Lambropoulos v Qantas Airways Limited
[2019] NSWWCCPD 17
•3 May 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Lambropoulos v Qantas Airways Limited [2019] NSWWCCPD 17 | |
| APPELLANT: | George Lambropoulos | |
| RESPONDENT: | Qantas Airways Limited | |
| INSURER: | Self-insured | |
| FILE NUMBER: | A1-4132/18 | |
| ARBITRATOR: | Mr G Egan | |
| DATE OF ARBITRATOR’S DECISION: | 2 November 2018 | |
| DATE OF APPEAL DECISION: | 3 May 2019 | |
| SUBJECT MATTER OF DECISION: | Admission of additional documents – CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied; monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; application of Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25, Anderson v Secretary, Department of Education [2018] NSWWCCPD 32 | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | HWL Ebsworth | |
ORDERS MADE ON APPEAL: | 1. The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied, and there is no right of appeal. | |
INTRODUCTION AND BACKGROUND
Mr George Lambropoulos (the appellant) was employed by Qantas Airways Limited (the respondent) as a Ramp Officer, and was required to load cargo and luggage onto and off planes.
The appellant was injured on 3 July 2010 when he was pulling trailers with a “tug” vehicle, which was struck from behind by another large vehicle. The appellant’s vehicle was stationary at the time, as he was giving way to a plane. Liability for injury to the cervical and thoracic spines was ultimately accepted by the respondent, as well as liability for gastrointestinal symptoms that arose as a consequence of the ingestion of medication taken in respect of the accepted injuries.
In these proceedings, the appellant applied for an assessment by an Approved Medical Specialist (AMS) in order to be assessed for the purposes of ascertaining whether he suffered from a whole person impairment of greater than 20%, which would entitle him to claim continuing weekly payments beyond the first 260 weeks of weekly compensation, pursuant to s 39 of the Workers Compensation Act 1987 (the 1987 Act).
The injury was described in Part 4 of the Application for Assessment by an Approved Medical Specialist (the Application), and included whiplash injury, injury to the cervical spine, thoracic spine, right shoulder, right arm, right hand, left shoulder, left arm, left hand and gastro-intestinal tract.
The respondent disputed liability for the left and right shoulders and any consequential condition in respect of the appellant’s reproductive organs.
The matter proceeded to arbitration on 30 October 2018, at which time the appellant was represented by counsel and an instructing solicitor.
At the arbitration, the appellant applied to have a bundle of documents admitted under cover of an Application to Admit Late Documents dated 24 October 2018 (the AALD). The Arbitrator declined to admit the documents, except for a clinical note from Immex Green Square Medical Centre, which contained a clinical attendance note dated 3 July 2010.
The Arbitrator determined that he was not satisfied the appellant had suffered injury to either shoulder, and remitted the cervical spine, thoracic spine, digestive system and reproductive system to the Registrar for referral to an AMS for assessment. The Arbitrator excluded from the referral the documents contained in the AALD he had declined to admit in the arbitration.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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 indicate that the matter can be dealt with “on the papers” and an oral hearing is not required.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and this is the appropriate course in the circumstances.
THRESHOLD MATTERS
The appeal is brought pursuant to s 352(1) of the 1998 Act.
There is no dispute between the parties that the appeal was filed within the time prescribed by s 352(4) of the 1998 Act.
Section 352(3) provides:
“There is no appeal under this section 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.”
In the appeal application, the appellant did not indicate or make submissions as to whether the appeal met the requirements of s 352(3). The respondent asserted at [3] of its submissions that the amount of compensation at issue on the appeal was at least $5,000 and at least 20% of the amount awarded.
There was no amount awarded by the Arbitrator in his Certificate of Determination dated 2 November 2018, as the application was for an assessment as to whether the appellant’s degree of permanent impairment was greater than 20% for the purpose of s 39 of the 1987 Act (continuation of weekly payments after the first 260 weeks).
As neither party made submissions about the requirement to satisfy subss 352(3)(a) and 352(3)(b), on 9 April 2019, I issued a Direction that they each do so. I also directed the attention of the parties to the decision of Deputy President Snell in Abu-Ali v Martin-Brower Australia Pty Ltd[1] and to my decision in Anderson v Secretary, Department of Education.[2]
[1] [2017] NSWWCCPD 25 (Abu-Ali).
