Melhem v Hanna Bros Investments Pty Ltd
[2015] NSWWCCPD 65
•19 November 2015
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Melhem v Hanna Bros Investments Pty Ltd [2015] NSWWCCPD 65 | |
| APPELLANT: | Russell Melhem by his tutor Angelina Melhem | |
| RESPONDENT: | Hanna Bros Investments Pty Ltd | |
| INSURER: | Employers Mutual Ltd | |
| FILE NUMBER: | A1-1288/15 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: | 18 August 2015 | |
| DATE OF APPEAL DECISION: | 19 November 2015 | |
| SUBJECT MATTER OF DECISION: | Section 66 of the Workers Compensation Act 1987; lump sum award in respect of whole person impairment resulting from primary psychological injury entered by Deputy Registrar acting as Arbitrator following issue of Medical Assessment Certificate by an Approved Medical Specialist; s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; recision of award; whether recision order is interlocutory in nature; errors alleged in course of interlocutory proceedings; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; whether relevant error made out | |
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Masselos & Co Lawyers |
| Respondent: | Lee Legal Group | |
| ORDERS MADE ON APPEAL: | 1. The requests, directions and orders made by the Arbitrator as found in the Certificate of Determination dated 18 August 2015 are confirmed. 2. The matter is remitted to Arbitrator Wynyard to permit appropriate adjudication as to the terms of referral of the matter to the Approved Medical Specialist for reconsideration. | |
INTRODUCTION
Mr Russell Melhem alleged that he suffered a primary psychological injury when, on 13 November 2012 in the course of his employment with Hanna Bros Investments Pty Ltd (the respondent), he was held up by armed assailants and assaulted. Whilst there is no statement by Mr Melhem in evidence, he has reported to doctors, whose evidence is before the Commission, that he has not worked since the date of that assault. Whilst it is not clear on the evidence, it appears that he has been paid weekly compensation by the respondent’s insurer.
Mr Melhem made a claim against the respondent on 10 October 2014 in respect of whole person impairment alleged to have resulted from the injury. A dispute arose concerning Mr Melhem’s entitlement to such compensation and these proceedings were commenced in the Commission on 10 March 2015. Having regard to medical opinion that Mr Melhem lacked capacity to comprehend legal proceedings, a tutor, Ms Angelina Melhem, Mr Melhem’s mother, was appointed.
Whilst the procedural history of Mr Melhem’s application before the Commission is examined in some detail below, it is noted at this point that, following the filing of a Reply by the respondent, the matter was, on 8 April 2015, referred, in accordance with the provisions of s 65(3) of the Workers Compensation Act 1987 (the 1987 Act), for assessment of permanent impairment by an Approved Medical Specialist (AMS), Dr Robert Gertler, psychiatrist. The terms of that referral were amended on 29 April 2015. The assessment was conducted on 1 June 2015. On 16 June 2015, a Medical Assessment Certificate (MAC) was issued by the AMS. On 10 July 2015 orders were made by the Registrar’s Delegate granting the parties conditional access to documents produced by the Family Court of Australia.
On 16 July 2015, the Commission issued a Certificate of Determination which recorded an order, made in accordance with the MAC, as follows:
“The Commission orders:
1. That the respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $112,200 in respect of 47% permanent impairment resulting from injury deemed to have happened on 13 November 2012.
Brief statement of reasons
2. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
3. The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
On the date of issue of the above mentioned Certificate of Determination correspondence was forwarded, it seems coincidentally, by the respondent’s solicitors to the Registrar seeking a “reconsideration [by the AMS] of this matter considering some apparent inconsistencies between the contents [of documents to which the respondent had recently had access by order of the Commission]” and “the history and findings by the [AMS] as recorded in the [MAC]”. That application was made as may be permitted by the provisions of s 329(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Notwithstanding the making of the orders found in the Certificate of Determination as earlier noted, which orders effectively concluded the proceedings, it appears that arrangements were made by the Registry to have the matter listed before Mr John Wynyard, Arbitrator, on 24 July 2015. I note that Arbitrator Wynyard had earlier, on 15 July 2015, presided at a teleconference and had adjudicated disputes between the parties concerning access to documents which had been produced.
The Commission’s file contains a record of proceedings at the teleconference conducted on 24 July 2015, which notes that the matter had not been “finalised in full” and that the matter was to “proceed to a conciliation/arbitration hearing”. A direction was made by the Arbitrator that the matter be set down “for hearing at 10am on 14 August 2015 at 1 Oxford St Sydney.”
