Markulin v Healthwoods Pty Ltd
[2007] NSWWCCPD 76
•6 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
REPORTED DECISION: Markulin v Healthwoods Pty Ltd (2007) 5 DDCR 527
CITATION:Markulin v Healthwoods Pty Ltd [2007] NSWWCCPD 76
APPELLANT: Dragica Markulin
RESPONDENT: Healthwoods Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC18491-05
DATE OF ARBITRATOR’S DECISIONS: 29 May and 3 August 2006
DATE OF APPEAL HEARING: 28 February 2007
DATE OF APPEAL DECISION: 6 March 2007
SUBJECT MATTER OF DECISION: Leave to appeal; setting aside consent orders; section 350(3) Workplace Injury Management and Workers Compensation Act 1998; consideration of Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:Oral
REPRESENTATION: Appellant: In person
Respondent: Mr Anderson, solicitor, Ellison Tillyard Callanan
ORDERS MADE ON APPEAL: Leave to appeal the consent of orders made on 29 May 2006 is refused.
Time to appeal the Arbitrator’s decision of 3 August 2006 is extended until 18 September 2006.
For the reasons set out in this decision, the Arbitrator’s decision dated 3 August 2006 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 18 September 2006 Dragica Markulin (‘the Appellant Worker/Mrs Markulin’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against decisions, dated 29 May and 3 August 2006.
The Respondent to the Appeal is Healthwoods Pty Ltd (‘the Respondent Employer’).
Mrs Markulin was born in Croatia on 12 May 1940. At the age of 20 she moved to Germany where she worked as a machine operator. She came to Australia in 1965 and initially worked as a waitress and then in a manchester shop. She trained as a nurse in the early 1990’s and, after working at Prince Henry Hospital for a year or two, worked at Parkdale Nursing Home for three or four years before she started work with the Respondent Employer in July 1997.
Her duties consisted of sterilizing instruments, working in the recovery section (assisting patients coming out of anaesthetic after their procedure), patient admission and discharge. She alleges that she was harassed and victimised in the course of her employment resulting in her ceasing work on or about 18 June 2001.
Prior to ceasing work she alleged she experienced pain in her right shoulder as a result of over use which resulted in her being certified unfit for work from 8 to 13 December 2000. She continued her normal duties until the harassment issues arose in June 2001. Her shoulder problems apparently continued and in January 2002 she underwent an ultrasound, which showed some bicipital tendonitis.
An Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 31 October 2005 alleging that Mrs Markulin sustained a psychological injury and injury to her shoulders as a result of the nature and conditions of her employment with the Respondent Employer. It claimed weekly compensation from 1 July 2001 to date and continuing, lump sum compensation in respect of 15% permanent loss of efficient use of the left arm at or above the elbow and 17% permanent loss of use of the right arm at or above the elbow together with medical expenses for an unspecified amount and $20,000.00 for pain and suffering.
By its Reply filed with an application to admit late documents on 24 November 2005 the Respondent Employer denied injury and relied on section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) as a defence to any claim for psychological injury.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 19 May 2006 when it was settled and consent orders signed by solicitors for both sides were handed to the Arbitrator. A formal Certificate of Determination was issued by the Commission in the same terms on 29 May 2006 (‘the Consent Orders’), the terms of which are:
“In this matter a conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of all the issues in dispute. By reason of their agreement, and in accordance with Rule 75(1) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’), the determination of the Commission in this matter is as follows:
1.The Respondent agrees to pay the Applicant lump sum benefits pursuant to s66 in the sum of
(a)$8,000.00 in respect of 10% loss of efficient use of the Applicant’s right arm at or above the elbow, as per the MAC of Dr Khan of 16/3/06.
(b)$5,250.00 in respect of a 10% [sic, 7%] loss of efficient use of the Applicant’s left arm at or above the elbow, as per the MAC of Dr Khan of 16/3/07.
2.The Respondent agrees to pay the Applicant $14,250.00 pursuant to s67 in respect of pain and suffering.
3.The Respondent agrees to pay weekly compensation to the Applicant at the rate of $100.00 per week from 1/7/01 to 12/5/03, such sum agreed to total $9,700.00.
