Inghams Enterprises Pty Ltd v Grigor

[2017] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	John Grigor
INSURER:	Self Insured
FILE NUMBER:	A1-3480/16
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	12 December 2016
DATE OF APPEAL DECISION:	18 May 2017
SUBJECT MATTER OF DECISION:	Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; nature of a ‘general order’ pursuant to s 60 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Somerville Laundry Lomax
ORDERS MADE ON APPEAL:	1. The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal.

INTRODUCTION

1. John Grigor (the respondent) established before an Arbitrator that he suffered injury to his lumbar spine on 18 March 2014, in the course of his employment with Inghams Enterprises Pty Ltd (the appellant), and that s 9A of the Workers Compensation Act 1987 (the 1987 Act) was satisfied. The Arbitrator found that, although the respondent suffered from partial incapacity from 24 April 2014, there was no ‘economic incapacity’ in the period during which weekly compensation was claimed, and “nil entitlement to weekly compensation”. The Arbitrator ordered that the appellant pay the respondent’s expenses pursuant to s 60 of the 1987 Act, “on production of accounts/receipts”.

2. The appeal challenges the findings on ‘injury’, s 9A, incapacity and whether there was a requirement for treatment as a result of the found injury. The appeal raises threshold issues pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

BACKGROUND

1. The respondent was employed by the appellant at a chicken farm at Byron Bay. His normal duties were those of a storeman. The appellant pleaded an injury to his lower back on 18 March 2014, when he was sent to work in the boning room, which was not his normal role. He alleged the injury occurred when he was “lifting a heavy tub of chicken pieces”, or alternatively that he suffered injury by way of the “aggravation, exacerbation and/or acceleration of a disease condition”. He returned to his usual role in the store, but was subsequently moved to the boning room permanently from 22 April 2014. He went off work from 24 April 2014, he stated due to low back pain. He went on leave from 24 April 2014, and his employment was terminated on 9 June 2014. He has not worked subsequently.

2. The appellant declined the respondent’s claim for workers compensation benefits, denying ‘injury’, the satisfaction of s 9A of the 1987 Act, incapacity and whether the respondent had required treatment in relation to a work related injury.

THE ARBITRAL PROCEEDINGS AND DECISION

1. The Application to Resolve a Dispute (the Application) was registered on 6 July 2016, and heard at an arbitration hearing at Ballina on 31 October 2016 and 4 November 2016. Mr Willis appeared for the respondent, and Mr Saul appeared for the appellant. Counsel addressed, and the Arbitrator reserved his decision. The Arbitrator delivered an oral decision on 6 December 2016. A Certificate of Determination was issued on 12 December 2016.

2. The Application claimed weekly compensation on an ongoing basis from 24 April 2014, and an amount of $20,000 in respect of future treatment, being “Lumbar fusion surgery”. The Application on its first page indicated that “Medical expenses” were claimed.

3. At the commencement of the arbitration hearing, the Arbitrator announced:

   “I just note that during the conciliation phase the section 60 of the 1987 Act claim for surgery has been discontinued - that was future surgery - the issues otherwise are as set out in the notice issued under section 74 of the '98 Act and it seems to be I think we're looking at injury, are we?” (31.10.16 T1.30-5)

4. The appellant’s counsel when addressing, relevant to the status of the claim for medical expenses, said:

   “Briefly then, again, the applicant, in order to succeed in this case, which is confined to incapacity and medical expenses, must prove that whatever happened on that day has led, in fact, to an incapacity.” (4.11.16 T26.33-27.2)

   And:

   “Mr Arbitrator, I'd ask you in this case to enter an award in favour of the respondent in respect of this claim and in respect of both the claim for weekly compensation and/or medical expenses. There is no evidence to suggest that the applicant required any medical treatment causally related to 18 March 2014 that would allow you to make such a general order. Thank you.” (4.11.16 T28.18-24)

5. When the respondent’s counsel was addressing, the following exchange occurred:

   “MR WILLIS: …it's my submission on his behalf that it set in train a series of events and he continued to have an ongoing back condition which has resulted in his incapacity and his pathology and the need for his ongoing medical treatment.

   I suspect you won't want to hear from me on the section 60. If you find that there was an injury on 18 March and that the back condition results from that injury, there ought to be a consequential order for section 60 expenses. Am I correct there, Mr Arbitrator?

   ARBITRATOR: Yes. Yes, that would just follow.” (4.11.16 T43.10-22)

6. The appellant, making submissions in reply, did not take any issue with the above, on the basis that an order for s 60 expenses was not claimed. The appellant’s counsel in reply submitted:

   “The applicant has chosen a particular path and a forensic decision has been made to run this case solely on an alleged frank injury on 18 March, nothing thereafter, and, as far as the respondent is concerned, it's quite entitled to make submissions as I've done about aggravation beyond that date being a likely cause of any of his incapacity or need for medical treatment.” (4.11.16 T53.31-54.3)

7. The Arbitrator, in his reasons, said that he “did not make an adverse finding as to Mr Grigor’s credit”, and that he had “no difficulty in accepting Mr Grigor’s statement as to the events of 18^th of March 2014 and beyond” (6.12.16 T23.3-9). He preferred the opinion of Dr Oates (in the respondent’s case) to that of Dr Watson (in the appellant’s case) (6.12.16 T25.3-28). He made findings:

   “Taking all the evidence into account I find that Mr Grigor suffered injury in the course of his employment with the respondent on the 18^th of March 2014 in the form of the aggravation, exacerbation, acceleration or deterioration of degenerative disease of the back.