The record of the telephone conference conducted on 24 July 2015 further records the following matters:
“This is an application by the respondent for, firstly a reconsideration pursuant to s 350(3) [of the 1998 Act] of a decision of the Commission, which apparently issued on 16 July, and if successful an application under s 329 [of the 1998 Act] for an order referring the matter back to the AMS. The grounds are contained in the respondent’s letter of 16 July 2015. There was an earlier application by teleconference before me [on] 15 July for an order preventing the respondent from having access to documents produced by the Family Court. I allowed access to the respondent, rejecting the applicant’s application that the claimant’s privacy and that of his children would be compromised by such an order.
The letter from the respondent followed the exercise of access by its representative and it raised a number of matters that were contained in the Family Law affidavit.
1. The applicant went on trial on 16 March 2015 for aggravated break and enter with intent to cause serious indictable offense [sic]. After a nine day trial the jury acquitted the applicant and in the Family Law court the applicant swore two affidavits dated 28 August 2014 and 30 April 2015.
2. A tutor was appointed in these proceedings whereas there was none in the Family Court proceedings.
3. The applicant failed to disclose to the AMS that he was in a nine day criminal trial.
4. He did not disclose that he was proceeding in action in the Family Court for access to his children whereas he told the AMS that he did not have any contact with them and did not seek relationships. The access application indicates that the lack of contact is not for any psychiatric reason but rather that he did not have custody or access to them.
5. The concentration, persistence and pace finding is also challenged in view of the fact that he has been involved in very complicated and lengthy Family Court proceedings, not to mention a nine day hearing before a jury.
Mr Wright for the applicant objected to the applications upon the basis that a COD had already issued on 16 July and therefore the matter could not be referred under s 329 [of the 1998 Act] (to the AMS). Mr Thorne indicated that he wished to have that decision reconsidered and Mr Wright asked for an opportunity to make submissions and so I have set the matter down.”
The matter was listed again before Mr Wynyard on 14 August 2015 in accordance with the direction earlier made. Those proceedings were recorded and a transcript has been produced and made available to the parties. Each party was represented by counsel at that hearing. Following submissions put on behalf of the parties, the Arbitrator delivered, extempore, a determination of the applications made by the respondent which had been heard on that day. A Certificate of Determination issued following that hearing which records the following:
“The determination of the Commission in this matter is as follows:
1. I request the Registrar to use his best endeavours to obtain the production of records produced from the Family Court and to which access was granted by order of 10 July 2015.
2. I request the Registrar further to obtain leave of the Family Court to photocopy the Affidavit of Russell Melhem sworn on 30 April 2015.
3. I direct the applicant to lodge and serve a copy of said Affidavit sworn by Russell Melhem within 14 days hereof.
4. I grant the application to reconsider the Certificate of Determination of the Deputy Registrar dated 16 July 2015. I vacate the orders therein made.
5. Pursuant to s.329(1) of the 1998 Act I remit this matter to the Registrar for referral back to the AMS.
6. I admit into the proceedings a report of Dr Mark Shillito dated 22 February 2013 and direct that it be referred to the AMS.
7. I direct that the referral to the AMS pursuant to s 329(1) be delayed until after 23 September 2015.
8. I grant leave to the applicant to lodge and serve such material as it chooses, in response to the matters referred to within the Affidavit of Russell Melhem sworn in the Family Court of Australia on 30 April 2015, by 16 September 2015.
9. I set this matter down for further teleconference on 23 September 2015 at 10.30 am.
10. I direct that a transcript be taken out of today’s proceedings.
A brief statement of reasons for determination, in accordance with Rule 15.6 of the Workers Compensation Commission Rules 2006, is attached.”
This appeal against the decision of the Arbitrator was lodged with the Commission on 7 September 2015. In the circumstances, the Registry took steps to cancel the further telephone conference which the Arbitrator had directed be conducted on 23 September 2015 (at [9] of the Certificate of Determination). Mr Melhem has subsequently amended his submissions in support of the appeal.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions 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.
INTERLOCUTORY
It is asserted by the respondent that the decision of the Arbitrator is interlocutory in nature and further that leave, as is required by the provisions of s 352(3A) of the 1998 Act, should not be granted to Mr Melhem to proceed with this appeal.
