Kathleen Maryanne O'Brien v Trustees of the Roman Catholic Church for the Diocese of Parramatta
[2003] NSWWCCPD 16
•27 May 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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| CITATION: | Kathleen Maryanne O’Brien v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2003] NSW WCC PD 16 |
| APPELLANT: | Kathleen Maryanne O’Brien |
| RESPONDENT: | Trustees of the Roman Catholic Church for the Diocese of Parramatta |
| INSURER: | Catholic Church Insurances Limited |
| FILE NO: | WCC 3688-2002 |
| DATE OF DECISION: | 27 May 2003 |
| PRESIDENTIAL MEMBER: | Dr Gabriel Fleming Deputy President |
| DECISION UNDER APPEAL: | Application for Leave to appeal against a decision of an Arbitrator |
| DATE OF DECISION UNDER APPEAL: | 28 February 2003 |
| HEARING: | Leave determined on the papers |
| REPRESENTATION: | Appellant: Alvaro Edwards Solicitors |
| Respondent: Astridge & Murray Solicitors | |
| ORDERS MADE ON APPEAL: | Leave to Appeal is refused. The matter is referred to the Registrar for directions. |
THE APPEAL
On 28 March 2003 Kathleen Maryanne O’Brien (‘the Appellant’ in this appeal and ‘the Applicant’ in the substantive proceedings) lodged an ‘Application to Appeal Against the Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’). The Appeal nominated the Catholic Education Office, Diocese of Parramatta, as the Respondent.
The proper name of the Respondent in this matter is the Trustees of the Roman Catholic Church for the Diocese of Parramatta (‘the Respondent’) and, as nothing turns on this issue, I correct the record of the proceedings accordingly. The relevant insurer is Catholic Church Insurances Limited.
The appeal concerns oral directions given by an Arbitrator at a teleconference on 28 February 2003. The Commission’s file records that the Arbitrator made the following directions at the teleconference:
1.Leave is not granted to the Applicant to file a statement of the Applicant (s.290(3), Rules 16(2) and 16(3)).
2.The Applicant is given leave to discontinue these proceedings within 7 days from today’s date by filing a Notice of Discontinuance in the approved form.
In the present appeal the Appellant has submitted that the Arbitrator’s direction, refusing to allow her to file a statement:
(a)results in the denial of natural justice to the appellant/worker in the procedure and/or determination of her claim; and
(b)has caused, or is likely to cause, the appellant/worker to suffer a substantial injustice if the arbitrator’s decision were not reversed.
The Appellant submitted that:
. . . the decision that ought to have been made by the Arbitrator on 28 February 2003 should have included that:
(a)leave be granted to the applicant/worker to file and serve the worker’s statement;
(b)leave be granted to the respondent/employer to file its statement within a reasonable time after the worker’s statement is filed and served;
(c)if the respondent were granted leave to rely on medical reports served out of time, including the medical report of Dr Potter served by the respondent/employer immediately before the teleconference, the applicant/worker be given a reasonable opportunity to obtain further medical evidence from appropriate specialists to address additional medical issues raised by Dr Potter in his report.
The Respondent submitted that the Arbitrator’s direction should be confirmed.
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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as follows:
352 Appeal against decision of Commission constituted by Arbitrator
(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.
The appeal was filed within the time required by section 352(4) of the 1998 Act.
Whether or not the direction refusing the Applicant worker permission to file a statement out of the time prescribed by the Rules amounts to a decision under section 352(8) of the 1998 Act is an issue in the appeal.
The Appellant refers to the decision by the Arbitrator:
. . . not to exercise her discretion, as sought by the appellant/worker, and not to give the opportunity to the appellant/worker to obtain further medical evidence, is a failure of the arbitrator to use her best endeavours to bring the parties to a settlement of the dispute.
The difficulty facing an appellate tribunal is that, notwithstanding that refusal to grant leave to file late medical evidence may or may not be a decision within the meaning of section 352(8) of the 1998 Act, the proceedings were not transcribed. What occurred cannot, therefore, be described with certainty, unless it is noted by the Arbitrator in the Commission file, and in this case it was not. There is no evidence before me of any order in relation to the filing of late evidence and I do not propose to deal with it on the appeal. Even if there were evidence of such an order, it is questionable whether a refusal to grant leave, amounted to a decision under section 352(8) of the 1998 Act.
