Moore v Greater Taree City Council
[2009] NSWWCCPD 17
•20 February 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Moore v Greater Taree City Council [2009] NSWWCCPD 17 | |||||
| APPELLANT: | Kay Moore | |||||
| RESPONDENT: | Greater Taree City Council | |||||
| INSURER: | Statecover Mutual Limited | |||||
| FILE NUMBER: | A1-4142/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 7 October 2008 | |||||
| DATE OF APPEAL DECISION: | 20 February 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 352(8) of the Workplace Injury Management & Workers Compensation Act 1998 and Clause 200B of the Workers Compensation Regulation 2003 – preliminary or interim orders of an interlocutory nature. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Snell | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Maurice Blackburn Lawyers | ||||
| Respondent: | Bartier Perry | |||||
| ORDERS MADE ON APPEAL: | Leave to appeal is refused. | |||||
| No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 4 November 2008 Kay Moore (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 October 2008.
The Respondent to the Appeal is Greater Taree Shire Council (‘the Respondent Employer’).
The Appellant Worker, who is now fifty-five years of age, was employed by the Respondent Employer in a clerical capacity, as an executive assistant, from 1 May 1989. Her duties included periodically organising and setting up for functions held at the Council Chambers. The Appellant Worker was moving what she described as a “very heavy palm pot plant”, in the course of such a set up on 16 September 2004, when she injured her back. The Appellant Worker may have had a short period off work, this was the subject of some dispute. She continued working with the Respondent Employer. The clinical records of her general practitioner, Dr Arnold, indicate the Appellant Worker consulted him about the back problem on 12 November 2004.
Dr Arnold referred the Appellant Worker to Professor Ghabriel, who she first consulted on 15 April 2005. On 28 June 2005 Professor Ghabriel carried out L5/S1 laminectomy on the Appellant Worker. She resumed duties with the Respondent Employer in October 2005, initially part-time. Her statement says leg pain resumed and worsened, and back pain worsened, during 2006. On 15 May 2007 Professor Ghabriel performed left L5/S1 decompression of the nerve roots, and L4/5 posterolateral fusion (according to Professor Ghabriel, some other evidence suggests the fusion involved L4/5 and L5/S1). It appears she subsequently resumed carrying out some duties for the Respondent Employer from home, on a computer.
On 6 September 2007 the Appellant Worker made a claim on the Respondent Employer for work injury damages. Statecover Mutual Limited, the insurer of the Respondent Employer (‘the insurer’) in a section 74 Notice dated 7 December 2007, denied liability for this damages claim. This denial was in part on the basis it was not conceded the Appellant Worker suffered from at least 15% whole person impairment (section 151H of the Workers Compensation Act 1987 (‘the 1987 Act’)).
On a later date, not readily apparent from the material, the Appellant Worker made a claim for lump sum compensation pursuant to sections 66 and 67, supported by a report from Professor Ghabriel dated 3 October 2007. In a further section 74 Notice dated 19 June 2008 the insurer denied liability for the lump sum claims, and also stated liability for weekly compensation and medical expenses was denied from the date of that Notice. One of the grounds relied upon was that the Respondent Worker had suffered only a “minor soft tissue injury or strain” in the incident on 16 September 2004, and any incapacity beyond a “few days” from the date of injury resulted from causes other than the incident. Thus the existence of some form of injury in the incident of 16 September 2004 was not in issue, the consequences of the incident were in issue. The voluntary payments made by the Respondent Employer prior to this time included the cost of the surgical procedures undergone by the Appellant Worker (recorded at [75] of the arbitrator’s Statement of Reasons (‘the reasons’)).
The Appellant Worker filed an Application to Resolve a Dispute (‘the Application’) on 2 June 2008. It claimed only lump sum compensation, in respect of 22% whole person impairment, and pain and suffering.
The matter proceeded to an arbitration hearing on 3 September 2008. Both parties were legally represented. There was a good deal of skirmishing about procedural issues and questions of admissibility. The Appellant Worker was asked some questions by the arbitrator, and then was cross-examined by the Respondent Employer’s solicitor. The Appellant Worker’s solicitor re-examined. The arbitrator gave the legal representatives twenty-one days in which to lodge submissions electronically, and reserved his decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 7 October 2008 records the Arbitrator’s orders as follows:
“The Commission determines/makes the following findings:
1. Find that the Applicant suffered an injury on 16th September 2004 when she moved a pot plant at her work and that the injury occurred when she dragged the pot plant across a tiled floor with one hand.
