Milosavljevic v Medina Property Services Pty Ltd
[2008] NSWWCCPD 56
•11 June 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56
APPELLANT: Danica Milosavljevic
RESPONDENT: Medina Property Services Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC15942-06
DATE OF ARBITRATOR’S DECISION: 19 February 2008
DATE OF APPEAL DECISION: 11 June 2008
SUBJECT MATTER OF DECISION: Circumstances in which a matter will be referred to an Approved Medical Specialist for further assessment under section 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: NSW Compensation Lawyers
Respondent: McCulloch & Buggy Lawyers
ORDERS MADE ON APPEAL: The Arbitrator’s determination of 19 February 2008 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 9 October 2006, Danica Milosavljevic (‘the Appellant Worker’) sought lump sum compensation in respect of a 15% whole person impairment as a result of a psychological injury sustained by her as a result of the nature and conditions of her employment with Medina Property Services Pty Ltd (‘the Respondent Employer’) between 2 January and 11 February 2004. At a teleconference on 19 December 2006, her claim was referred for assessment to Dr McClure, an Approved Medical Specialist (‘AMS’). By a Medical Assessment Certificate (‘MAC’) issued on 5 March 2007 (‘the first MAC’), Dr McClure assessed Ms Milosavljevic to have a 6% whole person impairment from which he deducted 50% on account of a pre-existing condition.
On 19 March 2007, Ms Milosavljevic filed an appeal against this assessment to a Medical Appeal Panel (‘the Appeal Panel’) on the ground that the MAC was made on the basis of incorrect criteria and contained demonstrable errors (see section 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
In a decision delivered on 10 July 2007, the Appeal Panel revoked the first MAC and issued a new MAC (‘the Appeal Panel MAC’) assessing Ms Milosavljevic to have a 6% whole person impairment, but with no deduction for any pre-existing condition. The Appeal Panel declined Ms Milosavljevic’s application to rely on fresh evidence in the form of her statutory declaration dated 12 March 2007.
By letter dated 16 July 2007 addressed to the Registrar, Ms Milosavljevic’s solicitor submitted that, as there had been an “obvious material error” in Dr McClure’s decision and, as his decision would be “materially different if correct facts had been taken into account and considered”, it was appropriate for the matter to be referred back to the AMS (Dr McClure) “for reconsideration such that the AMS can rescind, alter or amend his decision in the certificate previously issued by him”. The letter continued, “Accordingly, in accordance with s378 of the Act the matter is hereby referred to the AMS for reconsideration not later than 2 months to the date of this letter”. The letter also claimed that the Appeal Panel made an error in the calculation of the whole person impairment and “should have determined that the Doctors [sic] decision should remain at 12%”.
In a separate letter, also dated 16 July 2007, Ms Milosavljevic’s solicitor said, “Unfortunately the Appeal Panel has made an error in that they have left the assessment at 6% previously determined by Dr McClure. In accordance with s378 would you please have the Appeal Panel correct the mistake.”
The letters of 16 July 2007 were forwarded to the Appeal Panel and in a Statement of Reasons for Decision (‘the reconsideration decision’) delivered on 8 August 2007, the Appeal Panel reconsidered the matters argued by Ms Milosavljevic and confirmed its previous decision in respect of the application to rely on fresh evidence and its certifications. The Commission, under cover of a letter dated 16 August 2007, forwarded this decision to the parties’ solicitors.
By letter dated 22 August 2007 addressed to the Commission, Ms Milosavljevic’s solicitors acknowledged receipt of the reconsideration decision and stated that it was “only partially helpful” as it did not comply with their application. The letter continued:
“We request that you urgently forward this matter to the AMS for review in accordance with our application. You may care to forward onto him a copy of the appeal panel’s decision which indicates that he should not have made a 50% deduction with respect to any pre-existing conditions.”
In a very thorough and polite reply dated 29 August 2007, the Registrar’s delegate responded to the letter of 22 August 2007 advising that, under section 328(5) of the 1998 Act, the Appeal Panel revoked the first MAC and issued a new certificate (the Appeal Panel MAC). The Appeal Panel MAC is conclusively presumed to be correct as to the degree of permanent impairment of the worker (see sections 328(5) and 326 of the 1998 Act) and is considered the “relevant” MAC before the Commission. Therefore, the only MAC that could have been reconsidered under section 378 was that issued by the Appeal Panel and that is why the application for a section 378 reconsideration was referred to the Appeal Panel. The letter concluded that:
“There is no further avenue for the AMS to reconsider his assessment considering that his Medical Assessment Certificate was revoked and a new one issued by the Appeal Panel.
