McGuire v State Transit Authority of NSW (No 2)
[2007] NSWWCCPD 109
•4 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:McGuire v State Transit Authority of New South Wales (No 2) [2007] NSWWCCPD 109
APPELLANT: Edward McGuire
RESPONDENT: State Transit Authority of New South Wales
INSURER:Self insurer
FILE NUMBER: WCC4390-05
DATE OF ARBITRATOR’S DECISION: 6 February 2006
DATE OF APPEAL DECISION: 4 May 2007
SUBJECT MATTER OF DECISION: Power to grant leave to appeal against interlocutory decision; jurisdiction to refer to Approved Medical Specialist; whether dispute remains on foot; duty to call for evidence from parties; discontinuance.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Steve Masselos & Co
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order is made as to the costs of the appeal.
BACKGROUND TO THE APPEAL
1.State Transit Authority of NSW, the Respondent Employer, employed Mr Edward McGuire, the Appellant Worker, as a bus driver. State Transit is self-insured.
2.Mr McGuire was born on 15 May 1943 and is married with two children. He commenced employment with State Transit in 1990. In about February 1992 he started to experience lower back pain in the course of his duties as a bus driver. He reported his condition to State Transit and lodged a claim for compensation. Mr McGuire continued working, and took painkillers and anti-inflammatory medication for his condition.
3.On 6 September 2001 while driving a State Transit bus Mr McGuire was physically assaulted by a passenger as a result of an altercation over a bus pass. He was taken to the Prince of Wales Hospital and was treated for cuts and bruises to his face and head, and a broken right index finger. The following day Mr McGuire, suffering from shock and experiencing pain, consulted his general practitioner, Dr Nigro, at Hurstville.
4.On 8 September 2001 Mr McGuire lodged a claim with State Transit for weekly compensation as a result of the incident on 6 September 2001 and claimed psychiatric/psychological injury and injury to the right hand/finger. State Transit accepted Mr McGuire’s compensation claim by letter dated 20 September 2001. H received weekly compensation for total incapacity until he returned to State Transit on selected duties on 27 May 2002 and remained in receipt of weekly payments of compensation pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). He was found incompetent to commence a rehabilitation programme, which involved a graduated return to bus driving duties, with peer support. He was absent from work from 18 June 2002 until October 2002, despite attempts to encourage him back to work. Mr McGuire’s doctors certified that he was still not fit to return to work as a bus operator during this time.
5.On 24 October 2002 State Transit advised Mr McGuire that it was terminating his employment due to his inability to undertake active duties concurrent with his classification as a bus operator, and that his termination of service was effective on 4 December 2002.
6.On 25 October 2002 State Transit advised Mr McGuire that his claim for workers compensation entitlements on the basis of an alleged psychological condition was declined because he no longer suffered from a psychiatric disorder or stress related illness, which could be reasonably attributed to his employment with the State Transit Authority.
7.On 7 November 2002 Mr McGuire lodged an ‘Application to resolve a Dispute’ in the Workers Compensation Commission (WCC3961-02). He claimed weekly benefits compensation, section 60 expenses, and lump sum compensation for permanent impairment, and pain and suffering.
8.On 23 January 2003 Mr McGuire’s termination of employment with State Transit was rescinded and arrangements were made for him to be employed as a bus cleaner. This new employment arrangement was subject to several conditions including undergoing a medical examination to confirm fitness to carry out cleaning duties.
9.On 26 February 2003 Mr McGuire filed an ‘Agreement to discontinue Proceedings’ in the Commission in proceedings number WCC3961-02.
10.Mr McGuire commenced duty as a bus cleaner with State Transit on or about 15 February 2004.
11.On Saturday 19 June 2004, in the course of his duties as a bus cleaner, Mr McGuire had fuelled a bus and was driving it within the State Transit bus depot when he collided with another bus, which was stationary. After the incident Mr McGuire alleges that he was devastated and upset, and suffered severe pain in his back and arms. He immediately reported the incident to the depot inspector and lodged an ‘Accident Report’ form. Mr McGuire worked the next day, Sunday. He claims that he became depressed as a consequence of the incident. He consulted his local medical practitioner, Dr Corrier on Monday 21 June 2004 who certified him unfit to work.
