Mansour v Bankstown Trotting Recreational Club Ltd

[2005] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Mansour v Bankstown Trotting Recreational Club Ltd [2005] NSW WCC PD 34

APPELLANT:  Assad Mansour

RESPONDENT:  Bankstown Trotting Recreational Club Ltd

INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd

FILE NUMBER:  WCC14686-03

DATE OF ARBITRATOR’S DECISION:          25 February 2004

DATE OF APPEAL DECISION:  13 May 2005

SUBJECT MATTER OF DECISION:                Validity of an Injury Management Plan; sections 47 & 57 of the Workplace Injury Management and Workers CompensationAct 1998.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Frisina & Associates, Solicitors

Respondent: Nevill & Edwards, Solicitiors

ORDERS MADE ON APPEAL:  The Arbitrator’s decision of 25 February 2004 is   revoked and the following decision is made in its place:

1.The Respondent is to reinstate the payment of weekly compensation to the Appellant from 25 July 2003.

2.The Respondent is to pay the Appellant’s costs as agreed or assessed.

BACKGROUND TO THE APPEAL

1. On 18 March 2004, the Appellant, Assad Mansour, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 25 February 2004.

1. The Respondent to the Appeal is Bankstown Trotting Recreational Club Ltd (‘the Respondent’).

1. Mr Mansour was born in Iraq on 19 February 1962 and is aged 43. He migrated to Australia in May 1989 and is married with three dependent children. He has worked as a bar attendant for the Respondent since about August 1996. Mr Mansour first injured his back while lifting a table on 5 December 1998. On 18 October 2000, he suffered a second lifting injury and, on 9 February 2002, he injured his back when he slipped on a wet floor. He was “off work” for about six months and then resumed on light duties until ceasing work on 1 July 2003. He has not worked since.

1. On 25 July 2003, Employers Mutual Indemnity (Workers Compensation) Ltd (‘the Insurer’) wrote to Mr Mansour notifying him that his weekly benefits had been suspended from 25 July 2003 for failure to comply with his Injury Management Plan as required by section 47(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. The alleged failure to comply arose from the failure of Mr Mansour’s nominated treating doctor, Dr Ton K Lee, to respond to a request from the Insurer for information about Mr Mansour’s claim. The Insurer wrote to Dr Lee on 3 June 2003, 13 June 2003 and 8 July 2003 requesting a report. It wrote to Mr Mansour on 13 June 2003, 20 June 2003 and 18 July 2003 noting that no report had been received in response to the request to Dr Lee, and stating that it is the injured worker’s responsibility to ensure the nominated treating doctor participates or, if not, to provide details of another treating doctor. The letters warned that should one of these actions not occur, Mr Mansour’s weekly benefits would be suspended.

1. Mr Mansour’s solicitors sought an expedited assessment of the dispute by the Commission. On 24 September 2003, a delegate of the Registrar found that Mr Mansour had not complied with the Injury Management Plan and recommended that he either obtain a report from Dr Lee or choose another treating doctor who would be prepared to participate in the process. By fax dated 2 October 2003, Mr Mansour’s solicitors requested that the Registrar refer the dispute to the Commission for determination.

1. At a teleconference with the parties on 1 December 2003, the Arbitrator directed the parties to file written submissions in order to make a determination without holding a conference or formal hearing.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 25 February 2004, records the Arbitrator’s orders as follows:

   “The determination of the Commission in this matter is as follows:

   ·The Applicant’s weekly benefits remain suspended until a medical report as required by the insurer is submitted by a treating doctor nominated by the Applicant.”

1. In her Statement of Reasons, the Arbitrator noted that there had been no explanation for Dr Lee’s failure to provide the information requested. At paragraphs 23 and 24 she stated:

“The Applicant’s Injury Management Plan under Agreed Actions calls for ‘appropriate upgrades to pre-injury duties after seeking medical advice’ … This proposed action as well as action calling for ‘need to liaise with NTD [nominated treating doctor] … to further examinations’ does not lend support to the Applicant’s argument that the insurer cannot request a report not called for under the existing plan.

For these reasons the Applicant’s failure to authorise his doctor to provide medical information requested by the insurer, or, the doctor’s failure to participate or, the Applicant’s failure to nominate a new treating doctor, as the case may be is imputed to the Applicant as a violation of Chapter 3, s 47(3) (5).”

ISSUE IN DISPUTE

1. The issue in dispute in this appeal is whether the Arbitrator erred in finding that Mr Mansour failed unreasonably to comply with a requirement of Chapter 3 of the 1998 Act after being requested to do so by the Insurer so that, pursuant to section 57(1) of the 1998 Act, he had no entitlement to weekly payments of compensation during the period such failure continued.