Your appeal application against the decision of the AMS is finalised and cannot be referred to the AMS for reconsideration.”
Ms Milosavljevic’s solicitor wrote to the Commission again on 30 August 2007, stating:
“The section [section 378] simply states that the AMS must consider any matter and amend any decision previously made. This is irrespective of any subsequent decision by the Appeal Panel. This is quite clear and the Appeal Panels [sic] decision is irrelevant. Further, the appeal panel has not made a decision based on medical but rather on legal/technical issue [sic] grounds.
There is no discretion by you to reject our application. You are by virtue of the legislation required to refer it.”
The Registrar responded to this letter on 10 September 2007. She again advised that the Appeal Panel revoked the first MAC and, accordingly, there was no “decision” for the AMS to reconsider and she was unable to refer the application for reconsideration to the AMS.
On 14 September 2007, the Registrar issued a Certificate of Determination as follows:
“In accordance with the medical assessment certificate issued under
section 325 of the Workplace Injury Management and Workers Compensation Act 1998, the Commission determines:
1.That the Applicant suffers a non-compensable 6% permanent impairment assessed as a percentage of whole person impairment, attributable to the date of injury of 2/1/04 and 11/2/04.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.
Statement of Reasons issued in accordance with Rule 15.6 of the Workers Compensation Commission Rules 2006
1. Notice that a medical dispute is to be referred for assessment was given to the parties pursuant to section 321(1) of the Workplace Injury Management and Workers Compensation Act 1998 following the parties being given the opportunity to explore settlement and agreeing to this course of action
2. The Commission issued a Medical Assessment Certificate in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.
3. The decision of the Appeal Panel to revoke the Medical Assessment Certificate and issue a new Medical Assessment Certificate was forwarded to parties on 10 July 2007.
4. In accordance with the Medical Assessment Certificate, the Applicant has no entitlement to lump sum compensation under section 67 of the Workers Compensation Act 1987.
5. On the basis of the information and documents in these proceedings, the binding nature of the MAC, and the failure of either party to raise any further issues following the decision in (3) above, there are no other issues identified as being in dispute.
6. Accordingly, I have decided to determine the matter on the papers.”
By letter dated 25 September 2007 addressed to the Registrar, Ms Milosavljevic’s solicitor requested that the matter be referred to a Commission Arbitrator so his client could make an application under section 329 of the 1998 Act (still reserving his client’s rights under section 378) for “the matter to be referred for assessment following an initial assessment by AMS Assessor Dr Andrew McClure on the 5/3/07”. Referring to the Registrar’s decision declining to refer the matter to the AMS for reconsideration under section 378, Ms Milosavljevic’s solicitor stated:
“Clearly the Applicant has been prejudiced in that there are certain important factual matters which need to be taken into account by the AMS and which cannot be taken into account by the Appeal Panel. It is therefore necessary and appropriate to invoke section 329 of the Work Place [sic] Injury Management Act 1998 which enables the Registrar, the Court of [sic, or] the Commission to refer the matter for further assessment.”
Ms Milosavljevic’s solicitor again wrote to the Registrar on 3 October 2007 stating that the determination of 14 September 2007 was wrong as the Appeal Panel “awarded 12% Whole Person Impairment and not 6% Permanent Impairment as described by you in your determination. Please revoke this Determination as soon as possible.” The letter requested the Registrar to make no further determinations as Ms Milosavljevic was taking further action in the form of an application under section 329 of the 1998 Act. Robert Yeoman, Manager Dispute Services, replied to this request by letter dated 11 October 2007 in which he correctly observed that the Appeal Panel MAC clearly certified that Ms Milosavljevic has a 6% whole person impairment and that the matter would proceed to a teleconference on 18 October 2007.
The matter was allocated to an Arbitrator and a teleconference held on 18 October 2007. The parties filed written submissions and an arbitration hearing was held on 1 February 2008 when oral submissions were heard. In a reserved decision delivered on 19 February 2008, the Arbitrator made the following determination:
“1.The application to remit the applicant for further assessment under s329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.”
By an appeal filed on 17 March 2008, Ms Milosavljevic seeks leave to appeal the Arbitrator’s determination.
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.
No issue is taken that the quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would, if it stands, result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Worker submits that as the matter deals with significant issues concerning the application of section 329 of the 1998 Act and as no rule or regulation governs the operation of the section, an oral hearing is requested.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Employer 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.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in declining to refer Ms Milosavljevic’s matter to an AMS (not necessarily the same AMS) under section 329(1)(b) of the 1998 Act on the ground that, as a result of the determination of 14 September 2007, no “medical dispute” exists.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249, (2008) 5 DDCR 78 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
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.”