[2] [2018] NSWWCCPD 32 (Anderson).
The respondent’s threshold submissions
The respondent lodged submissions in response to the Direction on 15 April 2019.
The respondent submitted that the authorities of Abu-Ali and Anderson are directly on point with this appeal. It says that it follows that the appellant in the present matter has no right of appeal because the threshold required by s 352(3) of the 1998 Act is not satisfied.
For the assistance of the Commission and for completeness, the respondent observes that other proceedings (matter number 4401/18) were lodged in the Commission claiming future medical expenses totalling $107,600. The respondent contends that the claim was not particularised as to what components of the treatment related to the shoulder (which is the subject of this appeal) and in any event, those proceedings were discontinued during the conciliation and arbitration of this matter.
The respondent referred to no additional authorities.
The appellant’s threshold submissions
The appellant submits that the respondent was correct in its original submissions that the amount of compensation at issue is likely to be both at least $5,000 and at least 20% of the decision appealed against, pursuant to s 352(3) of the 1998 Act.
The appellant seeks leave pursuant to s 352(6) of the 1998 Act to adduce “fresh evidence”. The bases for the granting of leave are:
(a) the failure to grant leave would cause substantial injustice;
(b) the evidence could not be made available to the party previously because it was dependent upon establishing liability in these proceedings, and
(c) proceedings for a compensable sum had been commenced in the Commission (the 2018 claim), but were “put on hold” on the basis of advice from the appellant’s former legal representatives pending the outcome of the decision of the Arbitrator in these proceedings.
The appellant advises that there were also proceedings commenced and discontinued in 2017 (the 2017 claim), which specifically related to the shoulders, and were identical to the claim brought in 2018.
The appellant observes that the form provided by the Commission (Form 7) in respect of an Application for Assessment by an Approved Medical Specialist does not have provision for a statement as to potential entitlements to compensation.
The appellant submits that, although there was no amount of compensation in issue in the proceedings, that is not to say that a monetary claim would not be the subject of a claim made following the outcome of these proceedings. He contends that it is essential that the treatment costs sought in the 2017 claim is included in this claim, that it clearly satisfies the threshold, and includes future treatment expenses.
The appellant describes expenses related to past and upcoming MRI scans of the shoulders, and advises that he also claims the costs of treatment to his shoulders provided gratuitously by an exercise physiologist [de-identified at the request of the appellant]. The appellant further itemises expenses related to attendances on Dr Vijay Maniam, orthopaedic surgeon, physiotherapy costs and costs associated with appealing the respondent’s decision to dispute liability.
The appellant submits that there should be no surprise to the respondent in respect of these claims, as the majority of the costs were served on the respondent on 4 December 2017 in the 2017 claim.
The appellant refers to and quotes Mawson v Fletchers International Exports Pty Ltd,[3] as authority for the proposition that where there is no monetary compensation awarded, s 352(3)(b) of the 1998 Act does not apply and it is not necessary to establish that at least 20% of the amount awarded is in issue.
[3] [2002] NSWWCCPD 5.
The documents sought to be tendered
The appellant attached a schedule of estimated future treatment expenses, which comprised of costs of treatment to be provided by:
(a) a dietician;
(b) a personal trainer;
(c) an exercise physiologist, and
(d) physiotherapy.
The cost of gym membership and hydrotherapy were also included in the schedule. The total amount claimed was $107,600.
It appears this document was attached to the ARD filed in the 2018 matter which was discontinued.
A further schedule of estimated future treatment expenses totalling $38,500 was attached to the appellant’s submissions. Apparently, that schedule was filed in the 2017 proceedings. It claimed MRI investigations every two years, eight physiotherapy sessions per year (expressed to be treatment for the shoulders), specialist’s visits, pain medication and “gel rub” ointment.
The appellant also sought to have admitted three pages of the ARD filed in the 2017 claim, which included the front page of the ARD and identified that the claim was in respect of treatment expenses. The remaining two pages listed the supporting documentation relied on in the proceedings. The pages of the ARD were accompanied by a Certificate of Service, signed by the appellant and dated 4 December 2017.
