Jopa Pty Ltd t/as Tricia's Clip-n-Snip v Edenden
[2004] NSWWCCPD 50
•11 August 2004
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden (2004) 5 DDCR 321 | |||||
| CITATION: | Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 | ||||
| APPELLANT: | Jopa Pty Limited t/as Tricia’s Clip-n-Snip | ||||
| RESPONDENT: | Allison Marie Edenden | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC6558-03 | ||||
| DATE OF REGISTRAR’S DECISION: | 28 January 2004 | ||||
| DATE OF APPEAL DECISION: | 11 August 2004 | ||||
| SUBJECT MATTER OF DECISION: | ‘Obvious Error’ in a Medical Assessment Certificate. Validity of a Medical Assessment Certificate issues pursuant to Section 325 of the Workplace Injury Management and Workers Compensation Act 1998. Validity of a Certificate of Determination. | ||||
| PRESIDENTIAL MEMBER: | Deputy President, Dr Gabriel Fleming | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Dexter Healey Solicitors | |||
| Respondent: | Nagle & McGuire Solicitors | ||||
| ORDERS MADE ON APPEAL: | The matter is remitted to an Arbitrator to be determined in accordance with these reasons. | ||||
CONTENTS
THE APPEAL PARAGRAPHS 1 - 8
LEAVE PARAGRAPHS 9 - 10
ISSUES IN DISPUTE PARAGRAPHS 11 - 16
RELEVANT FACTS PARAGRAPHS 17 - 23
DISCUSSION AND FINDINGS PARAGRAPHS 24 - 65
CONCLUSIONS PARAGRAPHS 66 - 68
DECISION PARAGRAPH 69
THE APPEAL
On 25 February 2004 Jopa Pty Limited t/as Tricia’s Clip-n-Snip (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 January 2004.
The Respondent to the Appeal is Allison Marie Edenden (‘the Respondent Worker/Ms Edenden’) and the relevant insurer is Allianz Australia Workers Compensation (NSW) Limited (‘the Insurer’).
The appeal relates to Ms Edenden’s claim for payment of lump sum compensation for permanent impairment and pain and suffering as a result of an alleged injury sustained on 12 February 2001, whilst in the course of her employment as a hairdresser. The Appellant Employer initially accepted liability for the claim. Weekly compensation and treatment expenses were paid until June 2002, when Ms Edenden’s employment was terminated. In November 2002 Ms Edenden made a lump sum claim for permanent impairment, which was denied. An ‘Application to Resolve a Dispute’ was filed in the Commission on 4 February 2003.
A Commission Arbitrator held two telephone conferences with the parties, on 12 June 2003 and 8 August 2003. Following this the Commission referred Ms Edenden’s medical dispute to two Approved Medical Specialists (AMS). Dr Pillemer (Orthopaedic Surgeon) was asked to assess permanent impairment of the neck and both arms. Dr Breslin (Consultant Urologist) was asked to assess permanent impairment of the sexual organs.
Consequently two Medical Assessment Certificates were given to the Registrar. On 21 August 2003, Dr Pillemer gave the Registrar a Medical Assessment Certificate (MAC) finding 0% permanent loss of efficient use or impairment of the neck and both arms. On 17 November 2003, Dr Breslin gave the Registrar a MAC finding a 15% loss of use of sexual organs. The Registrar issued both MACs to the parties on 19 November 2003.
On 28 January 2004 the Director of Professional Services, purportedly acting as delegate of the Registrar, issued a ‘Certificate of Determination’, without attached reasons, as follows:
“The determination of this matter, made following the issue of a Medical Assessment Certificate by Approved Medical Specialists, Drs Pillemer and Breslin, issued to the parties on or about 19 November 2003, is as follows:
1.The proceedings as they relate to the Applicant’s claim for compensation under s66 of the Workers Compensation Act 1987 for permanent impairments of the neck and permanent losses of efficient use of both arms at or above the elbow is struck out.