The question of the introduction of fresh evidence on appeal was considered by the Court of Appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, (2007) 4 DDCR 634 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before “fresh evidence” can be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely must be balanced against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters the Commission must also keep in mind its statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).
The Appellant Worker seeks to introduce fresh evidence said to be an affidavit concerning the actions of the interpreter at the first AMS examination. The only submission made in support of the application to introduce fresh evidence on appeal is that the evidence was not available at the arbitration.
Practice Direction No 6 and Form 9 (Appeal Against Decision of Arbitrator) make it clear that when a party seeks to rely on fresh or additional evidence on appeal, that evidence must be attached to and served with the appeal. The Appellant Worker has not done that and no explanation has been offered for her non-compliance with the Practice Direction.
The Respondent Employer opposes the introduction of fresh evidence on appeal.
In the absence of any effort to comply with the Practice Direction and in the absence of any submissions dealing with the nature of the material sought to be tendered on appeal, I decline to allow the application to rely on fresh evidence as I am not satisfied that it is in the interests of justice to do so.
SUBMISSIONS
Before the Arbitrator, the Appellant Worker filed two separate sets of submissions. One dealing with section 329 and the other dealing with section 378. At the arbitration, counsel for Ms Milosavljevic indicated that he only sought relief under section 329, but the submissions dealing with section 378 were still relevant to that application. I have considered all of the Appellant Worker’s submissions. The key points made in the Appellant Worker’s written submissions before the Arbitrator were:
a)the Appeal Panel’s reconsideration decision of 8 August 2007, said at paragraph [19]:
“The 1998 Act in s378 makes provision for an application for reconsideration to be made to the Approved Medical Specialist and that is the appropriate course in this case and, indeed is requested in the last paragraph of the letter requesting reconsideration of the Appeal Panel Decision dated 16 July 2007.”
b)the Commission has a statutory obligation to comply with the broad rules of procedural fairness;
c)reliance is placed on the decision of Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286 (‘Mansour’) where it was held that section 329 is not restricted to the circumstances set out in section 327(6) (which provides that the Registrar may refer a medical assessment for further assessment or reconsideration “as an alternative to an appeal against the assessment”), but is in broad unlimited terms;
d)the function of section 329 is unclear. It may have been intended to afford a remedy which should be pursued with the Commission rather than by way of “an application for leave to appeal ‘outside’ the Commission to the MAP [Medical Appeal Panel]”, or, it may have been intended to provide a remedy in cases where no grounds of appeal under section 327(c) or (d) were made out “but the dictates of justice require a further referral for assessment” (per Malpass AsJ in Read v Liverpool City Council [2007] NSWSC 320 at [27]);
e)the Registrar initially failed to consider the “incorrect criteria” ground of appeal. As a result, it is open to Ms Milosavljevic to argue that the Registrar’s omission to determine if the “incorrect criteria” ground should go forward to the Appeal Panel means that she still has open the right to seek a referral for further assessment which can be pursued independently with the Commission, in lieu of the previous appeal to the Appeal Panel because that appeal was decided only on the grounds of demonstrable error in the MAC;
f)section 329 refers to a matter being “referred again”. This supports the view that Ms Milosavljevic can be further referred for assessment by an Arbitrator where the MAC has already been the subject of a review by an Appeal Panel and confirmed or revoked, as in the circumstances of this case;
g)the only caveat in the provision is that a referral for a further assessment under section 329 must be to an AMS, not an Appeal Panel;
h)the Appeal Panel’s decision not to admit Ms Milosavljevic’s statutory declaration on appeal meant that it simply reviewed the same evidence that was before the AMS;
i)the Appeal Panel has misdirected itself as to the task it was required to perform because the Registrar did not express any view about Ms Milosavljevic’s submissions concerning “incorrect criteria” applied by the AMS;
j)accordingly, the Appeal Panel, by not admitting Ms Milosavljevic’s statutory declaration (which dealt with the “incorrect criteria” issue) into evidence, denied her procedural fairness. In the absence of any reasons by the Appeal Panel for rejecting the “incorrect criteria” ground of appeal, evidence of factual error in the AMS determination was properly before the Appeal Panel and it was bound to reconsider its decision;