1. Whether Mr Mansour failed unreasonably to comply with a requirement of Chapter 3 turns, in this case, on whether there was a valid Injury Management Plan and, if so, whether Mr Mansour failed to comply with his obligations with regard to the Plan.

ON THE PAPERS REVIEW

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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.  

1. Neither party sought to adduce fresh evidence.

LEAVE

1. 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:

“352Appeal 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.”

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. With regard to section 352(2)(a), I am satisfied that the amount of compensation at issue is at least $5000. With regard to section 352(2)(b), as Deputy President Byron held in Mawson vFletchers International Exports Pty Limited [2002] NSW WCC PD 5, at paragraph 22, and for the reasons he stated, the subparagraph (b) “qualification or condition does not and cannot meaningfully apply to a decision” where an award of compensation has not been made. Thus, I am satisfied that I should grant Mr Mansour leave to appeal.

SUBMISSIONS

1. Mr Mansour’s solicitors submitted that Mr Mansour had not been accorded procedural fairness because the Arbitrator did not apparently take into account their submissions of 4 December 2003. The Arbitrator refers to submissions dated 10 September 2003 and further submissions dated 5 December 2003. Mr Mansour’s first submissions were dated 4 December 2003 not 10 September 2003.

1. Mr Mansour’s solicitors submitted that the Arbitrator failed to make or made incorrect findings about the Injury Management Plan and whether Mr Mansour received the notice required by section 57(2) of the 1998 Act before his weekly benefits were suspended. Furthermore, the Arbitrator failed to take into account Mr Mansour’s submissions as to the reasonableness of Dr Lee’s actions. The Arbitrator should have found that no valid Injury Management Plan existed or, in the alternative, if a valid Plan had been found to exist, then Mr Mansour was not notified as required by section 57(2), or did not fail unreasonably to comply with a requirement of Chapter 3, or the nominated treating doctor was not required under the terms of the Injury Management Plan to provide a medical report or did not unreasonably fail to do so.

1. The Respondent’s solicitors suggested the date attributed by the Arbitrator to Mr Mansour’s submissions might be a mistake but submitted that, in any event, the Arbitrator was under no legal obligation to have regard to, or refer to the submissions. With regard to the substantive matters raised by Mr Mansour, the Respondent’s solicitors submitted that Chapter 3 does not provide precise guidelines for an Injury Management Plan – some flexibility is required to meet the circumstances of each individual case. The requirement in section 47(3) of the 1998 Act that a nominated treating doctor “participate” in the Plan connotes an ongoing and co-operative willingness to work towards the objectives of Chapter 3, as does the section 47(5) requirement that the doctor “provide relevant information” to the insurer. What is relevant may vary from time to time. The letters from the Insurer to Mr Mansour and his doctor were legitimate attempts to get them to participate.

1. The Respondent’s solicitors submitted that in the absence of any reasonable explanation, there was clearly an ongoing failure by Mr Mansour to comply with the obligations imposed by section 47(3)of the 1998 Act:

“the subsection places the obligation upon the worker, notwithstanding that the failure is that of his NTD, the worker’s option in the event of such failure being to change his or her NTD.”

1. The Respondent’s solicitors submitted that Mr Mansour was clearly given notice satisfying the requirements of section 57(2): the letter of 18 July 2003. Moreover, the letter of 25 July 2003 confirmed that payments were being suspended and would be reinstated once a new nominated treating doctor had been nominated by the worker.

EVIDENCE

1. It is not clear from the papers when Mr Mansour first nominated Dr Lee as his nominated treating doctor. However, Dr Lee is named as his treating doctor in the compensation claim dated 27 February 2002. There is no document headed Injury Management Plan. However, in its written submissions to the Arbitrator dated 4 December 2003, the Respondent refers to a one page document headed “Plan Notes for 123409” and “Summary of Issues 03/04/2002” as the Injury Management Plan. This one page document has three sub-headings. The first sub-heading, “Background”, recites the background to the injury and return to work program; the second sub-heading, “Agreed Actions”, includes reference to the need to liaise with Mr Mansour’s nominated treating doctor, for Mr Mansour “to attend regular reviews with Dr Lee until he is certified as fit for pre-injury duties”, and for Dr Lee to liaise with the Commonwealth Rehabilitation Service (‘CRS’) consultant and the Insurer’s injury management adviser regarding Mr Mansour’s progress; the third sub-heading, “Goal”, states:

“The goal is for Mr Mansour to return to his pre-injury duties as a Bar Attendant with Bankstown Trotting Recreational. At this stage the prognosis is not clear and further medicial advice is needed. CRS will determine likely prognosis after liaising with Dr Lee.”

