between the admission of medical reports into proceedings and in what is provided to the AMS.
· The teleconference is the appropriate time to give consideration to the admission or exclusion of evidence in the proceedings, all of which should have already been filed, in accordance with the Rules (see Rule 68).
· The legislation does not support the view that, if there are different body parts being claimed for, then a report from a different doctor in the same speciality may be admitted in relation to each body part.
· The reasons given by the Arbitrator are adequate and clearly indicate the basis upon which the decision was made.
DISCUSSION AND FINDINGS
The issues critical to the determination of the appeal are considered under the following headings:
· Error of Law
· Errors of Fact
· Lack of Jurisdiction
· Inadequate Reasons
Error of Law
Two matters arise under this ground. Firstly, did the Arbitrator err in limiting the medical reports that were admitted into the proceedings? Secondly, did the Arbitrator err in limiting the documents, in particular the medical reports, that were included in the referral to the AMS?
Section 127 of the 1998 Act provides as follows:
127 Admissibility of medical reports
(1)A medical report is admissible in proceedings before the Commission.
(2)Subsection (1) is subject to any provision of the regulations relating to the giving of notice of the admission of the medical report.
(3)Subsection (1) is also subject to any provision of the regulations relating to the number of medical reports that may be admitted in connection with a claim or any aspect of a claim.
(4)A medical practitioner whose medical report is admissible under subsection (1) may be required, in accordance with the regulations, to attend and be cross-examined on the contents of the report.
(5)In proceedings relating to the making of an interim award, a medical practitioner whose medical report is admissible in evidence under subsection (1) may not be required to attend and be cross-examined on the contents of the report without the leave of the Commission given in any case where the Commission is satisfied there is a real issue as to whether the worker is entitled to receive compensation from any of the parties.
(6)In this section, medical report means any written report of a medical practitioner relating to the worker.
Section 294A of the 1998 Act provides as follows:
294A Rules and regulations concerning medical evidence
(1)The Rules and the regulations may make provision for or with respect to:
(a) the disclosure, by the furnishing of copies of reports or otherwise, of the nature of the expert medical evidence to be given in evidence before the Commission (including the exclusion of any such evidence for non-compliance with any requirement for the disclosure of the nature of the evidence), and
(b) the disclosure of medical reports (including X-rays and the results of other tests) to approved medical specialists (including the exclusion of any such medical report for non-compliance with any requirement for the disclosure of the medical report), and
(c) limiting the number of medical reports in connection with a claim or any aspect of a claim and, in particular, limiting the number of medical reports that may be admitted in evidence in proceedings before the Commission, and
(d) limiting the number of expert witnesses that may be called by any party and otherwise restricting the calling of expert witnesses by a party.
(2)This section only authorises Rules in connection with proceedings before the Commission.
The Regulations provide for ‘Restrictions on number of medical reports that can be Admitted’ in proceedings before the Commission.Clauses 43 and 44 of the Regulations are in the same terms as clauses 51F and 51G of the Workers Compensation (General) Regulation 1995, which was repealed on 1 September 2003. The relevant clauses are set out in full below.
43 Restrictions on number of medical reports that can be admitted
(1)In any proceedings on a claim:
(a) only one medical report in any particular specialty may be admitted on behalf of a party to the proceedings, and
(b) a medical report in a specialty may not be admitted on behalf of a party to the proceedings if another medical report in that specialty has already been admitted on behalf of the party in any other proceedings on the claim or in proceedings on a related claim.
(2)Despite subclause (1) (b), a medical report in a specialty may be admitted in proceedings even if another medical report in that specialty has already been admitted in other proceedings on the claim or a related claim if:
(a) the medical report to be admitted is a permissible update (under clause 44) of the medical report already admitted in the other proceedings, or
(b) the proceedings are lump sum compensation proceedings and the other proceedings were not lump sum compensation proceedings, but only so as to allow the admission of a medical report provided by the same medical practitioner who provided the medical report already admitted in the other proceedings.
(3)The medical report allowed to be admitted under subclause (2) (b) can however be provided by another medical practitioner if the medical practitioner who provided the medical report already admitted in the other proceedings has ceased (permanently or temporarily) to practise in the specialty concerned.