ON THE PAPERS REVIEW
The Appellant worker does not consent to the determination of this application for leave to appeal on the papers and has indicated she wishes to be given the opportunity for her legal representatives to make oral submissions. The Respondent has no objection to a decision being made on the papers.
In this matter the parties have made detailed written submissions. The issues in dispute have been addressed in writing. This is not a case where fresh evidence is to be given, nor where the issues need further elaboration.
In accordance with the President’s Practice Direction, 6B of 2002, I am satisfied that sufficient information has been supplied in connection with the appeal, to enable me to determine whether leave to appeal must be granted, without holding a conference or formal hearing i.e. ‘on the papers’ pursuant to section 354(6) of the 1998 Act.
THE NATURE OF THE ORIGINAL APPLICATION
On 28 October 2002 the Applicant filed an ‘Application to Resolve a Dispute’ (Form 2) in the Commission. She claimed to have suffered injuries to her back, neck and left arm in the course of her employment with the Respondent when, on 28 October 1999, a chair she was sitting on collapsed and she fell to the ground. Attached to the Application were two letters from the Applicant’s solicitor to the Respondent detailing the claim, two medical reports, one from Dr Martino, General Practitioner, and one from Dr Salmon, Consultant in Pain Medicine, and correspondence from the relevant insurer denying liability for the claim.
The Application states that this is an application for whole person impairment for use in possible work injuries damages claim (on page 11). As the Commission does not have a form applicable specifically for this type of application (pursuant to section 313 and 314 of the 1998 Act), the Applicant, in accordance with the procedure set out in the ‘Registrar’s Guideline For Work Injury Damages In The Workers Compensation Commission’ used the Commission’s general ‘Application to Resolve a Dispute’ form (all of these documents are available on the Commission’s website).
In Part 3 of the Application, the Applicant listed, as documents and information they intended to rely upon but did not yet have in their possession . . . reports that will or may be requested from medical practitioners.
A letter from the Applicant’s legal representative, dated 25 October 2002 accompanied the Application and stated that:
. . . this is an Application in relation to a threshold dispute as defined by Section 314(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998. . . .
Pursuant to Section 321(1) of the Act, we hereby make formal application for assessment by an approved medical specialist concerning a dispute as to whole person impairment. We seek a Certificate under Section 325 of the Act as to the degree of permanent impairment of the injured worker.
We also request that you treat this letter as a statement under Section 290 of the Act and Rule 16 of the Interim Workers Compensation Commission Rules 2001.
. . .
We also refer you to medical reports and documents previously sent to the Commission under cover of our letter dated 5 September 2002, in claim WCC 2216-2002.
The Respondent filed a ‘Reply’ on 12 November 2002 and attached a number of medical reports. The Respondent stated in the Reply that it intended to rely on a number of medical reports to be obtained in the future.
The Applicant’s letter of 25 October 2002 also refers to another application in the Commission, matter number WCC 2216-2002. This matter concerned a claim, arising from the same injury, for payments of weekly compensation and medical expenses. This Application was filed in the Commission on 6 September 2002. A Reply was filed by the Respondent, on 24 September 2002. A teleconference before an Arbitrator was held in this matter on 5 November 2002 and, as the parties were unable to come to a resolution of the dispute, the matter was listed for a conciliation conference and arbitration hearing, to take place on 19 November 2002. At that conference, attended by Ms O’Brien, her legal advisers, the Respondent and its legal advisers, it became apparent, according to the record of the Arbitrator, that the Applicant’s case was not ready to proceed to a hearing. It also became apparent that the parties were unable to reach a settlement of their dispute until Ms O’Brien had been examined by an Approved Medical Specialist, appointed by the Commission to issue a binding Medical Assessment Certificate in relation to permanent impairment. As a consequence the Applicant decided to withdraw the proceedings and was asked to file an Election to Discontinue within seven days. The Applicant failed to do so and the Registrar issued a direction to this effect on 16 January 2003. The Applicant filed a discontinuance of matter WCC2216-2002 on 31 January 2003.
