Hogan v Mercy Care Centre Young
[2008] NSWWCCPD 119
•20 October 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Hogan v Mercy Care Centre Young [2008] NSWWCCPD 119 | |||||
| APPELLANT: | Jane Maree Hogan | |||||
| RESPONDENT: | Mercy Care Centre Young | |||||
| INSURER: | Employers Mutual Indemnity (Workers Compensation) Limited | |||||
| FILE NUMBER: | WCC009769/07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 10 July 2008 | |||||
| DATE OF APPEAL DECISION: | 20 October 2008 | |||||
| SUBJECT MATTER OF DECISION: | Leave to appeal; costs and disbursements; sections 60, 66 and 67 of the Workers Compensation Act 1987; sections 75 and 341(4) of the Workplace Injury Management and Workers Compensation Act 1998 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | |||||
| HEARING: | Determined on the papers | |||||
| REPRESENTATION: | Appellant: | McCabe Partners Lawyers | ||||
| Respondent: | Sparke Helmore | |||||
| ORDERS MADE ON APPEAL: | Leave to appeal the decision of the Arbitrator dated 10 July 2008 is refused. | |||||
| No order is made as to the costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 31 July 2008 Jane Maree Hogan (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 July 2008.
The Respondent to the Appeal is Mercy Care Centre Young (‘the Centre/the Respondent Employer’).
The Insurer is Employers Mutual Indemnity (Workers Compensation) Limited.
Ms Hogan initially lodged an ‘Application to Resolve a Dispute’ in the Commission on 19 December 2007 for injuries sustained on 12 October 1987; for injuries sustained on 18 September 1990; for injuries sustained as a result of the nature and conditions of her employment with the Centre from 1 July 1987 to 24 February 2006, and “as a result of the disease provisions of the Workers Compensation Act 1987 [‘the 1987 Act’] up until the 24.02.2006.”
The injury is described in her Application as:
“Back pain with pain radiating down the right and left legs and impairment to the sexual organs, neck with pain radiating down to the ring finger on the left hand, pain in the cervical and left upper shoulder girdle.”
Details of frank injuries on or about 12 October 1987 and on 18 September 1990 are set out in the Application, as are the details of the nature and conditions claim and the claim pursuant to sections 15 and 16 of the 1987 Act. Those details are as follows:
“Frank Injuries:
On or about the 12.10.1987, the Applicant was working for the respondent and was trying to help a patient out of a wheel chair, when the patient fell with the patient’s arms up around the Applicant’s neck, pulling her in a downwards motion. As a result, the Applicant suffered back pain.
Frank Injury:
On the 18.09.1990, the Applicant was working for the Respondent and was pulling a pill trolley whilst giving out medication and as she pulled the trolley back, the Applicant felt pain in her lower back with the pain down both legs.
Nature and Conditions:
Whilst employed by the Respondent from 01.01.2002, the Applicant performed work involving repetitive bending and lifting of heavy weights, the nature and conditions of which caused and/or materially aggravated the injuries particularised below:
·Back pain with pain radiating down the right and left legs.
·Impairment to the sexual organs.
Disease Provisions (ie ss. 15 & 16 of the Workers Compensation Act 1987)
(24.02.2006, is the date of the back operation)
Arising out of or during the course of the Applicant’s employment as a nurse up until 24.02.2006, the Applicant has contracted degeneration of her back with pain radiating down the right and left legs and impairment to sexual organs, being a disease of such a nature as to be contracted by a gradual process to which such employment as a nurse was a substantial contributing factor.
For a number of years prior to the 24.02.2006, the Applicant was employed in the nursing industry and this type of employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and/or deterioration:
·Back pain with pain radiating down the right and left legs.
·Impairment to the sexual organs.
The Respondent was the last employer of the Applicant prior to the back operation on 24.02.2006, in such employment to the nature of which the disease condition is and was due.”
