Iqbal v Hotel Operations Solutions Pty Ltd
[2014] NSWWCCPD 45
•22 July 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Iqbal v Hotel Operations Solutions Pty Ltd [2014] NSWWCCPD 45 | ||
| APPELLANT: | Mohammed Javed Iqbal | ||
| RESPONDENT: | Hotel Operations Solutions Pty Ltd | ||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-17013/12 | ||
| ARBITRATOR: | Ms K Haddock | ||
| DATE OF ARBITRATOR’S DECISION: | 21 March 2014 | ||
| DATE OF APPEAL DECISION: | 22 July 2014 | ||
| SUBJECT MATTER OF DECISION: | Interlocutory orders; leave to appeal; dismissal of proceedings by Arbitrator for want of prosecution pursuant to s 354(7A)(c) of the Workplace Injury Management and Workers Compensation Act 1998; failure to comply with an Arbitrator’s directions; failure to properly particularise a claim for permanent impairment compensation | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Carters Law Firm | |
| Respondent: | Curwoods Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Leave to appeal is refused. 2. No order as to costs. | ||
INTRODUCTION
On 21 March 2014, a Commission Arbitrator ordered that Mr Iqbal’s proceedings be dismissed for failure to prosecute the claim with due dispatch, pursuant to s 354(7A)(c) of the Workplace Injury and Management and Workers Compensation Act 1998 (the 1998 Act) and r 15.8 of the Workers Compensation Rules 2011 (2011 Rules).
As the Arbitrator’s decision is interlocutory, Mr Iqbal requires leave to appeal the Arbitrator’s determination, pursuant to s 352(3A) of the 1998 Act.
BACKGROUND
The appellant, Mohammed Javed Iqbal, was employed by the respondent, Hotel Operations Solutions Pty Limited, as a room attendant.
Mr Iqbal’s duties involved cleaning hotel rooms. He alleges that as a result of pushing, pulling and twisting of his body, whilst cleaning hotel rooms, he suffered a serious spinal injury and is incapacitated for work.
In a claim form dated 11 July 2012, Mr Iqbal claimed weekly payments of compensation from an unspecified date, in respect of an injury allegedly sustained on 7 October 2010.
On 21 September 2012, the respondent’s insurer, QBE Workers Compensation (NSW) Ltd (QBE), issued a notice under s 74 of the 1998 Act, denying liability.
On 27 December 2012, through his then solicitors, Auzasia Lawyers, Mr Iqbal lodged an Application to Resolve a Dispute (the Application) in the Commission. He claimed weekly payments of compensation from 7 October 2012 to date and continuing, lump sum compensation in the amount of $230,000 in respect of 19 per cent whole person impairment and $50,000, being the maximum amount then available under s 67 of the Workers Compensation Act 1987 (the 1987 Act), in respect of pain and suffering.
On 13 September 2013, the matter was listed for a telephone conference before a Commission Arbitrator. The respondent sought to have the matter struck out on the basis that the evidence filed with the Application failed to support the claims made. The Arbitrator refused that application at that time and made a series of orders, which included an order that by 29 November 2013, Mr Iqbal serve on the respondent’s solicitors, Curwoods Lawyers, a claim for permanent impairment benefits supported by appropriate medical evidence. The matter was adjourned to 31 January 2014.
Following the teleconference the Commission issued a direction, dated 13 September 2013, in the following terms:
“1. The Application to Resolve a Dispute is amended in Part 4 Date of injury to add: ‘From October 2008 to March 2009’ and ‘From August 2009 to 4 October 2010’.
2. The respondent is granted leave pursuant to section 289A(4) of the Workplace InjuryManagement and Workers Compensation Act 1998 to place in dispute the matters referred to in Part 3 of the Reply.
3. The respondent is granted leave to rely on Application to Admit Late Documents dated 18 March 2013 and attached document.
4. The applicant is by 29 November 2013 to serve on the solicitors for the respondent, Curwoods Lawyers, a claim for permanent impairment benefits, supported by appropriate medical evidence.
5. The time for the applicant to comply with Notice for Production served by the respondent is extended to 27 September 2013.
6. The applicant is on or before 27 September 2013 to file and serve a schedule of medical expenses claimed.
7. The applicant is on or before 27 September 2013 to file and serve an amended Wage Schedule.
8. The applicant is on or before 8 October 2013 to file and serve an updated signed and dated statement.
9. The respondent is granted leave to issue Directions for Production to Dr V Maniam, Concord Hospital, Dr M Dowla and Nas Advanced Medical Centre.
