Mahal v State of New South Wales - [2017] NSWWCCPD 41

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Mahal v State of New South Wales [2017] NSWWCCPD 41
APPELLANT:	Inderjit Mahal
RESPONDENT:	State of New South Wales
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-2135/16
DECISION MAKERS:	Mr P McAdam; Mr R Parsons
DATE OF DECISIONS:	30 November 2016; 5 January 2017
DATE OF APPEAL DECISION:	11 September 2017
SUBJECT MATTER OF DECISION:	Purported appeal under cl 125 of the Workers Compensation Regulation 2016; threshold requirements; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; dismissal of proceedings; s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Self-represented
Respondent:	SMK Lawyers
ORDERS MADE ON APPEAL:	1. The appeal is misconceived and is dismissed pursuant to s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998.

INTRODUCTION AND ISSUES IN DISPUTE

On 28 April 2016, the appellant filed an Application to Resolve a Dispute in the Commission. Subsequently an Amended Application was filed.
On 31 August 2016, an Arbitrator issued a Certificate of Determination - Consent Orders. The claims for weekly payments of compensation and medical expenses were discontinued. An Award for the respondent in relation to injury to the arms was made. The Consent Orders noted injury to the right leg. The matter was referred to an Approved Medical Specialist (AMS) for assessment of the back, neck and both legs.
On 16 September 2016, Dr Marsh, acting as an AMS, issued a Medical Assessment Certificate (MAC). He issued assessments in accordance with the Table of Disabilities for injuries received before 1 January 2002 and in accordance with AMA 5 in the New South Wales Workers Compensation Guidelines for Evaluation of Permanent Impairment for Injuries received after 1 January 2002.
On 30 September 2016, the appellant lodged an application to appeal the decision of the AMS. The grounds of appeal nominated were:
“The assessment was made on the basis of incorrect criteria.”
“The Medical Assessment Certificate contains a demonstrable error.”
The submissions in support of the challenge on the basis of the incorrect criteria specified: paragraph [3] “Absence of assessment of referred pain”; paragraph [4] “Incorrect criteria-findings as against the most extreme case”; paragraph [6] “Incorrect criteria - cervical spine”; “Incorrect criteria - consideration of knees in lower extremity assessment” at paragraph [9].
The challenge to the MAC relied on a report of Dr Khan dated 27 September 2016.
On 30 November 2016 Mr McAdam, the Registrar’s Delegate, determined that the application to appeal the decision of the AMS did not satisfy s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 17 December 2016, the appellant filed an Application for Reconsideration of the decision of the Registrar’s Delegate.
On 5 January 2017, the appellant wrote to the Registrar requesting that the Application for Reconsideration be referred to a different Delegate. This request was refused, the appellant being informed by email of the same date that reconsideration of the decision will be by the original decision maker.
On 8 April 2017, the appellant filed an appeal against the decision of the Registrar’s Delegate of 30 November 2016 and the decision of the Registrar of 5 January 2017. The appeal is purportedly brought pursuant to s 352 of the 1998 Act and cl 125 of the Workers Compensation Regulation2016 (the Regulation).

ON THE PAPERS

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.”
The respondent submits that the appeal can be determined ‘on the papers’, without an oral hearing. However, the appellant submits that there should be an oral hearing. No reasoned argument was advanced in support of the appellant’s submissions.
Notwithstanding the appellant’s submissions, 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.