According to two identical documents, ‘Certificate of Determination – Consent Orders’ on the Commission file, dated 7 February 2008 and 12 February 2008, the Arbitrator made the following orders:
“In this matter a telephone conference was held where the parties came to an agreed resolution 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 determination of the Commission in this matter is as follows:
1.By consent the Respondent will pay the Applicant:-
(a)pursuant to s. 36 the sum of $1,038 from 16 January 2006 to 3 April 2006, such monies to be re-credited in relation to sick pay paid;
(b)a weekly sum to be agreed pursuant to s. 40 from 6 August 2007 to 9 August 2007;
(c)a sum to be agreed pursuant to s. 40 for 13 August 2007.
2.There will be an award in favour of the Respondent in regard to the other dates claimed for weekly compensation.
3.The Respondent will pay the Applicant’s s. 60 expenses upon production of accounts and/or receipts and/or HIC documentation.
4.I remit the claim for a loss of sexual organs to the Registrar for referral to an AMS on the following bases:-
(a)Date of injury: 18 September 1990;
(b)Method of Assessment: Table of Disabilities.
(c)Body part: Loss of sexual organs.
(d)Evidence:
(i)Medical reports of Dr Searle 3.2.07, 6.2.07, 13.3.07 *x 2) – these reports may be found at pages 44, 50, 51 and 52 of the Application to Resolve a Dispute;
(ii)Report of Dr Meagher dated 12.10.06 (page 53 of the ARD);
(iii)Statement of the Applicant dated 15.9.06 appearing from pages 65 to 83 of the ARD and 6 December 2007 (pages 142 to 146 of the ARD);
(iv)Statement of Christopher Hogan dated 20 October 2006 (pages 84 to 91 of the ARD).
5.I direct the matter be referred back to me following the AMS assessment.
6.The Respondent is to pay the Applicant’s costs as agreed or assessed.
Short Reasons
I have asked for the matter to be referred back to me because the parties have indicate [sic] there is a dispute relating to a s. 67 component payable. There was a prior settlement of a s. 66 claim relating to the back and legs in which a s. 67 component was paid. The Applicant contends that that relates only to the whole person impairment entitlement, and not the Table of Disabilities settlement. The Respondent tends [sic] otherwise. In any event, any entitlement assessed by the AMS for loss of sexual organs will also entitle the Applicant to a further payment of S. 67 benefits and it is more efficacious to deal with this issue when that assessment is known.”
On 16 June 2008 the Arbitrator issued a further ‘Certificate of Determination’ in the following terms:
“The Commission determines:
(a) There will be an award in favour of the applicant in the sum of $2,000 by way of further s. 67 entitlement a result of the increased entitlement to s. 67 benefits.
(b) The respondent will pay to the applicant the sum of $1,299 for the purchase of a treadmill.
(c) No order as to costs.”
On 10 July 2008 the Arbitrator issued a further ‘Certificate of Determination’ in the following terms:
“1. The Commission determines the costs order of 7 February 2008 is revoked.
2. No order as to costs.
Statement of Reasons
Following my decision as to costs of 13 June 2008 it has been brought to my attention that on 7 February 2008 I had in fact made an order in the applicant’s favour for costs. For the reasons set out in my later determination of 13 June 2008 I vacate that order.”
The determination of 13 June 2008 is the determination made, as set out in the ‘Certificate of Determination’ dated 16 June 2008. The Arbitrator stated:
“COSTS
1.Costs are at the discretion of the Commission and I do not think that the applicant should have her costs in relation to either dispute.
2.The dispute as to the s.67 entitlement came about because the applicant’s solicitor insisted that his conduct in making a pencilled alteration to the complying agreement constituted an entitlement of some magnitude to his client.
3.I regard that conduct as being well below the ordinary standard expected of a reasonably proficient solicitor in handling his client’s affairs, particularly when (apparently) no reference was made in the accompanying letter to the fact that the document had been unilaterally altered before signing. It is perhaps fortunate for the applicant’s solicitor that neither party has placed that letter before me.
4.The failure, if there were one as Mr Studdert alleges, to alert the respondent to the alteration smacks of sharp practice and, had that letter been before me in such terms, would have resulted in the papers being referred to the Legal Services Commission. Whilst I have found that the alteration did constitute a counter offer, the manner in which such a counter offer was made fell well below the standard a reasonably proficient legal practitioner should adopt. If there were to be a counter offer, one would have expected it to at least be mentioned in the accompanying letter. There was no communication with the respondent, which specifically rejected the offer made and put the counter offer in clear terms.