12.On 27 July 2004 State Transit declined Mr McGuire’s claim for compensation in respect of his alleged psychological injury. State Transit also informed Mr McGuire that payment of his section 60 expenses would cease.
13.On 1 August 2004 Mr McGuire commenced employment with Gleco Enterprises Pty Ltd performing cleaning and miscellaneous tasks, including deliveries.
14.On 27 August 2004 State Transit wrote to Mr McGuire maintaining its offer to provide him with fulltime duties as a bus cleaner.
15.On 31 August 2004 Mr McGuire declined State Transit’s offer stating, “I am unable to return to full time duties due to my medical problems as specified by my doctors on the w/c certificates of which you have copies. State Transit workers compensation unit have denied my claim and I am at present following legal advice to expedite this matter.”
16.On 4 November 2004 Mr McGuire wrote to State Transit claiming compensation for injuries to his back and right hand and psychological/psychiatric injury, sustained during the course of his employment. He claimed compensation pursuant to section 66 and section 67 of the 1987 Act, on the basis of the assessments in the report of Dr P. Endrey-Walder, dated 14 October 2004.
17.On 21 March 2005 Mr McGuire lodged an ‘Application to Resolve a Dispute’ (‘the Application’) (WCC4390-05) in the Commission seeking weekly benefits compensation, reimbursement of expenses pursuant to section 60 and compensation for permanent impairment, and pain and suffering pursuant to sections 66 and 67 of the 1987 Act.
18.An Approved Medical Specialist (‘AMS’) Professor Robin J E D Higgs examined Mr McGuire and on 24 August 2005 issued a Medical Assessment Certificate (‘MAC’). The AMS opinion was as follows:
“The Applicant suffers from a 10% loss of efficient use of the right hand as a consequence of the injury on 6/9/01.
The Applicant suffers from a 15% permanent impairment of the back, of which 1/5th is pre-existing, 2/5th relates to incident in February 1992 and 2/5th relates to the nature and conditions of work from 1990 to 6/9/01”
19.On 20 October 2005 a telephone conference was held in an attempt to resolve the outstanding matters. The parties were unable to resolve the issues relating to weekly compensation claims and reimbursement of medical expenses, primarily related to the claim of secondary psychological injury. As a result an arbitration hearing was listed for 8 November 2005. Although the MAC essentially resolved the claim for compensation for permanent impairment under section 66 of the 1987 Act, neither party asked for an order to be made at the time of the teleconference. No order was made by the Arbitrator to finalise the section 66 claim.
20.At the arbitration hearing on 8 November 2005, State Transit relied on surveillance film that it produced. While this film had been provided to the AMS, he did not rely on it because he could not confirm that it was a film of Mr McGuire. During a partial viewing of this video surveillance footage at the arbitration hearing, Mr McGuire’s counsel conceded that Mr McGuire was the person featured in the videos performing certain tasks at work and his home.
21.On 14 November 2005 State Transit made payment of compensation in the amount of $14,200 (referred to in the correspondence as ‘settlement monies’) in accordance with this section 66 assessment of the MAC.
22.On 29 November the Commission issued the ‘Certificate of Determination’ (‘COD’) with an attached ‘Statement of Reasons’ (‘Reasons’). The orders made by the Arbitrator were as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $93.94 from 1 March 2004 to 25 November 2005 under section 40 of the Workers Compensation Act 1987, such weekly payments to continue in accordance with the provisions of the Act.
2.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses in relation to his right hand and back on production of accounts or receipts.
3.That the matter is determined as complex within the meaning of Clause 4.10 of Schedule 6 of the Workers Compensation (General) Regulation 1995.
4.That the Applicant be referred again, in accordance with section 329(1)(b) of the 1998 Act to the AMS for assessment of permanent impairment.” (Emphasis added).
23.The Arbitrator’s reasoning in support of order 4 appears in paragraphs 37 to 41 of the Arbitrator’s Reasons. The Arbitrator states:
“Having seen the videos, I am unable to understand how a person showing no signs of difficulties in going about normal daily and work activities could present in the manner he did at the hearing.
The AMS seems to have had a similar difficulty when he observed, particularly in relation to the second video (14/4/05 to 30/4/05), that ‘the male subject of the surveillance has not demonstrated any concession to any disability other than for the presence of a left sided limp…. unfortunately I have been unable to make a positive identification of the male subject of the surveillance…’.”