k)evidence of factual errors by the AMS in his examination logically amounts to evidence which was not available to or reasonably able to have been obtained by Ms Milosavljevic before that examination;
l)the above analysis is consistent with the approach by McClelland CJ at CL in Crean v Burrangong Pet Food Pty Ltd [2007] NSWSC 389 (‘Crean’) at [27];
m)if this analysis is correct, Ms Milosavljevic has been denied procedural fairness by the failure of the Appeal Panel to acknowledge that the evidence in the statutory declaration was properly before it under section 328(3);
n)the Commission is required to act in “good conscience” and “on the substantial merits of the case” in the resolution of disputes (section 354(3));
o)if the award is based on an Appeal Panel MAC which itself is based on a denial of procedural fairness, the Registrar’s decision to decline to refer the matter under section 329 is contrary to section 354(3), and
p)the application of section 326 to a MAC issued by an Appeal Panel does not exclude the operation of section 329, which permits referral for further assessment by the Registrar or a court or the Commission (per Basten JA Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284 (‘Vegan’) at [100];
On appeal, Ms Milosavljevic submits:
a)if a worker is aggrieved with a finding, a dispute must still exist and the worker can avail himself or herself of the benefits of Part 7 of the Act to appeal what would otherwise be determined to be a conclusive finding;
b)only a worker or insurer by their action of using a mechanism in Part 7 can continue a dispute;
c)by seeking to invoke section 329, a medical dispute is being maintained by the worker despite the history of the matter and “whether a determination has been made pursuant to section 288”. This approach is affirmed by Justice Hoeben in Petrovic v BC Serve No 14 Pty Ltd [2007] NSWSC 1156 (‘Petrovic’) where it was held that a worker must exhaust all avenues in the Commission before “they appeal to the court”;
d)section 329 is and should be construed as a protective appeal mechanism to prevent injustices within the system to workers;
e)section 329 is a protective section where the decision of the Commission can be overturned so as to prevent injustice where those decisions are not otherwise subject to appeal other than in the court. The purpose being the underlying purpose of the Act to give workers a cheap and efficient way to have their disputes resolved;
f)section 329 also acts to open up and allow for examination of administrative functions that could lead to injustices to an applicant;
g)section 329 makes it clear that the matter to be referred is being referred for further assessment and logically a determination has already been made. The practice of the Commission is to send a determination automatically within an unknown and non-prescribed time. This means no time limits are known to an applicant in order to ensure that an application must be made before a determination. Compliance is impossible;
h)it follows that for a further determination to be made a previous assessment and therefore determination has already been made and as no rules or regulations place time limits or restrictions on the section’s use, it must be that a worker who is aggrieved can at any time invoke the section regardless of whether or not there has been a determination. Otherwise, if the Arbitrator’s findings are correct the section would be useless as any further assessment would be prevented as they are by their nature all determinations, and
i)section 329(2) makes it clear that any certificate issued as a result of a referral shall be the prevailing determination. This logically supports the view that section 329 can be invoked at any time.
The Respondent Employer submits:
a)if the Appellant Worker’s reasoning were to be accepted, it would lead to the potential result that a party could maintain a “medical dispute” on the basis that they were not satisfied with the result or outcome and, as such, would be able to continually seek to have the matter referred for further assessment under section 329;
b)if Ms Milosavljevic is not satisfied with the Appeal Panel result she has a number of other avenues she could pursue under section 69 of the Supreme Court Act 1970;
c)the Arbitrator’s analysis of section 319 is correct;
d)the Appeal Panel has already made a determination about the Appellant Worker’s application to rely on fresh evidence;
e)Hoeben J observed at [34] in Petrovic that statutory declarations of the kind sought to be admitted before the Appeal Panel in the present matter should not be regarded as “additional relevant information” for the purpose of section 327(3)(b) because, if they were, “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”, and
f)the appeal mechanism in Part 7 is that contained in section 327.