5.Further, my discretion is exercised against such an order for costs in respect of the applicant because again the conduct of the applicant’s solicitor in my view fell well below the standards ordinarily expected of a reasonable legal practitioner. Having accepted the payment of the amount tendered, the applicant then proceeded with this dispute.
6.The failure by the applicant’s solicitor to appreciate that the action of accepting the proffered monies constituted an acceptance of the offer upon which it was based, also failed to measure up to the standards a reasonably competent solicitor would be expected to have. This conduct has involved the parties in considerable time and expense in a futile quest. I am aware that an order was eventually made in the applicant’s favour for additional compensation, but this liability had always been accepted by the respondent, and was not the subject or any dispute. The quantum of the entitlement may well have been settled had that basis of calculation been accepted by the applicant. In the exercise of my discretion I do not think the applicant should have her costs in respect of this issue, and no separate order under schedule 6(9)(2)(b) will be made.
7.Whilst I accept that the claim in respect of the treadmill was a matter properly for determination, it did not occupy much of the Commission time, and in view of the conduct above referred to, in my discretion I make no order as to costs.”
On 18 August 2008, a Commission Costs Assessor as Delegate for the Registrar, recorded the following determination in a ‘Certificate of Determination’:
“1.The Respondent is not liable to pay the Applicant’s costs in the substantive proceedings.
2.No order as to costs with regard to the costs of the assessment.”
The Cost Assessor said at [6], “The threshold issue is as to whether the Applicant is entitled to recover costs at all.” The findings and reasons advanced by the Costs Assessor, set out in that ‘Certificate of Determination’, are as follows:
“9.The Respondent submits that the award of costs, on which the Applicant relies related to a teleconference which took place on 7 February 2008 and was effectively revoked in the Arbitrator’s subsequent Statement of Reasons on 16 June 2008.
10.The Applicant has not responded suggesting that this is not correct or raising any difficulty about the apparent discrepancy, which the Respondent explains, between two dates being 7 February 2008 and 12 February 2008.
11.The Applicant’s Solicitor originally relied upon a Certificate of Determination dated 12 February 2008, which had not been revoked, this not having occurred until 16 June 2008, when the Application for Assessment of Costs was lodged.
12.It is not clear why the Application was lodged so promptly (seven days) after the original teleconference, or why this simple assessment appears to have taken six months to reach me.
13.Given the circumstances it would have been appropriate, the Applicant’s Solicitors having received two letters in the matter subsequent to the Determination on 16 June 2008, to have conceded the position such that the unnecessary referral to myself, together with the attendances by the Respondent’s solicitors and [sic] at the Commission could have been avoided.”
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 July 2008 records the Arbitrator’s orders as follows:
“1.The Commission determines the costs order of 7 February 2008 is revoked.
2.No order as to costs.”
.
This is the specific decision of the Arbitrator against which Ms Hogan’s legal representative has made this appeal.
ISSUES IN DISPUTE
The issues in dispute in the appeal are found in the first five paragraphs of Ms Hogan’s submissions on appeal, as far as I am able to discern. Those paragraphs are set out as follows:
“1.The Applicant seeks Costs Order by [the Arbitrator] dated 10 July 2008 be set aside and in replacement of Order (1) that a costs Order pursuant to Section 341 of the Workplace Injury Management Act 1998 (WIM Act 1998) be made in favour of the Applicant.
2.The Applicant seeks that [the Arbitrator] makes a Determination that the Applicant is entitled to the sum of $7,050.00 in respect of the 15% loss of use of the sexual organs in accordance with the medical report prepared by the AMS, Dr Korbel.
3.The applicant seeks an Order that the Respondent pay the Applicant the sum of $209.95 in regards to the provision of walking shoes.
4.The Applicant seeks an Order that the Respondent reimburse the Applicant $718.00 in relation to chemists expenses.
5.It is submitted that the Respondent’s insurer … be referred to the WorkCover Authority of NSW pursuant to Section 75 of the WIM Act 1998 as the Respondent’s insurer has caused a delay in dealing with this claim under the Act in regards to the re-crediting of the Applicant’s sick leave entitlements as ordered by [the Arbitrator] on 12 February 2008.”
Ms Hogan’s legal representative makes two further contentious submissions at [74] and [75] of his submissions on appeal:
“74.As [the Arbitrator] has caused unnecessary further expense and trouble to the Applicant’s legal practitioner, the Applicant seeks an Order that [the Arbitrator] not be entitled to any of the costs that he has been paid in respect of the Determination of the issues involved in this matter or that [the Arbitrator] be ordered to forward the said costs to a charitable organisation.”
75.As the Respondent has not paid the sum of $209.95 with regards to the provision of shoes and has not complied with the agreement reached on 14.05.2008 that the Respondent would pay for weekly compensation and the Respondent has not re-credited the Applicant for sick leave taken as a result of her workplace injury. It is submitted that the Respondent’s insurer be referred to the WorkCover Authority of NSW because of the delay with dealing with the Applicant’s claim under the Workers Compensation Act 1987.”
ON THE PAPERS REVIEW
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 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.
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.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides in part:
“(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 appeal is both:
(a)at least $5,000 (or such other amount as maybe 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.”
Significantly, the decision of the Arbitrator dated 10 July 2008, against which this appeal has been brought, relates only to costs. On that date the Arbitrator vacated an order for costs made in favour of Ms Hogan, dated 7/12 February 2008. The order made is “The Respondent is to pay the Applicant’s costs as agreed or assessed.” The reasons for vacating the order for costs are set out in the Arbitrator’s Statement of Reasons for Decision’, which accompany the ‘Certificate of Determination’ dated 16 June 2008, as set out at [10] above.
No appeal was filed by Ms Hogan as to the substantive orders made by the Arbitrator on 16 June 2008. No appeal has been made by Ms Hogan in relation to the substantive decisions made by the Arbitrator in February 2008. No submissions were made by Ms Hogan to the Costs Assessor.
Ms Hogan has at no time, made any application pursuant to Rules 11 and 12 of the Workers Compensation Commission Rules 2006 (‘the Rules’) seeking an order to extend the time for making an appeal.
Ms Hogan’s legal representative did not file an appeal in the Commission in relation to any substantive issue until the Arbitrator made an order on 10 July 2008 vacating the order for costs he made on 7/12 February 2008, consistent with his determination of 16 June 2008. He has purported to include substantive issues in his ‘Application – Appeal Against Decision of Arbitrator’. Whatever the merit or otherwise of those matters, any appeal on this basis is well out of time.
Only the issue of costs is left.
Ms Hogan’s legal representative suggests in his second submissions on appeal, dated 7 October 2008, at [2] that the Commission granted leave to appeal pursuant to section 352 of the 1998 Act on an issue as to costs, in El-Said v 3WJ Pty Limited [2008] NSWWCCPD 50 (‘El-Said’). This is incorrect. Leave to appeal was refused in that matter. It is sufficient to add that the President, His Honour Judge Keating, in El-Said, pointed to section 352(2) indicating that it provides that the Commission is not to grant leave to appeal “unless the amount of compensation at issue on the appeal is at least … $5,000.” (Emphasis added). The President points out that this issue has been considered in a number of matters on appeal in the Commission (see [17] of his Reasons).
Ms Hogan’s legal representative cites Connor v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (CCI Limited ) [2006] NSWWCCPD 124 (‘Connor’), indicating that the Deputy President noted in that case that had the appeal related [only] to the costs order made, leave to appeal would have been refused (see Grimson v Integral Energy (2003) NSWWCCPD 29 (‘Grimson’). See also Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227). However, in Connor, Deputy President Roche allowed leave to appeal on the basis that it was properly brought in relation to substantive issues determined in the decision appealed against, relating to an amount of compensation, as well as the decision as to costs. He said:
“As a costs order made by the Arbitrator forms part of her formal order and as the appeal is otherwise properly before me and the appellant worker has had the opportunity to be heard, I believe it is appropriate that I determine the cost issue raised by the Respondent Employer.”
