Inghams Enterprises Pty Ltd v Zarb

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Inghams Enterprises Pty Limited v Michelle Zarb [2003] NSWWCCPD 15
APPELLANT:	Michelle Zarb
RESPONDENT:	Inghams Enterprises Pty Ltd
FILE NO:	WCC10-2002
DATE OF DECISION:	16 May 2003
PRESIDENTIAL MEMBER:	Dr Gabriel Fleming Deputy President
DECISION UNDER APPEAL:	Arbitrator award for weekly payments and lump sums. Medical dispute not referred to an Approved Medical Specialist. Denial of Procedural Fairness.
DATE OF DECISION UNDER APPEAL:	11 December 2002
HEARING:	On the papers
REPRESENTATION:	Appellant: Abbott Tout Solicitors
Respondent: White Barnes Solicitors
DECISION MADE ON APPEAL:	Leave to appeal the decision to award weekly compensation and reasonable medical expenses to Ms Zarb is refused. The determination of the claim for permanent impairment compensation and pain and suffering compensation is referred back to the Registrar for allocation to the Arbitrator to be determined in accordance with these reasons

THE APPEAL

On 10 February 2003 Inghams Enterprises Pty Limited (‘the Appellant’) lodged an ‘Application to Appeal Against a Decision of an Arbitrator’ in the Commission. The appeal named Michelle Zarb as the Respondent (the Applicant in the original proceedings and ‘the Respondent worker’ in these proceedings).
The Certificate of Determination and attached Statement of Reasons, dated 11 December 2002, set out the decision of the Arbitrator, as follows:
Weekly Payments:
That the Respondent pay the Applicant weekly compensation at the rate of:
·For the period 13 March to 2 April 2002 $572.00 gross per week;
·For the period 2 April 2002 to 7 July 2002 the difference between her actual pay and $610.00 per week (average comparable pay), being an amount of $66.78 per week
·For the period 8 July 2002 to 20 October 2002 the difference between her actual pay and $651.26 per week (average comparable pay) being $7.40 per week
Under section 40 of the Workers Compensation Act 1987.
Permanent Impairment (for injuries on or after 01/01/02):
That the Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 as $12,500.00 in respect of 10% whole person permanent impairment.
Pain and Suffering:
That the Respondent pay the Applicant, as lump sum compensation under section 67 of the Workers Compensation Act 1987, $17,500.00 in respect of pain and suffering, such sum to be apportioned as to $12,000.00 in respect of past pain and suffering and as to $5,500.00 in respect of future pain and suffering.
Section 60 Expenses:
That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
Costs:
That the Respondent pay the Applicant’s costs as agreed or assessed.
It is significant to the appeal that the Certificate of Determination was posted to the parties on 10 January 2003, 30 days after it was made.
The Appellant seeks to have the determination as to weekly compensation varied and the assessment of permanent impairment referred to an Approved Medical Specialist (AMS). Following receipt of a Medical Assessment Certificate (MAC) from the AMS the Appellant wants the matter relisted for hearing before an Arbitrator. The Appellant has not made any submissions challenging the award of reasonable medical expenses under section 60 of the Workers Compensation Act 1987 (‘the WCA’).
The Respondent worker submits that the determination should be confirmed.

ON THE PAPERS REVIEW

In accordance with the President’s Practice Direction, 6B of 2002, I am satisfied that sufficient information has been supplied in connection with the application for leave to appeal to enable me to determine the issue of whether leave to appeal should be granted without holding a conference or formal hearing i.e. ‘on the papers’ (section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)). Both parties have consented to the matter proceeding on the papers.

