Glogoski v Ansett Australia (Administrator Appointed)
[2005] NSWWCCPD 72
•18 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Glogoski v Ansett Australia (Administrator Appointed)[2005] NSW WCC PD 72
APPELLANT: Ivan John Glogoski
RESPONDENT: Ansett Australia (Administrator Appointed)
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC9819-03
DATE OF ARBITRATOR’S DECISION: 1 March 2004
DATE OF APPEAL DECISION: 18 July 2005
SUBJECT MATTER OF DECISION: Proper construction of Approved Medical Specialist Certificate and adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Giles Payne & Co
Respondent: In House Legal QBE Workers Compensation (NSW) Limited
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator is
revoked.
(2) The matter is referred to the Registrar
to remit to the Arbitrator at first instance.
(3)The Arbitrator is directed to refer the AMS Certificate back to Dr Weisz for either clarification of the Certificate dated 18 November 2003 on the issue of ‘deterioration’ as requested in the Arbitrator’s referral dated 26 August 2003, or for preparation of a fresh report, on the available material, as to the degree, if any, of ‘deterioration’ of the Appellant’s condition since August 2001, pursuant to section 329 of the Workplace Injury Management & Workers Compensation Act 1998.
(4)On receipt of a further report from Dr Weisz, the matter is remitted to the Arbitrator at first instance for determination of any further section 66 and/or section 67 entitlements.
(5)(i) The costs order of the
Arbitrator dated 1 March 2004 is confirmed.
(ii) The Respondent to pay the
costs of the Appeal.
BACKGROUND TO THE APPEAL
Ivan John Glogoski (‘the Appellant’) was employed by Ansett Australia (Administrator Appointed) (‘the Respondent’) as a cargo handler. He claims he suffered injuries to his back and both legs on 28 February 2000, 7 August 2000 and 18 October 2001.
He brought a claim for permanent loss compensation pursuant to section 66 and section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of the injuries on 28 February 2000 and 7 August 2000, which was resolved by agreement in August 2001. That agreement was registered pursuant to section 66A of the 1987 Act on 3 October 2001, details of which are as follows:
“(a) 17.5% permanent impairment of the back ($10,500.00)
(b)11% permanent loss of efficient us of the left leg
at or above the knee ($8,250.00)
(c)2.5% permanent loss of use of the right leg at or
above the knee ($1,875.00)
(d)Section 67 pain and suffering (38.7%) ($19,375.00)
Total: $40,000.00”
The Appellant claims to have suffered a deterioration of his condition as a result of a further injury on 15 October 2001.
By letter dated 21 August 2002 to QBE Workers Compensation (NSW) Limited (‘the Insurer’) the Appellant sought further section 66 and section 67 entitlements, in accordance with the medical report of Dr Selby-Brown dated 19 June 2002, as follows:
“(a) 7.5% permanent loss of efficient loss [sic] of the back.
(b)9% permanent loss of efficient loss [sic] of use of left leg at or above the knee.
(c)7.5% permanent loss of efficient use of the right leg at or above the knee.
(d)25% of the most extreme case pursuant to section 67 of the Act for pain and suffering.”
On 15 October 2002, the Insurer replied that it was “…not prepared to make an offer in relation to any further loss of use.”
On 12 May 2003, the Appellant filed an ‘Application to Resolve a Dispute’, seeking further lump sum entitlements as a result of his “deterioration”. The Insurer replied, listing as the issues which remained in dispute as “Medical – whether or not there has been a deterioration in condition”, as a result of the further injury on 15 October 2001.
The outcome of a teleconference held on 26 August 2003 was reported by the Arbitrator as follows:
“Claim for further deterioration of back and both legs. No agreement possible. Insurer has 2 assessments of less than original award of August 2001. AMS to be appointed by Registrar. Request form attached.”
The request for medical assessment by an Approved Medical Specialist (‘AMS’) was completed by the Arbitrator on 26 August 2003. I shall refer to the details of that request later.