24.An appointment for re-examination with AMS Professor Higgs was scheduled for 14 December 2005. On 7 December 2005 Mr McGuire’s solicitor wrote confirming that Mr McGuire would not be attending the appointment because the section 66 claim had been resolved in accordance with the MAC, by reason of the payment of $14,200.00, made by State Transit on 14 November 2005, and consequently, there was no longer any dispute.
25.On 20 December 2005, a Direction was issued by the Arbitrator in clarification of the previous order made, as follows:
“Prof. Robin J E D Higgs, the AMS, shall undertake such assessment:
1.1.without the need for further examination of the Applicant unless he otherwise decides;
1.2based on the same papers and 2 videos of surveillance between 14/04/05 and 13/05/05 as were forwarded to him from the previous assessment;
1.3on the basis that the AMS can accept that the male, that is the subject of the surveillance videos, is the Applicant including being the person undertaking the garden activities (excluding the laying of the turf) and the person carrying and lifting the orange box containing a Kanga jack hammer;
1.4otherwise in accordance with the form of Request for Assessment of Permanent Impairment by Approved Medical Specialist dated 25 November 2005.”
26.On 23 December 2005, Professor Higgs wrote to the Commission stating that he required Mr McGuire to submit himself for examination pursuant to section 324(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Mr McGuire was advised that a further appointment for re-examination was arranged for 1 February 2006.
27.On 11 January 2006 Mr McGuire’s solicitors advised the Commission that it had no power to make such a referral due to lack of jurisdiction and that Mr McGuire would not be attending the appointment. This appointment was duly cancelled and under cover of a letter dated 17 January 2006 the Arbitrator called for submissions from the parties in relation to the jurisdiction issue. On 20 January 2006 the Commission advised both parties that the Arbitrator would decide the issue of jurisdiction ‘on the papers’.
28.On 6 February 2006 the Arbitrator issued a ‘Certificate of Determination’ with attached Reasons in relation to the ‘jurisdiction’ issue and in summary, found that “the Commission retains jurisdiction over the section 66 claim and that until an order is made disposing of the section 66 claim, the Commission may exercise all its powers conferred by the 1987 and 1998 Acts, including those under section 329(1)(b) of the 1998 Act.”
29.On 6 March 2006 Mr McGuire lodged an ‘Appeal against Decision of Arbitrator’ (‘Appeal’) with the Commission, endorsing the document, “Appeal against interlocutory Decision”.
30.On 24 May 2006 State Transit filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ (‘Opposition’) with the Commission.
31.The matter was allocated to me for determination in due course, and on 19 January 2007 I issued a direction to the parties requesting further submissions and the production of any relevant documentation that evidences the purported settlement of the section 66 claim.
32.On 22 January 2007 Mr McGuire’s solicitors wrote to the Commission and stated in response to my direction of 19 January 2007:
“Please note that no such document exists as it is asserted by the Appellant that the agreement was an oral one and that the subsequent correspondence dated 14 November 2005 is the only written evidence of such agreement.”
33.On 26 February 2007, the Commission telephoned the solicitors for State Transit, as they had failed to respond to my direction of 19 January 2007. The solicitors confirmed that they would not be filing any further submissions.
THE DECISION UNDER REVIEW
34.The Arbitrator’s ‘Certificate of Determination’ (‘COD’) dated 6 February 2006 records the following determination:
“1. that the Applicant be referred again, in accordance with section 329(1)(b) of the 1998 Act, to the AMS for assessment of permanent impairment;
2. that the appointment for examination be a date nominated by the AMS that is more than 28 days after the issue of this Certificate of Determination;
3. that the AMS shall conduct the assessment:
3.1based on the same papers and 2 videos of surveillance between 14/04/05 and 13/05/05 as were forwarded to him from the previous assessment;
3.2on the basis that the AMS can accept that the male, that is the subject of the surveillance videos, is the Applicant including being the person undertaking the garden activities (excluding the laying of the turf) and the person carrying and lifting the orange box containing a Kanga jack hammer;
3.3otherwise in accordance with the form of Request for Assessment of Permanent Impairment by Approved Medical Specialist dated 25 November 2005.”