THE ARBITRATOR’S DECISION
In a carefully prepared and well reasoned Statement of Reasons for Decision (‘Reasons’) the Arbitrator noted and determined:
a)the parties agreed that Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286 (‘Mansour’) is authority for the proposition that the Commission has power to refer a matter to an AMS for further assessment notwithstanding that the matter has previously been the subject of a determination by a Medical Appeal Panel under section 328(5) (Reasons, paragraph 17);
b)the parties agreed that, in contrast to the power granted to the Registrar “under section 329(1)(b)” [sic, section 329(1)(a)], the Commission’s power is not dependent on the lodgement of the appeal under section 327 (Reasons, paragraph 17);
c)the issue before her was whether the Commission’s power to make a referral under section 329(1)(b) extends to matters where, as in this case, the claim for compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) 1987 Act has been the subject of a determination by the Commission (Reasons, paragraph 18);
d)Ms Milosavljevic argued that the Commission’s power to refer a matter for a further assessment under section 329 is unfettered and it was for an applicant to determine if a matter remained “in dispute” (Reasons, paragraph 19);
e)before considering whether the circumstances warrant an exercise of the discretion to make a referral under section 329, a threshold issue has to be resolved, namely, whether the Commission has power to make a referral following the determination of the dispute under section 294 of the 1998 Act (Reasons, paragraph 20);
f)the Commission is a creature of statute and it has no power to inquire at large into matters that take its interest but over which it has no jurisdiction (Reasons, paragraph 21);
g)section 33 of the Interpretation Act 1987 requires the Commission to construe section 329 in a fashion that will promote the purpose or object underlying the Act (Reasons, paragraph 22);
h)section 327(7) of the 1998 Act provides that there is no right of appeal against a medical assessment “once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 68A of the 1987 Act”, but section 329 contains no corresponding provision. Notwithstanding the absence of an express provision, the Commission does not have power to refer a matter for further assessment under section 329 once the underlying dispute has been the subject of determination by the Commission (Reasons, paragraph 23);
i)section 350(1) of the 1998 Act provides that 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. Section 350(3) provides that the Commission may reconsider any matter that has been dealt with by it and rescind, alter or amend any decision previously made or given by it (Reasons, paragraph 24);
j)section 321 restricts the class of matters that may be referred for assessment under Part 7 to “medical disputes”. A “medical dispute” is defined in section 319 to mean “a dispute between a claimant and the person on whom a claim is made about”, among other things, the degree of permanent impairment of the worker as a result of an injury (Reasons, paragraph 25);
k)the existence of a medical dispute is a necessary pre-condition to a referral under Chapter 7, Part 7. Once that a dispute about a claim referred to the Commission under section 288 of the 1998 Act is determined, any medical dispute that might have existed in relation to the referred dispute no longer exists (Reasons, paragraph 26);
l)section 329 does not contain the term “medical dispute”, but speaks of a “matter [previously] referred for assessment” (Reasons, paragraph 27);
m)the question cannot be determined in isolation from the power of the AMS to provide an assessment (Reasons. Paragraph 28);
n)the power of an AMS to issue a MAC is in section 325, which provides that an “approved medical specialist to whom a medical dispute is referred is to give a certificate …as to the matters referred for assessment”. This puts it beyond doubt that an AMS’s power to provide an assessment is restricted to “medical disputes”. This analysis is also supported by section 324(3), which sets out the AMS’s powers during assessment of a “medical dispute” in course of “an appeal or further assessment” (Reasons, paragraph 29);
o)it would be an absurd result (unintended by parliament) if the class of matters that could be referred for assessment under section 329 extended to matters for which an AMS was not empowered to give a “medical assessment certificate”. It follows that only “medical disputes” may be referred for assessment under section 329 (Reasons, paragraph 30), and;
p)the Commission has no power to make the referral sought and the application is refused (Reasons, paragraph 31).
DISCUSSION AND FINDINGS
The Appellant Worker’s submissions display a fundamental misunderstanding of the Commission, its jurisdictional limits and the legislative framework within which it operates. The Commission is a creature of statute and only has those powers conferred on it by the Workers Compensation Acts (the 1987 Act and the 1998 Act). It does not possess an inherent jurisdiction but only such powers which are incidental and necessary to the exercise of its statutory jurisdiction (Santow JA, with whom Spigelman CJ agreed, in Raniere Nominees Pty Limited trading as Horizon Motor Lodge v Daley and Anor [2006] NSWCA 235 at [66]).
In light of this restriction on the Commission’s jurisdiction, it is appropriate to consider in detail the relevant statutory provisions in Part 7.
Part 7 of the 1998 Act provides a regime for dealing with medical disputes. That regime provides that AMS’s (appointed by the President under section 320(1)) assess medical disputes. Disputes may be referred for assessment under section 321 and assessments are to be made in accordance with WorkCover Guidelines (section 322(1)). An AMS’s powers on assessment are set out in section 324.
Upon completion of the assessment, the AMS is to give a certificate (a MAC) as to the matters referred for assessment (section 325(1)) in a form approved by the Registrar in which he or she is to:
“(a) set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist’s assessment with respect to those matters, and
(c) set out the approved medical specialist’s reasons for that assessment, and
(d) set out the facts on which that assessment is based.”
If the Registrar is satisfied that the certificate contains an obvious error, the Registrar may issue, or approve of the AMS issuing a replacement MAC to correct the error (section 325(3)).
Under section 326, an assessment certified in a MAC pursuant to an assessment under Part 7 is conclusively presumed be correct as to the following matters in any proceedings before a Court or the Commission with which the certificate is concerned:
“(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.”
As a MAC is conclusively presumed to be correct in respect of these matters, the Commission held in Jopa Pty Ltd t/as Tricia’a Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Jopa’) at [31] that “it is reasonable to expect strict compliance with the requirements of section 325(1) and (2)”.