Following examination by George Weisz, AMS, on 10 November 2003, a medical assessment certificate issued. I shall refer to this report in more detail later.
No appeal was filed in respect of the certificate, and the matter was referred back to the Arbitrator. In summary, Dr Weisz found 20% impairment of the back, 10% loss of use of the right leg at or above the knee, and 5% loss of use of the left leg at or above the knee.
A further teleconference was held on 4 February 2004. The outcome was reported by the Arbitrator as follows: “Agreement that Respondent would pay lump sums for further impairments assessed in MAC. No agreement for additional s 67 amount. Further s 67 entitlement to be determined in the papers”.
A Certificate of Determination issued on 1 March 2004 as follows:
“1.That the Respondent pay the Applicant in accordance with the Medical Assessment Certificate of Dr G Weisz issued on 2 December 2003; (a) $1500.00 in respect of additional 2.5% permanent impairment of the back; (b) $5625.00 in respect of additional 7.5% loss of use of the right leg at or above the knee.
2.That the Respondent pay the Applicant lump sum $3,125.00 pursuant to section 67 of the Act for further pain and suffering.
3.That the Respondent pay the Applicant’s costs as agreed or assessed”.
This calculation of entitlements pursuant to section 66, it seems, was made by deducting the percentages previously received by the Appellant from the percentages found by Dr Weisz.
On 29 March 2004, the Appellant filed an ‘Appeal against Decision of Arbitrator’ claiming, inter alia, that the Arbitrator made an award outside the scope of the issues in dispute between the parties; that at the time of the teleconference, no dispute existed between the parties regarding the proper construction of the AMS Certificate; and that the Arbitrator denied the Appellant procedural fairness in that neither party was asked to provide submissions regarding the proper construction of the AMS Certificate.
The ‘proper construction’ of the AMS Certificate appears to be the crux of the Appellant’s argument.
The Appellant submits that the percentages referred to by Dr Weisz are by way of “further” losses, and that the order of the Arbitrator discounting the section 66 percentages ought be quashed.
The Respondent submits that the decision of the Arbitrator in respect of section 66 entitlements was proper and that “[i]t is obvious that the assessments of permanent impairment in the certificate must be reduced by the previous award of section 66 compensation”.
Given the Arbitrator’s notes on the outcome of the teleconference that there had been agreement that the Respondent would pay “lump sums for further impairments assessed in MAC” and the Appellant’s submission that “… at the time of the teleconference no dispute existed between the parties regarding the proper construction of the AMS report”, I issued a Direction to both parties on 9 June 2005 requesting submissions on two points as follows:
“(a)The nature of the alleged agreement reached between the parties at or prior to the teleconference on 4 February 2004 as to the Appellant’s section 66 entitlements; and
(b)The parties’ understanding of the outcome of the teleconference.
In response to this direction, the Appellant filed submissions dated 23 June 2005 and the Respondent dated 22 June 2005. I will refer to these submissions below.
LEAVE TO APPEAL
The amount at issue satisfies the requirements of section 352(2) of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’).
The Appeal was filed in time.
Leave was granted in the Direction issued on 9 June 2005.
ON THE PAPERS
The Appellant submits that “it would be expedient for the appeal to be determined by oral argument”. The Respondent has failed to reply to the Appellant’s Application, and is silent on this issue.
Having regard to Practice Directions 1 and 6, and for reasons which I will discuss later, pursuant to section 354(6) of 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 APPELLANT’S SUBMISSIONS
The Appellant provided extensive submissions in the Appeal Application filed 29 March 2004. In summary, the Appellant is of the view that there was agreement (no dispute existed) between the parties regarding the proper construction of the AMS Certificate. The Arbitrator’s determination of the award pursuant to section 66, I infer, is not what the Appellant understood was the agreed ‘proper construction’ of the AMS Certificate. The Appellant, in those circumstances, then goes on to submit that the Arbitrator denied the parties “procedural fairness” in determining the section 66 award because he did not seek submissions from the parties regarding the proper construction of the AMS Certificate. The Appellant claims the Arbitrator’s determination was “…against the weight of the material and evidence tended [sic] …” and that the Arbitrator “…substituted his own determination…” The Award, the Appellant submits, is “inconsistent with the evidence in particular the AMS Certificate.”
