Hanley v Cypress Lakes Group Ltd
[2004] NSWWCCPD 23
•3 May 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hanley v Cypress Lakes Group Ltd [2004] NSW WCC PD 23
APPELLANT: Delise Hanley
RESPONDENT: Cypress Lakes Group Ltd
INSURER:NRMA Workers Compensation (NSW)(No.2) Pty Ltd
FILE NUMBER: WCC12234-03
DATE OF ARBITRATOR’S DECISION: 12 February 2004
DATE OF APPEAL DECISION: 3 May 2004
SUBJECT MATTER OF DECISION: Appeal against decision to refer medical dispute to Approved Medical Specialist.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Emery Partners, Solicitors and Conveyancers
Respondent: Sparke Helmore Solicitors
ORDERS MADE ON APPEAL: Leave to Appeal against the decision of the Arbitrator dated 12 February 2004 is refused.
The matter is referred to the Registrar to enable the Medical Assessment Certificate of Dr Ostinga, dated 18 February 2004 to be issued at the same time as this decision.
The Appellant is to pay the costs of the appeal.
THE APPEAL
On 3 December 2003 Delise Hanley (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 22 October 2003.
The Respondent to the Appeal is Cypress Lakes Group Ltd (‘the Respondent Employer’).
The appeal was referred to me for review on 30 April 2004.
ISSUES IN DISPUTE
This appeal concerns the following interlocutory Direction of an Arbitrator:
1. The matter will be referred to an AMS for an assessment of permanent impairment only, for an injury occurring 1 May 1999.
2. The Respondent is given leave to file and serve the reply. Already lodged with the Commission (sic).
3. The Respondent is given leave to file and serve the clinical records of Dr Lim within 14 days to be included in the documents to be sent to the AMS.
Order 1 above will result in an assessment by the Approved Medical Specialist (‘the AMS’) on the basis of the Table of Disabilities. The Appellant Worker seeks to have Direction 1, above, revoked, and a new Direction made to the effect that the AMS be asked to also provide an assessment of ‘Whole Person Impairment’ in order that the worker may later make a claim for work injury damages.
The Respondent has not made any submissions in the appeal save to consent to the determination of the matter on the papers.
ON THE PAPERS REVIEW
The Appellant and Respondent consent to the determination of the appeal on the papers in accordance with Section 354(6) of the 1998 Act.
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 TO APPEAL
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 the appeal has not been filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act). The last day for the filing of the appeal was 19 November 2003 and the appeal was filed on 3 December 2003. The result is that leave must be granted to extend time before the appeal can be reviewed.
No submissions have been made as to why the time for the filing of the appeal should be extended or why in fact the appeal was filed out of time.
I have considered the factors relevant to the exercise of discretion to extend time (see Gallo v Dawson [1990] 93 ALR 479; Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22), including the potential injustice to the parties in refusing or granting leave, the nature of the appeal, the conduct of the parties and the prospects of success.
It is clear from the contents of the Commission’s file, before me on the review, that events have overtaken the issues articulated in the application to appeal.
The appeal file contains a Medical Assessment Certificate (‘MAC’), issued by Dr Kim Ostinga on 18 February 2004. There is no indication on the Commission’s file that this MAC has been sent to the parties and I propose to request the Registrar to issue the MAC along with this decision.
Dr Ostinga’s assessment is essentially that Ms Hanley has 0% permanent impairment to her back, neck, left arm at or above the elbow, and right arm at or above the elbow. Argument about the criteria upon which such an assessment is made, namely according to the Table of Disabilities or Whole Person Impairment, would seem otiose in light of this assessment. If the Appellant is dissatisfied with this assessment then she may apply to the Registrar, on prescribed grounds, to have the assessment reviewed by a Medical Appeal Panel.
In any event, it is my view that a direction by an Arbitrator to refer a matter to an AMS is not a decision which is amenable to review by a Presidential Member pursuant to 352(2)(a) of the 1998 Act. It is purely a procedural matter and does not concern ‘an amount of compensation at issue’ in the dispute or in the appeal (see Steven Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5). In this case the Appellant Worker was, and remains, free to make a separate application for an assessment by an AMS pursuant to section 313 of the 1998 Act (Kathleen Maryanne O’Brien v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2003] NSW WCC PD 16).
In summary, the appeal is refused because it is out of time. Leave to extend time is not granted, on the basis that: there is no injustice to either party in refusing leave; the prospects of success are nil, and the nature of the litigation is not properly a matter for review by a Presidential Member. The appeal does not concern an ‘amount of compensation’ in issue. It therefore would not meet the threshold criteria in section 352(2) of the 1998 Act.
DECISION
Leave to appeal the direction made by an Arbitrator dated 22 October 2003 is refused.
The matter is referred to the Registrar to enable the Medical Assessment Certificate of Dr Ostinga, dated 18 February 2004 to be issued at the same time as this decision.
If there are further issues for determination in this matter it should be referred back to the Arbitrator.
COSTS
The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
3 May 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.
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