Forman v Moree Plains Shire Council
[2004] NSWWCCPD 85
•1 December 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Forman v Moree Plains Shire Council [2004] NSW WCC PD 85
APPELLANT: Jason Forman
RESPONDENT: Moree Plains Shire Council
INSURER:Allianz Australia
FILE NUMBER: WCC10298-2004
DATE OF ARBITRATOR’S DECISION: 14 October 2004
DATE OF APPEAL DECISION: 1 December 2004
SUBJECT MATTER OF DECISION: Whether the Arbitrator erred in striking out the Application to Resolve a Dispute
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers.
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: A.O. Ellison & Co Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked and the following decision is made in its place:
The proceedings are not struck out. The matter is to proceed before the same Arbitrator, without further delay.
No order is made as to costs.
THE APPEAL
On 26 October 2004 the Appellant/Mr Forman lodged an appeal against the decision of an Arbitrator in the Workers Compensation Commission (the Commission), made on 14 October 2004.
The Respondent to the Appeal is Moree Plains Shire Council.
The appeal was referred to me for review on 30 November 2004.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in striking out the Application to Resolve a Dispute that was before him. The Arbitrator determined:
“That pursuant to Rule 6(4) of the Workers Compensation Rules the matter is struck out.”
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
In this matter I am satisfied that:
· The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act)
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act)
· No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
Since lodging the appeal, the Appellant has filed documents in the Commission, together with an Application to Admit Late Documents, on 26 October 2004, followed by a letter of confirmation received on 2 November 2004. This Application and the accompanying documents relate to the substantive dispute before the Commission. The documents are: a medical report from Dr D O’Keefe dated 11 December 2003; a letter dated 4 February 2004 from Dr Terry Bohlsen to Dr Les Woollard; a letter dated 10 January 2003 from Dr Terry Bohlson to Dr Graeme Doig; the first page of a letter dated 19 March 2004 from Dr Terry Bohlson to Dr Jerome Goldberg; a letter dated 28 May 2003 from Dr Graeme Doig to Dr T Bohlson; a letter dated 29 March 2003 from Dr Graeme Doig to Allianz Insurance, and a letter dated 18 February 2003 from Dr Graeme Doig to Dr T Bohlson.
This appeal is brought against the decision of the Arbitrator to strike out the Application that was before him. It is my function to determine the appeal, not to determine the substantive dispute between the parties, at first instance. In any event, the Appellant has made only broad submissions in support of the Application to Admit Late documents, but no submissions as to the relevance of the late documents to the appeal proceedings, and has given no reason why the documents are late. The Application to Admit Late Documents is refused, in relation to this appeal.
A number of other documents relating to the substantive dispute between the parties were filed in the Commission, together with an Application to Admit Late Documents, on 15 October 2004, returned to the Appellant’s Solicitors, and then re-submitted under cover of a letter dated 29 October 2004. This Application to Admit Late Documents is also refused, in relation to this appeal, for the same reasons.
Other Applications to Admit Late Documents were received in the Commission on 6, 14 and 15 October 2004. For the avoidance of uncertainty, those Applications to Admit Late Documents are also refused in this appeal, for the same reasons. There is one further Application to Admit Late Documents that was received in the Commission in August 2004. Clearly, that Application does not purport to be submitted for my determination. It is for the Arbitrator to determine whether to admit late documents in the substantive proceedings.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.
ARBITRATOR’S REASONS
The Arbitrator indicated that a telephone conference was held on 14 October 2004 where he used his best endeavours to bring the parties to an agreed resolution of the dispute and that they were unable to come to an agreement. He then made an oral order, as set out in paragraph 4 above, striking out the matter before him. His reasons are as follows:
“The Applicant has not attended two medical appointments to assist in the preparation of his case and his legal representative has been unable to contact him. Also he was not available at the given telephone number for the telephone conference on 14 October 2004 and did not give an explanation as to why he was not available or how he might otherwise be contacted.”
SUBMISSIONS
The Appellant has provided submissions on the history of the claim, submissions as to the “principles of the WorkCover Authority”, the “Aims of the Workers Compensation Commission” and the “aims of the Guidelines”, the objectives of the Commission as set out in section 367 of the 1998 Act, the application to the Commission of various of items of legislation relating to dealings with persons with disabilities, and the Commission’s Code of Conduct. I have carefully noted the submissions made and there is no need to reproduce them here.