4.Award for the Respondent in respect of the Applicant’s claim for s60 expenses in respect of psychological injury.
5.The Respondent to pay s60 expenses in respect of physical injury up to the sum of $4,000.00 upon production of accounts, receipts or HIC charge and thereafter award for the Respondent.
6.The Respondent agrees to pay the Applicant’s costs as agreed or assessed.”
Mrs Markulin has been paid the money ordered in the Consent Orders (transcript page 11 line 35). Whether all of the section 60 expenses (up to $4,000.00) have been paid is uncertain.
By letter dated 17 July 2006 Mrs Markulin sought to have the matter “reheard and reconsidered” on the grounds that, among other reasons, her solicitor excluded her from the hearing proceedings. This application was forwarded to the Arbitrator who dealt with it ‘on the papers’ as an application for a reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In her decision dated 3 August 2006 the Arbitrator declined to reconsider the Consent Orders.
The Appellant Worker has filed two appeals: first, against the Consent Orders and, second, against the Arbitrator’s decision on 3 August 2006.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Appellant Worker argues that the total value of the settlement reached on 19 May 2006 was $37,200.00 (excluding the section 60 expenses) and that the total value of her claim was $44,850.00 in lump sums plus $41,190.00 for weekly compensation from 1 July 2001 until 12 May 2003.
Before leave to appeal can be granted the amount of compensation “at issue” on appeal must be at least $5,000.00 (section 352(2)(a)). In addition, the amount must be at least 20% of the amount awarded in the decision appealed against (section 352(2)(b)).
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 it was held at [27] that:
“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21)).”
In the present case the Arbitrator’s determination in respect of the ‘reconsideration’ application does have the real capacity to put more than $5,000.00 compensation “at issue” because had it succeeded Mrs Markulin would have then been entitled to argue that her compensation should have been higher than the $37,200.00 that was awarded by consent. If her argument succeeds, that additional compensation would be more than 20% of the amount awarded.
Therefore, the quantum involved in the appeal meets the thresholds in section 352.
Time
The appeals were filed on 18 September 2006, outside the 28-day period in section 352(4) of the 1998 Act and the Appellant Worker seeks an extension of time in which to appeal.
An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) (see now Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’)) provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The following chronology is relevant to the question of extending time to appeal:
a) by letter dated 9 June 2006 Mrs Markulin wrote to Mr Tony Hogno (her solicitor at the conciliation and arbitration on 19 May 2006) and stated that she had 28 days to appeal, she was “not happy with the resolution of her compensation” and she sought his “assistance in this matter”;
b) on 19 June 2006 Mrs Markulin wrote to Maurice Blackburn Cashman, Lawyers, (Mr Hogno’s employer) making various complaints about the conduct of her case by Mr Hogno and requesting that firm to “please ask for an extension of time to lodge an appeal if possible”;
c) on 3 July 2006 Mr Slade, managing principal with Maurice Blackburn Cashman, wrote to Mrs Markulin advising, among other things, that as it was clear she no longer had confidence in his firm’s capacity to represent her, she should contact the Law Society of NSW for a referral to another firm;
d) on 17 July 2006 Mrs Markulin wrote to the Commission requesting that the matter be “reheard and reconsidered”;
e) the letter of 17 July 2006 was forwarded to the Arbitrator who dealt with it as an application for a reconsideration under section 350(3) of the 1998 Act;
f) without seeking a response from the Respondent Employer, the Arbitrator decided the reconsideration ‘on the papers’ in a decision delivered on 3 August 2006. The Arbitrator declined to reconsider the award entered by consent on 19 May 2006;
g) the decision of 3 August 2006 was forwarded to Mrs Markulin by the Commission by letter dated 7 August 2006;
h) on 28 August 2006 the Commission wrote to Mrs Markulin advising that she had until 31 August 2006 to file an appeal against the Arbitrator’s decision of 3 August 2006;
i) on 30 August 2006 Mrs Markulin attended at the Commission and spoke with Mr Wormald, the Commission’s Appeals Manager, who advised her to seek legal advice as a matter of urgency;
j) on 31 August 2006 Mrs Markulin attended at the Commission with an appeal application which sought to appeal against both the Consent Orders and the decision of 3 August 2006, but on the one appeal document (Form 9). After discussions with Mr Wormald, Mrs Markulin was again advised to seek legal advice. No documents were filed on 31 August 2006, and
k) Mrs Markulin did not obtain legal representation, and two appeals were filed (in separate documents) on 18 September 2006.