10. All notices to the applicant are to be sent to his solicitors Malik Lawyers, PO Box 945, Kings Langley 2147.
11. The matter is listed for telephone conference on 31 January 2014 at 3:30pm.”
Shortly prior to 31 January 2014, at Mr Iqbal’s request, the telephone conference scheduled for 31 January 2014 was adjourned to 20 March 2014.
At the telephone conference on 20 March 2014, Mr Iqbal was represented by his solicitor, Mr Malik. Mr Malik initially sought a further adjournment of 14 days to rectify deficiencies in the Application. That application was refused. The Arbitrator found that Mr Iqbal had failed to comply with orders made on 13 September 2013, and that the matter was not in a fit state to proceed, and could not be made ready within 14 days. She ordered that the Application be struck out for want of prosecution.
PRELIMINARY MATTERS
There is no dispute that the threshold requirements of s 352(4) of the 1998 Act are satisfied.
ON THE PAPERS
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.”
Having regard to Practice Directions Nos 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.
THE ARBITRATOR’S REASONS
The Arbitrator found that Mr Malik had failed to comply with her Direction, of 13 September 2013, that he file and serve a properly supported permanent impairment claim to enable the respondent to properly respond to the claim. The Arbitrator also determined that documents which had been filed by Mr Iqbal since the first telephone conference were either not served on the respondent’s solicitors and/or failed to advance the matter any further.
The Arbitrator concluded that, on the state of the pleadings and evidence, it was impossible for the respondent to work out what Mr Iqbal was claiming in respect of his claim for lump sum compensation.
The Arbitrator acknowledged that there had been confusion in relation to the identity of the insurer on risk during Mr Iqbal’s period of employment with the respondent, but dismissed this as a basis for granting any further indulgence. It was noted that it was the obligation of Mr Iqbal’s solicitor to advise Mr Iqbal in relation to the proper pleading of his application.
The Arbitrator stated that she was not confident that allowing a further adjournment of the matter, as sought by Mr Iqbal’s solicitors, would achieve anything in view of the history of the matter.
FRESH EVIDENCE ON APPEAL
Both parties seek to rely on fresh evidence on appeal.
Fresh evidence on appeal is governed by s 352(6) of the 1998 Act which is in the following terms:
“(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. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Mr Iqbal seeks to rely on the following four documents:
(a) letter dated 26 July 2012 from QBE to Mr Iqbal;
(b) letter from Curwoods Lawyers dated 1 October 2013;
(c) letter from Workcover NSW dated 11 April 2014, and
(d) the s 74 Notice dated 21 September 2013.
Documents (a) and (d) were annexed to the Application to Resolve a Dispute and are already in evidence. Document (b) is a letter from the respondent’s solicitors to Mr Iqbal’s solicitors asserting, among other things, that QBE is only on risk for a limited period during the period of Mr Iqbal’s claim.
Document (c) is a letter from WorkCover to Carters Law Firm, Mr Iqbal’s current lawyers. It clarifies that QBE was on risk for the entire duration of Mr Iqbal’s purported claim. The respondent now concedes that the information contained in this correspondence is correct, notwithstanding its earlier assertions to the contrary. This document was not in existence at the time of the Arbitrator’s determination. Mr Iqbal complains that the Arbitrator was misinformed about whether QBE insured the respondent for the duration of the claim.
As documents (b) and (c) are relevant to clarify whether the Arbitrator was inadvertently misled in relation to the question of insurance coverage, and as the respondent has not opposed the tender of the letters, it is in the interests of justice that these documents be admitted for the purpose of this application only.
The respondent also seeks to rely on fresh evidence on appeal. A schedule of the fresh evidence sought to be admitted by the respondent is extracted below.
Date
Document
Reference
29 July 2013
Email from Malik Lawyers
Annexure 1
30 July 2013
Email from Curwoods Lawyers
Annexure 2
13 September 2013
Directions of Arbitrator
Annexure 3
19 September 2013
Letter from Curwoods Lawyers re QBE’s period of risk
Annexure 4
1 October 2013
Letter from Curwoods Lawyers confirming period or risk. Clarification of the Section 60’s claim also sought
Annexure 5
23 October 2013
Letter from Curwoods Lawyers
Annexure 6
8 November 2013
Letter from Malik Solicitors
Annexure 7
19 November 2013
Letter from Curwoods Lawyers
Annexure 8
29 November 2013
Email from Curwoods Lawyers
Annexure 9
30 January 2014
Email from Malik Lawyers
Annexure 10
30 January 2014
Email from Curwoods Lawyers
Annexure 11
20 March 2014
Email from Malik Lawyers
Annexure 12
20 March 2014
Email from Curwoods Lawyers
Annexure 13
20 March 2014
Certificate of Determination
Annexure 14
In support of the application to admit fresh evidence the respondent submits:
“The Appeal lodged by the Worker is an Appeal to an interlocutory order and as such the new material relied on by the Respondent did not form part of the substantive claim.