   I also find, given the circumstances which I’ve outlined, that the employment was the main contributing factor to the aggravation of the pre-existing condition.” (6.12.16 T26.3-11)

8. Dealing with the weekly claim, the Arbitrator adopted the figure in the Agreed Wages Schedule for pre-injury average weekly earnings. He concluded that the respondent’s ability to earn in suitable employment was such that he was fit for work where he “could in such a position earn as much as he was earning with the [appellant]”. The respondent’s “entitlement to weekly compensation for the period claimed is nil” (6.12.16 T26.15-27.11).

9. Dealing with the claim pursuant to s 60 of the 1987 Act, the Arbitrator said “[i]t follows from the findings upon injury that Mr Grigor’s section 60 of the 1987 Act expenses are reasonably necessary for the compensable injury” (6.12.16 T27.15-7). The relevant order recorded in the Certificate of Determination was:

   “That the Commission ORDERS:

   That the Respondent pay the Applicant’s section 60 of the 1987 Act expenses on production of accounts/receipts.”

ON THE PAPERS

1. 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.”

2. The respondent submits that the appeal can be determined on the papers. The appellant, in its Application to Appeal against Decision of Arbitrator registered on 22 December 2016, submitted that there should be an oral hearing. The stated reason was that at the time of filing, no transcript of the proceedings, or Statement of Reasons in respect of the Certificate of Determination, was available. Transcript of the arbitration hearing and the reasons was furnished to the parties on 24 January 2017. A Registrar’s Direction of the same date gave the parties further time in which to lodge and serve supplementary submissions. The appellant lodged Amended Grounds of Appeal and Submissions on 20 February 2017, in compliance with that Direction. The Amended Grounds and Submissions do not repeat the request for an oral hearing. The basis for the initial request no longer applies.

3. References in this decision to the appellant’s Grounds of Appeal and Submissions are to the Amended document lodged on 20 February 2017.

4. Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submission by the respondent 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.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to time as found in the provisions of s 352(4) of the 1998 Act have been met. There is an issue regarding whether the appeal can be brought, having regard to s 352(3) of the 1998 Act, which provides:

   “(3)   There is no appeal under this section 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.”

Appellant’s Submissions on the Quantum Threshold

1. The appellant says that the respondent “failed entirely” in his application for weekly compensation. The claim for the cost of future operative treatment was discontinued. It says that there is “no claim for or amount sought for past s. 60 expenses”. It then goes on to submit, in relation to s 352(3)(a), that the claim for future surgery was “in the amount of $20,000” before it was discontinued. The appellant submits that the respondent’s “lump sum compensation rights are also extant”. It submits:

   “Future compensation that may result from the arbitrator’s findings would comfortably exceed $5,000, if surgery were to occur, incapacity results therefrom and a lump sum claim brought.”

2. In relation to s 352(3)(b) of the 1998 Act, the appellant submits that sub-section does not preclude appeals against decisions in which no award was made”, relying on Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 (Mawson). It submits that what was made was a “‘general order’ for the payment of s 60 expenses”. No actual award for the payment of s 60 expenses could be made, as these were not “claimed or quantified”.

Respondent’s Submissions on the Quantum Threshold

1. The respondent submits that the appeal does not lie as neither of the limbs of s 352(3) is satisfied. The claim in respect of future surgery was not pursued. The potential cost of that treatment “cannot form part of the Amount of Compensation at issue on appeal”. The respondent submits that the award under s 60 was “ultra vires”, and says that it should not be taken into consideration in determining the compensation at issue. It was “neither claimed nor quantified”. No lump sum compensation was claimed in the Application, and it cannot be taken into consideration. Section 352(3)(a) “has not been satisfied”.

2. In relation to s 352(3)(b) the respondent submits that Mawson can be distinguished. It involved an interlocutory order regarding applications for Directions. In the current matter the Arbitrator made an award relating to weekly payments, albeit one that did not benefit the respondent. Alternatively, the appeal does not have the capacity to put the amount of compensation awarded in issue, as “no monies were so awarded”, “there must be a dispute as to the amount of compensation before leave can be granted”: Dundullimal Holdings Pty Ltd t/as Western Parcel Express v CGU Workers Compensation (NSW) Ltd [2008] NSWWCCPD 88; 11 DDCR 18 at [37]. There is “simply no dispute as to the amount of compensation”, s 352(3)(b) is not satisfied.

