Hawke v Stanyer & Ors T/as Stanyer Partnership
[2007] NSWWCCPD 208
•10 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hawke v Stanyer & ors t/as Stanyer Partnership [2007] NSWWCCPD 208
APPELLANT: Louise Anne Hawke
RESPONDENT: Samuel John Stanyer, Lois Elizabeth Stanyer, Leigh Richard Stanyer and James Samuel Stanyer t/as Stanyer Partnership
INSURER:GIO General Limited
FILE NUMBER: WCC3125-07
DATE OF ARBITRATOR’S DECISION: 5 July 2007
DATE OF APPEAL DECISION: 10 October 2007
SUBJECT MATTER OF DECISION: Leave to appeal; orders of an interlocutory nature; monetary thresholds in section 352 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 16 October 2004 Louise Anne Hawke (‘the Appellant Worker/Ms Hawke’) sustained injury whilst working for the Stanyer Partnership (‘the Respondent Employer’) as a wool classer. On 2 May 2007 her Application to Resolve a Dispute (‘the Application’) was registered in the Commission. In it she claimed weekly compensation from 4 April 2005 to date and continuing, permanent impairment compensation in respect of 33% whole person impairment, hospital and medical expenses, and the cost of domestic assistance in respect of wood chopping and lawn mowing services.
By its Reply filed on 23 May 2007, the Respondent Employer raised the following issues:
(a)Ms Hawke’s average weekly earnings, actual earnings and ability to earn were not as alleged;
(b)liability for weekly compensation and for medical expenses had never been declined and there was “no dispute in relation to those two claims”;
(c)whether any whole person impairment was less than claimed in the Application;
(d)the amount claimed by Ms Hawke for compensation for pain and suffering was not reasonably proportionate to the maximum payable, and
(e)no statement from Ms Hawke had been served.
The matter was listed for a teleconference before a Commission Arbitrator on 6 June 2007 when the claim for weekly compensation was discontinued. The claim for lump sum compensation was referred to an Approved Medical Specialist (‘AMS’) for assessment of Ms Hawke’s whole person impairment as a result of injury to her cervical spine, right upper extremity and left upper extremity. The AMS issued a Medical Assessment Certificate (‘MAC’) on 17 September 2007 in which Ms Hawke was assessed to have a whole person impairment of 14%.
The claim for hospital and medical expenses and for domestic assistance was the subject of argument at the teleconference. This part of the claim consisted of three elements:
(a)$2,648.30 pursuant to a Notice of Past Benefit;
(b)$812.00 due to Dr MacDonald, and
(c)an unspecified sum on the basis that Ms Hawke requires domestic assistance with wood chopping and lawn mowing.
At the teleconference, the Respondent Employer’s solicitor confirmed that Dr MacDonald’s accounts had been paid on 13 January 2005 (T4.36). He added that there was “nothing in dispute about section 60s” (T4.57). At T14.50 he added that the claim for domestic assistance “has to be certified by a doctor” and “if a doctor certifies it as reasonably necessary they [the GIO] have no issue with it”. Ms Hawke has never provided evidence of that certification.
At T15.1 the Arbitrator quite properly asked if a medical practitioner had recommended that the domestic assistance was reasonably necessary. Mr McCabe, solicitor for Ms Hawke, did not give a direct answer to that question but said “have they [the insurer] ever sent a letter to the general practitioner asking for that recommendation?” (T15.7). The Arbitrator again asked Mr McCabe if he was aware of any medical certification from a doctor that had been submitted to the insurer about the need for domestic assistance (T15.16). Mr McCabe responded that his client had no idea and he referred to a report from an occupational therapist engaged by an organisation called Konekt.
In circumstances where Mr McCabe was being difficult to the point of being discourteous, the Arbitrator kept attempting to understand the basis of the claim. At T16.37 the Arbitrator said, “I’m just looking at the basis for this claim”. Later the Arbitrator noted that there had been no claim for payment (T17.10) and no recommendation from a medical practitioner that the domestic assistance was reasonably necessary (T17.14). He then stated:
“ARBITRATOR: There’s nothing I can do about it, and there’s insufficient evidence upon which ‑ for it to be based on. There’s just no – there’s no ‑‑
MR McCABE: Well, the simple fact is strike out the claim.
ARBITRATOR: Mmm?
MR McCABE: Strike out the entire claim.
ARBITRATOR: Well, you’ve already discontinued the weekly payments. Why do you want to have the ‑‑
MR McCABE: Well, just that ‑‑
ARBITRATOR: Okay.
MR McCABE: ‑‑ it’s the appropriate way, like, I think, you know, matters in dispute are dealt with.”
Mr McCabe then referred to the terms of section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator then stated:
“ARBITRATOR: Well, all right. My view of this is that there’s insufficient evidence upon which to rely. There’s no dispute in terms of an expense but I can’t make any orders for any prospective payments. So there’s really nothing for me to deal with in terms of the section 60 claim at this point, this section 60 aspect of the application at this point. So it’s not going to be discontinued. I’m dismissing it.”
On 5 July 2007 the Commission issued a “Certificate of Determination – Consent Orders” recording the following:
“In this matter a telephone conference was held on 6 June 2007 where the parties were assisted by me, acting as an arbitrator, to come to an agreed resolution of some of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’), the determination of the Commission in this matter is as follows:
1. That the application for weekly payments of compensation is discontinued. The requirement for a Notice is dispensed with.