(4)Subclause (2) operates only as an exception to subclause (1) (b) and does not affect the requirement under subclause (1) (a) that only one medical report in a particular specialty may be admitted in proceedings on behalf of a party.
(5)For the purposes of this clause, a medical report in more than one specialty is to be regarded as a medical report in each of those specialties.
(6)In this clause:
lump sum compensation proceedings means proceedings on a claim for compensation under Division 4 of Part 3 of the 1987 Act (whether or not the proceedings are also proceedings on a claim for any other compensation).
related claims are claims or further claims for compensation in respect of the same injury, whether or not the claims are in respect of the same kind of compensation44 Permissible updates of medical reports
(1)A medical report (the update report) is a permissible update of another medical report (the original report) if the update report is provided for the purpose of updating the original report and is provided:
(a) more than 6 months after the original report was provided, or
(b) because there has been a further material change in the worker’s condition.
(2)The update report must have been provided by the medical practitioner who provided the original report except when that medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the update report can be provided by another medical practitioner.
(3)The update report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the permissible update.
45 Restrictions on recovery of cost of medical reports
(1)A party to proceedings on a claim is not entitled to be paid for or recover the cost of obtaining a medical report in connection with the claim unless the report:
(a) has been admitted in those proceedings on behalf of the party, or
(b) is a claims management phase report (as provided by subclause (2)).
(2)The following medical reports are claims management phase reports:
(a) a medical certificate that accompanies a claim for weekly payments of compensation,
(b) a medical certificate that accompanies an initial notification of injury,
(c) any medical report provided by a medical practitioner as part of and in the course of treatment of the injured worker by the medical practitioner,
(d) any medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to a requirement of the employer in accordance with section 119 of the 1998 Act.
(3)In this clause:
(a) a reference to a claim includes an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and
(b) a reference to proceedings on a claim includes proceedings in respect of the payment of provisional weekly payments of compensation under that Part.
46 Medical treatment not affected
This Part does not affect any entitlement of an injured worker to be paid for or recover the cost of obtaining medical treatment.
47 Reports of medical panels and referees not affected
(1)This Part does not apply in respect of:
(a) a medical report provided in respect of the examination of an injured worker by a medical panel or medical referee in connection with an existing claim, or
(b) a medical report provided for the purposes of section 121 of the 1998 Act in connection with an existing claim by an approved medical specialist under that section, or
(c) a medical report provided by an approved medical specialist under Part 7 of Chapter 7 (Medical assessment) of the 1998 Act in respect of the assessment of a new claim.
(2)In this clause:
existing claim and new claim have the same meaning as in Chapter 7 of the 1998 Act.
The admission of medical evidence in Commission proceedings was considered at length in the matter of Devine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28. The 1998 Act and the Regulation do not give an Arbitrator discretion to allow more than one medical report in any particular specialty to be admitted on behalf of a party to proceedings in the Commission. A party who files more than one report in any particular speciality must comply with the procedural requirements of Rule 68 and inform the Registrar which of the reports is to be introduced in evidence in the proceedings.
The fact that the worker claims compensation for injuries that occurred on different dates, or over time, or to a number of different body parts, is not relevant to the application of the above provisions. It is possible for a medical specialist to address the medical issues concerning each of the body parts that are within his or her area of expertise. If necessary, a report from a different medical specialty, addressing the medical issues that concern more than one specialty area of expertise, may be filed.
The Arbitrator did not err in restricting the number of medical reports in the proceedings to only one medical report in any particular specialty. Difficulty arises in the factual determination of what are distinct, and different, medical specialties. This is discussed below.
The referral of medical evidence to an AMS is a separate issue.
Part 7 of Chapter 7 of the 1998 Act provides for ‘Medical assessment’ in relation to a dispute about a claim for workers compensation. ‘Approved Medical Specialist’ and ‘medical dispute’ are defined (section 319). Where a dispute before the Commission is a ‘medical dispute’ the Commission or the Registrar may refer it to an AMS for assessment (section 321). A dispute about permanent impairment must be referred to an AMS for assessment (section 293(2)). The AMS has the power to consult with other medical practitioners who currently or previously have treated the worker, call for the production of medical reports and to examine the worker (section 324). The AMS then gives a ‘medical assessment certificate’ (‘a MAC’), as to the matters referred for assessment, to the Registrar (section 325). The MAC is binding in relation to certain matters “in any proceedings” before the Commission (section 326).