The file in this earlier matter was not physically located with the current file in the Commission. There is no indication on the current file as to whether the information from this earlier file was in fact put before the Arbitrator, as the Applicant requested. It will obviously be crucial, if this matter is now referred to an AMS, that the medical reports and other relevant evidence from this earlier file are identified and forwarded to an AMS for assessment.
Ms O’Brien’s claim for weekly compensation and medical expenses, and her possible claim for work injury damages, relate to the same injury. The Application currently the subject of this appeal, asked the Commission to refer the threshold issue of the degree of permanent impairment to an AMS, as a pre-requisite to the lodging of a workplace injury damages claim. This must be distinguished from asking the Commission to resolve a dispute about lump sum entitlement under section 66 and section 67 of the 1987 Act. In either case, the matter must be referred to an AMS. However, following the issue of a medical assessment certificate by an AMS, these applications must take different paths, depending on the nature of the claim.
The Appellant made the original application to the Commission under section 314(1)(a) of the 1998 Act. The determination of a threshold issue, for the purposes of sections 313 and 314 of the 1998 Act, is one of the necessary pre-requisites to the commencement of court proceedings for the recovery of work injury damages (‘damages’ under the workers compensation acts does not include compensation payable under sections 66 and 67 of the 1987 Act (section 149 of the 1987 Act)). In contrast the determination of an application to the Commission for permanent impairment compensation will be referred to an Arbitrator or the Registrar to make the appropriate statutory award and finalise the claim.
PROCEEDINGS IN THE COMMISSION
Before the Arbitrator
A teleconference was scheduled for 31 January 2003. On 20 January the Commission received, by facsimile, a letter dated 17 January 2003, requesting that the teleconference be rescheduled due to the solicitor for the Applicant’s unavailability. On 23 January 2003 the Commission received, by facsimile, another letter from the Applicant’s solicitor requesting that the teleconference be rescheduled. An adjournment was refused, in accordance with the ‘President’s Direction No. 2 of 2002: Adjournment of Commission Proceedings’.
At the teleconference on 31 January 2003 the Arbitrator directed the Respondent to file and serve on the Applicant a number of medical reports. A second teleconference was scheduled for 28 February 2003.
The second teleconference proceeded on 28 February 2003. The Applicant sought leave to file a statement of the Applicant and the Arbitrator made the directions appealed against.
Procedure for Determination of 314 Threshold Dispute
Although the Applicant, pursuant to the ‘Registrar’s Guideline for Work Injury Damages in the Workers Compensation Commission’, filed the application using the Commission’s prescribed ‘Application to Resolve a Dispute’ form (which is addressed to disputes over statutory benefits), this does not alter the nature of the application.
As of 1 January 2002 an application for work injury damages is initiated by the service of a pre-filing statement on the nominated defendant. If there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages (‘a threshold dispute’), the claimant cannot serve a pre-filing statement unless the degree of permanent impairment has been assessed by an Approved Medical Specialist (AMS), pursuant to sections 313 and 314 of the 1998 Act. The Commission’s role in work injury damages proceedings is limited. It may:
· refer a threshold dispute to an AMS for assessment in accordance with Part 7 of the 1998 Act (sections 313 and 321),
· determine an ‘Application to Cure a ‘Defective Pre-filing Statement’ (Section 317 of the 1998 Act and Rule 56), and
· refer an ‘Application for Mediation to Resolve a Work Injury Damages Claim’ to a mediator (who is not a member of the Commission) who will then either bring the parties to agreement, or issue a ‘Certificate of Mediation Outcome’ (Section 318 and Rule 53).
The Commission does not resolve disputes about entitlement to work injury damages. They are resolved either consensually by the appointed mediator, or adjudicatively by the courts.
The Commission’s practice and procedures are set out in the Interim Workers Compensation Commission Rules 2001 (‘the Rules’). Part 3 of the Rules refers to ‘Commencement of Proceedings’, Part 4 to ‘Parties’, Part 5 to ‘Dispute Resolution Procedure’, Part 8 to ‘Medical Assessments and Medical Evidence’ and Part 10 to the practice and procedure for the conduct of ‘Work Injury Damages’ matters.