The Appellant submits that the Arbitrator erred in law in failing to give reasons for his interpretation of the AMS Certificate and that “[i]t is an error to find that because the AMS referred to all three (3) injuries when making his award, he was making a global award.”
The Appellant’s “against the weight of the evidence” argument also carries through to the award made pursuant to section 67 of the 1987 Act.
No reply or submissions were filed by the Respondent.
THE PARTIES’ SUBMISSIONS PURSUANT TO MY DIRECTION
The Appellant
The Appellant repeats many of the submissions made in his Appeal Application, and maintains that the Arbitrator erred by subtracting the previous section 66 Award from the figures provided by the AMS. The AMS Certificate, the Appellant claims, is open to interpretation.
In response to my question as to the nature of the alleged agreement between the parties on the section 66 issue apparently reached on or prior to the teleconference on 4 February 2004, the Appellant says this (paragraph 3):
“At the time of the teleconference the parties had not discussed the findings made by the AMS. It was the understanding of both parties and the Arbitrator that the purpose of the teleconference was to determine the appropriate award for section 67 pain and suffering. No issue had arisen regarding the interpretation of the AMS report”.
Further:
“At the time of the teleconference, the Appellant had forwarded correspondence to the Respondent regarding the calculation of the award in accordance with the AMS findings but no response had been received in respect of this issue. At the teleconference, no issue was raised regarding the calculation of the award made by the Appellant and forwarded to the Respondent, had the Respondent disputed the Appellant’s calculation, arguably it would have raised this issue at the teleconference”.
Unfortunately, the Appellant has failed to provide copies of any such correspondence which may have assisted in reaching a view as to the alleged agreement reached between the parties on this issue, as I had requested he do so in my direction dated 9 June 2005. Nevertheless, the Appellant maintains that, “there was no discussion and no dispute between the parties regarding the AMS findings.”
The Appellant claims that the Arbitrator erred in law in making an award which was outside the scope of the issues in dispute between the parties. As the Arbitrator himself said (para 15) “This matter is restricted to the question of what, if any, further entitlement the Applicant has for pain and suffering”.
The Respondent
The Respondent in its submissions pursuant to the Direction refers to file notes its representative made “in attendance at teleconference on 4 February 2004.” These notes apparently read as follows:
“Arbitrator requested if Medical Assessment Certificate is accepted by parties. Applicant indicates yes, Respondent indicates MAC is accepted on the basis that it is a global assessment from which previous compensation must be deducted. Discussions regarding previous compensation. Respondent provides the Arbitrator with calculations.” [being the deduction of the previous award from the total assessment made by Dr Weisz].
“The Respondent’s notes are silent as to whether or not the calculations… were agreed by the Applicant but there was no further discussion by the parties on this issue, and the Applicant did not challenge the calculation.”
THE ARBITRATOR’S REASONS
The Arbitrator notes the claim is one for non-economic loss compensation. Under the heading “Issues In Dispute” he notes as follows:
·“Is the Applicant’s entitlement affected by a previous award for permanent impairment and for pain and suffering? [He then sets out details of the previous award].
·What is the further pain and suffering entitlement, if any (the 1987 Act s67).”
He notes his obligation under section 65(3) of the 1987 Act not to award permanent impairment compensation unless the degree of permanent impairment has been assessed by an Approved Medical Specialist (AMS) and notes: “This matter has been referred to an AMS for determination of the following issue:
·The degree of permanent impairment of the worker as a result of an injury, the findings of which are set out later in this decision”.
In paragraph 13 he refers to the Appellant’s medical evidence but says, “The further losses are set by the report of the AMS.”