Where an AMS is of the view that a medical assessment cannot be made because the degree of permanent impairment is not fully ascertainable, then “proceedings in the Commission may be adjourned until the assessment is made” (section 322).
AMS’s are not members of the Commission (section 368 of the 1998 Act). The making of a medical assessment by an AMS is not a ‘proceeding’ before the Commission. Part 9 of Chapter 7 of the 1998 Act concerns ‘Proceedings before [the] Commission’.
Section 294A of the 1998 Act (set out above) distinguishes between the making of rules and regulations in relation to the “disclosure of medical reports (including X-rays and the results of other tests) to approved medical specialists” (Section 294A(1)(b)), and the making of rules and regulations “limiting the number of medical reports in connection with a claim or any aspect of a claim and, in particular, limiting the number of medical reports that may be admitted in evidence in proceedings before the Commission” (Section 294A(1)(c)).
Clauses 43 and 44 of the Regulations give effect to section 294A(1)(c) of the 1998 Act in that they expressly place ‘Restrictions on number of medical reports that can be admitted’.
Rule 68, by reference, applies only to the restrictions in Clause 43 of the Regulations.
No Regulations or Rules have been made to give effect to section 294A (1) (b), namely, in relation to disclosure of medical reports to an AMS. The result is that while a party is not permitted to file more than one medical report in any one specialty in proceedings before the Commission (constituted by an Arbitrator or Presidential Member), the Commission has no power to restrict the disclosure of information, including medical reports, to an Approved Medical Specialist. Effectively, the only limitation on obtaining multiple reports in the same medical specialty is that the party will not be entitled to recover the costs of obtaining a medical report that is not admitted in the proceedings.
Section 331 of the 1998 Act provides that medical assessments by AMSs are “subject to relevant provisions of the WorkCover Guidelines [‘the Guidelines’] relating to the procedures for the referral of matter for assessment”. Guideline 13 states that the Registrar is to provide the AMS with:
· A copy of any minute of order or referral indicating the nature of the medical dispute; and
· All information and documentation on which the parties propose to rely lodged with the Commission in accordance with the Workers Compensation Commission Rules 2003.
This does not take the issues in this appeal any further. The Guidelines do not restrict a party in relying upon documents and information for the purpose of an AMS assessment, that they would not be permitted to rely upon in Commission ‘proceedings’. The Guidelines incorporate the terms of the Rules, which in turn incorporate the requirements of the Regulations, which do not expressly restrict the disclosure of medical reports to an AMS.
The only discretion that rests with the Registrar and the Commission in relation to the referral of medical disputes to an AMS is whether or not to refer a matter that does not concern a claim for permanent impairment (section 321).
The Arbitrator erred in directing that only those medical reports that were admitted into the proceedings before the Commission were to be referred to the AMS for the purpose of a medical assessment.
When considering the purpose of limiting the use of medical reports in disputes before the Commission, it seems that the failure to make rules or regulations pursuant to section 294A(1)(b) of the 1998 Act may be an oversight. The result in this matter is, as the Respondent Worker contends, to impose significant additional costs on him if he seeks to obtain further medical reports, and possible disadvantage in terms of the relative weight of the evidence, if he does not. In the second reading of the Workers Compensation Legislation Amendment Bill 2000 the Minister, the Hon. J. Della Bosca, described the purpose of the new regulation making power as follows:
“Schedule 7 introduces a regulation-making power to provide for restrictions on the number of medical reports that may be introduced in proceedings. Investigation costs, including the obtaining of medical reports, have increased dramatically in recent years. The Supreme Court and the District Court have introduced rules to limit the number of medical reports. The number of reports will be limited but not the number of specialities required to examine the injured worker.
The intent of the amendment in schedule 7 is to minimise doctor shopping whereby multiple reports are sought to maximise the party’s case. This applies to both injured workers and insurers. It is not the intent of the proposals to limit the treatment provided to an injured worker, and this issue will be given close attention in the drafting of the regulations. Consideration has also been given to circumstances where additional reports are required, for example where the condition deteriorates or there is significant delay between conciliation and court proceedings.” (NSW Legislative Council, Hansard 1 November 2000, at page 9460).