Mrs Markulin submits that the appeal from the Consent Orders was not lodged in time because the letter from Mr Slade was received too late. Mrs Markulin then acted by sending the letter of 17 July 2006, which she wrongly believed was an appeal.
The Respondent Employer submits that the time to appeal should not be extended because there are no exceptional circumstances in respect of either appeal.
The question of leave to appeal must be considered separately for each appeal. In respect of the application for leave to appeal against the Consent Orders made on 19 May 2006 (Certificate of Determination 29 May 2006) I do not believe there are any special circumstances warranting the extension of time in which to appeal. The Arbitrator made no error of fact, law or discretion. She merely made orders in the terms agreed between the parties’ legal representatives. There are no grounds for extending time to appeal against the Certificate of Determination of 29 May 2006 because that appeal has no merit and cannot possibly succeed.
Leave to appeal the Arbitrator’s determination of 29 May 2006 (the Consent Orders) is refused.
However, the application for leave to appeal the Arbitrator’s decision of 3 August 2006 raises different issues. It is arguable that the Arbitrator failed to properly exercise her discretion under section 350(3). For the following reasons, I believe that time to appeal should be extended in respect of the 3 August 2006 decision:
a) Mrs Markulin took reasonable steps to challenge the reconsideration decision of 3 August 2006 within time, but was unable to do so because of her unfamiliarity with the Commission’s procedures and she did not have a solicitor acting for her;
b) the delay involved is relatively short;
c) the Respondent Employer points to no prejudice it will suffer in the event that time to appeal is extended, and
d) the issues sought to be raised in the appeal are of considerable general importance and are arguable.
I extend to 18 September 2006 time to appeal the Arbitrator’s decision of 3 August 2006 and I grant leave to appeal against that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 3 August 2006, records the Arbitrator’s orders as follows:
“1.I decline to reconsider the award entered by consent of the parties on 19/5/06.
2.No order as to costs.”
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which 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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Mrs Markulin seeks to rely on several documents as fresh evidence on appeal. The Respondent Employer does not object to these documents but submits that they are irrelevant to the determination of the appeal. In these circumstances I intend to allow Mrs Markulin to rely on all of the documents filed with her appeal and I will refer to them as appropriate in the course of my decision.
In addition, at the hearing of the appeal Mrs Markulin tendered by consent a document dated 19 May 2006 and headed “Admissions”. This document has Mrs Markulin’s signature on it and that of her former solicitor (Mr Hogno) and was prepared as part of the settlement that was reached between the parties on 19 May 2006.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether:
(a)Mrs Markulin instructed her solicitor to settle her claim in the terms set out in the Consent Orders;
(b)the Arbitrator erred in declining to reconsider and set aside the Consent Orders; and
(c)Mrs Markulin is entitled to have the Consent Orders set aside.
UNREPRESENTED PARTY
On appeal Mrs Markulin was unrepresented. At the hearing of the appeal a Croatian interpreter was provided for her though at no stage did she use the interpreter or indicate an inability to understand what was said to her. I found her to have a good command of English and to be easy to understand.
On 22 January 2007 the Commission issued the following direction to the parties:
“1.The parties are directed to the authorities of Snow Confectionary Pty ltd v Askin [2004] NSWWCCPD 79 [sic, 56] and The King Island Company Limited v Deery [2005] NSWWCCPD 1 at [19].
2.The Appellant is directed to serve on the Respondent’s solicitor on or before 5 February 2007 a copy of the Appeal Against Decision of the Arbitrator filed on 18 September 2006 that seeks to appeal against the Arbitrator’s decision dated 29 May 2006.
3.The appeals against the Arbitrator’s decisions dated 29 May and 3 August 2006 are listed for hearing at 1 Oxford Street Sydney at 10am on 27 February 2007.