Whilst a MAC is “conclusively presumed to be correct” in respect of the matters in section 326(1), it “does not equate to a determine of the dispute by the Commission” (Jopa at [27]) as an AMS is not part of the Commission (section 368(1)) and all liability issues must be determined by a Commission Arbitrator (North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38; Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWWCCPD 124 and Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131).
A party to a medical dispute may appeal against a medical assessment under Part 7, but only on the grounds set out in section 327(3), which provides:
“a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.”
The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made, at least one of the grounds of appeal specified in subsection (3) of section 327 has been made out. An appeal under grounds (c) and (d) of section 327(3) must be made within 28 days after the medical assessment appealed against. The Registrar may refer a medical assessment for further assessment or reconsideration under section 329 as an alternative to an appeal against the assessment (section 327(6)). There is no appeal against a medical assessment “once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act” (section 327(7)).
An appeal under Part 7 is heard by an Appeal Panel constituted by two AMS’s and one Arbitrator, chosen by the Registrar (section 328(1)) and is by way of review of the original medical assessment. Fresh evidence or evidence in addition to or substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment (section 328(3)). The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned and section 326 applies to any such new certificate (section 328(5)).
A decision of the Appeal Panel is not a decision of the Commission under section 350 and may be subject to judicial review in the Supreme Court (Campbelltown City Council v Vegan [2004] NSWSC 1129), but is not liable to challenge in an appeal to a Presidential member. Appeals to Presidential members are governed by section 352 and are restricted to appeals “against a decision in respect of the dispute by the Commission constituted by an Arbitrator.” As a result, there is no right of appeal to a Presidential member against an Registrar’s decision except where the Registrar is acting as an Arbitrator.
The section under consideration before me is section 329. It provides:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
There are only two other sections in Part 7. Section 330 deals with costs of medical assessments and section 331 states that medical assessment and appeals and “further assessment” under Part 7 are subject to the provisions of the WorkCover Guidelines.
In the present matter, an AMS assessed Ms Milosavljevic’s medical dispute and, being dissatisfied with that result, she exercised her right of appeal under section 327 and was partially successful. Ms Milosavljevic then sought, under section 378, a reconsideration of the Appeal Panel’s decision. In a decision delivered on 8 August 2007, the Appeal Panel rejected that application. There then ensued the lengthy series of letters from Ms Milosavljevic’s solicitor to the Commission set out at paragraphs [7] to [9] above in which he sought, under section 378, that the original AMS reconsider his MAC. Whilst it is not directly relevant to the appeal, I observe that Ms Milosavljevic’s solicitor’s letters were misguided, inappropriate and wrong in several respects and that the Registrar’s responses, and those of her delegates, were proper and correct.
It was not until the letter of 25 September 2007 that an application for a further assessment under section 329 was raised. That is the matter the Arbitrator dealt with and the appeal is restricted to that issue.
Adopting the paragraph numbers set out at paragraph [38] above, I make the following findings and observations:
a)the fact that the Appeal Panel referred to section 378 is of no consequence and does not determine the issue before me;
b)the fact that the Commission is obliged to comply with the rules of procedural fairness is not in issue;
c)it is correct that in Mansour I noted (at [68]) that section 329 is in “broad unlimited terms”, but the facts in Mansour were totally different to those in the present case. In that matter, the content of the material to be forwarded to the AMS and, subsequently, the Appeal Panel, was always disputed. Notwithstanding the worker’s strong written objections, the Appeal Panel relied on certain video in circumstances where the identity of the person in the video had not been established and where the worker’s solicitor, before the Appeal Panel’s decision, had strongly objected to the film being viewed. After the Appeal Panel issued its MAC but before the determination of the matter in dispute, the matter was returned to the original Arbitrator for further submissions and determination. Counsel for the worker objected to an award being entered in the terms of the MAC and requested that it be declared a nullity. The Arbitrator declined to adopt that course but ordered a fresh Medical Appeal Panel assessment under section 329(1)(b). On appeal, I held that in the unusual circumstances of the case there had been a denial of procedural fairness and it was appropriate to order a further assessment by an AMS. The question that arises in the present matter was not in issue in Mansour, as no determination had been made prior to the order under section 329. My reference to section 329 being in “broad unlimited” terms was a reference to the fact the section provides no guidance as to how or when it is to be used. That is not to say that the section stands outside the terms of the Workers Compensation Acts. It doesn’t, and it must be read in the context of that legislation. There is nothing to indicate that the legislature intended that section 329 could be used in an unrestrained or unlimited way regardless of the Commission’s previous orders or determinations. The exact scope of section 329 must be determined on a case-by-case basis;