2.The Respondent pay the Applicant compensation under s66 of the Workers Compensation Act 1987 for 15% permanent loss of sexual organs in the sum of $7,050.00.
3.The Respondent pay the worker’s costs as agreed or assessed.”
The Employer then filed this appeal, on 25 February 2004.
This matter was referred to me for review on 29 June 2004. The Appellant Employer submits that the appeal is capable of being determined on the papers. The Respondent Worker has not made any submissions on this issue. I am satisfied that I have sufficient information to proceed ‘on the papers’, in accordance with section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), without holding any conference or formal hearing, and that this is the appropriate course in the circumstances
LEAVE TO APPEAL
Leave to appeal is granted on the basis that I am satisfied:
·The appeal was filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act), and
·The amount of compensation at issue on the appeal is at least 20% of the amount awarded in the decision appealed against (section 352(2)(b) of the 1998 Act).
No new evidence is submitted on the appeal (section 352(6) of the 1998 Act).
ISSUES IN DISPUTE
This dispute fundamentally concerns Dr Breslin’s assessment of Ms Edenden’s permanent impairment, contained in the MAC of 17 November 2003.
The Appellant Employer submits that the Registrar’s delegate erred in the determination of the dispute, because:
· There was no evidence upon which to base the determination (‘The No Evidence Error’),
· He failed to give reasons for the determination (‘the Reasons Error’),
· He failed to determine ‘causation’ and thus the Appellant’s liability to pay compensation (‘the Liability Error’), and
· He failed to exercise the statutory duty to try to bring the parties to an agreed settlement of the dispute (‘the Settlement Error’).
The Appellant Employer also raises a number of alleged ‘Grounds of Appeal’, which do not directly concern the orders found in the Certificate of Determination, but challenge the Registrar’s action in relation to the determination of the ‘medical dispute’. To the extent that they are related to the arguments on the appeal against the Certificate of Determination of 28 January 2004, they are considered below. These claims are:
· The Registrar failed to determine the Appeal against the Medical Assessment of Dr Breslin as sought by the letter from Dexter Healey solicitors dated 16 December 2003 faxed and forwarded by mail.
· In the Alternative, the Appellant Employer was denied procedural fairness as it was denied the opportunity to file an Appeal against the MAC of Dr Breslin.
· The Registrar failed to provide reasons for the determination of the medical appeal or advise the parties of the outcome of the medical appeal.
· The Registrar failed to issue or approve of the AMS issuing a replacement MAC to correct an obvious error pursuant to section 325(3) of the 1998 Act.
The Appellant Employer submits that there were “still matters in dispute between the parties including the issue of causation on which the Medical Assessment Certificates are not binding”, when the Certificate of Determination was issued, and that a further telephone conference should have been arranged.
The Respondent Worker submits that the Appellant failed to formally lodge an appeal against the MAC of Dr Breslin. Despite correspondence from the Commission, dated 8 January 2003, advising that the matter would be determined in accordance with the MACs, the Appellant Employer failed to properly lodge an appeal against those assessments. The Respondent Worker submits that the Appellant Employer “now seeks to have its ‘Appeal Against the Medical Certificate’ determined by way of an appeal against the decision of an Arbitrator when the true position is that the Determination, which is the subject of the appeal, was issued pursuant to an assessment of permanent impairment certified in a Medical Assessment Certificate.” The Respondent Worker argues that the Appeal is misguided and should be dismissed.
Two further important issues arise from a consideration of the evidence and submissions in this matter. The first concerns the use of the power to ‘strike out’ the proceedings where, as in this case, an AMS finds 0% permanent impairment. The second concerns the power of the Registrar, when acting as an Arbitrator pursuant to Section 294 of the 1998 Act, to delegate the determination of the dispute to an officer of the Commission. These issues go to the validity of the first order, and of the whole of the Certificate of Determination of 28 January 2004.
RELEVANT FACTS
The Medical Assessment Certificates
The parties agreed on the appointment of Drs Pillemer and Breslin to examine and report on Ms Edenden.