The appellant also included a document titled “Enhanced Primary Care Program” completed by Dr Peter Voutos, general practitioner on 19 March 2019, which was a referral form, requesting the cost of four sessions of physiotherapy to be funded by Medicare. The Enhanced Primary Care Program was accompanied by a general practitioner Management Plan completed by Dr Peter Voutos, also dated 19 March 2019. That document recorded a past history of spinal disc herniation degeneration, bilateral shoulder tendon tears and chronic pain. The recorded current treatment plan was pain management for chronic spinal pain and shoulder pain, and proposed further treatment was physiotherapy.
A short statement dated 21 April 2019 from the exercise physiologist was also attached to the submissions. She stated that she was an exercise physiologist, that she provided the appellant with rehabilitation exercises for one hour per week, the treatment was reasonably necessary and appropriate treatment to assist with the appellant’s chronic pain.
On 29 April 2019, after the time for lodging submissions had expired, the appellant filed an addendum to his submissions, claiming an additional $1,360 in respect of past treatment expenses for the cost of “gel rub” for his shoulders.
Discussion and consideration
Admission of the additional documents
The admission of additional evidence is governed by s 352(6) of the 1998 Act. It provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The Court of Appeal considered the Commission’s power to admit late evidence on appeal in Northern New South Wales Local Health Network v Heggie,[4] in which Basten JA said that:
“the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.”[5]
[4] [2013] NSWCA 255;12 DDCR 95 (Heggie).
[5] Heggie, [66].
Justice Barrett further considered the Commission’s power to admit additional evidence on appeal in CHEP Australia v Strickland,[6] where his Honour observed:
“The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[7]
[6] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
[7] Strickland, [31].
The extracted pages from the ARD filed in the 2017 claim do not constitute “evidence”, but are an attempt by the appellant to place an amount in issue between the parties for the purpose of satisfying the monetary threshold requirement. If, by filing the documents, the appellant is seeking to amend his claim to include a monetary amount, then such an amendment is not permissible in an appeal. Section 352(1) of the 1998 Act provides for an appeal to a Presidential member from a decision of an arbitrator. Section 352(8) of the 1998 Act provides that a “decision” includes an award, interim award, order, determination, ruling and direction.
The amount of compensation at issue on the appeal must be determined by reference to the amount at issue in the proceedings at first instance.[8] The decision of the Arbitrator in this case is the decision issued on 2 November 2018, in respect of proceedings in which no monetary amount was claimed. The parties did not argue, and the Arbitrator did not consider, such a claim.
[8] Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, [16].
The general purpose and policy of the provision is to require a certain monetary threshold to be met, that is, there is “an amount in issue”. The provision restricts the right of appeal in a number of circumstances. The requirement is not a simple formality or technicality and its application does not offend the principles and objectives of the Commission set out in subss 354(1) and 354(3) of the 1998 Act.[9]
[9] Anderson, [55].
Admission of the documents is clearly not for the purposes of establishing that the Arbitrator’s decision was erroneous. The appellant’s submissions as to why those documents should be admitted point to the alleged substantial injustice that would arise if his appeal does not satisfy the monetary threshold to appeal.
Even if those documents are sought to be relied on in order to establish liability on the part of the respondent, they are of no probative value and would not change the outcome. None of them go to proving a causal connection between the shoulder conditions and the appellant’s injury.
In his reasons, the Arbitrator concluded that while there was pathology present on the MRI scans taken in 2014 and 2017, that pathology was more likely to be coincidental. He expressed the following reasons:
“The pathology unearthed by the 2014 and 2017 MRI scans is in the background circumstances of this case, more probably merely coincidental. The fact that the applicant had, over four years after the injury, degenerative changes within the shoulder, is no evidence of the cause of those degenerative changes. In the presence of continued presentation and examination, and the absence of any particular complaint of the restriction of shoulder movement or any particular shoulder symptoms, I am not satisfied the applicant has discharged his onus to establish the relevant causal connection. Further, the pathology reported in 2017 is different and more specific to that in 2014.”[10]
[10] George Lambropoulos v Qantas Airways Limited (4132/18, 2 November 2018), [139].