The respondent appears to advance two arguments in support of this assertion. It is stated that Mr Melhem has explicitly accepted that the decision is interlocutory, given that reference in Mr Melhem’s application is made to s 352(3A). The respondent is correct that reference is made to that subsection. However it appears that such reference has been made in error given the submission, found at Part A point 3 of amended submissions, that the order challenged concerns the Arbitrator’s revocation of the award made pursuant to s 66 of the 1987 Act and that as such, the decision “is not an interlocutory decision”.
It must be stated at the outset that the manner in which this appeal has been presented on behalf of Mr Melhem is wanting in many respects and provides little assistance to the Commission in resolving the dispute. Notwithstanding the confusing presentation of argument, it is reasonably clear that Mr Melhem challenges the Arbitrator’s order which had the effect of revoking the award made pursuant to s 66 of the 1987 Act. Before such order was made, Mr Melhem had secured an order for payment of $112,200 pursuant to that section. The Arbitrator’s order has deprived him of the fruits of that award. Revocation of the order had finally determined the question of entitlement founded upon the original MAC. The respondent’s argument concerning the suggested concession that the decision is interlocutory must, in my opinion, be rejected.
It is further asserted by the respondent that the Arbitrator’s decision is interlocutory in nature, given that Mr Melhem’s entitlement under the 1987 Act remains “open”. That argument is advanced in disregard of the fact that the original order made on 16 July 2015, in which entitlement had been determined, had been revoked. The respondent’s arguments concerning this issue are rejected.
FRESH OR ADDITIONAL EVIDENCE
Mr Melhem seeks leave to tender fresh or additional evidence on this appeal. The admission of such evidence is governed by the provisions of s 352(6) of the 1998 Act which provide:
“(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. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The evidence upon which Mr Melhem seeks to rely is a statement made by his solicitor, Mr Michael Wright, dated 10 September 2015 which has attached a copy of correspondence dated 22 May 2015 and 23 June 2015 addressed to the Registrar from the respondent’s solicitors. Mr Wright’s statement relates to his conduct of these proceedings during the months of May, June and July of 2015.
The material which is the subject of this application and which is before the Commission may not be described as fresh evidence, but rather is appropriately described as additional evidence. The knowledge of Mr Wright concerning conduct of proceedings which is included in his statement relates to matters which were plainly within his knowledge at the time of the hearing before the Arbitrator. The correspondence referred to must, I infer, have been available to Mr Melhem as at the date of the hearing.
It is argued on behalf of Mr Melhem that failure to admit the additional evidence would cause a substantial injustice. It is put in argument that the evidentiary material would “assist in clarification of the conduct of these proceedings”. Whilst any such assistance would no doubt be welcome, I am not persuaded that the interests of justice would be in any manner defeated by refusal to admit that material. I acknowledge that Mr Wright’s statement includes an assertion that the respondent “conceded” at some stage of the proceedings that Dr Shillito’s report could not be relied upon. However, I note that the question of the admission of that document and its referral to the AMS was fully argued before the Arbitrator at the hearing on 14 August 2015. In the circumstances, Mr Melhem’s application for leave to tender the statement and correspondence is refused.
ISSUES IN DISPUTE
The grounds upon which Mr Melhem relies (which appear between [4] and [6] of submissions) are expressed as follows:
· “The Appellant was denied natural justice and not afforded procedural fairness in relation to the issue of a Direction to Produce.”
· “The Arbitrator erred in allowing the affidavit from the family court proceedings to be admitted to the documents to be sent to the AMS.”
· “The arbitrator erred in accepting the report of Dr Shillito as a treating report when clearly it was an Independent Medical Assessment and should have been excluded under the rules.”
It may be seen that the Arbitrator’s reasoning as expressed in the course of his reconsideration determination is not the subject of any challenge in these grounds. The complaints made in grounds 1 and 2 seem to suggest relevant error on the part of the Arbitrator when making interlocutory rulings in the course of pre-hearing conferences. Ground 3 appears to suggest error arising from wrongful admission of evidence.
Whilst it is not expressly stated, it seems to be that Mr Melhem is seeking to impugn the Arbitrator’s ultimate decision to “vacate” the orders made in the Certificate of Determination dated 16 July 2015 upon the basis that error had been committed as stated in each ground relied upon. So much is clear given that the relief sought on appeal is stated to be (between [24] and [26] of submissions):
“Revoke the CoD 18 August 2015;
Award for the Applicant pursuant to section 66 as per the CoD 17 July 2015.