ISSUES IN DISPUTE
35.The issues raised by Mr McGuire and in dispute in the appeal, are whether:
(1)the Arbitrator erred in finding that a dispute continued to exist in relation to the section 66 claim and that the Commission had the jurisdiction to refer Mr McGuire for a further AMS pursuant to section 329(1)(b) of the 1998 Act;
(2)the State Transit is in fact estopped from taking issue with the section 66 claim in view of its payment of compensation in accordance with the original AMS decision;
(3)the Arbitrator erred in failing to call for further evidence from the parties in order to determine whether an agreement existed between the parties and/or a dispute existed in relation to the section 66 claim, and
(4)the Arbitrator erred in finding that the only way in which an individual claim can be withdrawn is by the filing of a Notice of Discontinuance.”
ON THE PAPERS REVIEW
36.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.”
37.Both parties submit that if leave to appeal is granted the appeal can be decided solely on the basis of the written application and the written notice of the opposition.
38.Having regard to the submissions, transcript, evidence and documents that are before me, 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 TO APPEAL
39.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Monetary Threshold
40.Section 352 of the 1998 Act, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), 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.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(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.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (Emphasis added)
41.Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least “20% of the amount awarded in the decision appealed against”. In Grimson v Integral Energy [2003] NSWWCCPD 29 Deputy President Fleming said:
“30. The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
42.No compensation has been awarded in this matter. The amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. In this case Mr McGuire claimed $29,5000 in respect of 45% whole person impairment and $25,000 in respect of pain and suffering in his Application to Resolve a Dispute dated 21 March 2005. Allowing for the compensation paid in the prior alleged ‘settlement’ dated 14 November 2005 (which was not the subject of a monetary award nor was a section 66A agreement filed), the quantum of compensation “at issue” on appeal exceeds the $5,000 threshold in section 352(2)(a). In his appeal application Mr McGuire submits in relation to the monetary threshold that: “The Interlocutory Decision of the Arbitrator involves the whole of the Applicant’s Section 66 claim in issue, namely, the sum of $14,000. The entirety of the Award is the subject of the Interlocutory Appeal.”
43.State Transit makes no submission on the monetary threshold in its ‘Notice of Opposition’.
44.Sections 352(2)(a) and (b) of the 1998 Act are both satisfied.
Time
45.Section 352(4) provides that an appeal can only be made within 28 days after the making of the decision appealed against.
46.Rule 16.2 of the Workers Compensation Commission Rules 2006 (‘Rules’) provides:
“(1)A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (11).
(2)For the purposes of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294 (1) of the 1998 Act.”
47.The Appeal was lodged on 6 March 2006, within 28 days of the Arbitrator’s decision dated 6 February 2006 and in compliance with section 352(4) of the 1998 Act.
48.State Transit provides detailed submissions opposing the granting of leave to appeal and argues that Mr McGuire’s Appeal was lodged out of time. State Transit refers to the Arbitrator’s Certificate of Determination, issued on 29 November 2005, as the date of “the making of the decision” for the purposes of Rule 16.2(1) of the Rules, (Rule 77(1) of the Workers Compensation Commission Rules 2003, as it was then). It submits:
“The Applicant appears to be relying on a “decision” made by Arbitrator Charlton dated 6 February 2006. This document (Annexure B) is in fact an “Advice to Parties of Rescheduled date of AMS Examination” issued by the Dispute Management Officer on behalf of the Commission”.
49.However, a perusal of the Commission file reveals that a copy of the Arbitrator’s decision dated 6 February 2006 was served on both parties under cover of a letter dated 6 February 2006. Mr McGuire has specifically appealed against that decision of 6 February 2006, which is set out at paragraph 34, above.
50.I find that the application for leave to appeal was made within the time prescribed by section 352 (4) of the 1998 Act, and Rule 77(1), as it then was.
Interlocutory order
51.As noted in paragraph 40 above, section 352 of the 1998 Act was amended. The amendments effected were the inclusion of subsections (1A), (7A), and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’. Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.
52.Under Clause 200B of the Workers Compensation Regulation 2003 (‘Regulation’), as amended, “for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.
53.Under Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 the above amendments to section 352 “apply in respect of a claim for workers compensation made before the commencement of the amendments”.