Errors of Fact
Having correctly determined that a party in the proceedings may tender only one medical report in any one specialty, it was for the Arbitrator to determine which, of the reports filed, were to be so admitted.
The Arbitrator properly sought the views of the parties and the report of Dr Hughes, Orthopaedic Surgeon, was permitted to be filed by the employer. The reports of Drs Innes-Brown, Edwards and Perrett were excluded.
The decision makes brief reference to a report of Dr Stephen, filed by the employer, but comes to no conclusion as to the admissibility of this report. Dr Stephen is also an Orthopaedic Surgeon (also specialising in paediatrics and spinal surgery). On the reasoning of the Arbitrator this report should also have been excluded from the proceedings and not sent, with the referral, to the AMS.
Drs Edwards and Perrett are Surgeons. Drs Hughes and Innes-Brown are Orthopaedic Surgeons.
Neither the Act nor the Regulations set out a list of medical specialties. Section 354(2) of the 1998 Act provides that: “[t]he Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”. It has been necessary to make my own enquiries in this matter.
The Australian Medical Council Incorporated (‘the AMC’) is the national standards body for basic medical education and, among other roles, it accredits Australian programs of specialist medical training. The AMC produces an information booklet entitled ‘Application Procedures and Requirements for Specialist Assessment’. Table 1 of the 4th Edition, March 2003, contains a ‘List of Fields of Specialist Practice in Australia’. This is as good an authority as any on recognised medical specialties in Australia. The list includes ‘Field of Specialist Practice’ and ‘sub-specialties’. General Surgery and Orthopaedic Surgery are identified as distinct ‘sub-specialties’ of medical practice. In my view it is not appropriate to exclude a ‘sub-specialty’ from ‘particular specialty’ referred to in the Regulation (Clause 43).
The Arbitrator therefore erred in excluding both reports of Drs Perrett and Edwards from being admitted in the proceedings. The Appellant Employer is entitled to have one of these reports admitted.
The Arbitrator also erred in not excluding the report of Dr Stephens, Orthopaedic Surgeon.
Lack of Jurisdiction
Many of the Appellant Employer’s submissions appear premised on the assumption that the Commission operates in the same way as a court. The intention of the legislature is clearly that it should not. The ‘Procedure before [the] Commission’ is set out in section 354 of the 1998 Act as follows:
354 Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7)An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8)In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.
The Commission has also issued a mandatory ‘Guideline for the Practice of the Conciliation/Arbitration Process in the WCC’, which is consistent with section 354 of the 1998 Act and can be easily accessed on the Commission’s web page.
An Arbitrator who is conducting a telephone conference is empowered, and indeed expected, to “deal with any issues arising from the limitation on the number of medical reports which may be relied on by each party” and “[a]dvise the parties which information is to be forwarded to the AMS ie. all documents admitted into evidence” (see the Guideline at pages 6 and 7).
The Arbitrator in this matter was entirely correct in proceeding to determine these issues. The conduct of proceedings in the Commission is not contingent upon the parties making a particular application in relation to procedural issues. The Arbitrator has control over the procedural conduct of the matter and must act in accordance with the requirements of the 1998 Act, the Guideline and procedural fairness.
The Appellant Employer’s submission that the Arbitrator erred in identifying a wrong or non-existent issue is rejected.
Inadequate Reasons
It is consistent with the nature of the proceedings, and the objectives of the Commission, that lengthy, written reasons for an interlocutory decision, such as this are not necessary.
What is essential is that the Arbitrator records the decision, and brief reasons for it, on the Commission file and that the decision itself is communicated to the parties (Section 294(2) of the 1998 Act, Rule 73). These reasons should state clearly why the decision was made, the Arbitrator’s consideration of the law and of matters raised in any relevant Practice Direction, and any other relevant factors that have been taken into account (Absolon v NSW TAFE [1999] NSWCA 311).
I am satisfied that the Arbitrator’s reasons for decision in this matter, although brief, clearly set out these matters.