4.The Commission recommends that the Appellant seek independent legal advice for the future conduct of the appeals.”
In response to the above direction Mrs Markulin wrote to the Commission on 1 February 2007 stating, among other things, that a solicitor had advised her that the Direction meant that she was only entitled to receive advice but was not entitled to be represented at the hearing of the appeal. By letter dated 2 February 2007 the Registrar informed Mrs Markulin, “The Commission recommends that, for the purposes of the prosecution of your appeal, you obtain legal advice and representation”.
At no stage of the appeal proceedings has a solicitor filed an appearance for Mrs Markulin.
I am satisfied that the Commission has complied with the provisions of the Commission’s Access and Equity Service Charter.
The Arbitrator’s Decision
In her Statement of Reasons for Decision (‘Reasons’) the Arbitrator (at paragraph six) summarised Mrs Markulin’s argument in substantially the same terms I have set out at [61] below. She then stated at paragraph seven:
“The Applicant makes some serious allegations and clearly had expectations that were not met. However I am satisfied at the adequacy of legal representation on both sides during the extensive negotiations that took place. I am also satisfied that the final settlement, arrived at with the advice of both lawyers, was appropriate in the circumstances.”
The Arbitrator then declined to reconsider the Consent Orders stating at paragraph eight:
“In most cases the decisions of the Commission must be final, subject only to appeal if there is an error of law by the Arbitrator. The use of the reconsideration power in a situation where the decision is not clearly and obviously wrong will only lead to lack of finality in the Commission.”
The Arbitrator correctly noted that the power to reconsider a matter is discretionary. She agreed with and applied the following passage in the decision of Comensoli v NSW Department of Juvenile Justice [2006] NSWWCCPD 138 at [64]:
“The power is wide and discretionary, however an application for reconsideration of a Commission decision should only be granted where there are exceptional circumstances so that the reconsideration is necessary to address a 'manifest injustice' in the particular case.”
She concluded that none of the issues raised by Mrs Markulin warranted reconsideration of the Consent Orders.
Can the Consent Orders be Set Aside on Reconsideration?
Judge Burke considered this question in Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315 (‘Sorcevski’). In that case the worker suffered a repetitive strain injury. She agreed to redeem her rights for that injury under the then applicable workers compensation legislation. She did not agree to redeem her rights in respect of any back injury she may have suffered. Without her knowledge or consent the back was included in the Short Minutes of Order, which were signed by counsel. The Compensation Court “approved” the redemption. In a later claim for her back condition the employer raised a defence of res judicata. In response, the worker sought a reconsideration of the redemption award on the ground that she did not consent to redemption of her rights in respect of her back.
It is accepted that a solicitor retained by a client in respect of litigation has authority to bind his or her client to a compromise settlement of that litigation (Sorcevski, 329). However, if the solicitor had no actual authority to effect a particular compromise in the litigation, the client may not, depending on the circumstances of the case, be bound by such a settlement (Sorcevski, 330).
Judge Burke held that under section 17(4) of the Compensation Court Act 1984 the Compensation Court had a discretion to set aside a prior award (Sorcevski at 323). At 330 his Honour concluded:
“In summary, the position appears to be that under section 17 of the Compensation Court Act 1984, and at common law, it is possible, though improbable, that a disposal of litigation, concluded by counsel for a party in a manner outside instruction and such being unknown to the other side, could be set aside by the Court. Such would require highly unusual circumstances.” (emphasis added)
After considering the evidence in detail Judge Burke held that, in the circumstances before him, it was appropriate to take the “extraordinary step” (Sorcevski, 331) of rescinding the prior award. He made that finding on the ground that to refuse to set aside the redemption would, in the circumstances of the case before him, have inflicted “great hardship and injustice upon the worker” (Sorcevski 336). Before the Court of Appeal (Steggles Pty Ltd v Sorcevski, NSWCA, No. 40693/91, 29 July 1994, unreported) it was accepted that it was open to the Judge to take that step.
In rescinding the redemption his Honour also ordered that the worker “forthwith repay to the employer” the money paid to her as a result of the redemption.