Neither party puts the correctness of the MAC issued by Dr Pillemer at issue in the appeal.
Dr Breslin examined Ms Edenden and reviewed the medical reports sent to him. His MAC summarises his opinion as follows:
“Ms Edenden is suffering from sexual dysfunction (loss of sexual organs) as a result of pain in her neck, shoulders, arms and hands. These symptoms are worse on the right than on the left. There is no local problem with the sexual organs. Such difficulties as she has with sexual functioning are related purely to neck, shoulder, arm and hand pain.
The diagnosis of this pain is not in my area of expertise.
. . . .
On the basis of the information given to me, most of the reports believe there is attributability to work for whatever the diagnosis is, whether it be complex regional pain syndrome or cervical disease. I am unable to determine whether [Ms Edenden’s] pain is work-related as this is not in my area of expertise. I note that Dr R Pillemer is to see her and decide this. If he feels that her problem is not work-related I would be guided by that and accept his findings. In that circumstance my assessment would give no work-related impairment, but my assessment without that knowledge is given.Therefore, I am of the opinion that the diagnosis is sexual dysfunction due to chronic regional pain syndrome.
. . . .
I come to the same conclusion as Dr Colin Moore. His description of permanent impairment assessment is almost exactly my opinion. Namely, 15%. I am in agreement that it is work related”.
The Appellant Employer asked the Registrar, by letter dated 16 December 2003, and again by letter on 12 January 2004, to amend Dr Breslin’s MAC to show a 0% work related permanent loss of use of sexual organs. The Appellant Employer argued that Dr Breslin’s MAC contained an “obvious error” in that he assessed Ms Edenden’s permanent loss of use of sexual organs to be work-related. Alternatively, the Appellant Employer asked that the MAC given by Dr Pillemer be referred to Dr Breslin so that he may amend his MAC.
There is no evidence on the papers before me that the Registrar considered or determined the Appellant Employer’s application to have Dr Breslin’s MAC amended on the basis of obvious error.
On 8 January 2004, the Registrar advised the parties that the matter would proceed to be determined in accordance with the MACs unless an appeal was made to a Medical Appeal Panel pursuant to section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Appellant Employer did not file an appeal against the MACs.
The Certificate of Determination was issued on 28 January 2004, without further consultation with the parties or any further attendance before the Arbitrator who held the earlier telephone conferences.
DISCUSSION AND FINDINGS
Determination of Ms Edenden’s ‘Medical Dispute’
Part 7 of Chapter 7 of the 1998 Act provides for ‘medical assessment’ in relation to a dispute about a claim for workers compensation. ‘Approved Medical Specialist’ and ‘medical dispute’ are defined (section 319). Where a dispute before the Commission is a ‘medical dispute’ the Commission or the Registrar may refer it to an AMS for assessment (section 321). A dispute about permanent impairment must be referred to an AMS for assessment (section 293(2)). The AMS has the power to consult with other medical practitioners who currently or previously have treated the worker, call for the production of medical reports and to examine the worker (section 324). The AMS then gives a MAC, as to the matters referred for assessment, to the Registrar (section 325). The MAC is binding in relation to certain matters “in any proceedings” before the Commission (section 326).
Where an AMS is of the view that a medical assessment cannot be made because the degree of permanent impairment is not fully ascertainable, then “proceedings in the Commission may be adjourned until the assessment is made” (section 322).
AMS’s are not members of the Commission (section 368 of the 1998 Act) and the making of a medical assessment by an AMS is not a ‘proceeding’ before the Commission (see Part 9 of Chapter 7 of the 1998 Act, ‘Proceedings before [the] Commission’). It is common for parties to reach agreement on outstanding issues in dispute once the MAC has been received. This is particularly the case in relation to matters where the MAC is binding on the Commission, pursuant to section 326 of the 1998 Act, namely 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.”
However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of the matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural fairness, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.