FRESH EVIDENCE

On 19 July 2017, the appellant filed lengthy submissions and, in addition, lodged an Application to Admit Late Documents.
Dr Gill’s report dated 16 July 2017 reports on the results of gastroscopy and colonoscopy. I do not see how these results could be capable of influencing the outcome of Dr Marsh’s assessment, or the Registrar’s consideration for the purposes of s 327(3). The appellant’s submission (18 July 2017) that the 1998 neck injury caused a related injury to the alimentary canal is not supported by Dr Gill’s report in any event.
The discharge summary from Blacktown Hospital relating to an admission on 2 March 2017 with a discharge on 3 March 2017 for left sided occipital headache with a conclusion “MSK pain related to Left sided Neck muscles (Scalene and trapezius)” is essentially descriptive. It represents what appears to be an admission to the hospital for what was a transient ailment.
The extensive summary dated 6 March 2017 reporting on CT scan to Cervical Spine, CT Brain Contrast, CT Spinal Angiography and MRI Brain show significant degenerative change in the cervical spine; an absence of abnormality in brain on CT and MRI and no evidence of arterial dissection or abnormality seem to me to be of no possible relevance so far as the normal reports are concerned. So far as the CT scan to the cervical spine is concerned I am not persuaded the scan could not reasonably have been obtained before the medical assessment.
The physiotherapy report dated 13 June 2017 merely records when the appellant attended for physiotherapy.
The x-ray reports dated 6 August 1998 and 26 August 2002 are not “fresh evidence”.
I have considered this material above and decline to admit the documents.
Before the Delegate, the appellant relied on a report of Dr Khan dated 27 September 2016. After detailed consideration, the Delegate rejected Dr Khan’s report (see paragraph [62] of his reasons indicating his conclusions in respect of the report).
For the purpose of s 327(3)(b) of the 1998 Act, the appellant carried the onus of establishing the following:
(a)     the material was additional “relevant information”;
(b)     it was not available to the appellant before the medical assessment appealed against,
(c)     (and) could not reasonably have been obtained by the appellant before the medical assessment appealed against occurred.
Dr Khan’s report contains a critique of Dr Marsh’s application of the WorkCover Guidelines. Dr Marsh records in his certificate that he considered reports from Dr Khan dated 27 March 2015 and 9 July 2015.
In the report dated 27 September 2016, Dr Khan says (page 3) “it would therefore appear that the assessments noted above may have been carried out using the wrong criteria or omitting the criteria and findings noted on physical examination.”
The Delegate concluded (paragraphs [19] to [22] of his decision dated 30 November 2016) that Dr Khan’s report was not “additional material”. The Delegate correctly concluded that the report was simply a criticism of Dr Marsh’s application of the criteria; in essence, that the AMS wrongly applied the correct criteria.
That in my view is not additional “relevant information” within (a).