Unlike the situation in Connor, the appeal in this matter is not properly brought in relation to any substantive issue. In Grimson, Deputy President Fleming made the position clear at [23]:
“The decision ‘no order as to costs’ clearly does not concern an ‘amount of compensation’, either in the appeal, or in the original claim. The costs associated with an application to the Commission are not themselves an amount of compensation under the Workers Compensation Acts. ‘Compensation’ is defined in section 4 of the 1998 Act as ‘compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts’. Chapter 4 of the 1998 Act deals with ‘Workers Compensation’. Part 3 of the 1987 Act deals with ‘Compensation Benefits’. In the circumstances of this case there was no ‘amount of compensation at issue’ as the substantive proceedings had been discontinued.”
Notwithstanding Ms Hogan’s legal representative’s attempts to include substantive issues as to payment of compensation in this appeal (and any appeal in relation to those issues would be well out of time, as well as being the subject of determinations other than the specific decision against which this appeal was made), this is clearly an appeal against the Arbitrator’s decision in relation to costs. The appeal is specifically made against the decision of 10 July 2008, which is only an order concerning costs, and nothing more, albeit that it is an order vacating an earlier order for costs made in February 2008, which accompanied ‘consent orders’ as to payment of compensation to Ms Hogan, as agreed between the parties.
In the circumstances, leave to appeal is refused.
OTHER MATTERS
For the sake of completeness and in an attempt to assist with bringing this whole matter to a proper and timely conclusion in the interests of the parties, the following matters are addressed.
In relation to the orders made by the Arbitrator, Ms Hogan’s legal representative makes submissions as to the provisions of section 341(4) of the 1998 Act with regard to circumstances in which orders may be made by the Commission as to “payment of costs by a claimant”. Notwithstanding that this appeal is not to proceed, I note that the section clearly has no relevance to the non-payment of costs to a claimant, contrary to what is apparently asserted in the initial submissions on appeal (see [10] et seq). (Emphasis added).
As to Ms Hogan’s legal representative’s submissions at [74] of his first submissions on appeal (see [16] of my Reasons), it sufficient to observe that they are obviously inappropriate and misconceived.
Ms Hogan’s legal representative’s comments about the personal difficulties he is experiencing in the conduct of his legal practice and his frustrations allegedly experienced in this matter in dealing with the Insurance Company and/or its representative(s), are noted.
Ms Hogan’s legal representative’s attempts to agitate and re-agitate substantive issues that do not fall within the scope of this appeal are rejected. The resolution of them is not available in this appeal. It may be necessary for steps to be taken by the parties to further involve the Arbitrator by means of the appropriate process and procedure. Alternatively, it ought to be possible for the legal representatives of the parties to negotiate the detail and “tie up the loose ends” in the interests of their clients. However, the action to be taken is entirely a matter for and between the parties. I am unable to interfere with determinations of the Arbitrator, or the negotiations and dealings between the parties, outside of the scope of the jurisdiction conferred upon me by the Workers Compensation legislation.
Ms Hogan’s legal representative’s submissions at [5] and [75], requesting that individuals in the employ of the Insurer, and the Respondent Employer in the appeal, should be referred to the WorkCover Authority for delay in implementing the decision of the Arbitrator and for delay in dealing with Ms Hogan’s claim, are noted. It is submitted that I should take this step pursuant to section 75 of the 1998 Act. The legal representative for the Respondent Employer concedes that there are some aspects that still require attention, but suggests, and I agree, that these issues are largely non-contentious and can be settled, or otherwise dealt with more appropriately than in this appeal. They also submit that payment of medical expenses pursuant to section 60 of the 1987 Act has in fact been made, and any further outstanding issues in this regard can be effectively dealt with between the parties. In the circumstances I consider that it is neither necessary nor appropriate to take the action requested, and I decline to do so at this point. I urge the parties to finalise promptly, these and any other matters requiring attention.
DECISION
Leave to appeal is refused.
COSTS
No order is made as to the costs of the appeal.
Gary Byron
Deputy President
20 October 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT GARY BYRON OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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