This case is illustrative of why a dispute must be returned to an Arbitrator for final determination. In this matter two AMS’s were asked to assess Ms Edenden because of the differing nature of her claimed impairment. At the same time the injuries are inter-related. It is also conceivable that in extreme cases there may be more than two AMS’s in differing specialties involved in the assessment of the ‘medical dispute’. There may be a need to reconcile different AMS assessments and to co-ordinate referrals to different specialties. This ensures that, where particular assessments are inter-dependent, whether because of the nature of the injury or otherwise, each AMS has all the information necessary to give an opinion in the particular case.
The aim of the new process for the assessment of ‘medical disputes’ by AMS’s is to ensure that injured workers receive a fair and independent medical assessment of compensible work injuries, regardless of their ability to amass their own medical evidence in support of a claim. In this way the payment of just and proper compensation is achieved, in accordance with the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’). There is no purpose to be served in restricting an AMS in the making of his or her assessment (Devine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28) or in isolating those assessments in circumstances where they are clearly medically inter-related. I can find no section of the legislation that leads to such a restrictive approach.
The Validity of the Medical Assessment Certificate
A MAC must comply with section 325(1) and (2) of the 1998 Act ,which provides as follows:
“325 Medical Assessment Certificate
(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by the Registrar and 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.”
Given that a MAC is ‘conclusively presumed to be correct’ (section 326 of the 1998 Act) in relation to certain matters, it is reasonable to expect strict compliance with the requirements of section 325(1) and (2).
A similar process of medical assessment was considered in Minister for Immigration and Multicultural Affairs v Seligman (1999) FCA 117 ((‘Seligman’), discussed recently in Triandafillidou v Minister for Immigration [2004] FMCA 20 (6 February 2004)). The Migration Regulations 1994 provided that the Minister, or his delegate, was “to take the opinion of the Commonwealth Medical Officer on a matter referred to in [the Regulation] to be correct for the purpose of deciding whether a person meets a requirement or satisfies a criteria” for a visa to remain in Australia. The opinion of the Commonwealth Medical Officer in relation to Mr Seligman was alleged to be invalid and non-binding on the ground that, amongst other things, it did not meet the requirements of the Regulation. The Court found that the opinion must meet all the elements of the Regulation and made the following comments:
“It is not necessary for the purposes of this case to characterise consideration of the Medical Officer's opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion. The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s476 of the Act provides.”
Section 325 of the 1998 Act requires an AMS to ‘certify’ his or her assessment of the ‘matters referred’ and the reasons for it. This certification ultimately forms the basis for the determination of the amount of a worker’s entitlement to payment of compensation for permanent impairment, pursuant to section 66 of the 1987 Act. In addition, where, an AMS ‘certifies’ that the 10% impairment threshold is not met, the worker will not be entitled to lump sum payment for pain and suffering pursuant to section 67 of the 1987 Act. Thus the obligation upon the AMS to properly ‘certify’ as to his assessment of the ‘matters referred’ is critical to the determination of the rights and liabilities of both parties to the dispute.
In Ford v State Authorities Superannuation Board [1994] NSWIRC 114 (‘Ford’), Marks J of the Industrial Court of NSW considered the meaning of ‘certify’ in the context of a statutory provision enabling the State Authorities Superannuation Board to ‘certify’ that a member of the police force was incapable of discharging the duties of his or her office. In that case the Board had declined to so certify. Marks J observed that:
“Certification involves a more formal process than merely coming to a conclusion or expressing an opinion. ‘Certify’ is defined in the Second Edition of the Macquarie Dictionary as including "to guarantee as certain, give reliable information of, to testify to or vouch for in writing, to assure or inform with certainty, to guarantee, endorse reliably, to give assurance, testify, vouch". In my opinion certification in this context involves more than the formal act by which the fact is disclosed. It signifies the extent of the process which must be undertaken in determining the subject matter of the certification. The declaration which is associated with the certification referred to is of a formal kind and the obligation thus imposed cannot be discharged without proper enquiry being made. A certificate can only be given if the certifier has knowledge of the truth of, or the fact of (as the case may be) the subject matter of the certification.”