The reconsideration power in the current legislation is found in section 350 of the 1998 Act which provides:
“350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
Section 350(3) is in substantially the same terms as section 17(4) of the Compensation Court Act 1984.
The circumstances in which the reconsideration power can be used in the Commission have been discussed in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 at [38] to [59] and Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160 at [58]. The discretionary power conferred on the Commission by section 350(3) is in “extremely wide terms” (Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 at 248). Its use requires the Commission to balance the public interest that litigation should not proceed indefinitely with the need to do justice between the parties (Hilliger v Hilliger [1952] SR (NSW) 105). The authorities do not support a conclusion that the power in section 350(3) is restricted to situations where it is necessary to address a ‘manifest injustice’.
The reconsideration power is not so wide as to allow reconsideration of an award because of a mistake or inadvertence by a party’s solicitor (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29).
I believe that the principles discussed by Judge Burke were applicable to the application for reconsideration before the Arbitrator. Therefore, I accept that the Commission has, in a reconsideration application, the power to set aside a prior consent award. Whether it should exercise that power is another matter.
The Arbitrator concluded at paragraph ten of her Reasons:
“I have read the papers provided by the Applicant and none of the issues raised warrant reconsideration in this Commission. Only in very unusual cases would this power be appropriately exercised, for example where the decision is unjust because the workers medical circumstances have changed significantly or because of an administrative error. Neither of those situations applies in this application.”
In my view the Arbitrator was in error in concluding, “none of the issues raised warrant reconsideration”. The allegations raised by Mrs Markulin, if accepted as being correct, do raise issues that warrant the Consent Orders being reconsidered because, according to Mrs Markulin, she did not give instructions for her case to be settled on the terms set out in the Consent Orders. That highly unusual situation may, if correct, have resulted in an injustice to Mrs Markulin. The question for the Arbitrator to consider was: were Mrs Markulin’s allegations true? The Arbitrator did not address that question and, as a result, has fallen into error. That error requires that the Arbitrator’s decision of 3 August 2006 be set aside and the Appellant Worker’s application for reconsideration be redetermined. In order to save time and costs it is appropriate that I conduct the redetermination and that is the course I propose to adopt.
Should the Consent Orders be Set Aside?
In her written submissions Mrs Markulin attacked all of the orders made in the Consent Orders on the basis that she did not provide her consent to the orders in terms set out in the Certificate of Determination issued by the Commission and neither the Arbitrator nor Mr Hogno read copies of the documents to her. The Certificate of Determination of 29 May 2006 is in identical terms to the hand written Consent Orders handed to the Arbitrator on 19 May 2006, save that the loss of use of the left arm at or above the elbow is described as ‘7%’ not the incorrect figure of ‘10%’ that appears in the Certificate of Determination.
At the oral hearing Mrs Markulin’s position was that she was unaware of the terms of the settlement but was, as I understand it, prepared to abide by the orders relating to the lump sum compensation and medical expenses but wished the orders in respect of her weekly compensation to be set aside and redetermined (transcript page three line 44) because those orders were “not fair and equitable” (transcript page two line 45). The reasons for the unfairness were said to be that:
a) the orders provided for the payment of $100.00 per week from 1 July 2001 to 12 May 2003 when her wage in mid 2001 was $800.00 per week (transcript page three line 17);
b) her medical certificates declared her to be totally unfit for work (transcript page five line four), and
c) she had not reached the retirement age at the time of her injury and would have worked until the age of 65 (transcript page three line 18).
None of these points is relevant to the main issue I have to determine, namely, whether the Arbitrator erred in failing to set aside the Consent Orders in the reconsideration application on the ground that Mrs Markulin did not consent to those orders. However, I make the following observations about Mrs Markulin’s submissions on these points:
a) for the first 26 weeks of incapacity an injured worker is entitled to be compensated at his or her current weekly wage rate (the award rate), not the rate at which he or she is actually paid. Mrs Markulin’s award rate was either $528.40 or $540.00 per week (transcript page 28 line 34);
b) Mrs Markulin’s medical certificates were not the only evidence of incapacity in the case;
c) Mrs Markulin agreed at the oral hearing before me that she was entitled to receive the age pension from 12 May 2003 (transcript page 29 line 15). That being so, she had no entitlement to weekly compensation beyond that date (see section 52 of the 1987 Act), and
d) the Respondent Employer disputed that Mrs Markulin had any entitlement to compensation and, therefore, the settlement reflected a significant element of compromise by both sides.