All of the material relates to events leading up to the striking out of the Worker’s claim and the subsequent Appeal of the interlocutory order.”
I have examined the documents sought to be admitted and with the exception of the document described as “Annexure 7”, which I shall deal with separately, the documents are not fresh evidence and are largely irrelevant to the disposition of this appeal. I am not satisfied that any substantial injustice would result if the application for the admission of those documents was rejected and accordingly I reject the tender.
The respondent submits that “Annexure 7” demonstrates that Mr Iqbal, or his legal advisors, sought to make a claim for Permanent Impairment Benefits by interpreting various medical evidence and attributing a percentage impairment to various body parts. That document appears to be in evidence in any event. Whether or not it formed part of one of Mr Iqbal’s many Applications to Admit Late Documents is not clear. However, it bears a Commission date stamp of 11 November 2013, and, I infer it was before the Arbitrator and formed part of the record, and is therefore already before me on this application. Accordingly it is unnecessary to consider the application to admit this document as fresh evidence. A copy of the purported “Amended Claim of [sic] permanent impairment benefits” is reproduced below.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 21 March 2014, records the Arbitrator’s orders as follows:
“1. The proceedings are pursuant to section 354(7A)(c) of the Workplace Injury Management andWorkers Compensation Act 1998 and Workers Compensation Rules 2011, Rule 15.8, declared a nullity and dismissed for failure to prosecute them with due despatch.
2. There is no order for costs.”
MR IQBAL’S SUBMISSIONS
Mr Iqbal’s only ground of appeal is as follows:
“That the respondent wrongfully and/or erroneously represented to the Arbitrator that the respondent’s insurer QBE, was not on risk at the time of injury, which representation was accepted by the Arbitrator, causing the Arbitrator to form the view that the proceedings would not be ready for a hearing date to be fixed.”
Mr Iqbal submitted that the Arbitrator refused to fix the matter for hearing or allow an adjournment of the matter, accepting that the question of the relevant insurer had not been resolved, when in fact, enquiries reveal that QBE was the only insurer on risk during the relevant period.
Mr Iqbal submitted “that a manifest injustice has been done on the basis of seriously erroneous information provided by the respondent’s representatives to the Commission’s Arbitrator”.
The mistaken information provided to the Arbitrator in relation to the question of insurance, it is submitted, caused the proceedings “to miscarry” and for these reasons it is necessary and desirable for the proper and effective determination of the dispute, that the Arbitrator’s determination be revoked and the matter restored to a hearing on a date to be appointed.
THE RESPONDENT’S SUBMISSIONS
The respondent conceded that the correspondence from WorkCover, dated 11 April 2013, correctly identified that QBE was the only relevant insurer on risk for Mr Iqbal’s claim and conceded the period of risk contained therein.
At the teleconference, on 13 September 2013, a number of deficiencies were raised in respect of Mr Iqbal’s claim. It was noted that Mr Iqbal had not duly made a claim for compensation pursuant to s 66 of the 1987 Act. Mr Iqbal was granted an adjournment and further time to amend the claim.
Mr Iqbal has still not duly made a claim for permanent impairment compensation. By correspondence dated 8 November 2013, Mr Iqbal purported to make an “amended claim for permanent impairment benefits” (see [28] above). It is submitted that the assessment appears to have been calculated by Mr Iqbal’s solicitors on their interpretation of the medical evidence.
Mr Iqbal has had more than sufficient time to obtain relevant evidence in support of his claim. The Commission granted him an adjournment, with the respondent’s consent, in order for him to remedy the deficiencies in his claim.
Granting leave to appeal and upholding the appeal is neither necessary nor desirable for the proper and effective determination of the dispute (Shams v Venue Services Group PtyLtd [2013] NSWWCCPD 57 (Shams)).