The document contains no reference to changing the worker’s nominated treating doctor nor to the procedure to be followed in so doing. There is no provision for the document to be signed by the parties, nor any indication that its terms have been discussed with and are understood by the worker. In this regard, I am mindful that Mr Mansour’s first language is not English.

1. The Respondent’s solicitors submit that the combination of this “Plan Notes” document and the series of letters from the Insurer “could not have left him [Mr Mansour] in any doubt in relation to his obligations under the Plan and in relation to the procedure for changing his nominated treating doctor”. The relevant letters from the Insurer dated 24 February 2003, 13 June 2003, 20 June 2003, 18 July 2003 and 25 July 2003, refer to Mr Mansour’s obligation to nominate a treating doctor, the role of the nominated treating doctor, the responsibilty of the worker to ensure the doctor participates or to advise the Insurer of the name of a new nominated treating doctor, whom the Insurer can assist in identifying. The letters do not otherwise, however, provide for a procedure for changing the worker’s nominated treating doctor.

1. The letter to Mr Mansour from the Insurer dated 18 July 2003 also states, in relation to the worker’s responsibilities:

“We advise that should one of these actions not occur, your weekly benefits will be suspended. Reinstatement of weekly benefits will commence at such time as a new nominated treating doctor is appointed, or your current nominated treating doctor provides the requested information.”

1. It appears Mr Mansour did not respond to the first four letters. His solicitors responded to the letter of 25 July 2003 by fax dated 11 August 2003, requesting further information.

1. As to the involvement of Mr Mansour’s nominated treating doctor, Dr Lee provided a report on Mr Mansour to the Insurer dated 30 September 2002. A copy of a report to Dr Lee from Dr Grahame Mahony, Mr Mansour’s treating specialist Orthopaedic Surgeon, dated 25 February 2003, was also provided to the Insurer. In its letter to Mr Mansour dated 24 February 2003, the Insurer states:

“We have been receiving medical certificates from Dr Mahony and note that Dr Mahony is not your nominated treating doctor and request that you obtain a new WorkCover Medical certificate from Dr Ton Lee as we will not be accepting WorkCover Medical certificates from Dr Mahony in relation to your claim.

We acknowledge that Dr Mahony is your treating specialist, not your treating doctor. Any further medical certificates from Dr Mahony will not be accepted and will be returned to you.”

1. By letter dated 10 September 2003, Mr Mansour’s solicitors filed copies of WorkCover NSW Medical Certificates issued by Dr Lee dated 28 June 2003 and 27 July 2003. Among copies of the correspondence filed by the Respondent’s solicitors is a letter from the Insurer to Dr Lee dated 8 July 2003 that includes the following statement:

“As per our agreement today, you advised that you would be completing the [treating doctor’s] report as requested. I note that you spoke with both myself and Dr Assem, Injury Management Consultant, that you are of the opinion that this worker is fit for work. Please document your opinion as to the worker’s fitness for work, clearly differentiating between your opinion and the worker’s reported symptomotology.

Please ensure that this is completed and forwarded to Employers Mutual by 15 July 2003. If we do not receive this report, unfortunately I will have no other alternative but to request Mr Mansour nominate a new treating doctor who will be a willing participant. Failure to comply with these requirements will also lead to non payment of accounts.”

DISCUSSION AND FINDINGS

1. First, with regard to Mr Mansour’s solicitors’ submission that Mr Mansour was not accorded procedural fairness because the Arbitrator did not take into account Mr Mansour’s submissions of 4 December 2003, it seems likely the Arbitrator mistakenly referred to Mr Mansour’s submissions as being dated 10 September 2003, when they were in fact dated 4 December 2003. Her statement of reasons indicates that she did take into account both Mr Mansour’s submissions of 4 September 2003 and further submissions of 5 December 2003. I am not satisfied that there was any breach of the requirements of procedural fairness.

1. Second, with regard to Injury Management Plans, section 47 of the 1998 Act states relevantly:

“(1) An injured worker must participate and co-operate in the establishment of an injury management plan required to be established for the worker.

(2) The worker must comply with obligations imposed on the worker by or under an injury management plan for the worker.

(3) The worker must, when requested to do so by the insurer, nominate as the worker’s treating doctor for the purposes of an injury management plan for the worker a medical practitioner who is prepared to participate in the development of, and in the arrangements under, the plan.