Having regard to the nature of Mrs Markulin’s attack on the Consent Orders in her written material, it is not now open to her to seek to uphold part of the settlement and challenge the remainder. The Consent Orders were prepared as a settlement of the whole of Mrs Markulin’s claim and it is not open to argue that she is willing to accept one part of the settlement (the lump sum compensation) and have the remainder set aside and redetermined on the grounds that she did not give her consent to the orders made. Either the whole settlement survives or is set aside and that is the approach I intend to take with the matter.
Mrs Markulin’s argument is presented in slightly different forms in the various documents she has filed. In her letter to the Commission dated 17 July 2006 Mrs Markulin sought to have the “matter reheard and reconsidered” on the following grounds:
“…my solicitor excluded me from the hearing proceedings, threatened to withdraw representation, silenced me, presented documents for me to sign with misleading explanations and failed to present all aspects of compensation sought as instructed in earlier consultations.
Incorrect claims which I am requesting be reheard include the following categories:
§Component [sic] pain and suffering
§Loss of income
§Permanent Impairment
§Injured worker rehabilitation
§Travelling expenses
Further supporting comments are made in the following reports:
§Dr Goldberg report
§Biased assessment by Dr Khan”
In her submissions filed on 18 September 2006 Mrs Markulin made the following points:
§ “I was not a participant in the WCC conciliation/hearing on 29 May 2006.
§ I did not consent to the Certificate of Determination dated 29 May 2006.
§ I did not provide my solicitor Mr Tony Hogno with instructions to settle the case as per the Certificate of Determination – Consent Orders dated 29 May 2006.
§ Neither the Arbitrator nor Mr Hogno read copies of relevant documents or the outcome of the settlement before [sic] me.
§ I wish to have the matter redetermined.”
Mrs Markulin also submitted that the matter should be reheard to address a “manifest injustice” in her case “which resulted in substantial compensation losses due to my exclusion from the conciliation and arbitration process” (submissions, 18 September 2006, page two).
The letter from Mr Slade dated 3 July 2006 responded to Mrs Markulin’s allegations. It stated:
“We have discussed the matter with Mr Hogno. Mr Hogno’s recollection, supported by our records, is as follows:
1.The orders made in the Workers Compensation Commission were made with your knowledge and consent.
2.Mr Hogno did not threaten to leave you unrepresented if you said anything during the hearing.
3.At all times you were offered the opportunity to proceed with a hearing of your claim.
4.The issue of settlement was always entirely one for you.
5.The settlement document was explained carefully to you. You were given an entirely adequate period of time to read the document.
6.The compensation settlement was made with the Arbitrator’s assistance and your knowledge.
7.Mr Hogno and the Arbitrator read copies of the relevant documents to you.
8.You signed copies of the Admissions.
9.You were not pressured to sign the settlement.
We have considered the issues that you have raised. We are satisfied that you were well represented by our Mr Hogno in these proceedings.
It is clear that you no longer have confidence in our capacity to represent you. We suggest that you to [sic] contact the Law Society of New South Wales on (02) 9926 0333 for a referral to an alternative law firm.”