54.An important question to be addressed on the interlocutory issue is whether the amendment to section 352(8) is retrospective. The question was first considered in detail in the Commission by Deputy President Roche in P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’) where he concluded at paragraph 34:
“The wording of Schedule 6 Part 18J Clause 5 quoted above is in clear and unambiguous language. The relevant amendments to section 352 apply “in respect of a claim for workers compensation made before the commencement of the amendments” (emphasis added). The term ‘claim’ is defined in section 4 of the 1998 Act to mean “a claim for compensation or work injury damages that a person has made or is entitled to make”. In the present matter the Appellant Worker made a claim for compensation on 5 July 2005. Therefore, it is my view that the amendments to section 352 made by the amending Act do have retrospective operation and apply to the present appeal.
55.The claim in the instant matter was made on 4 November 2004 and therefore, section 352(8) applies.
56.The next issue to consider is whether the decision made by the Arbitrator on 6 February 2006 is ‘final’ or ‘interlocutory’ in nature. Deputy President Roche also considered this issue in Hawkins where he stated:
“35. The distinction between a ‘final’ and ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL an others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206 (‘Southern Cross’)). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. His Honour added at 207:
‘Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order, which falls on one side of the line, or another.’
The principal point to be noted in at least the recent decisions of the High Court of Australia on this question is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.
36. His Honour quoted from Gibbs J (as he then was) in Licul v Corney (1976) 50 ALJR 439, where his Honour said at 443-4, that the established view in Australia was that what is interlocutory:
‘…depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?’
37. A difficulty arises in determining what is interlocutory in proceedings in the Commission because, unlike common law courts assessing claims for damages, the Commission does not assess compensation on a ‘once and for all basis’. For the reasons set out below, care should be taken before automatically adopting common law authorities on the meaning of the term ‘interlocutory’ to the term “preliminary or interim orders…of an interlocutory nature” in clause 200B of the 2003 Regulation:
a)the Commission is a statutory tribunal and has only those powers conferred on it by the Workers Compensation Acts (the 1987 Act and the 1998 Act). Its objectives are set out in section 367 of the 1998 Act, which states:
‘367 Objectives of Commission
(1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f) to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2) In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.’ (Emphasis added).
b)for the reasons explained below, the above objectives will be seriously frustrated if an unduly restrictive interpretation is given to the wording in clause 200B of the 2003 Regulation;
c)workers’ rights under the Workers Compensation Acts are ongoing and are subject to review under section 55 of the 1987 Act or reconsideration under section 350(3) of the 1998 Act. In this respect there is rarely an order (at least where the worker succeeds with his or her claim) by the Commission that ‘finally disposes of the rights of the parties’ in the sense that a common law verdict does. For example, further medical treatment may be required, or the worker’s condition may deteriorate requiring the entitlement to compensation to be reviewed and reassessed;
d)the Commission’s jurisdiction to award lump sum compensation is restricted in that, if there is a dispute about the degree of permanent impairment of an injured worker, an Arbitrator may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an AMS (section 65(3) of the 1987 Act). This will often require that an Arbitrator determine issues such as injury, worker, and substantial contributing factor (among other issues) before the matter is referred to an AMS. The effect of a determination by an Arbitrator on these issues is set out in section 350(1) of the 1998 Act which provides:
‘350(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.’
e)such a decision clearly disposes of the parties’ rights and the findings made in such decisions or determinations do not become any less ‘final’ because of the unique statutory provisions under which the Commission operates;
f)an AMS is not part of the Commission (section 368 of the 1998 Act) and the procedures established under Part 7 make detailed provisions for ‘medical disputes’ (defined in section 319 of the 1998 Act) to be assessed by an AMS who then issues a Medical Assessment Certificate (‘MAC’) (section 325 of the 1998 Act) which is “conclusively presumed to be correct” (section 326 of the 1998 Act) as to the following matters:
·the degree of permanent impairment of the worker as a result of an injury,
·whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
·the nature and extent of loss of hearing suffered by a worker,
·whether impairment is permanent, and
·whether the degree of permanent impairment is fully ascertainable.