In paragraph 15 he says:
“This matter is restricted to the question of what, if any, further entitlement the Applicant has for pain and suffering. The section 66 issues have been determined by the Medical Assessment Certificate of Dr Weisz and are set out in the orders below, making allowance for the previous award of August 2000 [sic]”
He then goes on to discuss the medical evidence in relation to his determination of a section 67 award.
THE MEDICAL ASSESSMENT BY APPROVED MEDICAL SPECIALIST
The Arbitrator signed a request for medical assessment by AMS on 26 August 2003 following a teleconference on that day. The details of that request are as follows:
REFERRAL FOR ASSESSMENT OF PERMANENT IMPAIRMENT DISPUTE
| Date(s) of Injury Body part(s) claimed | 28.02.00; | Back; left leg at or above the knee; right leg at or above the knee (ALL FURTHER DETERIORATION – see previous award details below |
| Deterioration of existing impairment: Previous amount claimed Percentage amount of the award or settlement Date of award of settlement | 17.5% permanent impairment of the back. 6 August 2001. | |
The Commission wrote to Dr Weisz on 10 October 2003 confirming the appointment to examine the Appellant on 10 November 2003. The letter said, “the worker is claiming compensation pursuant to section 66 of the Workers Compensation Act, 1987 in accordance with the Letter of Claim… dated 21/08/02 and the Arbitrator’s request for medical assessment dated 20/08/03. The injuries were received on 28/02/00.” (emphasis added)
This letter is clearly unhelpful given that the Appellant had suffered three injuries, the dates of which had been set out in the Arbitrator’s Request for Referral to an AMS.
Dr Weisz’ conclusions in his report dated 18 November 2003 under the heading “Summary Table” are reproduced as follows:
| Body Part (the body part must be described as per Table of Disabilities) e.g. right leg at or above the knee etc | Date/s of injury If it is claimed that there is more than one injury to a body part please apportion any loss between the injuries | Total amount of % of permanent loss of efficient use or impairment | Proportion of permanent loss or impairment due to pre-existing injury, abnormality or condition | Total % of permanent loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4) |
| Back | 28.2.2000, 7.8.2000, 15.10.2001 | 20 | 0 | 20% |
| Right leg at and above the knee | 28.2.2000, 7.8.2000, 15.10.2001 | 10+ | 0 | 10% |
| Left leg at and above the knee | 28.2.2000, 7.8.2000, 15.10.2001 | 5 | 0 | 5% |
In paragraph 7 of his report, in answer to the question “Is apportionment between the several accidents necessary?” he states: “Where applicable, I have apportioned the impairment between the various accidents in columns 1 and 2 in the Table.”
Clearly, he has not.
In paragraph 11, he was asked, “If applicable, my answers to the specific questions raised by the Arbitrator are:
He responds: “N/A”.
Dr Weisz has failed to address the question posed by the Arbitrator. He has also failed to have regard to the requirements of section 323 of the 1998 Act which specifically provides for a deduction for any proportion of the impairment that is due to a previous injury.
Under section 326(1) of the 1998, a Medical Assessment Certificate is conclusively presumed to be correct as to “(a) the degree of permanent impairment of the worker as a result of injury”. The problem in this case is that it is impossible to tell from the report of Dr Weisz the degree of permanent impairment, if any, resulting from the injury on 15 October 2001.
It is on one view of the Certificate logical to infer that the Appellant now suffers a 20% impairment of the back, 10% of the right leg and 5% of the left leg, and having previously received 17.5% to the back, 11% of the left leg and 2.5% of the right leg respectively, is therefore entitled to 2.5% of the back and 7.5% of the right leg. That is the view adopted by the Arbitrator and the Respondent.
However, Dr Weisz in my opinion has failed to adequately address the question of ‘deterioration’, or more correctly ‘apportionment’, as put to him by the Arbitrator, and in accordance with the provisions of section 329 of the 1998 Act, I think it appropriate to refer the back to Dr Weisz for clarification.
