Lewis v SJ Thompson and LV Thompson trading as Carnes Hill Chemworld Chemist
[2006] NSWWCCPD 146
•11 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Lewis v SJ Thompson and LV Thompson t/as Carnes Hill Chemworld Chemist [2006] NSWWCCPD 146
APPELLANT: Alice Lewis
RESPONDENT: Steven James Thompson and Louise Veronica Thompson t/as Carnes Hill Chemworld Chemist
INSURER:Guild Insurance Ltd
FILE NUMBER: WCC3201-05
DATE OF ARBITRATOR’S DECISION: 1 September 2005
DATE OF APPEAL DECISION: 11 July 2006
SUBJECT MATTER OF DECISION: Sections 327 and 352 of the Workplace Injury Management and Workers Compensation Act 1998; Appeal to Medical Appeal Panel.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Gerald Malouf and Partners
Respondent: Leigh Virtue and Associates
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order as to costs.
BACKGROUND TO THE APPEAL
Ms Alice Lewis filed an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission on 2 March 2005. She sought lump sum compensation for permanent impairment and the payment of reasonably necessary medical expenses arising out of an injury on 5 March 2002 when she was working as a Pharmacy Assistant for Steven James Thompson and Louise Veronica Thompson t/as Carnes Hill Chemworld Chemist.
Ms Lewis now seeks leave to appeal against the decision of a Workers Compensation Commission Arbitrator, dated 1 September 2005, which is as follows:
“(1)That, having not particularised her claim under section 60 of the Workers Compensation Act 1987, the Applicant’s claim is determined to be a nullity and such claim is struck out pursuant to Rule 6(4) of the Workers Compensation Commission Rules 2003.
(2)That, in accordance with the Medical Assessment Certificate of Dr Thomas Silva, there is an award in favour of the Respondent in respect of the Applicant’s claim for compensation for permanent impairment under section 66 of the Workers Compensation Act 1987.
(3) No order is made as to costs.”
The Respondent to the Appeal is Steven James Thompson and Louise Veronica Thompson t/as Carnes Hill Chemworld Chemist (‘the Employer’). Although the Respondent was only named in documentation filed in the Commission as “Carnes Hill Chemworld”, correspondence from the Respondent’s solicitor dated 10 July 2006 confirmed that the legal entity is Steven James Thompson and Louise Veronica Thompson t/as Carnes Hill Chemworld Chemist. Guild Insurance Ltd is the Employer’s workers compensation insurer and it was legally represented to act for and on behalf of the Employer in the Commission proceedings.
Ms Lewis was legally represented, before the Arbitrator and on appeal, by Gerald Malouf and Partners. Ms Lewis submits that the Arbitrator should not have proceeded to make the above determination, on the basis that she intended to appeal against the issue of a Medical Assessment Certificate (‘MAC’). She now purports to appeal against the decision of the Arbitrator to refuse “to allow an extension of time to lodge the Application to Appeal the Approved Medical Specialist”. It will be seen from the discussion below that this is clearly not the decision that the Arbitrator made, nor had the power to make.
The Employer argues that leave to appeal should be refused and, alternatively, that the decision of the Arbitrator should be confirmed.
ON THE PAPERS REVIEW
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.”
Ms Lewis submits that the matter can be decided on the papers. The Employer objects to proceeding on the papers. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which 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.
(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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
Ms Lewis’ legal representatives filed an ‘Application to Appeal Against Decision of an Arbitrator’ in relation to the decision of 1 September 2005, four times, as follows:
(1)Filed on 13 September 2005 and rejected for non-compliance with Rule 77(3)(b) because of a failure to attach submissions as to the threshold issues for the grant of leave to appeal and on the amount of compensation at issue in the appeal.
(2)Filed 19 September 2005 and rejected for the same reasons as in (1) above.
(3)Filed 26 September 2005 and rejected for the same reasons as in (1) above.
(4)Filed 28 September 2005 and registered by the Registrar.
The Employer submits that leave to appeal should not be granted as it is out of time. However, the appeal was, on the fourth attempt, filed on the 28th day after the making of the decision and is therefore within time.
The Employer also submits that the no amount of compensation is at issue in the appeal. Given the way in which the appeal has been argued I accept that there is some force in this submission. Ms Lewis has argued her appeal based upon an alleged failure by the Arbitrator to grant leave to appeal against a MAC. For the reasons set out below it can be seen that this is misguided. However, the amount of compensation at issue as a result of the Arbitrator’s decision meets the threshold requirements of section 352(2); see Ian John Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSWWCCPD 4.
Leave to Appeal is granted.
CONSIDERATION OF THE ISSUES IN DISPUTE
In her ‘Application to Resolve a Dispute’ (‘the Application’), filed 2 March 2005, Ms Lewis sought an order for lump sum compensation of $10,000 and medical, hospital and related expenses, which were not particularised but were noted as “$TBA”. There was no evidence of these latter expenses attached to the Application.
The Employer filed a Reply and attached medical reports on 22 March 2005.