The documents the appellant seeks to tender on the appeal could not possibly change the outcome of these proceedings, and no substantial injustice arises by excluding them.
On that basis, the documents are not admissible.
For all of the above reasons, the documents are not admitted.
The monetary threshold
The claim before the Commission concerns a request for determination of a dispute in respect of the thresholds required in order to be entitled to make a claim pursuant to s 39 of the 1987 Act. The appellant’s case is on all fours with the decision of Deputy President Snell in Abu-Ali, and my decision in Anderson.
In Abu-Ali, Mr Abu-Ali submitted that, although there was no compensation claimed before the Arbitrator, and none was directly in issue on appeal, the relevant threshold was satisfied because of the consequences of the order sought. If the order for referral to an AMS was to be made, and an AMS then assessed permanent impairment at greater than 20 or 30 per cent, Mr Abu-Ali would potentially be entitled to further compensation, such as weekly payments and medical expenses.
The Deputy President considered a long line of Presidential authorities on point. He concluded that:
“The orders sought by the appellant on the appeal are revocation of the Certificate of Determination dated 5 December 2016, and referral to an AMS ‘to assess WPI attributable to his secondary psychological condition for the purposes of s 32A’. If that assessment exceeded 20 per cent or 30 per cent, this would potentially increase the appellant’s entitlement to benefits under the Workers Compensation Acts, if he was otherwise entitled. There was no amount of compensation claimed before the Arbitrator, and there is no amount of compensation directly at issue on the appeal. If the appeal were to succeed, there would be no orders for the payment of compensation. In my view the threshold is not met. In the circumstances, no appeal lies pursuant to s 352, due to the application of s 352(3) of the 1998 Act.”[11]
[11] Abu-Ali, [22].
In Anderson, Ms Anderson pleaded that she sought the AMS assessment for the purposes of potential claims pursuant to ss 39 and 60AA of the 1987 Act. No particulars of a weekly payment claim or the claim pursuant to s 60AA were provided in the Application. I made the following observations:
“There is no ‘amount of compensation’ claimed in these proceedings. The matter proceeded to arbitration as there were issues as to injury and consequential conditions, and there was an argument as to whether the losses from those injuries and conditions could be aggregated. If they could be aggregated, the assessment could potentially qualify Ms Anderson for entitlements to domestic assistance pursuant to s 60AA of the 1987 Act and/or ongoing weekly payments pursuant to s 39 of the 1987 Act.
Contrary to Ms Anderson’s submissions, the matters listed by the Arbitrator as in dispute are not ‘issues concerning claims for compensation’, they are issues as to liability for which an entitlement may at some subsequent stage crystalise and may or may not eventuate as an amount of compensation. Such an eventuality does not constitute a ‘real capacity’ to put an amount in issue in this appeal [Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7, at [27]].
Ms Anderson cannot bring a claim for domestic assistance pursuant to s 60AA until she has satisfied the necessary 15% WPI threshold and the assistance is in accordance with a care plan established by the insurer. There is no care plan in evidence. Although the Commission now has jurisdiction to determine a claim for domestic assistance, a claim for compensation cannot be brought in the absence of a care plan.
Section 39 provides for the continuation of payments beyond the first 260 weeks if the worker satisfies the greater than 20% WPI threshold, however the worker’s entitlements are subject to the requirements of s 38 of the 1987 Act. Putting aside the question of the Commission’s jurisdiction to determine such a claim, there are no particulars provided that go to the matters that need to be satisfied under s 38. It is abundantly clear that no such claim is before the Commission.”[12]
[12] Anderson, [80]–[83].
The appellant has not asserted that these two authorities can be distinguished, and I cannot see how they are any different to this case. It is appropriate to apply the ratio decidendi in Abu-Ali and Anderson to this appeal.
No amount of monetary compensation was claimed in these proceedings. I am not satisfied that the appellant has met the monetary threshold pursuant to s 352(3)(a) of the 1998 Act and consequently, the appeal cannot be brought.
DECISION
The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied, and there is no right of appeal.
Elizabeth Wood
DEPUTY PRESIDENT
3 May 2019
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