Issue a new CoD in the same terms as the CoD 17 July 2015.”
RECONSIDERATION: SECTION 350(3) OF THE 1998 ACT
The respondent, having viewed documents produced after the AMS had issued the MAC, wished to make application, as is permitted by the terms of s 329 of the 1998 Act, to have the matter referred again to the AMS to be reassessed or reconsidered. Such application could not be made whilst the determination of the Commission dated 16 July 2015 remained extant (see discussion in Haydar Al-Nouri v Al-Nouri Pty Ltd [2010] NSWWCCPD 85 at [58]–[59]).
In the circumstances the respondent made an application for reconsideration of that determination as is permitted by s 350(3) of the 1998 Act which provides:
“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.”
It is unclear as to when exactly the respondent first made application for reconsideration of the determination. The Arbitrator (at T2 and at T8 of the transcript of his decision) makes reference to exhibit B, being correspondence from the respondent’s solicitors to the Registrar dated 16 July 2015, as being the “application”. I cannot agree with that observation by the Arbitrator. Exhibit B makes no reference to the making of the determination, which was an administrative procedure conducted by the Deputy Registrar acting as Arbitrator, on the very day the respondent’s correspondence was prepared and sent by email.
The “reconsideration” referred to at pages one and two of that correspondence is limited to an application made pursuant to s 329(1) of the 1998 Act that the matter be again referred to the AMS for further assessment.
It is probable, in my view, that the respondent had no knowledge of the making of the determination at the time of dispatch of the email sent at 10.22 am on 16 July 2015. What is clear, as recorded by the Arbitrator (noted at [8] above), is that as at 24 July 2015 the respondent had made clear that it sought reconsideration pursuant to s 350(3).
The Arbitrator accepted the respondent’s argument that reconsideration was appropriate and ordered, inter alia, that the application for reconsideration be granted and that orders made on 16 July 2015 be “vacated” (at [4] of Certificate of Determination noted at [9] above).
THE GROUNDS
First ground
The first ground asserts “denial of natural justice” and that Mr Melhem was “not afforded procedural fairness in relation to the issue of a Direction to Produce”. The submissions in support of this ground suggest that Mr Melhem was not “given the opportunity to make submissions concerning the issue of a Direction for Production addressed to the Federal Court of Australia [sic]” and that he was “not given the opportunity to make submissions as to the terms of any access orders before the making of those orders on 10 July 2015”.
The Commission’s record reveals that a request for the issue of the subject direction for production, to be addressed to “the Federal Circuit Court” [sic], was forwarded by the respondent’s solicitors to the Registrar by email dated 27 May 2015. It is recorded in an endorsement on the document that “approval to issue” was given on the following day. Receipt of the direction was acknowledged by the Family Court of Australia by the Registrar of that Court who indicated in correspondence dated 17 June 2015, addressed to the respondent’s solicitors, that “the Family Court of Australia is not subject to the Commission’s subpoena for production powers”. Notwithstanding that assertion by the Registrar of the Court, documents were subsequently produced.
Upon acceptance that Mr Melhem had not had an opportunity to oppose the issue of that direction for production, his complaint fails to acknowledge two relevant matters. Firstly, the question as to whether such a direction is to be issued is one within the discretion of the Arbitrator: Workers Compensation Commission Rules 2011 (the Rules) r 13.4(1). Secondly, the procedure concerning issue of such a direction is regulated by the terms of r 13.4(3) of the Rules, again bestowing discretion upon the Arbitrator, which provides:
“In deciding whether to order the issue of the direction for production, the Arbitrator may do any of the following:
(a) determine any objection by a party,
(b) direct the time for service of the direction and the time for production by the producer,
(c) direct the making of access orders, including a first access order,
(d) make such other provisions as the Arbitrator thinks fit.”
Access orders concerning the documents produced were made by the Registrar’s delegate on 10 July 2015. It appears that, whilst the Direction for production was issued without consideration of any objection by Mr Melhem, his subsequent objection concerning the respondent having access to documents produced by the Family Court of Australia was acknowledged by the Arbitrator and that question was argued before him, and rulings were made, on 15 July 2015.
No submission is made otherwise concerning the manner in which the Arbitrator exercised his discretion concerning the issue of the direction, nor concerning the question of access to the documents.