Ms Lewis filed an ‘Application to Admit Late Documents’, being the medical report of Dr Soni, on 11 April 2005.
A telephone conference was held before an Arbitrator on 13 May 2005. Directions were issued in relation to the filing of further evidence by both parties. Ms Lewis was also directed to respond to the Employer’s request for further particulars of the claim.
During March 2005 ‘Directions for Production’ of documents were issued at the request of both parties.
Ms Lewis was directed to file and serve a report of Dr Bryant by 20 May 2005. This was filed in the Commission on 23 May 2005.
On 13 May 2005 the Arbitrator referred the ‘medical dispute’ to an Approved Medical Specialist (‘AMS’) for the assessment of permanent impairment. The AMS gave a medical assessment of the matters referred, in the form of a MAC, on 15 July 2005. The MAC was sent to the parties under cover of a letter from the Commission, dated 19 July 2005, which advised of the status of the MAC and, importantly, stated that:
“A party to a medical dispute may appeal against a medical assessment on specified grounds (s327, Workplace Injury Management and Workers Compensation Act 1998).”
The letter also advised that the matter was listed for a further telephone conference on 30 August 2005.
I have before me the transcript of (what appears to be) part of the telephone conference of 30 August 2005. The Arbitrator stated “[w]e are dealing with the issue of whether or not the matter should be allowed to continue to appeal”. The legal representatives of the parties then made submissions. Ms Lewis’ legal representative submitted that:
“…finalising the matter will prejudice the applicant in that she will not be able to lodge an appeal after a determination is made on the matter…I think it is contrary to the spirit of the legislation. I think you have the discretion not to do so, and I think, under the circumstances, it is not an unreasonable request.”
The Employer’s legal representative submitted that:
“…this matter is the subject of a binding certificate with a zero assessment. The certificate hasn’t been appealed. It’s seven weeks since the certificate was issued. In those circumstances, the matter being listed today and there having been ample opportunity for the matter to have been appealed, the appropriate course is to deal with the claim pursuant to section 66 by dismissing that claim and entering an award in favour of the respondent.
In terms of the section 60 claim, it’s not properly claimed or particularised. The appropriate course would simply be to strike that out under rule 6.”
The Arbitrator gave brief reasons for proceeding to determine the matter on that day (30 August 2005) as follows:
“…[T]here has been ample opportunity for the applicant to instruct her solicitor to appeal the medical assessment. The fact that the matter is now out of time it’s less likely that an appeal would be accepted. I have not been apprised of the reasons for appeal, so I cannot otherwise judge the merits of the matter.
The matter has come today for determination. In terms of the section 60 expenses, again, there’s been ample opportunity to claim the outstanding physiotherapy accounts.
I note the submission of the applicant that there may be prejudice for the applicant should I determine the matter today in terms of whether or not she can succeed in her medical appeal being made out of time. I’m not convinced of that, and I therefore accordingly make an award in terms of the respondent (sic) for the claim under section 66 for permanent impairment in accordance with the medical assessment certificate…”
There is one matter that is clear and on which I agree entirely with the Employer’s submissions. An Arbitrator has no power to extend time for the lodgement of a MAC. The 1998 Act applies to the making of an appeal against a MAC, 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.”
It is a matter for the Registrar to determine whether a ground of appeal against a MAC exists and whether or not time should be extended where the appeal is not made within 28 days. There were no submissions recorded in the transcript of 30 August 2005 as to which of the grounds of appeal against the MAC were to be relied upon. At the time of the telephone conference on 30 August 2005 the parties had been in receipt of the MAC since about 22 June 2005 (19 July 2005 postage and four days for receipt). This is about seven weeks. There is no submission recorded before the Arbitrator as to why an appeal against the MAC had not been made in this time. Nor is there any submission before me on appeal addressing this issue.
Ms Lewis’ solicitor’s submissions on appeal are misguided in that she claims the Arbitrator “refused leave to lodge the appeal” and further that “…it was within the Arbitrator’s powers to allow an extension of time to lodge the Application to Appeal the AMS”. This is clearly incorrect because, as stated above, it is for the Registrar to determine time in relation to an appeal against a MAC. She then sets out reasons why the Arbitrator should have “allowed such an appeal”. These factors are not relevant to the Arbitrator extending time because he had no power to do so. They are relevant to the exercise of the Arbitrator’s discretion whether to proceed to determine the dispute before him, as he did on that day. To this end, and trying to make some sense of the submissions, I set out parts of the submissions and my views on them as follows:
·“there was no gross delay” in lodging the appeal against the MAC. The Commission advised of the right of appeal on 19 July 2005. A delay of nearly seven weeks is, in my view, a “gross delay” given that the statutory appeal period is 28 days and that the proceedings in the Commission should be expeditious.
·“there is no prejudice to the Respondent” in allowing the appeal against the MAC. Clearly there was prejudice to the Respondent if the dispute was not promptly determined by the Arbitrator. It has a MAC that is “conclusively presumed to be correct” and is consistent with its position in the dispute.