2. Find that prior to the injury referred to in the previous paragraph the Applicant suffered from a degenerative back condition including a disc protrusion at L4/5.
3. Find that the said injury was a strain and did not involve further damage or rupture to the disc.
4. Direct that the Registrar refer the Applicant to an AMS on the basis of these findings and my reasons for evaluation of the Applicant’s Whole Person Impairment as a result of the injury of 16th September 2004.
5. The documents that are to be sent to the AMS are
a. These findings and Orders and my reasons
b. The documents referred to in paragraph 17 of my reasons.
6. Certify that the proceedings are complex and that the parties be entitled to an increase of 30% on their professional costs pursuant to Schedule 6 Table 4 of the Workers Compensation Regulation 2003.”
The Certificate of Determination was accompanied by the reasons.
ISSUES IN DISPUTE
There was a significant factual dispute between the parties regarding the condition of the Appellant Worker’s back prior to the incident on 16 September 2004. The position adopted by the Respondent Employer was that the Appellant Worker had a long standing, symptomatic degenerative condition in her lower back, prior to the incident. It was argued the incident was no more than a minor aggravation, and the significant spinal problems, and surgery, suffered by the Appellant Worker resulted from the pre-existing condition, rather than the incident. It is apparent, from the ‘Findings’ made by the arbitrator, that he essentially accepted this argument.
The Application to Appeal contains twenty-two grounds of appeal. A large number of these ‘grounds’ simply set out factual findings with which the Appellant Worker is dissatisfied. The principle arguments raised by the grounds appear to me to be as follows:
(a) The findings made by the arbitrator exceeded his jurisdiction. Section 326 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) reserves to the Approved Medical Specialist (‘AMS’) who issues a Medical Assessment Certificate (‘MAC’), the power to issue a certificate conclusively presumed to be correct as regards the matters specified in section 326(1). These include the degree of permanent impairment that results from an injury, and whether any proportion of that impairment is due to any previous injury or pre-existing condition or abnormality. Thus the findings made by the arbitrator involved him trespassing into areas of decision making reserved to the AMS. Having made a formal finding of ‘injury’, the arbitrator should have referred the matter to an AMS for assessment, without embarking upon the other findings. The Appellant Worker refers to the decision of Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (‘Haroun’).
(b) The questions asked of the Appellant Worker by the arbitrator amounted to cross-examination, such that the arbitrator should have disqualified himself from the further hearing of the matter, on the basis of a reasonable apprehension of bias. Reference is made to Damjanovic v Sharpe Hume & Co (2001) NSWCA 407.
(c) The arbitrator permitted the Respondent Employer to conduct its defence on grounds exceeding those specified in the relevant section 74 Notices.
(d) The arbitrator failed to consider the question of causation on the basis of the principles “espoused in Tubemakers of Australia Limited v Fernandez (1976) 50 ALJR 720”.
(e) The arbitrator should not have directed that his reasons be sent to the AMS. The only documentation to be sent to the AMS should be the medical reports.
(f) The arbitrator did not give appropriate weight to the admission inherent in the Respondent Employer having made voluntary payments of compensation to the Appellant Worker over a long period.
(g) The arbitrator made various errors in fact finding.
(h) The arbitrator erred in ascribing “no value” to the opinion of Professor Ghabriel. The history on which Professor Ghabriel’s opinion was based was sufficiently close to that established by the evidence overall, that his opinion was entitled to weight.
The Respondent Employer, in fourteen pages of carefully argued submissions, takes issue with the various grounds raised by the Appellant Worker. Additionally, the Respondent Employer raises two grounds going to whether leave to appeal should be granted. These will be considered below.
The Appellant Worker lodged further submissions on 2 December 2008, after transcript of the arbitration hearing was available to the parties. The Appellant Worker then lodged further submissions on 29 January 2009 dealing with the Respondent Employer’s argument that leave should not be granted as the arbitrator’s decision was interlocutory in nature. These last submissions were accompanied by submissions, in the form of an email, detailing why reliance upon them should be permitted, notwithstanding they were “outside of the timetable”. Again, I will deal with the argument regarding whether the decision is interlocutory in more detail below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 Numbers 1 and 6, the documents that are before me, and the submission by both 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Monetary Threshold
Section 352(2) of the 1998 Act provides:
“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.”