JURISDICTION TO HEAR THE APPEAL

Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act which provides as follows:
(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.
(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.
(8)   In this section, decision includes an award, interim award, order, determination, ruling and direction.
On 16 January 2003 the Appellant wrote to the Commission referring to the Commission’s letter of 10 January 2003, to which was attached the Certificate of Determination in this matter. The Appellant rightly pointed out that the Determination had been issued by the Commission after the time allowed for an appeal to be filed. In response to this letter the Deputy Registrar, as delegate of the Registrar, purported to order that the time for the filing of the application for leave to appeal be extended to 5 February 2003. The appeal was subsequently filed on 10 February 2003. Whether the appeal was filed within time is at issue in the appeal.
The Appellant has not sought leave to give fresh evidence on the appeal.

DISCUSSION AND FINDINGS

Jurisdictional Error

Neither the Appellant nor the Respondent worker submitted that the Arbitrator has made an error as to jurisdiction. It is however, a matter that must be considered by a Presidential Member in order that he or she be satisfied that jurisdiction exists to grant leave and to hear the appeal (Federated Engine –Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Ltd (1911) 12 CLR 398; R v Blakeley (1950) 82 CLR 54 at 90).
Section 352 provides that a party may only appeal against a decision in respect of the dispute by the Commission, constituted by an Arbitrator (section 352(1)). A consideration of the Certificate of Determination and Reasons for Decision issued by the Commission raises the primary question of whether the Arbitrator has properly exercised her jurisdiction to make a decision. Whether the Arbitrator has fallen into error, and the nature of that error, is central to this question. As the High Court stated in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 (at paragraph 51) . . . a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (‘S157’) the High Court was asked to consider whether a decision made by the Refugee Review Tribunal was a privative clause decision as defined in the Migration Act 1958. The Court, after referring to the Constitutional constraints on a privative clause in federal legislation, stated that:
. . a consideration of ‘decision[s]’ … made under this Act must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.
Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision, which involves jurisdictional error, is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties"[79] or to observe "inviolable limitations or restraints" the decision in question cannot properly be described in the terms used in s474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss474(2) and (3) of the Act.
To say that a decision that involves jurisdictional error is not "a decision ... made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction (at paragraphs 76 and 77).
While the Constitutional issues are clearly not applicable to the interpretation of state legislation, the principles outlined by the Court in S157 remain applicable to a consideration of whether a decision has been made in this matter. The Workers Compensation Commission is created by statute, specifically the Workplace Injury Management and Workers Compensation Act 1998. It is an independent tribunal, not a Court, and therefore has only those powers set out in the workers compensation acts (the 1998 Act and the Workers Compensation Act 1987 (‘the WCA’)) and those implied powers that are ‘appropriate to the achievement of the functions of the tribunal (or court) and to avoid futility of its process (Household Financial Services Ltd v Commercial Tribunal of NSW and Anor, NSW Court of Appeal CA 40743/94, Kirby P, Mahoney JA and Priestly JA, 1985, Unreported). The Commission, including its Arbitrators, has no inherent power to make a decision other than in accordance with the relevant legislation.
The Appellant’s submissions address two grounds that are relevant to this consideration. They may be summarized briefly, as follows:
(1)Denial of procedural fairness
(2)Error of Law in failing to refer the determination of section 66 issues to an Approved Medical Specialist (AMS).
The Appellant submits that there has been a denial of procedural fairness by the Arbitrator in her determination of lump sum compensation (section 66 and 67 of the WCA) without allowing the parties to make further submissions. As Spigelman CJ stated in Vanmeld Pty Limited V Fairfield City Council & Anor [1999] NSWCA, a . . . breach of the requirement of procedural fairness has generally been assimilated with jurisdictional error in its original narrow sense, (see also Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 at 606, Craig v South Australia (1995) 184 CLR 163).
The appeal also raises a number of issues in relation to the Commission’s jurisdiction to determine entitlements under sections 66 and 67 of the WCA. The Appellant submits that the Arbitrator has failed in her statutory obligation to refer this aspect of the dispute to an AMS prior to making an award in favour of Ms Zarb. If the Arbitrator is found to have acted in excess of the jurisdiction conferred on her, or to have disregarded a condition precedent to the exercise of jurisdiction, then she will have made a jurisdictional error.
Where jurisdictional error is found by a superior court on judicial review, writs of certiorari or prohibition are available to quash the decision and prevent the Tribunal from acting without jurisdiction. On appeal to a Presidential Member, against a decision of the Commission constituted by an Arbitrator, the Presidential Member has a broad power to ‘review’ the decision appealed against (section 352(5)). The Presidential Member may then confirm or revoke the decision and make a new decision in its place (section 352(7)). However, where it is found that, due to jurisdictional error, no decision has effectively been made, there is no barrier to the Commission, constituted by an Arbitrator, reviewing its purported decision or considering the whole matter afresh. The appropriate remedy in these circumstances is for the Presidential Member to refer the matter back to the Registrar to be allocated to an Arbitrator for determination according to law. In most cases it will be appropriate that the matter should be returned to the Arbitrator who purported to make the original decision.