The reasons of the Arbitrator are adequate, taking into account the nature of the decision and the objectives of the Commission.
Summary
In summary:
· The Arbitrator did not err in determining that only one medical report in any one specialty may be admitted by a party in proceedings before the Commission.
· The Arbitrator erred in determining that only those documents admitted in the proceedings may be referred to an Approved Medical Specialist for the making of a medical assessment of the worker.
· The Arbitrator erred in not distinguishing between the medical specialties of ‘General Surgeon’ and ‘Orthopaedic Surgeon’.
· The Arbitrator erred in not expressly excluding the admission of the report of Dr Stephens.
· The Arbitrator did not err in failing to identify relevant issues, acting outside his jurisdiction or failing to give adequate reasons for the decision.
The report of Dr Hughes, Orthopaedic Surgeon has been admitted. It is now for the Appellant Employer to identify, within a reasonable time, which of the reports of Drs Edwards and Perrett is to be filed in the proceedings. Given that the matter must be referred to an AMS this election could reasonably take place following the AMS assessment, if the matter is not settled by agreement of the parties.
In the normal course the matter would now be referred to an AMS, in accordance with these reasons. However, there are a number of issues concerning the conduct of this matter that are raised by the contents of the Commission file, which is before me on the appeal.
OTHER ISSUES
The Arbitrator’s decision of 26 September 2003 was not communicated to the parties by the Commission until 10 November 2003.
It appears from the Commission file that the medical dispute was referred to an AMS, Dr Stuart Porges, some time on or before 17 October 2003. On that date the parties were advised that an appointment had been made for the worker to be examined by Dr Porges on 18 November 2003.
On 3 November 2003 the Commission received a request from the legal representatives of the Worker for advice of the Arbitrator’s decision and a list of the documents that had been sent to the AMS, noting the ‘crucial significance’ of that decision to the determination of ‘what materials are forwarded to the AMS in this matter’. No reply appears on the file.
Also on 3 November 2003 the Commission received a request from the legal representative of the employer for a copy of the letter of referral to Dr Porges including a list of the material provided to him. The Commission replied on 10 November 2003, but the referral on the Commission file before me does not in fact list the documents that were included in the referral to Dr Porges.
On 24 November 2003 the employer filed an ‘Application to Admit Late Documents’, being medical reports and other documents obtained under directions for production. This request does not appear to have been dealt with nor is there any record of the documents being forwarded to Dr Porges.
On 22 November 2003 Dr Porges gave the Registrar a Medical Assessment Certificate (‘MAC’) in this matter. It appears from the Commission file that this MAC has not been sent to the parties and in my view it should be issued immediately, along with this appeal decision.
A Presidential member has no role in the review of a MAC, as this is a matter for a Medical Appeal Panel, along certain specified grounds (section 327 of the 1998 Act). However, it is clear from a reading of Dr Porges’ MAC that the Arbitrator’s decision in relation to medical reports that were to be referred to an AMS, was not followed. The only medical specialist report admitted by the Arbitrator’s decision, namely that of Dr Hughes, Orthopaedic Surgeon, was not sent to Dr Porges (paragraph 10(1) of the MAC). This decision further expands the material that should be referred to the AMS for the purposes of a medical assessment in this matter.
The conduct of this matter has had the potential to effectively defeat the Appellant’s right of appeal against the Arbitrator’s decision. These issues are not within the power of a Presidential member on appeal but should be immediately drawn to the attention of the Registrar for appropriate action. I note that section 329 of the 1998 Act provides that a matter referred for assessment by an AMS may be referred again by the Commission, on one or more occasions, for further assessment.
DECISION
The decision of the Arbitrator is revoked and the following decision is made in its place:
The parties in proceedings before the Commission may rely upon only one medical report in any particular specialty, including one Orthopaedic Surgeon’s report and one Surgeon’s report.
It is not necessary to make an order that all the material filed by the parties be referred to an AMS, as, in accordance with these reasons, the Commission has no power to restrict this material.
COSTS
The appeal has been partially successful. The parties are encouraged to come to an agreement as to costs. Failing agreement an application may be made to determine costs.
Dr Gabriel Fleming
Deputy President 5 February 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR. GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
74