Mrs Markulin made further written submissions dealing with alleged errors by the Arbitrator in the 3 August 2006 decision. The following points were made in her submissions filed on 18 September 2006:
a) the total dollar amount set out in the Consent Orders was less than an offer she rejected at an earlier teleconference. “Thus, in reality no ‘settlement negotiation’ was conducted by the solicitor as stated by the Arbitrator” (Mrs Markulin’s submissions, page three);
b) the Arbitrator’s determination was made without her consent, knowledge and was “clearly against the WCC requirement for the parties to be in attendance” (Mrs Markulin’s submissions, page four);
c) “the ‘process’ the Arbitrator followed in proceeding with the conciliation in my absence was conducted without any reference to myself as the applicant whatsoever” (Mrs Markulin’s submissions, page four);
d) the Arbitrator did not address the substance of any of the issues raised in her appeal;
e) the Arbitrator completely disregarded each point raised by her;
f) being excluded from the hearing had an adverse affect on her in the outcome of the settlement;
g) the terms of the settlement were not read to her by the Arbitrator;
h) Mr Hogno failed to represent her, excluded her, failed to follow instructions and failed to explain documents to her;
i) she was denied her right to address all the issues in the claim;
j) given the loss of $20,000.00 (based on the assessment of the level of impairment) the legal representation she received was not adequate;
k) there was an error of law by the Arbitrator in excluding Mrs Markulin from the hearing, failing to confirm Mrs Markulin’s assent not to attend and failing to read the decision to her;
l) the current facts constitute “exceptional circumstances” and the reconsideration is necessary to address a “manifest injustice”, and
m) there were systemic errors in that the Commission appears to have no clear procedure to satisfy itself that Applicants attend hearings as required by its notices.
In its Notice of Opposition, the Respondent Employer made the following points:
a) the settlement effected on 19 May 2006 was for $37,200.00 (plus Section 60 expenses up to $4,000.00 upon production of accounts or receipts), a figure well in excess of the sum of $27,500.00 offered at the teleconference;
b) the Commission’s procedures were followed appropriately;
c) Mrs Markulin was represented to the conciliation and arbitration by a solicitor;
d) the Commission is not the appropriate forum in which to raise allegations about the conduct of Mrs Markulin’s solicitor;
e) Mrs Markulin is incorrect to assert that the level of impairment was $20,000.00;
f) other than her dissatisfaction with her solicitor’s handling of the matter, Mrs Markulin has failed to demonstrate any error of law or that there has been a manifest injustice. The Commission is not the appropriate forum for such allegations to be addressed;
g) Mrs Markulin’s complaints raise no error of law, but merely expresses dissatisfaction with the processes, and
h) the settlement was fair and reasonable.
DISCUSSION AND FINDINGS
In my view, Mrs Markulin has misunderstood the nature of the proceedings in the Commission and not accurately recalled the events of 19 May 2006.
First, no ‘hearing’ took place on 19 May 2006. It is clear that at the conciliation and arbitration on that day the parties continued the negotiations that started during the teleconferences. In that process, Mr Hogno represented Mrs Markulin. It is not suggested that his instructions to do so had been withdrawn.
Second, Mrs Markulin’s assertion that her loss was $20,000.00 (based on the assessment of the level of impairment) is incorrect. The amount claimed in the Application as compensation for pain and suffering was $20,000.00. That amount was the amount particularised by Mr Hogno in the notice of claim served on Allianz on 15 July 2004. At no stage was it established that Mrs Markulin had a ‘loss’ or entitlement to $20,000.00 for pain and suffering.
The Respondent Employer disputed liability for the whole of Mrs Markulin’s claim. If the case had been contested and the Respondent Employer’s arguments succeeded, Mrs Markulin would have recovered no compensation. If she succeeded in establishing liability her maximum section 66 entitlements were $8,000.00 in respect of 10% permanent loss of efficient use of the right arm at or above the elbow and $5,250.00 in respect of 7% permanent loss of efficient use of the left arm at or above the elbow. They are the amounts that were paid to her under the Consent Orders. Under the settlement, Mrs Markulin was also paid $14,250.00 for pain and suffering. It could be argued that that amount was generous.
Third, in Mrs Markulin’s letter to Mr Hogno dated 9 June 2006 she stated that Dr Khan (the Approved Medical Specialist (‘AMS’)) “misrepresented Dr Goldgerg’s opinion” and “accepted Dr Woods’ false evidence”. In fact, the AMS accepted most of Mrs Markulin’s complaints and issued a Medical Assessment Certificate (‘MAC’) that was generally supportive of her claim.