·“to disallow the lodgement” of an Appeal against the MAC would be “contrary to the spirit of the legislation and a denial of natural justice”. The Arbitrator’s determination of the dispute was consistent, not contrary, to the spirit of the legislation, which aims for timely and expeditious review. It is misguided for a legal representative to posit that there is a denial of natural justice and this ground clearly has no merit. The parties were all well aware of the case against them, were in full possession of all of the documents, had adequate time to address them and at no stage made any suggestion of bias.
In my view, the Arbitrator’s statement, “I’m not convinced of that” (see paragraph 22) does not meet the standard of ‘adequate’ reasons for the Arbitrator’s decision to proceed to determine the dispute. The Arbitrator should have taken into account the matters set out above when deciding whether to proceed to determine the dispute. If he did, his reasons do not disclose it. There can be no doubt that Ms Lewis was prejudiced by his decision not to delay the determination of the dispute. I note that Ms Lewis has since lodged two appeals against the MAC, on 19 September 2005 and 28 September 2005 (in the same terms), both of which have been rejected by the Registrar.
The prejudice to Ms Lewis is only one of the factors relevant to the Arbitrator’s decision to determine the dispute. Delays and the reasons for them, the conduct of the parties and their legal advisors, the potential prejudice to either party, the nature of the Arbitrator’s decision within the statutory dispute resolution framework of the Commission and, ultimately, the issue of ‘substantial justice’ as between the parties, were all relevant to the decision to determine the matter without delay. In my view, taking all of these matters into account, the Arbitrator’s decision to do so was correct. It is not clear whether the delays by Ms Lewis in this matter were attributable to her personally or her legal advisers. There have been no submissions on this point, however Ms Lewis was legally represented throughout the proceedings and it was incumbent upon her legal adviser to pursue her rights within statutory timeframes. It is relevant to the issue of ‘substantial justice’ that the Arbitrator noted the opinion of the AMS was consistent with the weight of the medical evidence before him. In all the circumstances the Arbitrator’s decision to proceed to determine the dispute was fair and lawful, albeit the reasons were inadequate (YG & GG v Minister for Community Services [2002] NSWCA 247 (26 July 2002); Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
As to the substantive issues in dispute, the transcript of 30 August 2005 records that Ms Lewis’ legal representative was asked to address the dispute about Ms Lewis’ medical expenses (section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). She advised that she “did not have particulars at present” and stated that she had “not had the opportunity to review” the receipts that Ms Lewis herself indicated were outstanding for physiotherapy. This is an extraordinary position for a legal representative running a matter in the Commission to maintain. The Workers Compensation Commission Rules 2003 (‘the Rules’) require parties to file all relevant evidence at the time of lodgement of the Application and the Reply. This is consistent with the Commission’s statutory objective to provide a dispute resolution process that is fair, informal and timely. The nature of proceedings in the Commission is based upon early and full disclosure of the evidence and the issues. This is supported by the Commission’s Practice Directions and the guideline known as the ‘Practice of the Conciliation and Arbitration Process in the Commission’. The Arbitrator found that:
“…as the Applicant has not provided particulars of her claim for medical expenses under section 60 that her claim for medical expenses is a nullity, and I strike that claim out under Rule 6.”
Section 60 of the 1987 Act provides for the reimbursement of medical expenses. Where an Arbitrator is satisfied that liability exists, it is open to him or her to make a general order as to future expenses, upon presentation of accounts to the Employer. However, where an Applicant lodges a dispute over section 60 expenses in the Commission that dispute must be particularised. Not all section 60 accounts will be available when the dispute is on foot in the Commission and the need for ongoing treatment may indicate an appropriate general order. However, it is not acceptable to simply make a broad and generalised section 60 claim and fail to provide any particulars of that claim as late as six months after an application is filed in the Commission. The Arbitrator did not err in the decision in this case, where Ms Lewis had a particular claim in relation to past physiotherapy treatment. He rightly pointed out that Ms Lewis had “ample opportunity to claim the outstanding physiotherapy accounts”. It would have been open to the Arbitrator simply to dismiss Ms Lewis’ claim for section 60 expenses. This would have prevented her from making the same claim in future. Ultimately the order to strike out the claim leaves Ms Lewis an opportunity to re-file an application in the Commission in relation to it, when the appropriate evidence is to hand; see Morgan v Hacken Pty Ltd [2004] NSWWCCPD 83.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
Ms Lewis has been unsuccessful on the appeal. The Employer seeks an order for costs.
The Commission has a broad discretion to determine by whom, to whom and to what extent costs are to be paid in the Commission (section 341 of the 1998 Act). In relation to appeals that broad discretion is qualified by section 345 of the 1998 Act which provides relevantly, in part, as follows:
“345 (1) On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a) if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal,”
In my view the arguments made on Ms Lewis’ behalf on appeal were misguided and unmeritorious. However, Ms Lewis’ ‘claim’ is not frivolous, vexatious, fraudulent or made without proper justification (section 341 of the 1998 Act). In the circumstances the appropriate order is ‘No order as to costs’.
Dr Gabriel Fleming
Deputy President
11 July 2006
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.
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