The comments made in Seligman and Ford are helpful when considering the approach to be adopted to the giving of a binding MAC pursuant to section 325 of the 1998 Act. The validity of the MAC rests with its compliance with the requirements of section 325. It must properly ‘certify as to the approved medical specialists assessment with respect’ to the ‘matters referred’ to him or her. The ‘matters referred’ to Dr Breslin for his assessment are identified by him in the MAC as ‘Loss of sexual organs due to injuries received at work on 3/2000-12/2/2001” (sic). Dr Breslin’s assessment, as set out in his MAC, appears to be predicated on the assumption that Dr Pillemer, Orthopaedic Surgeon, would assess Ms Edenden to have a work related injury to her neck and arms, which caused the pain that she claimed arose from it. Dr Breslin’s MAC is ambiguous. It appears to rely upon the satisfaction of a ‘condition subsequent’ to support the conclusions reached, namely the positive assessment of Dr Pillemer as to Ms Edenden’s orthopaedic injury. Where, in fact, the ‘condition subsequent’ was not met, then Dr Breslin’s assessment of 15% loss of sexual function cannot, on the basis of what he has stated in the MAC, be maintained. Dr Breslin was not fully informed of the facts on which his assessment was, ultimately, based (section 325(2)(d)). In these circumstances the MAC does not conclusively give his assessment on the matters referred and it cannot be said that Dr Breslin has ‘certified’ as to his assessment with respect to the matters referred to him.
It would have been appropriate for Dr Pillemer’s MAC to be referred to Dr Breslin, so that he could review his opinion in light of the matters which he considered needed to be first addressed by Dr Pillemer. He would then have the opportunity to issue a new, or revised MAC, having all the information needed to certify his assessment.
While there is no appeal against a MAC to a Presidential Member, where a determination is made in reliance upon an invalid or defective MAC, the determination may be infected with the error. This has occurred in this case. The Registrar’s delegate appears (though without reasons it cannot be stated with certainty) to have accepted that he was bound by the MAC of Dr Breslin, without any inquiry as to its correctness or compliance with section 325 of the 1998 Act. The orders contained in the Certificate of Determination are expressed to be made “. . . following the issue of a [sic] Medical Assessment Certificate by Approved Medical Specialists, Drs Pillemer and Breslin, issued to the parties on or about 19 November 2003”.
The Medical Assessment Certificate of Dr Breslin does not comply with Section 325(1) and (2) and is therefore invalid. It follows that Order 2 in the Certificate of Determination made in reliance upon it, namely that the Respondent pay $7500 lump sum compensation for a 15% permanent impairment, is similarly invalid. The decision-maker has made an error of law. While this alone may be sufficient to render the decision a nullity, there are other issues that arise in this matter which go to the validity of the whole of the Certificate of Determination. These are discussed further below.
‘Obvious Error’ in a Medical Assessment Certificate
Section 325(3) of the 1998 Act provides for the issue of a MAC, as follows:
“325 Medical assessment certificate
(3)If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.”
The Commission’s ‘Practice Direction No 4’ concerns the correction of ‘obvious error’ in a MAC, pursuant to section 325(3) of the 1998 Act. It states that:
“The ‘obvious error’ referred to in sections 294(3) and 325(3) of the Act means a factual error that is apparent on the face of the document. It may be an error that conflicts with the actual decision or assessment that was made or an obvious mis-statement of that decision or assessment. It does not relate to the basis upon which the substantive decision or assessment was made, nor to the substance of any such decision or assessment. The decision of the Registrar as to ‘obvious error’ is made in the context of the contents of the Certificate of Determination, and statement of reasons, if provided.”
The proper procedure for the correction of obvious error is to make an application to the Registrar who “may exercise the discretion to correct an ‘obvious error’ once satisfied that an ‘obvious error’ is contained in the document, unless there is good and sufficient reason not to do so”.