g)a party to a medical dispute may, in certain circumstances, appeal against a medical assessment under Part 7 (section 327). On appeal, a fresh MAC may be issued (section 328(5) of the 1998 Act). This process is time consuming and involves substantial cost;
h)the Commission’s objectives of ‘reducing administrative costs across the compensation system’ and providing a ‘timely service’ would be significantly frustrated if a final decision on ‘worker’ or ‘injury’ or ‘substantial contributing factor’ (or some other issue that finally determined the parties’ rights) was to be treated as being interlocutory and the worker was then required to attend an AMS and, perhaps, a Medical Appeal Panel, and then wait for a further Certificate of Determination to be issued at the conclusion of that process before an appeal could be heard under section 352. If the appeal is ultimately successful and the Arbitrator’s finding is overturned, the AMS and Medical Appeal Panel would potentially have been held for no reason and substantial unnecessary cost and delay would have been incurred;
i)on a question of statutory interpretation, a construction that promotes “the purpose or object underlying the Act or statutory rule…shall be preferred to a construction that would not promote that purpose or object” (section 33 Interpretation Act 1987);
j)in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase “preliminary or interim orders…of an interlocutory nature” to matters that are genuinely preliminary, provisional or interim in nature, and
k)given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”
57.I endorse and adopt Deputy President Roche’s reasoning and conclusions.
58.The question therefore remains, were the orders made in the present case of the kind that fall within the terms of clause 200B of the Regulation?
59.In this appeal, Mr McGuire expressly endorses on the first page of his ‘Application’ that the decision appealed against, is an ‘Interlocutory Decision’. Annexure A to the ‘Application’ also states: “The Interlocutory Decision of the Arbitrator involves the whole of the Applicant’s Section 66 claim in issue, namely, the sum of $14,000. The entirety of the Award is the subject of the Interlocutory Appeal.” State Transit makes no reference in its Reply as to whether the decision made by the Arbitrator is final or interlocutory.
60.The decision made by the Arbitrator does not finally determine the rights of the parties [see paragraph 56, above], and does not purport to do so. However, a determination on appeal has the potential to do so, should Mr McGuire succeed, having regard to the specific issues that he has put in dispute in the appeal. Nevertheless, it is the decision of the Arbitrator that is under review, and it is the nature of that decision that comes into question, not the possibilities that present themselves in a determination of the appeal.
61.At the time of lodging his appeal in March 2006, the amendment of section 352(8) in the 1998 Act, excluding appeals of an interlocutory nature, was not envisaged. As discussed above, the amendments to section 352 “apply in respect of a claim for workers compensation made before the commencement of the amendments” (emphasis added). Consequently, this appeal is caught by the amended provisions of section 352(8).
62.As earlier stated, the decision of the Arbitrator of 6 February 2006, to refer the Applicant again, in accordance with section 329(1)(b) of the 1998 Act, to the AMS for assessment of permanent impairment, is not a decision, which “clearly disposes of the parties’ rights”. Accordingly, and as Mr McGuire himself recognizes, the Arbitrator’s decision of 6 February 2006 is a “preliminary or interim…determinations of an interlocutory nature”.
63.In these circumstances, leave to appeal should be refused and as a consequence, Mr McGuire will need to take into account the order made by the Arbitrator dated 6 February 2006, that he be re-examined, in accordance with section 329(1)(b) of the 1998 Act, by AMS Professor Higgs, for assessment of permanent impairment.
64.However, the fact that leave to appeal is refused in a matter, does not mean that an Appellant is prevented from appealing a decision where a (further) Certificate of Determination is issued by the Commission, after the MAC is issued. As noted by Deputy President Roche in Hawkins:
“Such further [final] certificate will not be a preliminary ruling of an interlocutory nature and, if the interlocutory order or determination was a ‘step in the procedure leading up to final judgment’ (Crowley v Glissan (1905) 2 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal the Commission’s ultimate Certificate of Determination will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Bunning v Cross (1978) 141 CLR 54 at 82, Ramton v Cassin (1995) 38 NSWLR 88 and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543 at 549). In that event the Appellant Employer will be entitled to challenge all steps in the procedure that have resulted in the ultimate determination”. (Emphasis added).
65.Similarly, should Mr McGuire be aggrieved by the ultimate decision of the Arbitrator, he may exercise his right to lodge an application for leave to appeal against such ultimate decision, including the interlocutory decision in this matter, which would then be “a step in the procedure leading up to final judgment.” However, he is precluded from doing so at this stage of the proceedings.
66.Notwithstanding what is set out above, on 19 January 2007 I purported to grant leave to appeal when issuing Directions to the parties. I said:
“The ‘Appeal against Decision of Arbitrator’ was lodged in the Commission on 5 March 2006. Leave to appeal is granted.