2. The Commission ordered that pursuant to section 354(7A)(c) of the 1998 Act and Rule 15.8, that the Application for s60 of the Act expenses is dismissed.
The reasons for order 2 above were given at the telephone conference and a recording is available to the parties.”
By an appeal initially filed on 29 June 2007 but rejected by the registry and re-filed on 12 July 2007, Ms Hawke seeks leave to appeal the Arbitrator’s order dismissing the application for section 60 expenses.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions 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.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the thresholds in section 352 of the 1998 Act.
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)
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.
Time
An Arbitrator’s decision is made when the Commission issues a certificate as to the determination of the dispute as require by section 294(1) of the 1998 Act (see Part 16 Rule 16.2 of the Workers Compensation Commission Rules 2006).
In the present matter the Certificate of Determination was issued on 5 July 2006 and the appeal re-filed within time on 12 July 2006. The appeal was therefore lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
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.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (‘Regan’) 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] 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)).”
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 proceedings before the Arbitrator. The claim for weekly compensation was discontinued. Therefore, the only compensation “at issue” was the claim for $2,648.30 and $812.00 of section 60 expenses. The amount of $812.00 was not in dispute as it had been paid. The position concerning the claim for $2,648.30 was not properly clarified at the teleconference but the statement by the Respondent Employer’s solicitor at [5] above would strongly suggest that that amount is also not in dispute. Even if it is in dispute, the amount is below the $5,000.00 threshold in section 352(2)(a) of the 1998 Act.
That only leaves a claim for domestic assistance that was not supported by evidence from a medical practitioner and has not yet been incurred. A claim for section 60 expenses that have not been incurred is not a claim for ‘compensation’ under the 1987 Act (see Widdup v Hamilton [2006] NSWWCCPD 258 (‘Widdup’)). Therefore, the amount of compensation “at issue” does not meet the threshold in section 352(2)(a) of the 1998 Act and leave to appeal must be and is refused.
Interlocutory
The authorities of Little v State of Victoria (1998) 4 VR 596 (‘Little’) and Wickstead v Browne (1992) 30 NSWLR 1 at 11 (‘Wickstead’) provide clear statements of principle that are applicable to the present matter. In Little, an order striking out proceedings because they did not disclose a cause of action was held to be interlocutory. In Wickstead, an order for summary dismissal under Part 13 Rule 5 of the NSW Supreme Court Rules was held to be interlocutory. In my view, the order made by the Arbitrator was clearly a preliminary or interim order of an interlocutory nature (see clause 200B of the Workers Compensation Regulation 2003) as it was not a decision on the merits and has not disposed of or determined any of the parties’ rights.
Ms Hawke is free to issue further proceedings seeking an order for the payment of section 60 expenses once those expenses have been incurred and once the appropriate evidence under section 60AA of the 1987 Act has been obtained and all relevant notices given. As there has been no determination on the merits, the Arbitrator has made no orders or findings that will restrict or inhibit that being done. No res judicata or issue estoppel arises from the Arbitrator’s order.
Therefore, the Arbitrator’s order was, in the circumstances of this case, interlocutory in nature and was not a ‘decision’ against which leave to appeal can be granted.
OTHER MATTERS
The Arbitrator’s Order
The Certificate of Determination records the Arbitrator’s order dismissing the matter was made under section 354(7A)(c) of the 1998 Act and Part 15 Rule 15.8 of the 2006 Rules. Subsection 7A of section 354 provides:
“(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Rules.”
Rule 15.8 of the 2006 Rules provides:
“Failure by an applicant to prosecute the proceedings with due despatch is a ground of dismissal for the purposes of section 354(7A) of the 1998 Act.”
The Arbitrator’s reason for dismissing the application was that there was “no dispute in terms of an expense” (T18.1) and he could not make orders for prospective payments. These reasons do not fall within the ground set out in Rule 15.8 but may well have supported a dismissal under section 354(7A)(b) on the ground that the application for declaratory relief was “misconceived or lacking in substance”.
The Appeal Generally
Mr McCabe filed 16 pages of written submissions in support of this appeal. They were unhelpful. They did not properly address the threshold issues under section 352 of the 1998 Act. To the extent that any grounds of appeal were identified, the submissions did not address those grounds. As with the initial Application to Resolve a Dispute (Form 2), they included numerous authorities that had no relevance to the appeal and they failed to consider or address the authority of Widdup. They included lengthy quotes from Ms Hawke’s statement of 17 November 2005 and from the report from Konekt dated 26 November 2004, all of which were of no assistance in the absence of evidence of the appropriate certification from a medical practitioner as required by section 60AA(1)(a) of the 1987 Act.
Submissions on appeal should include a precise and succinct statement of the issues supported by relevant references to the evidence and appropriate authorities. A wide-ranging and discursive ‘scatter gun’ approach is neither helpful to the Commission nor the party concerned. Similarly, the initial Application to Resolve a Dispute should provide the information requested in a short and concise form. It is neither helpful nor necessary to include long quotes from authorities that have little or no relevance to the issues to be determined in the particular case at hand. If an Arbitrator seeks written submissions on a particular issue appropriate submissions can then be submitted.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
10 October 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.
ASSOCIATE
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