THRESHOLD AND JURISDICTION

Section 352(4) of the 1998 Act provides:
“An appeal can only be made within 28 days after the making of the decision appealed against.”
Rule 16.2(12) of the Workers Compensation Commission Rules 2011 permits the Commission in “exceptional circumstances” to extend the time for the making of an appeal.
The Commission’s discretion is doubtless to be exercised so as to achieve justice between the parties and for reasons consistent with the objectives of the legislation.
As the respondent makes no reliance on the delay in lodging the appeal, it is unnecessary to consider the nature and extent of the discretion to extend time under s 352(4).
Section 352(3) of the 1998 Act 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.”
The decisions under appeal do not satisfy s 352(3). In my view s 352(3) of the 1998 Act is not satisfied and the appellant has no right of appeal under s 352.
Section 352(1) provides:
“A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
The decisions of the Registrar and his Delegate are not decisions of the Commission constituted by an Arbitrator.
The following submissions by the respondent are correct:
“34 … in circumstances where the Appellant’s Appeal is limited to the decision of a Registrar and a Delegate of the Registrar, and s 352(1) of the Workplace Injury Management and Workers Compensation Act 1998 limits the appeal process to a Presidential Member to decisions rendered by an Arbitrator, the Respondent submits that the Appeal is procedurally defective.
….
36 … the Respondent contends that the Appellant’s right of review may more properly be exercised by seeking judicial review and declaration in the Administrative Law List of the Supreme Court pursuant to s 69 of the Supreme Court Act 1970.”
The appeal is incompetent.
The appellant’s alternative submission relies on cl 125 of the Regulation. For the reasons that follow, I find that cl 125 does not support an appeal from a decision by the Registrar or his Delegate exercising power under s 327(4) of the 1998 Act.
In my view cl 125 is intended to provide a right of appeal to a party dissatisfied with the decision of the Registrar on a matter of costs. It does not provide a general right of appeal from the decisions of the Registrar. My reasons follow.
It is trite but the Regulation must be read as a whole and in the context of the authorising legislation. Furthermore the Acts and the Regulation are to be read consistently and coherently together. Finally the Regulation is subordinate to the 1998 Act.
The rights of appeal provided by the 1998 Act or its subordinate legislation are expressly defined. Those rights depend upon the correct construction and interpretation of the legislation or the regulation as the case may be.
The 1998 Act gives express rights to appeal to the Presidential level of the Workers Compensation Commission from a decision of an Arbitrator (s 352). There is a further express right of appeal from the decision of a Presidential member to the Court of Appeal (s 353). These rights of appeal are adjudicative in character.
The 1998 Act provides for an appeal from the determination of an AMS to a Medical Appeal Panel but only if the Registrar or in this case his Delegate is satisfied in accordance with s 327(4). The Medical Appeal Panel performs an adjudicative function the Registrar does not.
The Registrar’s role is that of a “gatekeeper”. This is an administrative function. The Registrar’s satisfaction as to the matters in s 327(3) is an essential precondition to the referral to the Medical Appeal Panel. The Registrar’s function is analogous to a magistrate’s determination that there is sufficient evidence to require the accused to be sent for trial.
The traditional manner by which functions of this type were reviewed was by the deployment of the prerogative writs. In New South Wales, s 69 of the Supreme Court Act 1970 replaced the previous system of prerogative writs.
The absence in the 1998 Act of a right of appeal to the Presidential level from the Registrar’s decision under s 327(4) is consistent with the Legislature’s intention that review of the Registrar’s decision under s 327(4) should be by application to the Supreme Court in its Administrative Law Division pursuant to s 69.
Section 35(1)(a) of the Interpretation Act1987 (NSW) provides that the headings to Parts and Divisions are regarded as part of the Act.
Part 17 is headed “Costs”. Division 4 of Pt 17 is headed “Assessment of Costs”. Clause 125 is in Subdiv 5 which is headed “Appeals”.
In Silk Brothers Pty Limited v State Electricity Com (Vic) (1943) 67 CLR 1 Latham CJ said (at 16):
“The headings in a statute or in regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision. …”
The headings of the Part, the Divisions and Subdivisions in which cl 125 appears direct attention to the conclusion that the draftsman’s intention was that the appeals with which cl 125 is concerned are from matters the subject of Pt 17.
Part 17 provides in Div 4 for costs to be assessed upon application to the Registrar.
Once the Registrar has made an assessment of costs, he issues a Certificate as to determination under cl 120.
By cl 121 the Registrar is required to ensure that the Certificate issued is accompanied by:
(a)     a statement of the reasons for the Registrar’s determination, and
(b)     the amount of costs the Registrar determines is fair and reasonable, and
(c)     if the Registrar declines to assess a bill of costs under clause 113 - the basis for doing so, and
(d)     if the Registrar determines that a term of a costs agreement is unjust - the basis for doing so, and
(e)     a statement of any determination under clause 115 that interest is not payable on the amount of the costs assessed or, if payable, of the rate of interest payable.
Clauses 120 and 121 require the Registrar to expose the reasons for his determination so as to facilitate the right of appeal under cl 125. But the matters with which the reasons of the Registrar are to be concerned are matters arising out of the cost assessments the subject matter of Part 17. This is a further indication that cl 125 is concerned with appeals relating to matters from the Registrar’s assessment of costs.
Clause 125(1) provides:
“(1)   A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.
(2)     …
(3)     After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a)make such determination in relation to the application as, in its opinion, should have been made by the Registrar, or
(b)remit its decision on the question to the Registrar and order the Registrar to re-determine the application.
(4)     On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5)     Subclause (1) does not apply to any decision of the Registrar arising in proceedings on an application in respect of the assessment of costs under Schedule 6 unless the decision is made in or in connection with the reference of a dispute to the Registrar under clause 88(3).”
The question is what “application” is referred to in cl 125. This ultimately depends on the proper construction and interpretation of Pt 17.
Subdivision 1 of Div 4 of Pt 17 provides that applications for assessment of various types of costs are to be made to the Registrar (see cll 101–106). The relevant practice and procedure for assessment of the applications for costs is set out in Subdivisions 2 and 3 of Div 4 of Pt 17. Subdivision 4 of Div 4 of Pt 17 provides for enforcement of the assessment when made. Subdivision 5 of Div 4 of Pt 17 provides for appeals against the Registrar’s determination of an application. The application(s) the subject of cl 125 are those that derive from the decisions made under Pt 17.
This conclusion is further reinforced by the nature of the relief contemplated in cl 125(3)(a).
It is plain that s 327(4) invests the Registrar with the role of “gatekeeper” for appeals to Medical Assessment Panels.
If cl 125 operated as contended for by the appellant a potential conflict with s 327(4) may arise because the relief contemplated by cl 125(3)(a) includes the making of the decision that the Registrar should have made. This in effect would indirectly authorise a Presidential member to make a decision under s 327(4).
In effect the subordinate legislation (the Regulation) if read as contended for by the appellant would contradict the authorising statute. The Regulation should not be read so as to conflict with the 1998 Act.
When cl 125 is read consistently with the scheme and provisions of the 1998 Act the right of Appeal is confined to decisions of the Registrar concerning assessments of cost. That, in my view, is the intention of the Regulation.
Clause 125 is not a general right of appeal from decisions of the Registrar or his Delegate.
In my view, cl 125 does not authorise the present appeal from a decision by the Delegate of the Registrar.
The decision by the Registrar to refer the application for reconsideration to be determined by the original decision maker is administrative in nature. In my view such a determination is not amenable to appeal under either s 352(1) because it is not an appeal from an Arbitrator or cl 125 because it is not an appeal from a Registrar’s decision on a matter of costs.

DECISION

There is no jurisdiction in a Presidential member of the Commission to review the decision of the Registrar or his delegate under s 327(4).
The appeal is misconceived and is dismissed pursuant to s 354(7A)(b) of the 1998 Act.

Geoffrey Parker SC
Acting Deputy President

11 September 2017