Section 352(1)- Has the Arbitrator made a Decision?

Denial of Procedural Fairness

The parties attended the Commission for a conciliation conference and arbitration hearing on 23 October 2002. The Arbitrator had before her all the material filed by both parties with the Application and Reply. This included relevant medical reports. Ms Zarb was in attendance and gave unsworn evidence.
The Arbitrator used her best endeavours to bring the parties to a settlement that was acceptable to them. However, they could not come to an agreement (in accordance with section 355 of the 1998 Act). Consequently the Arbitrator heard further submissions and evidence on the record in accordance with the ‘Registrar’s Guideline for the Conciliation/Arbitration Process in the Workers Compensation Commission’, issued in April 2002.
At the conclusion of the arbitration phase of the proceedings the Arbitrator indicated that she would reserve her decision and that she would proceed by way of firstly, making . . . a determination as to whether it [the incapacity] is post 31 December. Following the making of this determination she would . . . invite written submissions from both of you and I will give you seven days to give me those written submissions on any issue that arises from my decision before I determine the questions that would go to an AMS, if they go (transcript of Arbitration hearing, page 19).
The Arbitrator then made her decision on 11 December 2002, without further notice to the parties and without providing the parties with an opportunity to provide further submissions. The Appellant submits that this amounts to a denial of procedural fairness while the Respondent worker asserts that it was open to the Arbitrator to change her view and to proceed to determination in the absence of submissions. This, argues the Respondent worker, is consistent with the legislative mandate that the Commission conduct proceedings in a timely and informal manner (section 354 of the 1998 Act).
The matter was not referred to an AMS, the implications of which are discussed below.
The reasons were not delivered until some seven weeks after the conciliation and arbitration hearing.
What constitutes procedural fairness will depend upon the nature of the decision under review (Kioa v West (1985) 159 CLR 550), and may be modified by clear and express provision in the statute. The procedure before the Commission is set out in section 354 of the 1998 Act, as follows:
Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7)An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8). . .
While this provision modifies the common law rules of procedural fairness in some respects, for instance, in relation to the determination of matters on the papers, it does not alter the fundamental rule that a party is entitled to be heard in relation to the case against it, before the decision-maker exercises the power to make the decision (Twist v Council of the Municipality of Randwick (1976) 136 CLR 106, 110). In this case the Arbitrator expressly told the parties they would have the opportunity to make further submissions on the matter of an award of lump sum compensation, once she had made the relevant finding of fact upon which the issue turned. In my view, it was clearly a denial of procedural fairness to then proceed to determination without allowing the parties to make those submissions. This was not a matter of informality and lack of technicality. There is nothing in section 354 of the 1998 Act which required the Arbitrator in this matter to give the parties the opportunity to make further submissions; however, once she had stated that she was going to follow that course, there is, equally, nothing in the section that excuses her failure to do so.
A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (‘Bhardwaj’). In this matter the denial of procedural fairness was in relation to the determination of compensation for permanent impairment, and for pain and suffering compensation under sections 66 and 67 of the 1998 Act. The result is that no decision has been effectively made in relation to these entitlements and an Arbitrator must consider this part of the dispute afresh.

Determination of Ms Zarb’s Sections 66 and 67 Entitlement

The Appellant now seeks to have the determination of section 66 entitlements referred to an AMS. From a reading of the transcript of the arbitration hearing and the Arbitrator’s decision it appears that neither the legal representatives of the parties or the Arbitrator were fully cognizant of the relevant provisions of the WCA and the 1998 Act in relation to the procedure for determining ‘medical disputes’ in the Commission. This is surprising given that the ‘New Claims Procedures’ in Chapter 7 had been in force for nearly twelve months at the time of the arbitration, and that the Commission’s practices and procedures were widely publicized and should have been well known. In the case of the Arbitrator it meant that she fell into error in her determination of the matter.
As noted above, the Arbitrator did not refer the dispute about section 66 entitlements to an AMS appointed by the Commission. She had been urged not to do so by the Applicant’s legal representative. He submitted that, were the Arbitrator to find that the Applicant’s injury occurred after 31 December 2001, there was no dispute between the parties as to the assessment of permanent impairment under section 66 of the WCA, it being agreed at 10% whole person impairment.

At the arbitration hearing the Arbitrator stated that she intended to send the question of whether any of Ms Zarb’s permanent impairment should be apportioned between an injury in November 2001 and a second injury in January 2002, to an AMS. To this submission the Applicant’s legal representative, Mr. Furnell, urged the Arbitrator as follows:
Very often, almost inevitably, we have unhelpful, contradictory, ambiguous medical reports, and with the greatest respect, if every time that occurs the Commission refers the matter off to the AMS, I suspect we will have to bring in jumbo jet loads of orthopaedic surgeons from every corner of the world to appropriately deal with the amount of work that will be generated (transcript of Arbitration hearing, page 14).
In her Statement of Reasons for decision the Arbitrator discussed the medical reports in evidence before her from both parties. She was . . . satisfied, based on the evidence of the worker that the injuries, as the subject of this claim, are a result of the incident that took place on 22 January 2002 (sic). In her statement of reasons she stated that she did not accept the evidence of Dr Smith, for the Respondent, and that:
Although for different reasons, Dr Harrison and Dr Bodel both came to the opinion that the worker was suffering a 10% whole person impairment. This assessment is based on the acceptance that the injury before the Commission occurred on 22 January 2002.
The Arbitrator then found the Applicant entitled, on the basis of the agreement of Drs Harrison and Bodel, to lump sum compensation under section 66 of the Workers Compensation Act 1987 of $12,500.00 in respect of 10% whole person permanent impairment and $17,500 in respect of pain and suffering under section 67.
The Appellant does not accept that there is, or was, agreement between the parties as to the level of permanent impairment of Ms Zarb. The Appellant disputes that Dr Harrison made an assessment that Ms Zarb suffered a 10% whole person impairment. From a reading of Dr Harrison’s reports, dated 9 and 23 September 2002, it is apparent that, contrary to the express finding of the Arbitrator, Dr Harrison made no ‘whole person’ assessment of Ms Zarb at all.
The Respondent worker submitted to the Arbitrator that there was no ‘dispute’ over the degree of permanent impairment in this matter, and therefore no requirement for referral to an AMS. This submission was misconceived, and is contradicted by the evidence. The basis for this claim was that Ms Zarb accepted the opinion of Dr Bodel (for the Respondent) as to a whole person impairment of 10% (transcript page 4 lines 38-39). However, a number of medical assessment issues underpinning Dr Bodel’s assessment remained in dispute, and continue to be pressed on this appeal. The Appellant now seeks to have a number of issues referred to an AMS for determination including: the degree of permanent impairment of the Applicant’s neck, the degree of whole person impairment, and the extent to which any previous injuries contribute to Ms Zarb’s permanent impairment.
Even were there agreement as to Ms Zarb’s degree of permanent impairment, the Arbitrator had no jurisdiction to make an award of permanent impairment compensation without referring the matter to an AMS. To understand the procedure for the determination of medical disputes in the Commission, it is necessary to carefully consider the ‘New Claims Procedure’ in Chapter 7 of the 1998 Act and its relationship to sections 65, 66 and 67 of the WCA. Amendments to the 1998 Act and the WCA (‘the workers compensation acts), which took effect on 1 January 2002, created the Commission and also fundamentally changed the way in which a dispute about a claim to entitlement to lump sum compensation under sections 66 and 67 of the WCA is to be determined.
Section 288 of the 1998 Act provides that any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. Where the dispute concerns a claim for lump sum compensation for permanent impairment of an injured worker the Registrar must refer that aspect of the dispute for assessment under Part 7 [sections 319-331] and defer determination of the dispute by the Commission pending the outcome of that medical assessment (section 293(2)). This provision is expressed in clear and mandatory terms.
The intent of section 293(2) is reinforced in section 65 of the WCA which provides as follows:
65 Determination of degree of permanent impairment
(1)For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7(Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
(3)If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.
(4)The Commission may, at any stage in proceedings on a claim for permanent impairment compensation or pain and suffering compensation, refer the matter for assessment of the degree of permanent impairment by an approved medical specialist.
Part 7 of the 1998 Act deals with ‘Medical Assessment’ in disputes before the Commission. A ‘medical dispute’ is defined in section 319 as follows:
Medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a)the worker’s condition ( including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)the worker’s fitness for employment,
(c)the degree of permanent impairment of the worker as a result of an injury,
(d)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)the nature and extent of loss of hearing suffered by a worker,
(f)whether impairment is permanent,
(g)whether the degree of permanent impairment of the injured worker is fully ascertainable.
The AMS assessment must be made in accordance with the ‘WorkCover Guides for the Evaluation of Permanent Impairment’ (section 322). Section 323 of the 1998 Act provides for Deduction for previous injury or pre-existing condition or abnormality, as do the WorkCover Guides. The AMS has wide powers to consult with the worker’s treating medical practitioners, to call for the production of relevant medical records, and to examine the worker.
The AMS then issues a medical assessment certificate, which is to:
(a)set out details of the matters referred for assessment, and
(b)certify as to the approved medical specialist’s assessment with respect to those matters, and
(c)set out the approved medical specialist’s reasons for that assessment, and
(d)set out the facts on which that assessment is based (Section 325(2)).
This medical assessment certificate is conclusively presumed to be correct in proceedings in the Commission as to:
(a)the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertainable.
It is important to note that an AMS is appointed by the Commission. While the parties may choose to obtain a medico-legal report from a doctor of their choice, who may also be a Commission AMS, the report such a doctor then produces does not have the status of a medical assessment certificate issued by an AMS appointed by the Commission, which certificate represents by statute a binding determination of certain matters in the dispute.
The intention of the legislature in making these amendments to the workers compensation acts was clearly to delegate the binding determination of ‘medical issues’ in a dispute about lump sum compensation for permanent impairment to a medical expert, rather than to a legally trained Arbitrator.
It was submitted to the Arbitrator that, if the parties were in agreement as to the assessment of Ms Zarb’s permanent impairment, then she should make an award, without sending the matter to an AMS for assessment. In my view the statutory scheme, specifically section 65 of the WCA and section 293 of the 1998 Act, does not permit the Arbitrator to do so.
Settlement of a claim by the person on whom a claim for lump sum compensation . . . is made is governed by section 281 of the 1998 Act, and must be effected within a specified time of the making of the claim. Where settlement is not effected and the parties remain in dispute, the procedures under Part 4 of Chapter 7 of the 1998 Act (sections 287-294) apply and a party may refer the dispute to the Commission.
Disputes about permanent impairment compensation are treated differently, under the new claims procedures of the 1998 Act and the WCA, from other claims for matters such as weekly benefits and medical expenses. In case of the latter there is no impediment to an Arbitrator’s making an award to give effect to an agreed settlement of the dispute, and, in fact, Arbitrators are encouraged to do so (see section 355(1) of the 1998 Act). In the case of permanent impairment compensation, the WCA provides a process for formalizing the settlement of these claims by way of registration of agreements pursuant to section 66A of the WCA. Registration under 66A provides certainty for the parties as to the nature and substance of their agreement, and allows the Registrar to oversee the accuracy and adequacy of the agreement. It also provides that . . . the worker is not entitled to receive any additional compensation in respect of the impairment under an award of the Commission (section 66A(1)).
The parties may choose to formalize their agreement by registration under section 66A, or may choose to keep the settlement agreement private. If the parties to a dispute in the Commission come to a settlement of a claim for permanent impairment compensation they may discontinue the proceedings, or withdraw that part of the dispute from the proceedings. They cannot, however, ask the Commission to enter an award of permanent impairment compensation or pain and suffering compensation, unless the matter has been assessed by an AMS (section 65 of the WCA). The issue of a medical assessment certificate by an AMS is a necessary pre-condition to the exercise of the Arbitrator’s jurisdiction to make such an award.
Had the legislature intended the Commission be permitted to make such orders it could have added words such as . . . or the parties have consented to the award, to section 65(3) of the WCA. Section 65(3) as it stands, is a procedural barrier to the Commission’s facilitation of the settlement of these claims, in that further steps are required where the parties come to an agreement.
This case illustrates clearly the difficulties that arise in an Arbitrator’s entering an award for permanent impairment compensation where the medical dispute has not been the subject of an assessment by an AMS. Ms Zarb’s legal representative submitted to the Arbitrator that there was agreement as to these issues and, consequently, that she should make an award. However, it is clear from the medical evidence that was before the Arbitrator, and from the submissions of the Appellant employer in the appeal, that a number of medical issues were, and that remain, in dispute between the parties. These are listed in the Appellant’s Amended Submissions as follows:
(a)the degree of permanent impairment of the Applicant’s neck;
(b)the degree of permanent loss of efficient use of the Applicant’s right arm at or above the elbow;
(c)the degree of whole person impairment;
(d)the proper diagnosis of the injury;
(e)the AMS’s opinion as to which injury or injuries are causative of the Applicant’s present permanent impairment;
(f)the AMS’s opinion regarding the extent to which, in percentage terms, any such injury or injuries cause or contribute to the Applicant’s present permanent impairment/permanent loss of efficient use/ whole person impairment.
There are other difficulties with the Arbitrator’s approach and findings. The Arbitrator accepted the Applicant’s evidence of an earlier accident at her workplace on 27 November 2001. She found this led to temporary discomfort for Ms Zarb. It appears from the Arbitrator’s reasons that, in finding Ms Zarb’s present ongoing disabilities were due to an incident that took place on 22 January 2002, she purported to make her own assessment of whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality (section 326 of the 1998 Act). She then accepted a report from Dr Harrison to support a finding of 10% whole person impairment. However, Dr Harrison did not apply the ‘whole person impairment’ scale to Ms Zarb; instead he assessed her neck, left and right arms, under the scale applicable prior to 1 January 2002.
I find the Arbitrator has exceeded her jurisdiction in making the award of compensation for permanent impairment, and pain and suffering, without a medical assessment by an AMS. This is an error of law in the nature of a jurisdictional error. In the result, the Arbitrator did not have jurisdiction to make the award, and therefore her decision must be found to be no decision at all (Bhardwaj).

Errors of Fact

The Appellant also submitted that the Arbitrator made a number of errors of fact (detailed at paragraph 15(a)–(f) of the Appellant’s Amended Submissions). The matters raised in this submission challenge the Arbitrator’s findings on the medical evidence. They also challenge her acceptance of Ms Zarb’s evidence as to her fitness to perform her normal duties, her history of the injury and her resulting incapacity. These are clearly matters within the discretion of the Arbitrator. If leave were granted to hear the appeal, the Appellant would have the onus of proving that the Arbitrator had made such an error of fact or discretion, and that the errors demanded the revocation of the decision. These matters of fact are relevant to the award of weekly compensation as well as permanent impairment and pain and suffering compensation. I am not satisfied that the Arbitrator’s decision in relation to the award of weekly compensation is a matter that can be considered in this application for leave to appeal. In contrast to the appeal, regarding the award of permanent impairment compensation discussed above, the appeal in relation to the award of weekly payments relies only on alleged factual error.
An error in making a finding of fact does not amount to an error of law, nor a jurisdictional error that affects the status of the decision. The only exception to this is where the fact is a jurisdictional fact, the satisfaction of which is necessary prior to any exercise of the jurisdiction of the tribunal or inferior court (Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5). I am not satisfied that the factual errors claimed by the Appellant are jurisdictional facts. They concern the weight of evidence before the Arbitrator and her findings in relation to the veracity of Ms Zarb’s claims. In the absence of other grounds of appeal in this matter the application for leave on this ground would fail because, as discussed below, the application was filed out of time. There would be no remedy available to the Appellant in terms of a fresh consideration of the dispute, as there would be if the decision was found to be affected by jurisdictional error.

Section 353(2) - $5000 and 20%

The threshold criteria in section 352 (2) are not in dispute. The amount at issue in the appeal is clearly over $5000, and represents more than 20% of the amount awarded in the decision appealed against.

Section 352(4) - Is the Appeal made within time?

Leave to appeal could not be granted even if the Arbitrator were found to have made a valid decision, because the appeal was unquestionably filed out of time.
Section 352(4) was considered at length in the matter of McBride v M & B Couriers Pty Ltd [2003] NSW WCC PD12. In that matter Deputy President Byron found that the section required strict compliance with the 28 day time period for the filing of an appeal. While the 1998 Act provides for the making of Rules with respect to the extension or abridgment of provisions as to time, no such rule has been made in the Interim Workers Compensation Commission Rules 2001. There is, therefore, no discretion in the application of section 352(4), and an application for leave to appeal filed outside of the 28 days allowed must be refused.
The purported order of the Deputy Registrar to extend time is therefore invalid. There is no power in the Registrar, or her delegate, to extend time other than in accordance with the 1998 Act and the Rules.
This finding may cause the Appellant a substantial injustice. The Appellant’s right to apply for leave to appeal has clearly been thwarted by a serious administrative failure on the part of the Commission. From the documents on the Commission file it cannot be disputed that while the decision was made on 11 December 2002, it was not communicated to the parties until 10 January 2003. The appeal period had, by then, passed, and both parties were effectively denied their right of appeal.
This case highlights the benefits of allowing the exercise of discretion by the Commission as to compliance with the requirement that an appeal be filed within 28 days of the date on which it is made. This is a matter which could be reconsidered in any review of the Rules; any amendment by the Minister in this respect, pursuant to section 364 of the 1998 Act is worthy of consideration.

DETERMINATION OF LEAVE TO APPEAL

The Arbitrator has made a jurisdictional error in the determination of permanent impairment compensation (section 66 WCA) and pain and suffering compensation (section 67 WCA). The result is that no decision can be taken to have been made in relation to this part of the dispute. Given the nature of this decision there is no barrier to this matter being referred back to the Registrar for allocation to the Arbitrator who purported to make the original decision. Many of the outstanding issues will ultimately be the subject of a binding determination by an AMS.

DECISION

Leave to appeal the decision to award weekly compensation and reasonable medical expenses to Ms Zarb is refused, on the grounds of lateness. The determination of the claim for permanent impairment compensation and pain and suffering compensation is to be referred back to the Registrar for allocation to an Arbitrator, to be determined in accordance with these reasons.

COSTS

No order for costs has been sought.

Dr Gabriel Fleming
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission

Registrar

Date:

[2003] NSWWCCPD 15

16 May 2003