Consideration

1. No compensation was awarded by way of weekly payments. The claim in respect of the cost of future surgery was discontinued. The only “compensation at issue on the appeal” was the ‘general order’ for expenses pursuant to s 60 of the 1987 Act. The appellant argues that other sums might become payable, by way of the cost of future surgery and/or a future claim for lump sum compensation. These other sums are not at issue on this appeal.

2. In Coles Supermarkets Australia Pty Limited v Conway [2015] NSWWCCPD 42 O’Grady DP at [31] said:

   “The appellant’s argument, as noted at [19] above, that the monetary threshold requirements are in some way satisfied by reason, as suggested, that it was open to Mr Conway to bring a lump sum claim in the future, must be rejected. Such a submission is based upon speculation and there is no certainty concerning relevant facts including, at least, the existence and extent of any whole person impairment that might follow the surgery.”

3. In Peter J Davis (Newcastle) Pty Ltd v McLeod [2009] NSWWCCPD 122 I dealt with an argument about s 352(3)(a) similar to that advanced in the current appeal, and at [19] said:

   “The only sum awarded in the decision appealed against was $3,750.00. If the appeal succeeded, this is the sum the Appellant Employer would be relieved of liability to pay. The phrase used in section 352(2) is ‘compensation at issue on the appeal’ (emphasis added). The only such compensation is $3,750.00. Even if there is a possibility that the Respondent Worker may take some other proceedings in the future (and the precise basis of this suggestion is unclear) this does not change the fact that the compensation at issue on this appeal is $3,750.00. It does not meet the statutory threshold contained in section 352(2)(a).”

4. Consistent with the above, the “amount of compensation at issue on the appeal” cannot be ascertained by reference to other sums, which are not claimed or at issue in the current proceedings, and that may or may not be claimed at some future time.

5. In Widdup v Hamilton [2006] NSWWCCPD 258; 5 DDCR 85 Sheahan J referred to the nature of a ‘general order’ pursuant to s 60 of the 1987 Act:

   “In determining the above disputes it is accepted practice in the Commission that, after making the requisite findings of worker, injury, incapacity and/or permanent impairment and making the appropriate orders that result from those findings, it also makes an order for the payment of reasonably necessary medical expenses incurred and properly verified together with a ‘general order’ under section 60. This practice was expressly noted by Egan J in Brespro Pty Limited v Garry John Keenahan NSWCC 11155 of 1991, 12 May 1992 (‘Brespro’), unreported.” (at [19])

6. In Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213 Roche DP at [55] said of such an order “It was no more than a ‘general order’ and, as such, it is of limited efficacy.” In NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76 Roche DP at [84] discussed the effect of a ‘general order’ for the payment of medical expenses. At [82] the Deputy President said that to make a ‘general order’ the Arbitrator had to be satisfied on the issues of ‘worker’ and ‘injury’. The Arbitrator did not have to determine that the relevant treatment was reasonably necessary as a result of the injury. The Deputy President continued at [84]:

   “I do not accept Mr Lehmann’s submission that, by making a general order for the payment of s 60 expenses, the Arbitrator effectively restricted the appellant’s capacity to decline liability for those expenses to the issue of whether they were ‘reasonably necessary’. The appellant is at liberty to decline liability for any medical expenses submitted by Mrs Murray. Notwithstanding the admission of injury, to recover the cost of her medical and related expenses, Mrs Murray will have to establish that they were ‘reasonably necessary’ and that the need for the treatment resulted from the relevant injury. This will require her to prove that, at the time she received the particular treatment, the effect of the injury was continuing.” (emphasis in the original)

7. There must be at least $5,000 at issue on the appeal, before it can be brought. The only order in the respondent’s favour was a general order for payment of s 60 expenses. That did not determine the entitlement of the respondent to the recovery of specific expenses. Potentially, if there was a proper evidentiary basis to do so, the appellant could dispute issues such as causation, and whether specific treatment was ‘reasonably necessary’. There is no agreement or schedule as regards the amount of the relevant expenses. There were no specific expenses the subject of the order. The evidence does not support the conclusion that “compensation at issue on the appeal”, pursuant to the general order for s 60 expenses, is at least $5,000.

8. It follows that the monetary thresholds in s 352(3) of the 1998 Act are not satisfied, and there is no right of appeal.

9. The respondent made a concession, referred to at [21] above, concerning the availability of the general order pursuant to s 60 of the 1987 Act, made in his favour. Having regard to the specific nature of the amendment to the Application, as identified by the Arbitrator (see [7] above), and how the parties conducted the arbitration hearing, I have reservations regarding whether the concession was appropriately made. That issue was not argued on the appeal, and I express no concluded view in respect of it. Because the provisions of s 352(3) of the 1998 Act are not satisfied, the appeal cannot be brought, and it is inappropriate that I make any orders, beyond that which follows.

DECISION

1. The monetary thresholds in s 352(3) of the 1998 Act have not been met and there is no right of appeal.

Michael Snell
Deputy President

18 May 2017