d)Malpass AsJ may well be correct in stating that section 329 can be used where no grounds of appeal under section 327 are made out, but “the dictates of justice require a further referral for assessment”. Whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission’s jurisdictional limits;
e)the Registrar’s failure to refer to the “incorrect criteria” ground is of no consequence and gives the Appellant Worker no assistance. The “incorrect criteria” ground was set out in Ms Milosavljevic’s submissions attached to her Appeal Against Decision of Approved Medical Specialist. The Appeal Panel considered it at paragraph [22] and held that the AMS applied the correct criteria. The Appeal Panel also considered the application to rely on fresh evidence (the statutory declaration). It examined the document and found that it “contained no material that was not available to the appellant to put forward before the AMS at the time of or prior to the examination” and accordingly the application to rely on fresh evidence failed. I have no power to review or reconsider this decision by the Appeal Panel. However, I note that this ground is similar to the argument in Pitsonis v Registrar of the Workers Compensation Commission & anor [2008] NSWCA 88, namely, that the AMS “failed to give proper effect to aspects of the applicant’s history that had been, in some cases, recorded elsewhere in the Certificate and, in others, stated by the applicant but not recorded” (per Mason P at [39]). In rejecting that challenge (at [41]), Mason P (with McColl JA and Bell JA agreeing) agreed with the decision of Basten JA at [95] in Vegan where his Honour said that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the certificate, may be “demonstrable errors” within section 327(3)(d), they would not usually satisfy the “incorrect criteria” ground. All of the statements attached to Ms Milosavljevic’s Application were forwarded to the AMS for his consideration and he expressly referred to that fact (first MAC, page one). The Appeal Panel’s refusal to allow Ms Milosavljevic to rely on the statutory declaration involves no breach of the rules of procedural fairness. The argument that the “incorrect criteria” ground is still open for Ms Milosavljevic to pursue “independently with the Commission” because the Appeal Panel only considered the “demonstrable error” point, is misguided and wrong;
f)I agree that the fact that a matter has previously been referred to an AMS does not of itself prevent a further referral, but there are other factors relevant in the present case that do prevent a further referral;
g)I do not accept that referral to an AMS (as opposed to an Appeal Panel) is the only caveat involved in assessing whether a further referral should take place;
h)the fact that the Appeal Panel reviewed the same material as the AMS provides no basis for a further referral in this matter. Neither the AMS nor the Appeal Panel reviewed material that was objected to, as happened in Mansour;
i)I do not accept that the Appeal Panel misdirected itself as to the task it was required to perform. If it did, there is no right of appeal to a Presidential member in relation to such an error;
j)the Appeal Panel did not deny Ms Milosavljevic procedural fairness. It gave her every opportunity to present her case and she did so;
k)evidence of alleged factual errors by the AMS do not amount to fresh evidence. Again, however, there is no right of appeal to a Presidential member on such matters. In passing I note that, in effect, as in Pitsonis, the Appellant Worker seeks to “cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight” (per Mason P at [59]). These alleged errors by the AMS do not establish a basis for a further referral, even if such a referral were otherwise possible in this matter;
l)I do not accept this submission provides any basis for a further referral. Contrary to the submission, the Appeal Panel did consider the “incorrect criteria” ground but did not think it had been made out. It upheld the “demonstrable error” ground. Nothing in Crean assists Ms Milosavljevic in her current applicaiton;
m)I do not accept that Ms Milosavljevic has been denied procedural fairness;
n)the requirement for the Commission to act in “good conscience” and “on the substantial merits of the case” does not, in the circumstances of the present case, require a further referral. This matter has been determined according to the terms of Part 7 and according to its substantial merits;
o)an award that has resulted from a denial of procedural fairness may well justify relief being granted in the appropriate circumstances. This is not such a case as Ms Milosavljevic was not denied procedural fairness, and
p)I agree that section 326 does not, of itself, prevent a further referral, but that does not assist the Appellant Worker.