The Appellant Employer’s application for a correction to the MAC of Dr Breslin, on the ground of ‘obvious error’ under section 325 of the 1998 Act, appears not to have been considered by the Registrar. There is a passing notation on the file by another staff member that refers to, “the Registrar did not agree that there was an obvious error”; however, there is no documentation of her consideration of the application nor the decision reached and reasons for that decision. On the papers before me I am not satisfied that the application was decided. In response to the Appellant Employer’s request for correction of ‘obvious error’, the Registrar advised the employer of the right of appeal under section 327 of the 1998 Act.
The result is that the Appellant Employer’s application to correct the MAC for obvious error remains on foot. It is an unmeritorious application in any event, as the error submitted by the Appellant Employer goes to the substantive assessment made by Dr Breslin, not to a factual error or an obvious mis-statement, as described in Practice Direction No 4. It cannot be said that to substitute an assessment of 15% impairment with 0% impairment, on the basis that there is some ambiguity in the report, is a mere slip.
There is no appeal against a decision, or failure to make a decision, of the Registrar to a Presidential Member of the Commission (Section 350 of the 1998 Act). The real relevance of the Registrar’s failure to determine the Appellant Employer’s ‘obvious error’ application lies in its claim that, had it been advised that the application had been rejected prior to the issued of the Certificate of Determination on 28 January 2004, an appeal could have been filed in time. This claim simply cannot stand in the face of the correspondence between the Commission and the parties. Regardless of whether the Registrar determined the ‘obvious error’ application, it was open to the Appellant Employer to appeal against the MAC at any time, prior to the issue of the Certificate of Determination. The Registrar told the Appellant Employer as much in her letter of 8 January 2004.
Appeal Against a Medical Assessment Certificate
Section 327 of the 1998 Act provides for an ‘Appeal Against Medical Assessment’ as follows:
“327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds:
(a)deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b)availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),
(c)the assessment was made on the basis of incorrect criteria,
(d)the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.
(6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment.
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.”
In this matter the parties were advised, in writing, on 8 January 2004, that since the MACs were issued on 19 November 2003, the Registrar would need to be satisfied that special circumstances existed to justify an increase in the period during which an appeal may be made.
The Appellant Employer’s claim that its letter of 16 December was an ‘Appeal against the Medical Assessment of Dr Breslin’, is untenable. That letter makes no reference to an appeal and is concerned solely with the application to correct Dr Breslin’s MAC for ‘obvious error’. Further, I do not understand the Appellant Employer’s claim that the Registrar failed to determine, or provide reasons for the determination, of the medical appeal. The Registrar does not hear or determine medical appeals; they are resolved by a Medical Appeal Panel constituted by an Arbitrator and two AMSs.
The Appellant Employer was not prevented from filing an appeal, at the same time as the obvious error application was on foot. The claim that the Registrar denied the Appellant Employer the opportunity to appeal is completely misconceived. It is assumed that the legal representatives of the Appellant Employer were aware of the provisions of Section 327 of the 1998 Act, the time limits imposed upon appeals in that section, and of the Commission’s Practice Direction No. 8, ‘Appeal Against A Medical Assessment Made Under Part 7 of Chapter 7 of The Workplace Injury Management and Workers Compensation Act 1998’. The failure to lodge an appeal against the MAC made by Dr Breslin prior to the issue of the Certificate of Determination lies squarely with the Appellant Employer.
Validity of a Certificate of Determination Issued by the Registrar’s Delegate
The issue of a Certificate of Determination is governed by Section 294 of the 1998 Act, which provides as follows:
“294 Certificate of Commission’s determination
(1)If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3)If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
The constitution of the Commission for the purpose of particular proceedings is governed by Section 375 of the 1998 Act, which provides as follows:
“375 Constitution of Commission for particular proceedings
(1)For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section.