An application was made by the Appellant, Edward McGuire seeking leave to admit new evidence, being a letter from State Transit’s solicitors, dated 14 November 2005, referring to the purported settlement of the disputed claim for payment of compensation for permanent impairment. The Respondent offered no objection. Leave is granted to admit that letter into evidence in the appeal.
The formal orders and reasons are [sic] set out in my written decision (‘Determination of Appeal Against a Decision of the Commission Constituted by an Arbitrator’), which, when the appeal is finally determined, will be finalised, published and provided to the parties.
The core issue in the appeal is the Appellant’s assertion that the dispute between the parties has been settled and consequently, the Arbitrator no longer has jurisdiction in the matter. The letter of 14 November 2005 is tendered as evidence of this assertion. Before proceeding to finally determine this issue, I require the production of the documentation that comprises and/or evidences the purported settlement, and sets out the terms of settlement.”
67.Mr McGuire’s solicitors responded by letter of 22 January 2007 indicating:
“Please note that no such document exists as it is asserted by the Appellant that the agreement was an oral one and that the subsequent correspondence dated 14 November 2005 is the only written evidence of such agreement.
The Appellant tenders no further written evidence in support of its assertion unless the Commission requires the original document.”
68.State Transit declined to make any submissions on the issue, pursuant to the Directions, having earlier emphatically refuted Mr McGuire’s assertion that the dispute between the parties had been settled by reason of the payment made to him. State Transit’s position is that Mr McGuire should be required to present himself for assessment as directed, having regard in particular to the video evidence referred to above, and the concession made by his own legal representative that Mr McGuire is the person depicted in the video.
69.The status of the purported grant of leave to appeal on 19 January 2007 must be considered.
70.Where an issue remains to be determined in relation to a proceeding it cannot be said that the Commission is functus officio (Seltsam Pty Ltd & Anor v EnergyAustralia & Ors [1999] NSWCA 89). The substantive issues in this appeal have not been determined and the proceedings remain on foot.
71.Having regard to the amendments set out earlier, there was no power to grant leave to appeal in this matter. The Commission has only those powers that are conferred by statute and incidental powers that are implied by statute, and that are necessary to exercise the jurisdiction conferred upon it (Yong Fu Zhang v Mei Hu t/as Eden Furniture and the WorkCover Authority of NSW [2006] NSWWCCPD 15; NSW State Brickworks v Abi-Arraj (1995) 12 NSWCCR 397). Any attempted exercise of power beyond those conferred or implied by statute, would necessarily be of no legal effect (Commissioner of Police v Donlan; Commissioner of Police v Hanson, CA, 20 June 1995 (unreported). See also, Deveigne & Anor v Askar [2007] NSWCA 45; Pelechowski v The Registrar of the Court of Appeal (NSW) (1999) CLR 435; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323; KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott [2001] 51 NSWLR 516; John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476, per McHugh JA).
72.If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be contempt. In Attorney-General (NSW) v Mayas Pty Ltd (1998) 14 NSWLR 342 at 357, McHugh JA said:
“Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.”
73.In the circumstances, the grant of leave to appeal on 19 January 2007 in the instant matter is a nullity and of no legal effect. There was no power to make the order. Leave to appeal the decision cannot be granted.
74.The disputed claim may now continue to a determination by the Arbitrator, if not settled beforehand. Mr McGuire must now take into account the direction issued by the Arbitrator to present himself for further medical assessment. Undoubtedly, he will seek the further guidance and assistance of his legal representative in this matter.
75.Finally, as stated above, if Mr McGuire is aggrieved by the ultimate, substantive decision of the Arbitrator, the issues raised in this appeal, which arise from “a step in the procedure leading to the final decision”, may be included in any appeal that he may file in the Commission, at that point.
DECISION
76.Leave to appeal the decision of the Arbitrator, dated 6 February 2006, is refused.
COSTS
77.State Transit has made submissions on appeal claiming that Mr McGuire’s appeal is “frivolous and vexatious and has led to unreasonable incurring of costs.” However, given the particular circumstances touching on this appeal against the interlocutory decision of the Arbitrator, I consider that I should make no order as to costs.
78.No order is made as to costs.
Gary Byron
Deputy President
4 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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