The matter currently the subject of the appeal, has proceeded upon the basis that the requirements of Parts 3 and 5 of the Rules are applicable to this type of application. In my view, they are not. It is Part 10 that governs work injury damages. There is therefore no requirement on the party seeking to have a matter referred for an AMS assessment under section 313, to file all information and documents upon which the party proposed to rely (Rule 16(1) and Rule 27(1)) at the time of filing the Application. Similarly, Rules 16(2) and 27(2) do not require the Applicant to file a statement prior to introducing other evidence.
The purpose of Parts 3 and 5 of the Rules is to ensure that the parties have full and frank disclosure of their evidence at the earliest stages of a dispute concerning statutory entitlements that has been referred to the Commission for conciliation and arbitration. A party is allowed to introduce late evidence only with the leave of the Commission (Rule 16(2) and Rule 27(2), Section 290 of the 1998 Act). This enhances the prospect of the parties arriving at an agreement in their dispute that is acceptable to both of them. An application for a threshold determination of impairment by an AMS, as a preliminary step in the making of a claim for work injury damages, does not proceed to arbitration before the Commission, therefore Rules governing the conciliation and arbitration process for disputes about statutory benefits are not relevant.
Unfortunately, Part 10 of the Rules, which governs ‘Work Injury Damages’, is silent on the procedure for dealing with an application under Section 313. However, where procedure is not prescribed in the Rules, the Commission may, on application by the person in the approved form, or of its own motion, give directions (Rule 4).
A number of documents should accompany an application to refer a matter to an AMS in this type of application. It will, for instance, be necessary for the Applicant to file evidence (as she has in this matter) of a threshold dispute over permanent impairment in the terms of section 314, namely that
(1)For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:
(a) The person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or
(b) There is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable.
It will also be necessary for an Applicant to lodge all documents that he or she wants put before the AMS who is to make the assessment. The Respondent must be on notice of the application to the Commission and also be given the opportunity to supply those documents, which it considers relevant to the AMS assessment.
These matters could be dealt with by way of directions by the Arbitrator or the Registrar. There is no express power in the Rules that allows the Arbitrator or the Commission to refuse to allow a party to file further medical evidence for referral to an AMS in a dispute of this type. Where a party seeks to do so, it will be a matter of procedural fairness to ensure that other parties are aware of, and have an opportunity to address, any issues that arise because of the filing of further medical evidence. A party who is not ready to proceed risks delay in the referral and potential disadvantage to the injured worker in obtaining timely damages for his or her work injury. It may be useful to give consideration to the need to specify the relevant procedures for these types of matters in the Commission’s Rules, when the Interim Rules are subject to review.
Where the relevant and necessary documents are filed, the matter should be referred to an AMS for the issue of a Medical Assessment Certificate, in accordance with the 1998 Act. The Arbitrator or the Registrar makes this referral, pursuant to section 321 of the 1998 Act. The parties may agree on the AMS who is to make the assessment, but, failing agreement, the Registrar is to choose the AMS who is to assess the dispute (section 321(2) of the 1998 Act).
Entitlement to Common Law Remedies is governed by Part 5 of the 1987 Act. Where the medical assessment certificate concludes that the Applicant does not have at least a 15% degree of permanent impairment, the Applicant will be barred from the recovery of damages (section 151H of the 1987 Act). In this circumstance it remains open to the Applicant to accept the assessment, or to appeal against the decision of the AMS to a Medical Appeal Panel, and/or to make a claim for statutory benefits under sections 66 and 67 of the 1987 Act. In the latter case, if there continues to be a dispute about the Applicant’s possible statutory entitlement, an application may be made to the Commission for determination by an Arbitrator.
Discontinuance
It is apparent from the Appellant’s submissions, although not stated, that the Arbitrator’s grant of leave to the Applicant to discontinue the proceedings is not the subject of the appeal. However, the Appellant claims that the invitation to discontinue the proceedings was likely to cause a substantial injustice . . . particularly concerning her work injury damages claim.
The time limit for the commencement of court proceedings against an employer for damages is governed by section 151D of the 1987 Act, which provides, in part, that:
(2)A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.
Section 151DA(1)(a) provides time does not run for the purposes of section 151D:
(a)while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act, or
(b) . . .
Ms O’Brien’s injury occurred on 28 October 1999. The application, the subject of this appeal, for referral for assessment under Part 7 of Chapter 7 of the 1998 Act, was made on 28 October 2002. The Applicant’s position in relation to the application for work injury damages is therefore ‘preserved’ while the referral of this threshold issue is before the Commission.
However it should be noted that the Arbitrator’s grant of leave to allow the Applicant to discontinue the original proceedings is not a decision which could be the subject of appeal under section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Whether to discontinue with proceedings in the Commission is entirely a matter for the Applicant/Appellant. If she had elected that course she would be required to file a Notice of Discontinuance, as directed by the Arbitrator, and as required by Rule 42(4) of the Interim Workers Compensation Commission Rules 2001 (‘the Rules’). Failure to file such a Notice, within the requisite time, clearly indicates that the matter remains on foot and the Commission will then progress it in a timely manner, in accordance with the Rules.
In this matter the Appellant did not file a Notice of Discontinuance and, on 26 March 2003, the Registrar’s delegate wrote to the Applicant’s solicitor noting that an ‘Election to Discontinue’ had not been filed. The Registrar directed that:
1.A discontinuance pursuant to Rule 42 be filed within 14 days; or
2.A joint statement pursuant to Rule 40, setting out the facts and issues on which the parties agree, and the facts and issues that continue to be in dispute, be filed within 14 days.
There appears to have been a lack of communication within the Commission as to the fact of the filing of the appeal. However, in the case of an application to the Commission concerning statutory benefits, subject to the procedures in the Rules, it is entirely appropriate for the Registrar to follow up on the outcome of an Arbitrator’s telephone conference, and to seek to case manage the matter to a conciliation conference and arbitration hearing. This is consistent with the Commission’s objectives, (set out in section 367 of the 1998 Act) and it is in the interests of the parties that the matter be dealt with in a timely way.
In this matter the Applicant has chosen not to discontinue, nor to file a statement in accordance with Rule 40. In my view, neither is required of her.
FINDINGS AND REASONS
The parties have made a number of submissions which, given my view on the true nature of the proceedings, are not relevant to the determination of the appeal.
In my view this appeal is misconceived. Neither the Applicant nor the Commission correctly turned their minds to the nature of the original application and the relevant Rules. The Applicant alleges that the Arbitrator’s failure to allow further medical evidence to be filed amounts to a failure of the Arbitrator to use her best endeavours to bring the parties to a settlement of the dispute. This is not the Arbitrator’s role in the referral of a threshold dispute in a work injury damages claim.
The order refusing the Applicant leave to file a statement, pursuant to Section 290 of the 1998 Act, Rule 16(2) and 16(3) is not relevant to the referral of a threshold dispute, pursuant to Section 313 of the 1998 Act, in a workplace injury damages claim. In my view it is not a proper exercise of jurisdiction under the Act and the Rules and is therefore not a decision reviewable under section 352 of the 1998 Act.
The grant of leave allowing the Applicant to discontinue the original proceedings is not a decision for the purposes of an appeal under section 352 of the 1998 Act, it is a matter entirely at the discretion of the Applicant.
There is no record of an ‘order’ refusing the grant of leave to allow the Applicant to file a further medical report in response to the Respondent’s report of Dr Potter.
It is clear from the circumstances of this appeal, and the way in which the earlier weekly benefits claim was conducted and later discontinued, that the Applicant’s legal representative was not prepared to proceed with these claims at the time of filing either of the applications in the Commission. I accept the Respondent’s submission that . . . when matters commence in the Workers Compensation Commission that they must be basically ready to proceed. In this particular case, this matter is far from ready to proceed. If this matter is not ready to proceed, this is due to the fault of the Applicant. This statement is as equally applicable to the type of application in this matter, as it is to an application to resolve a dispute about entitlement to statutory benefits. The Respondent has now been forced to appear in two applications and an appeal, due, in large part, to the lack of preparation and attention to the claim by the Applicant and her representatives.
Leave to appeal must be refused. The matter should be referred to the Registrar so that appropriate directions may be made to progress the referral to an AMS. In the absence of Rules governing this procedure, the Registrar should be governed by the demands of procedural fairness to the parties and the Commission’s objective in providing timely and efficient disposition of the proceedings.
DECISION
Leave to appeal is refused. The matter is referred to the Registrar.
COSTS
No application for costs has been sought and no order is made.
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
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