The Respondent does not object to the matter being restored “to the list” and arrangements being made for a telephone conference between the parties as soon as possible. The Respondent states that it was willing at the time, to have the matter adjourned to a further telephone conference rather than being struck out given the Appellant’s apparent psychological problems. Relevantly, the Respondent submits:
“In relation to the Applicant having been medically examined by two medico legal practitioners, the Respondent concedes that the Applicant has been examined by Dr Oates and Dr O’Keefe, however, at the time of those appointments, the Applicant’s condition had not reached maximal medical improvement in order that an assessment could be carried out in accordance with the WorkCover Guides and for that reason, on behalf of the Respondent we have been attempting to have the Applicant examined for the purposes of obtaining such an assessment in order that this would then assist the parties in attempting resolution of the matter prior to any referral being necessary to an Approved Medical Specialist.”
DISCUSSION AND FINDINGS
The Application to Resolve a Dispute in this matter was lodged in the Commission on 25 June 2004 and registered on 6 July 2004. Various documents, including medical reports were lodged with the Application and a schedule of other documents, not then available but required, was provided. Since then, a large number of documents, including further medical reports, have been submitted to the Commission accompanied by a number of Applications to Admit Late Documents, as outlined above. As I have said, these relate to the substantive dispute between the parties.
From a perusal of the file it is clear that there has been a significant history of activity and medical treatment, prior to the dispute being brought to the Commission for resolution. The Appellant’s Solicitor has outlined a version of events, leading up to the date of the telephone conference on 14 October 2004, before the Arbitrator. Notwithstanding the large amount of documents that are sought to be admitted as late documents, it is clear that the claim has been prosecuted reasonably diligently by the Appellant, up to and following the lodgement of the Application to Resolve a Dispute in the Commission. The difficulty from which this appeal arose, occurred some three months after the initial lodgement in the Commission.
The history of events leading up to the telephone conference on 14 October 2004, as outlined in the Appellant’s submissions, are not reflected in the Arbitrator’s written reasons. However, his reasons for striking out are clear enough. There is no transcript of the telephone conference as it is not the Commission’s practice to record such proceedings, routinely. Consequently, I have no record before me of the discussions that took place at the telephone conference.
It seems however, that there were personal, communication and other difficulties in relation to organising the telephone conference and the hearing that was to follow, and in relation to the failure on the part of the Appellant himself to participate in the telephone conference and to attend for medical examinations. There was also a degree of personal inconvenience for both the Appellant’s Solicitor and the Arbitrator, involved in making arrangements.
It seems that the Respondent was satisfied with the explanations given by the Appellant’s Solicitor. The Respondent supports the Appellant’s submission that there was agreement to make another medical appointment for the Appellant to be medically examined, because of his psychological problems.
I cannot be certain that the explanations included in the Appellant’s submissions on appeal, were outlined comprehensively to the Arbitrator. Having regard to the Arbitrator’s written reasons, perhaps they were not. However, I have no reason to reject the explanations made in the Appellant’s submissions. They are not at odds with the Arbitrator’s reasons but obviously, are more fulsome and detailed, and throw more light on the circumstances.
Striking out proceedings under Rule 6 of the Workers Compensation Commission Rules 2003 does not prevent the proceedings from being recommenced (Rule 6(7)). However, it is clear that the Appellant has prosecuted his claim and his case in the Commission with reasonable diligence, on the whole. Action has already been taken by the Appellant with regard to the necessary medical appointments and the Respondent is satisfied that the matter may now proceed to resolution.
The Arbitrator has purported to strike out the proceedings under Rule 6(4), which requires him to make a determination that the proceedings are a nullity, before doing so. There is no indication that the Arbitrator has turned his mind to this requirement. In any event, I am not satisfied that a determination that the proceedings are a nullity would have been, or is now, justified, given that the claim has been prosecuted with reasonable diligence, on the whole. I find that the Arbitrator’s decision to strike out was not reasonable having regard to the circumstances and history of the matter. There is no good reason why the matter should not proceed to resolution in the Commission, and there is little point in forcing the parties to start again, having come this far and being ready to proceed forthwith.
In the circumstances, I find that the Arbitrator erred in striking out the proceedings, which should remain on foot.
The parties and in particular the Appellant, will need to consult with the Registrar in relation to the Applications to Admit Late Documents to ensure that these Applications are properly before the Commission constituted by the Arbitrator.
DECISION
The appeal is upheld. The decision of the Arbitrator is revoked. The proceedings are not struck out. The matter should proceed before the same Arbitrator, without further delay.
COSTS
No order is made as to costs.
Gary Byron
Deputy President
1 December 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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