Whilst there is no record of argument as advanced before the Arbitrator on 15 July 2015, it is asserted by Mr Melhem that the Arbitrator “declined to inspect the documents produced when invited to do so by [Mr Melhem]”. Such a response by the Arbitrator does not, in my opinion, ground any argument concerning denial of procedural fairness in the manner of the issue of the direction which had occurred earlier.
It follows that any argument, which seems to be implied by those submissions advanced by Mr Melhem, that the ultimate decision concerning revocation of the determination made on 16 July 2015 was affected by relevant error, must be rejected.
Second ground
The second ground makes complaint of error being that the Arbitrator allowed “the affidavit from the Family Court proceedings to be admitted to the documents to be sent to the AMS”.
It is clear that this ground demonstrates that those advising Mr Melhem have misapprehended the orders made by the Arbitrator at the hearing conducted on 14 August 2015.
Whilst there was much debate at that hearing concerning the relevance, probative value and admissibility of an affidavit which had earlier been produced by the Family Court of Australia, that affidavit was not before the Arbitrator at that time, nor was there any ruling as to its admissibility made by him. Nor was there any order made concerning referral of that document to the AMS as suggested in this “ground”.
A careful reading of the Arbitrator’s reasons demonstrates that final orders concerning particular material to be admitted and referred to the AMS would follow compliance with interlocutory orders and argument by the parties at a further hearing which had been fixed for 23 September 2015. As earlier noted, that fixture was cancelled by the Registrar once this appeal had been instituted by Mr Melhem.
Ground two is founded upon mistaken belief as to the nature of orders made and must fail.
Third ground
The third ground challenges the Arbitrator’s admission into evidence of the report of Dr Mark Shillito, psychiatrist and psychotherapist, dated 22 February 2013. It is asserted that the report was an “Independent Medical Assessment” obtained by the respondent. Having regard to the terms of cl 49 of the Workers Compensation Regulation 2010 (the Regulation) Mr Melhem argues that such report is not admissible. That regulation provides:
“49 Restrictions on number of medical reports that can be admitted
(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2) A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4) In this clause:
forensic medical report, in relation to a claim or dispute:
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
It is to be regretted that there is no clear record to be found in the transcript, or otherwise, of the material that was in evidence before the Commission on the hearing of these applications, other than the material tendered, admitted and marked exhibits A to D inclusive.
Confusion which has arisen is compounded by the fact that Dr Shillito’s report was originally annexed to the respondent’s Reply. At page one of the copy of Dr Shillito’s report, there is a handwritten note on a post-it sticker which, as recorded by the Arbitrator, stated “excluded from Reply in evidence file”. There is also a report of another psychiatrist, Dr John Lam-Po-Tang, dated 26 November 2014 which is annexed to an Application to Admit Late Documents dated 27 April 2015 filed on behalf of the respondent. There is no formal record of the admission of that last mentioned report.
The state of the evidence was addressed by Mr Stockley, counsel for the respondent, (at T21) where it was stated:
“And there’s no application before you at the moment for [Dr Shillito’s report] to be admitted or re-admitted as a document in the event that this matter does proceed to an Approved Medical Specialist. But I have foreshadowed that. Could I just enquire as to whether that is something you would consider now or whether it needs to be the subject of formal application in the event that the Certificate of Determination is revoked.”
In response to counsel, the Arbitrator invited submissions from the parties as to the admission of the report. Counsel is recorded (at T22) as tendering not only Dr Shillito’s report, but two further documents relevant to the genesis of the report.
It is recorded (at T23) that the Arbitrator formally admitted the two further documents (an email from the tutor Ms Melhem to the insurer’s senior case manager Mr Habib; the second was described by counsel as having been “produced by Dr Haroum”). No formal order was made at that point in time concerning Dr Shillito’s evidence. The Arbitrator, properly, called on counsel to put submissions concerning its admission. Where relevant, those submissions are considered below.
Mr Carney had argued, as recorded by the Arbitrator at the time he ruled on this question (at T2 of the decision), that admission of Dr Shillito’s evidence would be in breach of cl 49 of the regulation. That submission was founded upon the assertion, accepted by the Arbitrator, that the respondent had tendered in evidence a forensic medical report, that being the aforementioned report of Dr Lam-Po-Tang.
It may be seen that the issue to be determined by the Arbitrator concerned the question as to whether Dr Shillito’s report was a forensic medical report within the meaning of cl 49.