Dealing with the Appellant Worker’s arguments summarised at paragraph [39] above, and adopting the same paragraph numbering, I make the following findings and observations:
a)the suggestion that a dispute exists if a worker is still aggrieved with a finding is fundamentally wrong. A dispute is triggered once a claim is denied (see Divertie v Startrack Express Pty Ltd [2008] NSWWCCPD 45). Once the Commission makes a decision in respect of the dispute and a Certificate of Determination is issued, it is, except as otherwise provided in the 1998 Act, “final and binding on the parties and is not subject to appeal or review” and is not to open to challenge (section 350 of the 1998 Act). In the present matter, the Commission issued a Certificate of Determination on 14 September 2007, which decided the issue in dispute in this matter. That determination has not been challenged by way of an appeal to a Presidential member under section 352 and is therefore final and binding on the parties. There is therefore no basis on which to require a further assessment of Ms Milosavljevic’s condition under section 329. Her claim has been determined and there is now nothing to assess;
b)a worker cannot, where no appeal has been filed, continue a “dispute” under the 1998 Act by simply refusing to accept the Commission’s determination;
c)seeking to invoke section 329 does not “maintain” a medical dispute and this approach was not only not “affirmed by Hoeben J in Petrovic”, but not referred to by his Honour;
d)section 329 does not provide a “protective appeal mechanism” in circumstances where the matter in dispute has been finally determined by the Commission and there has been no appeal from that determination;
e)section 329 gives no power to overturn a Commission’s determination;
f)section 329 gives no power to “open up and allow for examination of administrative” functions;
g)the fact that section 329 gives power to allow for a further referral does not mean that that power is without limit and can be used where the dispute in question has been the subject of a binding determination by the Commission, as it has in the present matter. The Appeal Panel reconsidered its decision on 8 August 2007 and that decision was forwarded to the parties by letter dated 16 August 2007. Ms Milosavljevic had every opportunity after receipt of this letter to seek such relief as she thought appropriate before the Commission issued a Certificate of Determination on 14 September 2007. In fact, her solicitors forwarded two further letters between 16 August and 14 September 2007 unsuccessfully seeking further relief under section 378. There was nothing to stop Ms Milosavljevic from seeking relief under section 329 before the Certificate of Determination of 14 September 2007, but she did not do so until the letter of 25 September 2007. Even if she had done so, I do not believe such relief would have been granted, as Ms Milosavljevic has established none of the procedural fairness grounds made out in Mansour and has not established any other valid basis that would justify the use of section 329(1)(b);
h)this argument is fundamentally incorrect and misunderstands the distinction between issuing of a MAC by an AMS or an Appeal Panel, and the determination of a dispute by the Commission. As has been held by the Commission in numerous cases, the issuing of a MAC does not equate with the determination of the dispute (see the discussion and cases cited at [49] above). Section 329(1)(b) still has work to do, as can be seen by the decision of Mansour, and
i)for the reasons explained above, section 329 cannot be invoked at any time.
OTHER MATTERS
Under “Background to the Appeal” at paragraphs [1] to [15] above, I set out the extensive correspondence between Ms Milosavljevic’s solicitor and the Commission. In view of the content and tone of the letters from Ms Milosavljevic’s solicitor, I make the following observations:
a)the granting of an application for a reconsideration under section 378 is discretionary and contingent upon appropriate legal and/or factual grounds being established (see “Registrar’s Guideline” 22 October 2007). The Registrar is not obliged to refer every application for reconsideration to an AMS and was under no obligation to do so in the present matter, as the Appeal Panel MAC had revoked the AMS’s MAC;
b)applications for relief under section 378 should be supported by reasoned argument with relevant references to the facts and law, not intemperate demands and incorrect factual assertions. The solicitor’s assertion in his letter of 30 August 2007 that “There is no discretion by you to reject our application. You are by virtue of the legislation required to refer it”, was incorrect and inappropriate. It is unacceptable that a solicitor should repeatedly write to the Registrar in the tone and style used by Ms Milosavljevic’s solicitor. If a party is dissatisfied with a decision by the Registrar, or her delegate, he or she is entitled to seek relief elsewhere;
c)an application for discretionary relief addressed to the Registrar should be expressed as an application and should never be expressed in terms that suggest that the relief sought “must” be granted, and
d)Ms Milosavljevic’s solicitor’s assertion, made in three separate letters, that the Appeal Panel MAC certified a 12% whole person impairment was patently incorrect and a casual reading of the MAC would have revealed that to be the case. Whilst parties are entitled to bring “obvious errors” to the attention of the Registrar so they may be corrected under section 325(3), they should always carefully check the facts before doing so. A failure to do so before engaging in lengthy correspondence with the Commission results in a significant waste of the Commission’s limited resources and should be avoided.
CONCLUSION
It follows that I do not accept the Appellant Worker’s submissions and, subject to the matters set out above, I am in general agreement with the Arbitrator’s decision and her reasoning. For the avoidance of doubt, however, I note that Mansour has not been appealed and in these circumstances it should be accepted as being correct on the facts as found. The present matter is clearly distinguishable from Mansour, both on the merits and on the jurisdictional issue that arises.
DECISION
The Arbitrator’s determination of 19 February 2008 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
11 June 2008
I, EMMA LETHBRIDGE-GILL, 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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