Fourth, in respect of whether Mrs Markulin gave instructions for her case to be settled for the amounts set out in the Consent Orders, I do not accept Mrs Markulin’s assertion that she did not know what was involved in the settlement. Her allegations are firmly denied by Mr Slade who asserts that the settlement was made with the Arbitrator’s assistance and Mrs Markulin’s knowledge. It is also asserted by Mr Slade that, contrary to Mrs Markulin’s claim, the relevant settlement documents were read to Mrs Markulin by the Arbitrator and Mr Hogno. For the following reasons, I accept that Mr Slade’s assertions are more likely to be an accurate account of the events that took place on 19 May 2006:
a) at the oral hearing of the appeal on 28 February 2007, Mrs Markulin stated that her “memory was blank” and the she “wouldn’t remember anything” (transcript page 22 line 47) in response to my comment that I found it unusual that a person would go to the Commission with a solicitor and then come away with no idea of what settlement had been effected (transcript page 22 line 39);
b) in the fresh evidence tendered on appeal, Mrs Markulin relied on a report from her clinical psychologist, Mark Milic, dated 18 October 2006. In that report Mr Milic stated at page two:
“It is likely that Mrs Markulin’s ability to process, remember and rationally act on information regarding her compensation claim has at times been severely impaired due to her anxiety condition.”
c) the evidence from Mr Milic raises significant doubts about Mrs Markulin’s ability to accurately recall the events of 19 May 2006;
d) Mrs Markulin’s written submissions attack the whole of the settlement, but at the oral hearing she sought to retain the lump sum compensation and have only the weekly compensation redetermined. If her challenge to the Consent Orders is to be consistent, it is necessary for her to challenge the whole of the settlement (as she initially did). Her willingness to now accept part of the settlement and seek to challenge the remainder raises issues as the credibility of the whole of her challenge;
e) at the oral hearing Mrs Markulin tendered the ‘Admissions’ and submitted that she signed at the bottom of the first page but did not sign on the second page (transcript page 14 line 33). The document is signed ‘Drajica Markulin’ at the bottom of page one and two thirds of the way down page two. The two signatures appear to me to be identical. Mrs Markulin’s submission amounts to an allegation that someone forged her signature on the second page of that document. That is an allegation I do not accept, and
f) Mrs Markulin’s assertion that the settlement effected on 19 May 2006 was less favourable than the offer made at the teleconference was patently incorrect and highlights her inability to accurately recount information and events relating to her case.
Last, I am not satisfied that the refusal to set aside the Consent Orders will result in any injustice in the circumstances of the present case. I have read all of the evidence that was filed in support of the Application and in the Reply. The case raised significant and contentious issues as to injury and under section 11A of the 1987 Act. Evidence from Dr Woods on behalf of the Respondent Employer (disputed by Mrs Markulin) stated that Mrs Markulin made a significant error in a sterilisation procedure at work in June 2001, which could have put patients at risk (Dr Woods, letter 24 September 2001). A meeting was arranged for Mrs Markulin to be counselled about the error but before it was held Mrs Markulin presented a WorkCover medical certificate dated 15 June 2001 stating she was unfit for work as a result “anxiety/insomnia/depression/hypertension”. The first WorkCover medical certificate dealing with Mrs Markulin’s right shoulder was not until 14 February 2002. Dr Woods disputes receiving Mrs Markulin’s earlier non-WorkCover certificates relating to her shoulder (Dr Woods’ letter 13 December 2005). Dr Woods concluded his letter of 13 December 2005 by saying that:
“Ms Markulin has made many claims and allegations since leaving our employment, including complaints to the Anti Discrimination Board and the Health Care Complaints Commission, among others. Her statement of the events, some of which overlap with these new claims, was in conflict in almost every regard with the recollections of the other staff involved at the time. They were shown to be baseless and were withdrawn. I believe this claim falls into that category.” (emphasis added)
The reference to ‘this claim’ is a reference to Mrs Markulin’s claim that she injured her shoulders in the course of her employment with the Respondent Employer. These issues made it appropriate for the parties to consider a compromise settlement of the claim. That is what happened. Without conclusively deciding the issues involved, it is my view that those issues justified a compromise settlement and that the settlement effected was appropriate.
In all the circumstances I am not satisfied that this is an appropriate case in which to exercise the Commission’s reconsideration power to set aside the Consent Orders and I refuse the Appellant Worker’s application.
DECISION
For the reasons stated in this decision, the Arbitrator’s decision of 3 August 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
6 March 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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