(2)The Registrar may give directions as to which Arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings.
(3)For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member.
(4)The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar’s power to exercise the functions of an Arbitrator).”
The Registrar has a dual role in the Commission. She is responsible for the arrangement of the business of the Commission (section 349 of the 1998 Act), but may also act as an Arbitrator in the determination of the instant case. The 1998 Act is careful and complex in its reference to the different functions allocated to ‘the Registrar’ and ‘the Commission’. This distinction has particular relevance in relation to appeal rights. Decisions of the Registrar are not subject to review by a Presidential Member (section 352, with the exception of an appeal in relation to a Costs assessment under the Workers Compensation Regulation 2003). It is ‘the Commission’ that issues a Certificate of Determination and reasons for a decision, not the Registrar (section 294). This is consistent with the role of an Arbitrator, acting as the Commission, in endeavouring to bring the parties to a dispute to an agreement or, failing that, in proceeding to make an award or determine the dispute.
The functions of the Registrar are governed by Section 371 of the 1998 Act, which provides as follows:
“371 Functions of Registrar
(1)The Registrar has and may exercise all the functions of an Arbitrator.
(2)The Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.”
Section 371(2) provides for the delegation of the Registrar’s functions, when she is acting as the Registrar. It does not permit the delegation of the functions of an Arbitrator to a member of staff of the Commission, either when the Registrar is acting as an Arbitrator or when an Arbitrator is acting in his or her own right. To interpret this provision otherwise would be to undermine the statutory dispute resolution scheme and to potentially invest the staff of the Commission with the power to make awards and determine disputes. It was clearly the intention of the legislature that Arbitrators exercise this power and be subject to appeal to a Presidential Member.
In this matter the ‘Director, Professional Services, as delegate for the Registrar’ issued the Certificate of Determination dated 28 January 2004. There are some earlier notations in the Commission file which indicate that the Arbitrator who held the initial telephone conference and the Registrar both reviewed the matter prior to the issue of the Certificate of Determination. However, there is no record of their decision in relation to it, nor of their findings in relation to the actual orders that were made. As no reasons or other documentation are in the papers before me, it is reasonable to assume that the Certificate was not only ‘issued’ by the delegate, but that he also made the decision and orders. This is not permitted by the legislation. The proceedings should have been referred to an Arbitrator for a further conference. Had that been done, the issues raised by Dr Breslin’s MAC could have been properly resolved.
My conclusion is that in issuing the Certificate of Determination, the Director of Professional Services was acting ultra vires. He was making a decision that he had no power to make. This is an error of law going to jurisdiction. Whether or not, as a result, the decision is a nullity, will depend upon the express or implied intention of the particular statutory provisions that govern it (Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55, Gray, Downes and Kenny JJ). This must be determined by considering the language, objects and purpose of the statute, and the consequences of finding the decision invalid and of no effect (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
The application of these principles to disputes in the Commission was discussed in Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 30 as follows:
“. . . the relevant legislation is the Workers Compensation Acts (the 1987 Act and the 1998 Act). The purpose of the legislation is, inter alia, to provide a statutory benefits scheme for workers compensation claims. It is intended that the scheme be a comprehensive statement of workers entitlements and employers liabilities in relation to these claims. To this end, a decision that purports to determine those rights and liabilities on the basis of error, cannot be permitted to stand. The consequences of finding such a decision to be of no effect is that a dispute remains on foot before an Arbitrator and the applicant’s claim remains to be properly determined. Taking these factors into account it is my view that the effect of jurisdictional error by an Arbitrator in making a decision under the workers compensation acts is to nullify that decision and deprive it of any effect.”
The result is that the orders contained in the Certificate of Determination of 28 January 2004 are a nullity and the matter remains to be properly determined in accordance with the relevant provisions of the 1998 Act. The proper course is for the matter to be remitted to an Arbitrator for determination in accordance with these reasons.