(4)      A medical practice can be nominated …

(5) The worker must authorise the worker’s nominated treating doctor to provide relevant information to the insurer or the employer for the purposes of an injury management plan for the worker.

(6)      An injury management plan must provide for the procedure for changing the worker’s nominated treating doctor.”

1. The other pertinent section is section 57 of the 1998 Act. This states relevantly:

   “(1) If a worker fails unreasonably to comply with a requirement of this Chapter after being requested to do so by the insurer, the worker has no entitlement to weekly payments of compensation during any period that the failure continues, subject to subsection (2).

   (2) A worker’s entitlement to weekly payments does not cease under this  with a statement of reasons for the entitlement ceasing and the action that the insurer considers the worker must take to be entitled to the resumption of weekly payments.”

2. A relevant issue here is whether there was a valid Injury Management Plan for Mr Mansour. The Arbitrator does not seem to have considered this issue. There was certainly no document that stated it was an Injury Management Plan although the Respondent’s solicitors submit that the one page document headed “Plan Notes 123409” was such a Plan. ‘Injury Management Plan’ is defined in section 42(1) of the 1998 Act as:

“a plan for co-ordinating and managing those aspects of injury management that concern the treatment, rehabilitation and retraining of an injured worker, for the purpose of achieving a timely, safe and durable return to work for the worker.”

1. As noted above, the “Plan Notes” document has three sub-headings. The first sub-heading “Background”, recites the background to the injury and the return to work program, while the third sub-heading states the goal, quoted above in paragraph 23. Under the second sub-heading, “Agreed Actions”, the following is stated:

“A referral to CRS, Bankstown to coordinate the return to work and the development of a rehabilitation plan.
*conduct workplace assessment to identify suitable duties.
*coordinate the return to work and facilitate appropriate upgrades to pre-injury duties after seeking medical advice via return to work plans.
*need to liaise with NTD with regards to further medical examinations which have not been conducted so as to determine diagnosis.
IMA [Injury Management Adviser] to keep in regular contact with CRS.

Mr Mansour to attend the next scheduled review by Dr Lee by the 30/4/02 and advise IMA of the outcome of the review.

Mr Mansour will attend regular reviews with Dr Lee until he is certified as fit for pre-injury duties.

Dr Lee to liaise with CRS consultant and IMA regarding Mr Mansour’s progress, suitable duties available, restrictions and future treatment plan.

Mr Mansour to continue with physiotherapy sessions as part of Dr Lee’s treatment plan.

Mr Mansour to adhere to the Return to Work Plan developed by CRS.

The IMA will review the claim with all parties concerned on the 17/4/02.”

1. While the Plan is note-like in content and layout, it does, nevertheless, address issues of treatment and rehabilitation focused on a return to work. However, the Plan does not comply with the requirement imposed by section 47(6) of the 1998 Act: it does not “provide for the procedure for changing the worker’s nominated treating doctor”. The Respondent’s solicitors submit that the combination of the “Plan Notes” document and the series of letters from the Insurer, could not have left Mr Mansour “in any doubt in relation to his obligations under the Plan and in relation to the procedure for changing his nominated treating doctor”. The letters of 13 June 2003, 20 June 2003 and 18 July 2003 contain statements along the lines of that which appears in the letter of 18 July 2003:

“It is the injured worker’s responsibility to ensure that the nominated treating doctor participates, or if not, provide details of another nominated treating doctor within seven days. Employers Mutual can assist in identifying a new nominated treating doctor.”

1. In my view, while changing a person’s nominated treating doctor is plainly referred to in the letters, the letters do not provide a ‘procedure’ within the ordinary meaning of the word, and, in any event, the required procedure should be provided for in the Plan or in an attached document (see Jafari v Bartter Enterprises Pty Limited [2004] NSW WCC PD 88) and not in correspondence post-dating the Plan by more than a year. The Plan, such as it is, does not comply with section 47(6) of the 1998 Act. The issue which then arises is whether non-compliance with section 47(6) affects the validity of the Plan. Is the section 47(6) requirement a mandatory requirement such that non-compliance invalidates the Plan? Section 47(6) uses the words “must provide” suggesting that compliance is mandatory. However, the labelling of a requirement as ‘mandatory’ (rather than ‘directory’) does not lead inevitably to the conclusion that the plan is invalid. In a number of decisions, the courts have recognised that there may be a spectrum of possible outcomes (see for example Lord Hailsham in London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at 186) influenced, in particular, by the effect of non-compliance.