Submissions before the Arbitrator concerning the admission of Dr Shillito’s evidence
Mr Stockley, on behalf of the respondent, argued that the content of Dr Shillito’s report demonstrates that Mr Melhem had been “referred for the purpose [of] treatment within the meaning of the Act” (at T24). Counsel had made reference to the notation made by Dr Shillito that there was “no agreement for the patient to continue in my care” and also to treatment advice given by Dr Shillito to Mr Melhem but which had been rejected by him. It was counsel’s submission that it was clear “that what Dr Shillito is relaying to the reader here is his clinical assessment and his attempts to procure treatment and assessment for [Mr Melhem]”.
Mr Carney, on behalf of Mr Melhem, argued that it was clear that Dr Shillito was “doing an assessment for the insurer”. Counsel emphasised passages in the report which invited the insurer to contact Dr Shillito for any further discussion. It was further argued that the mere fact that Dr Shillito had attempted to procure further treatment and management does not infer that he was a treating doctor.
The Arbitrator’s ruling on Dr Shillito’s report
Following a summary of submissions put on behalf of Mr Melhem, the Arbitrator described the content of Dr Shillito’s report in considerable detail. The following conclusion was expressed by the Arbitrator (at T5):
“That description of the involvement of Dr Shillito, in my view, takes the matter well out of a medicolegal opinion. It is clear, in my view, that the terms of the emails which I have placed on the record, that the intention was to have [Mr Melhem] seen for treatment at the behest of his mother and that although ..(not transcribable 1:05:18).. expressed in an unfortunate way in Dr Shillito’s first paragraph, which I reproduced, the impression given from that paragraph that this was a medicolegal report, in my view, is negated by the terms of his report and also those emails to which I have referred.”
The report was then admitted into evidence by the Arbitrator but not marked with an exhibit number.
Submissions on appeal concerning Dr Shillito’s report
Mr Melhem’s submissions as to this ground appear between [19] and [23] of submissions on appeal as follows:
“19. On the face of it the report is an assessment addressed to the insurer.
20. There was no referral from a treating General practitioner.
21. Dr Shillito specifically says he is not treating the applicant.
22. The fact that Mrs Melhem had a role in finding the doctor did not mean the insurer had to accept an assessment from such a doctor or pay for the assessment.
23. The Respondent had previously conceded regulation 49 applied to Dr Shillito’s report and agreed to remove Dr Shillito’s report from the documents originally referred to the AMS. The respondent should not be permitted to resile from its previous concession and agreement.”
The respondent’s submissions with respect to ground three merely seek to support the factual determination made by the Arbitrator. No submission is made concerning the suggested concession, or its relevance, referred to by Mr Melhem in his submissions.
Consideration
The question as to whether Dr Shillito’s report was a forensic medical report within the meaning of cl 49(4)(a) was essentially a question of fact. The Arbitrator’s finding was open on the evidence and I reject Mr Melhem’s suggestion that error was made.
It is important to note that the argument concerning any “concession” was not raised before the Arbitrator and, in my view, may not be argued on this appeal (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 (per the Court at 71)).
I have so concluded given that there is no evidence, nor record among the papers held by the Commission concerning this matter, of any “concession” made by the respondent with respect to the nature of the report as suggested in submissions. The only notation which appears is that which is noted at [45] above. As was observed by the Arbitrator at T1, the report of Dr Shillito had been excluded from those documents referred to the AMS. However, as there stated, “the circumstances of this exclusion are not clear”.
No relevant error has been made out concerning the Arbitrator’s ruling as to the admission of Dr Shillito’s report into evidence. Ground three fails.
DECISION
Each of the grounds relied upon by Mr Melhem have been rejected and the appeal must be dismissed.
It is clear that the Arbitrator intended that the referral to the AMS pursuant to s 329(1) was to have been delayed until those further steps noted at [8] of the Certificate of Determination had been taken. Whilst the terms of that Certificate are to be confirmed on this appeal, some of those orders have been overtaken by the passage of time. In the circumstances it is appropriate that the matter be remitted back to Arbitrator Wynyard for further directions concerning argument as to the terms of reference for further assessment by the AMS. An appropriate order appears below.
ORDERS
The requests, directions and orders made by the Arbitrator as found in the Certificate of Determination dated 18 August 2015 are confirmed.
The matter is remitted to Arbitrator Wynyard to permit appropriate adjudication as to the terms of referral of the matter to the Approved Medical Specialist for reconsideration.
Kevin O'Grady
Deputy President
19 November 2015
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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