His “total percentage of permanent loss of efficient use or impairment attributable to this injury” (my emphasis) does not distinguish between the three injuries recorded. In his reasons, when addressing other medical reports, provided to him prior to assessment, he fails to refer to the issue of ‘deterioration’.
I do not know what interpretation the Appellant has placed on this certificate. It seems to me illogical to suggest that the total percentage impairment/losses are all by way of ‘further deterioration’ since those figures considerably exceed the claim made by the Appellant in his letter of claim to the insurer dated 21 August 2002.
I note that Dr Selby-Brown opined on 16 March 2001 that the Appellant had suffered at 15% impairment of the back, 15% loss of the left leg and 5% of the right leg (prior to the October 2001 injury).
On 19 June 2002 he then said that, “… Mr Glogoski’s condition has deteriorated… and he now has a 25% permanent impairment of the back, a 20% loss of use of the left leg and a 10% loss of use of the right leg.” These figures would only result in a further 5% of each body part, in significant contrast with the AMS Certificate.
In summary, I am of the view that the AMS Certificate is open to interpretation because there is no clear statement in the report or the percentages arrived at as to the degree, if any, of “deterioration”.
Clearly, there is no agreement between the parties as to either the outcome of the teleconference or the ‘proper construction’ of the AMS Certificate in respect of the Appellant’s section 66 entitlements.
SECTION 67 ENTITLEMENT
The Arbitrator discussed at length the medical evidence before him in making a determination on this aspect of the Appellant’s claim. No statement by the Appellant as to his ‘pain and suffering’ had been filed. Whilst on the face of it, the further award determined by the Arbitrator seems to me appropriate, I am reluctant to uphold it given my findings as to the deficiencies in the AMS Certificate. Given I have revoked the Arbitrator’s decision in relation to the section 66 award, I consider it appropriate to revoke the award pursuant to section 67 because this award is intrinsically related to any award pursuant to section 66.
CONCLUSION
The deficiency in the AMS Certificate is not such that it would necessarily fall into any category for appeal in accordance with section 327(3) of the 1998 Act. There is no ‘obvious error’ as such; its conclusions in my view are simply open to interpretation.
In the absence of a Transcript, it is impossible to determine what if any agreement was reached between the parties as to any section 66 entitlement. The parties do not agree on the outcome of the teleconference on 4 February 2004 nor the ‘correct interpretation’ of the AMS Certificate.
The Arbitrator seems to have assumed that his interpretation of the AMS Certificate was the same adopted by the parties. It was necessary in my opinion for the Arbitrator to satisfy himself, before embarking on his task of quantifying any section 67 entitlement, that the parties were ad idem on the section 66 issue or at least to invite submissions as to the ‘proper construction’ of the AMS Certificate.
In my opinion, the Arbitrator has erred in law on two particular issues, firstly in proceedings to make an award he himself conceded was outside the scope of the issues in dispute between the parties, and secondly, having made an award pursuant to section 66, failing to give any or any adequate reasons for his ‘interpretation’ of the AMS Certificate.
DECISION
(1) The decision of the Arbitrator is revoked.
(2) The matter is referred to the Registrar to remit to the Arbitrator at first instance.
(3)The Arbitrator is directed to refer the AMS Certificate back to Dr Weisz for either clarification of the Certificate dated 18 November 2003 on the issue of ‘deterioration’ as requested in the Arbitrator’s referral dated 26 August 2003, or for preparation of a fresh report, on the available material, as to the degree, if any, of ‘deterioration’ of the Appellant’s condition since August 2001, pursuant to section 329 of the Workplace Injury Management and Workers Compensation Act 1998.
(4)On receipt of a further report from Dr Weisz, the matter is remitted to the Arbitrator at first instance for determination of any further section 66 and/or section 67 entitlements.
COSTS
(1) The costs order of the Arbitrator dated 1 March 2004 is confirmed.
(2) The Respondent is to pay the costs of the Appeal.
Deborah Moore
Acting Deputy President
18 July 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
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