1. In this case, the principal issue posed by the Respondent was whether Mr Mansour failed to comply with his “responsibility to ensure the nominated treating doctor participates, or if not provides details of another nominated treating doctor within 7 days” (Insurer’s letter to Mr Mansour dated 18 July 2003). The letters of 18 July 2003 and 20 June 2003 founded this responsibility in section 47(3) of the 1998 Act and the requirement that the worker:

“must … nominate as the worker’s treating doctor for the purposes of an injury management plan for the worker a medical practitioner who is prepared to participate in the development of, and in the arrangements under, the plan.”

1. Mr Mansour nominated Dr Lee as his treating doctor. It appears from the “Plan Notes” that, at the time these notes were compiled on 3 April 2002, Dr Lee had been participating “in the development of, and in the arrangements under, the plan” (section 47(3) of the 1998 Act). Subsequent to the “Plan Notes”, he provided a report on Mr Mansour to the Insurer dated 30 September 2002 and, it would appear, a copy of Dr Mahony’s report to him dated 25 February 2003. Dr Lee’s failure to respond was in relation to a request from the Insurer dated 3 June 2003 to provide a report in the light of medical opinions obtained by the Insurer contrary to those expressed by Dr Lee. The Insurer’s letter to Dr Lee dated 8 July 2003 indicates that the Insurer’s injury management adviser spoke with Dr Lee on the phone on 8 July 2003 and that Dr Lee said he would be completing a report as requested. The letter asks for the report by 15 July 2003. Dr Lee did not comply.

1. The issue then arises whether Dr Lee’s failure to comply, and Mr Mansour’s failure to nominate another treating doctor, should be regarded as a breach of Mr Mansour’s obligation under section 47(3) of the 1998 Act. I note that in its letter to Mr Mansour dated 25 July 2003, the Insurer nominated Mr Mansour’s failure to comply as being in relation to section 47(2). In the proceedings before the Commission, the Respondent has sought to rely on Mr Mansour having breached a section 47(3) obligation.

1. Returning to the question posed above, whether non-compliance with section 47(6) of the 1998 Act - the failure to provide for a procedure for changing the worker’s nominated treating doctor - affects the validity of an Injury Management Plan, it is clear that failure to provide for such a procedure may have a significant effect on the worker: the worker’s entitlement to weekly compensation can be suspended pursuant to section 57(1) of the 1998 Act if he or she fails unreasonably to comply in nominating another treating doctor when requested to do so by the Insurer. I therefore take the view that since failure to provide for such a procedure may in turn have significant adverse consequences for the worker who will not know how to go about changing his or her nominated treating doctor, the effect of non-compliance with section 47(6) of the 1998 Act will be to invalidate the Injury Management Plan.

1. In Mr Mansour’s case, my conclusion as to the invalidity of the Injury Management Plan is strengthened by my view of the less than impressive “Plan Notes” which are indeed ‘note-like’ and lack the detail or clear statement of obligations that one would expect to find in such an important document, particularly in the case of a worker whose first language is not English.

1. Even if I had found the “Plan Notes” to constitute a valid Injury Management Plan, I am not convinced that Mr Mansour had breached his section 47(3) obligation. He nominated Dr Lee as his treating doctor and Dr Lee had participated in the Plan for a period of at least a year prior to his failure to provide a report in June/July 2003. In the light of the inadequacy of the Injury Management Plan, would the Appellant’s failure to nominate another treating doctor constitute failing unreasonably to comply for the purposes of section 57(1) of the 1998 Act? This is not a question I need to answer having found the “Plan Notes” not to be a valid Injury Management Plan. Suffice it to say that in the circumstances, I doubt that the Appellant’s conduct is so deficient as to meet the requirements of section 57(1).

1. In conclusion, the Arbitrator made an error of law by failing to consider whether the “Plan Notes” document constituted a valid Injury Management Plan. I find that the document does not constitute a valid Injury Management Agreement because of its failure to comply with section 47(6) of the 1998 Act. Thus, Mr Mansour did not breach a requirement under section 47(3) and so section 57(1) does not apply. It follows that Mr Mansour’s weekly compensation should not have been suspended from 25 July 2003 because he had a continuing entitlement to that compensation.

DECISION

1. The Arbitrator’s decision of 25 February 2004 is revoked and the following decision is made in its place. The Respondent is to reinstate the payment of weekly compensation to the Appellant from 25 July 2003.

COSTS

1. The Respondent is to pay the Appellant’s costs as agreed or assessed.

Robin Handley

Acting Deputy President  

13 May 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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