The ‘Strike Out’ Power
The Registrar’s Delegate purported to ‘strike out’ Ms Edenden’s claim for compensation for permanent impairment to her neck and arms. This order appears to flow from Dr Pillemer’s assessment that Ms Edenden had a 0% permanent impairment of these parts of the body.
The power to ‘strike out’ is expressed to be dependent upon non-compliance with the Workers Compensation Commission Rules 2003 ( ‘the Rules’) in relation to the commencement or conduct of proceedings in the Commission. Ordinarily, a ‘strike out’ power is designed to ensure the proper conduct of litigation, and compliance by the parties with expected procedural steps necessary for the timely resolution of disputes.
The determination of Ms Edenden’s claim for compensation for permanent impairment of her neck and arms was a substantive matter. There was no evidence of non-compliance with the Rules. The use of the ‘strike out’ power was not appropriate in the circumstances of this matter. The appropriate order in this case was a determination of the substantive issue of liability in relation to that part of the claim.
The ‘No Evidence’ Error
My findings in relation to the errors in the MAC of Dr Breslin and the Certificate of Determination support this ground of review. In the absence of a valid MAC there was no evidence to support the orders made.
The ‘Reasons’ Error
It is evident from the above discussion that I am in agreement with the Appellant Employer’s claim that the delegate did not provide reasons for the orders given.
The ‘Liability’ Error
While there is no express order in relation to liability, it is implicit in the orders contained in the Certificate of Determination that liability for Ms Edenden’s injury was found to lie with the Appellant Employer. The extent to which the Appellant Employer contested liability in the initial proceedings is not clear to me on the documents. Given my findings above, it is not necessary to canvass this issue further, save to say that it is preferable for an Arbitrator to make an express finding as to liability in the determination of a dispute.
The ‘Settlement’ Error
The making of an award or the determination of a dispute by an Arbitrator must accord with Section 355 of the 1998 Act, which provides as follows:
“355 Arbitrator to attempt conciliation
(1)The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.
(2)No objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator had previously used the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement.”
The Appellant argues that there was a failure by the Commission to use its ‘best endeavours to bring the parties to the dispute, to a settlement acceptable to all of them’ pursuant to Section 355(1) of the 1998 Act. The application of this provision is problematic when considered in light of the statutory regime for the payment of lump sum compensation pursuant to section 66 of the 1987 Act (see Inghams Enterprises Pty Limited v Michelle Zarb [2003] NSW WCC PD 15). However, to the extent that there were matters outstanding between the parties that could have been resolved by further conciliation, I accept the Appellant Employer’s submission. The Commission is obliged by section 355(1) to provide the parties with the opportunity to settle their dispute by agreement at all stages of the proceedings. There is merit in the Appellant Employer’s submission, that the matter should have been referred back to the Arbitrator for a further conference.
CONCLUSIONS
The decision in this matter is affected by the following errors of law:
· The Registrar failed to determine the Appellant Employer’s application to correct the Medical Assessment Certificate of Dr Breslin for ‘obvious error’.
· The Medical Assessment Certificate of Dr Breslin issued by the Registrar on 19 November 2003 is void for non-compliance with the requirements of Section 325(1) and (2) of the 1998 Act.
· The Certificate of Determination purportedly issued by the Director of Professional Services, as delegate of the Registrar is ultra vires and a nullity.
I note that the Appellant Employer’s application to the Registrar to correct the obvious error in Dr Breslin’s MAC remains on foot as a result of this decision.
The Workers Compensation Legislation (Amendment) Act 2004, effective 9 July 2004, amended section 352 of the 1998 Act to allow for a Presidential Member, on review, to remit a matter to an Arbitrator. This matter should be referred to the Registrar for allocation to an Arbitrator. There is no obvious reason why the Arbitrator who has held previous telephone conferences in the matter and is familiar with the file should not continue with it.
DECISION
The matter is remitted to an Arbitrator to be determined in accordance with these reasons.
Dr Gabriel Fleming
Deputy President
11 August 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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