Arbitrator Haddock has not made any findings in relation to the merits of the claim. No order made on appeal, if leave were granted, would advance the determination of the dispute, it would merely remit the matter to another Arbitrator. That step can be achieved without any prejudice to Mr Iqbal by issuing a fresh application.
CONSIDERATION
Section 352(3A) of the 1998 Act is in the following terms:
“(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Section 354(7A)(c) of the 1998 Act states:
“(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 2011 Rules states:
“Failure by an applicant to prosecute the proceedings with due dispatch is a ground of dismissal for the purposes of section 354(7A)(c).”
There is no dispute that the Arbitrator’s determination and orders of 21 March 2014, are interlocutory and that leave to appeal is required pursuant to s 352(3A) of the 1998 Act.
I accept the respondent’s submissions that granting leave to appeal is neither necessary nor desirable for the proper and effective determination of the dispute. I accept that if leave to appeal were granted, the matter, which is clearly inadequately prepared, would simply be referred to another Arbitrator and would still not be in a position to proceed.
The Arbitrator made no determination on the merits of the claim. Mr Iqbal’s rights can be fully protected by filing a fresh application when the matter is in a fit state to proceed.
That is sufficient to dispose of the appeal because leave to appeal must be and is refused. However, if leave to appeal were granted the appeal would fail in any event for the following reasons.
Mr Iqbal’s submissions ignore the fact that the Arbitrator’s principle reason for dismissing the matter was because Mr Iqbal failed to comply with the requirements of the legislation and the guidelines with respect to making a valid claim for s 66 benefits. Indeed, he persistently refused to do so, even though he had been given every opportunity to rectify that omission.
Mr Iqbal has failed to provide proper particulars of his claim for permanent impairment compensation. In particular the purported claim for permanent impairment compensation is not supported by a medical report completed in accordance with the “WorkCover Guidelines for Claiming Compensation Benefits” by a medical specialist with qualifications and training in the relevant body systems claimed.
It appears that the “amended claim for permanent impairment benefits” was, as the respondent submits, prepared either by Mr Iqbal or his solicitor based on an assessment of Mr Iqbal’s entitlements from their own assessment of the evidence. That does not comply with the guidelines for claiming permanent impairment compensation and it was improper to attempt to support a claim for permanent impairment compensation in that way.
It is not until the claim is properly particularised in accordance with the legislation and the guidelines that the respondent will be in a position to respond to the claim. This was the very issue that was central to the Arbitrator’s decision to strike the matter out.
Because Mr Iqbal has failed to comply with the requirements to make a valid claim for lump sum compensation, the respondent has not been given an opportunity to either deny liability or to make an offer of settlement. Therefore there is a question about whether a dispute has arisen and whether there is anything that can be referred to the Commission (Shams at [79]–[87]).
I accept that leading up to the Arbitrator’s final orders there was confusion concerning whether QBE was the only insurer of the respondent for the duration of the period of Mr Iqbal’s employment. However the respondent now concedes, notwithstanding earlier assertions by Curwoods Lawyers to the contrary, that QBE is the only relevant insurer. That was confirmed by WorkCover’s letter of 11 April 2014.
Mr Malik’s submissions to the Arbitrator in the teleconference on 20 March 2014 seem to suggest that his inquiries of WorkCover had indicated he had been informed by WorkCover prior to that date, that QBE was the only relevant insurer (T4.8). There seems to be no reason why that could not have been confirmed well before 11 April 2014. However, it must be accepted that the erroneous information provided by Curwoods Lawyers, to the Commission and the respondents, fuelled the confusion and was unsatisfactory.
However, even if the insurance issue had been resolved before the teleconference on 20 March 2014, the matter could not have proceeded in any event because of the deficiencies in proper particularisation of the s 66 claim. Mr Iqbal’s submissions fail to address this issue.
CONCLUSION
As the Arbitrator identified, the matter has been poorly prepared from the outset. The Arbitrator’s determination was based on:
(a) Mr Iqbal’s failure to make a proper claim for permanent impairment compensation, and
(b) his failure to comply with the Arbitrator’s directions of 13 September 2013, with respect to making a proper claim for permanent impairment compensation, supported by appropriate medical evidence.
Leave to appeal is refused because the Arbitrator’s order striking the matter out was interlocutory and the granting of leave to appeal is neither necessary nor desirable for the proper and effective determination of the dispute. Moreover, the Arbitrator’s decision to strike the matter out discloses no error and would not be overturned in any event.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs.
Judge Keating
President
22 July 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE