Khanafer v Anabelle Bits Pty Ltd
[2008] NSWWCCPD 84
•8 August 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Khanafer v Anabelle Bits Pty Ltd [2008] NSWWCCPD 84 | |||||
| APPELLANT: | Abdul Rassoul Khanafer | |||||
| RESPONDENT: | Anabelle Bits Pty Ltd | |||||
| INSURER: | Workers Compensation Nominal Insurer-GIO General Limited | |||||
| FILE NUMBER: | WCC299-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 20 March 2008 | |||||
| DATE OF APPEAL DECISION: | 8 August 2008 | |||||
| SUBJECT MATTER OF DECISION: | Leave to appeal; whether decision is interlocutory; section 352(8) of the Workplace Injury Management and WorkersCompensation Act 1998; aggregation of section 66 awards. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Milicevic Solicitors | ||||
| Respondent: | Rankin Nathan Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. Leave to appeal is refused. 2. No order as to costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 23 April 2008, Abdul Rassoul Khanafer ( the Appellant/Mr Khanafer) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 28 March 2008.
The Respondent to the Appeal is Anabelle Bits Pty Limited (the Respondent/Anabelle Bits).
Mr Khanafer commenced employment with the Respondent in June 1999 as a Personal Computer Assembler. His duties apparently involved the repetitive use of tools and equipment requiring a firm and forceful grip with his dominant right hand.
Mr Khanafer claimed that in about November 2003, he developed pain in the base of his right thumb with some symptoms also in his right wrist. He consulted his general practitioner, Dr Awada on 17 November 2003 for treatment, but remained at work. He was eventually referred to a hand specialist, Dr Nabarro, whom he first consulted in February 2006. He was referred to a hand therapist and fitted with a splint.
He was made redundant by his employer, Anabelle Bits, in either March 2006 or March 2007 (the evidence conflicting on this point), but obtained other employment shortly thereafter.
On 15 December 2005, Mr Khanafer completed a claim form from the Respondent’s insurer, GIO General Ltd (GIO) in which he claimed that the injury to his “right thumb” arose “…on[sic] a period of time …due to repetitive nature of work resulting in repetitive movement of the right thumb and due to work negligent[sic].”
On 14 November 2006, he completed a further claim form from GIO in which he claimed that an injury to “The neck and down to my right shoulder” occurred “…over a period of seven years of work as a computer and server assembler, and the pain started in the last three years and getting worst [sic] now. I used to work on a table lower than the acceptable level to my body and looking down into the computer.”
Liability was accepted by GIO. By two separate letters both dated 29 May 2007, GIO offered to pay benefits pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) to Mr Khanafer for both the “right thumb” injury and for “a neck injury.” Neither amount offered by GIO reached the threshold required by section 67 of the 1987 Act.
By letter dated 10 July 2007, Mr Khanafer’s solicitors rejected the offers on the basis that “The worker does not agree with your proposition that he in fact suffered two separate injuries. The worker’s claim is a nature and conditions claim for the period stated.”
On 17 January 2008, Mr Khanafer filed an “Application to Resolve a Dispute” in the Commission seeking “compensation for pain and suffering” as a result of both his injuries.
The matter was listed for a conciliation/arbitration hearing on 20 March 2008. No evidence was given but the parties made oral submissions, which are recorded in a transcript of that date.
The Arbitrator’s decision, given ex tempore and also recorded in the transcript, was that Mr Khanafer suffered two separate injuries. Various consequential orders were also made.
It is from this decision that Mr Khanafer seeks leave to appeal.
THE DECISION UNDER REVIEW
The “Certificate of Determination” dated 28 March 2008 records the Arbitrator’s orders as follows:
“1.That the Applicant has suffered two separate injuries, one being to his right upper extremity, and a second separate injury to his cervical spine.
2.That the date of injury for each injury is 21 March 2007 due to the operation of section 16(1)(a)(ii) of the 1987 Act.
3.That the matter is remitted to the Registrar for referral to an Approved Medical Specialist or Specialists for WPI assessment of each claimed Injury.
4.That the reports of Dr Guirgis dated 4 February 2007 and 18 August 2006 are not to go to the Approved Medical Specialist or Specialists, as they are no longer relied on by the Applicant.
5.That the report of Dr Bencsik dated 14 May 2007 is now relied on by the Applicant and is to go to the Approved Medical Specialist or Specialists, and that leave is granted pursuant to the Rules to the Applicant to amend the claimed date of injury in the ARD to 21 March 2007, and to amend the claim for Whole Person Impairment in accordance with Dr Bencsik’s assessments.
6.That the Respondent is given leave pursuant to the Rules to amend the Reply to dispute quantum and to lodge an amended Reply by 27 March 2008, which is to go to the Approved Medical Specialist or Specialists.”
ON THE PAPERS REVIEW
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.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, 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 REVIEW
The nature of a review by a Presidential member was succinctly summarised by Spigelman CJ in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where he said (at [28] and [30]) as follows:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State, which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
These principles I have borne in mind in determining this appeal.
LEAVE TO APPEAL
Before proceeding to deal with an 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).
Monetary Threshold
Section 352 of the 1998 Act, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:
“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.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(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. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.
Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (Emphasis added)
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least “20% of the amount awarded in the decision appealed against”. In Grimson v Integral Energy [2003] NSWWCCPD 29 Deputy President Fleming said:
“30. The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
No compensation has been awarded in this matter. The amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. In this case, Mr Khanafer has claimed $14,000 in respect of 11% WPI and $12,500 for pain and suffering. Thus the quantum “at issue” on appeal satisfies the requirements of section 352(2) of the 1998 Act.
Time
The appeal was filed within the time prescribed by section 352(4).
Interlocutory orders
The only question then remaining is whether the Arbitrators determination is ‘final’ or’ interlocutory’ in nature.
The amendments to section 352 included an amendment to subsection (8) to exclude from the definition of “decision” orders of an interlocutory nature. These amendments commenced on 1 November 2006.
The issue as to the retrospective nature of these amendments is not relevant to the present case since Mr Khanafer made a claim on or about 21 March 2007.
What constitutes an’ interlocutory’ order was considered in detail by Deputy President Roche in P&O Ports Limited v Hawkins [2007] NSWWCCPD 87 (Hawkins).
In that case, the Arbitrator’s determination involved a finding as to a deemed date of injury and orders relating to certain medical reports. On appeal, Deputy President Roche held that such orders were interlocutory, and leave to appeal was refused.
Deputy President Roche looked at a number of authorities dealing with the difficulty and uncertainty in the distinction between ‘final’ and ‘interlocutory’ orders. More importantly, he noted the difficulty in determining what is ‘interlocutory’ in proceedings in the Commission because [37]:
“… unlike common law courts assessing claims for damages, the Commission does not assess compensation on a ‘once and for all basis’. For the reasons set out below, care should be taken before automatically adopting common law authorities on the meaning of the term ‘interlocutory’ to the term “preliminary or interim orders...of an interlocutory nature” in clause 200B of the 2003 Regulation.”
As he then pointed out:
“the Commission is a statutory tribunal and has only those powers conferred on it by the Workers Compensation Acts (the 1987 Act and the 1998 Act). Its objectives are set out in section 367 of the 1998 Act which states:
‘367 Objectives of Commission
(1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f) to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2) In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.’ (emphasis added)”
These objectives would be “seriously frustrated” if an “unduly restrictive” interpretation was given to the wording of clause 200B of the 2003 Regulation.
Deputy President Roche then considered the Commission’s specific jurisdiction noting that:
“workers’ rights under the Workers Compensation Acts are ongoing and are subject to review under section 55 of the 1987 Act or reconsideration under section 350(3) of the 1998 Act. In this respect there is rarely an order (at least where the worker succeeds with his or her claim) by the Commission that ‘finally disposes of the rights of the parties’ in the sense that a common law verdict does. For example, further medical treatment may be required, or the worker’s condition may deteriorate requiring the entitlement to compensation to be reviewed and reassessed”.
Difficulties also arise because of the limited jurisdiction of the Commission to award lump sum compensation where there is a dispute. Such a dispute must be referred by an Arbitrator to an AMS. This will of necessity require the Arbitrator to determine issues such as ‘injury’ or ‘worker’ for example, before any referral can be made. The effect of such a determination is set out in section 350(1) of the 1998 Act which provides:
“350
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.”
As Deputy President Roche pointed out:
“…such a decision clearly disposes of the parties’ rights and the findings made in such decisions or determinations do not become any less ‘final’ because of the unique statutory provisions under which the Commission operates.”
Ultimately he concluded:
“(j)…in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase “preliminary or interim orders...of an interlocutory nature” to matters that are genuinely preliminary, provisional or interim in nature, and
(k) given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted”.
Since he concluded that the orders made were of an interlocutory nature, leave to appeal was refused.
In the present case, the orders made by the Arbitrator cannot be said to have “finally disposed” of the rights of the parties, such that I must conclude that they are of an interlocutory nature only.
Similar facts were considered by Deputy President Roche in Waverley Council v Sheen [2007] NSWWCCPD 127. In that case, the Arbitrator had made similar orders as in the present case, that is, orders relating to dates of injury and referral to an AMS. On appeal, Deputy President Roche concluded, so far as the referral to an AMS was concerned, that such orders did not finally dispose of the parties’ rights and were thus interlocutory. As to orders relating to findings as to dates of injury, he said [24]:
“…that finding does not determine any rights. It merely sets a reference date by which Mr Sheen’s rights are to be assessed and determined.”
The result of my findings means that the Arbitrator’s orders must stand. That does not mean that Mr Khanafer is prevented from appealing any subsequent determinations.
Again, as Deputy President Roche said in Hawkins (at [46] and [47]):
“46.The fact that leave to appeal is refused does not mean the Appellant Employer is prevented from appealing any Certificate of Determination that may be issued after the MAC is issued. Such further certificate will not be a preliminary ruling of an interlocutory nature and, if the interlocutory order or determination was a “step in the procedure leading up to final judgment” (Crowley v Glissan [1905] HCA 13; (1905) 2 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal the Commission’s ultimate Certificate of Determination will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 82, Ramton v Cassin (1995) 38 NSWLR 88 and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543 at 549). In that event the Appellant Employer will be entitled to challenge all steps in the procedure that have resulted in the ultimate determination.
47.The above situation (whilst most unsatisfactory) is unavoidable, even with the restricted meaning of “preliminary or interim...determination of an interlocutory nature” as detailed above in paragraph [37(k)]. If the Appellant Employer succeeds in a subsequent section 352 appeal (after the MAC is issued) that will result in the Respondent Worker having to attend a second AMS examination. If at all possible, that should be avoided as it is contrary to the objectives of the Commission as set out in section 367(1) of the 1998 Act and will result in further delay and unnecessary costs being incurred”.
Deputy President Roche then recommended that the referral to an AMS be amended to request the AMS to assess Mr Hawkins’ losses on the basis of, in effect, ‘alternate’ dates of injury.
I would similarly strongly recommend in this case, in order to comply with the Commission’s objectives particularly as to costs, that any AMS be asked to assess Mr Khanafer’s losses on the basis of firstly, one ‘injurious’ event, namely the ‘nature and conditions’ of employment resulting in two impairments or losses (the arm and the cervical spine) and secondly, on the basis as presently determined by the Arbitrator, that is, two separate injuries.
DECISION
Leave to appeal is refused.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
8 August 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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