The Respondent Employer argues that no sum was awarded, and therefore section 352(2) is not satisfied, and leave to appeal cannot be granted.
In Grimson v Integral Energy [2003] NSWWCCPD 29 Fleming DP, considering the operation of section 352(2) 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.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (‘Regan’) Fleming DP said:
“27.While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an “amount of compensation at issue on the appeal” to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd[2003] NSW WCC PD 5), a decision in relation to costs only (Grimson v Integral Energy[2003] NSWWCC PD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited[2003] NSW WCC PD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).
28.In this matter the Arbitrator’s decision concerns the admission of medical evidence and the consequent referral of the medical dispute to an Approved Medical Specialist (‘AMS’). The determination of certain medical issues by an AMS is binding on the parties, subject only to appeal to a Medical Appeal Panel. In these circumstances I accept that the evidence that is before the AMS is likely to be of critical importance to his or her determination of the medical issues. In this sense the decision clearly has the potential to put the amount of compensation claimed by the Appellant in issue (see also Devine v Coles Supermarkets Australia Pty Ltd[2003] NSW WCC PD 28).”
These decisions of Fleming DP have been frequently applied in Presidential decisions, dealing with section 352(2). It has been noted in some decisions that Regan predated the insertion of section 352(8) in the 1998 Act, and its usefulness may be limited as a consequence.
The arbitrator’s decision in the current matter has the real capacity to put the whole, or a significant component of, the amount of the claim in issue. It is clearly designed to affect the amount of compensation awarded. A decision of this nature, accompanied by orders that the findings, orders and reasons be sent to the AMS, has the clear potential to be “of critical importance” to how the AMS deals with the assessment to be made. Where no compensation has yet been awarded, it is unnecessary an appellant satisfy the monetary threshold in section 352(2)(a): Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5. Applying the above decisions, in my view the threshold provisions in section 352(2) are satisfied, notwithstanding that no sum of monetary compensation was awarded in the arbitrator’s decision.
The Interlocutory Issue
Neither the submissions originally lodged by the Appellant Worker, nor the further submissions lodged on her behalf on 2 December 2008, dealt with the argument raised by the Respondent Employer, that leave to appeal could not be granted as the decision appealed against was of an interlocutory nature. Those acting on her behalf have sought to remedy the situation by lodging further submissions on 29 January 2009, dealing with that specific point. The later submissions are accompanied by an email explaining why submissions on the point were not made earlier. The email states the Respondent Employer’s Notice of Opposition to the appeal was only received in the Parramatta office of the Appellant Worker’s solicitors on 22 December 2008. On a cursory reading of the document the solicitor with conduct did not notice the new issue (the ‘interlocutory’ argument) before going on annual leave. On returning from leave on 27 January 2009, the Notice of Opposition was read in full, the additional argument noticed, and responded to by way of the further submissions lodged on 29 January 2009. The Respondent Employer has not made submissions opposing reliance by the Appellant Worker on these further submissions. There is no suggestion of prejudice, and indeed it is difficult to see any prejudice could arise in the circumstances. I grant leave for the further submissions lodged on 29 January 2009 to be relied on.
Section 352(1) of the 1998 Act provides:
“(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.”
Section 352(8) of the 1998 Act provides:
“(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.
Clause 200B of the Workers Compensation Regulation 2003 provides:
“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.”
The Respondent Employer argues, based upon a number of Presidential decisions, that the orders made referring the matter for assessment by an AMS were interlocutory within the meaning in section 352(8), and accordingly section 352(1) did not grant a right of appeal from such orders.
The response of the Appellant Worker to this argument, is that the arbitrator, in his orders, has not only referred the matter to an AMS, but has also made specific findings of ‘injury’, that will severely limit the assessment by an AMS. It is submitted these ‘findings’ determine the rights of the parties, are not ‘interlocutory’, and are appealed against.
There is a careful discussion of section 352(8) and Clause 200B, by Roche DP in P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’). The arbitral decision challenged in Hawkins decided the deemed date of injury that applied in a ‘disease’ case involving skin cancer, and also contained a decision regarding the medical evidence on which the employer could rely. These issues were decided so the worker could be appropriately referred to an AMS. The finding regarding deemed date of injury affected the basis on which the worker’s entitlement to lump sum compensation would be quantified. Roche DP considered the statutory regime in the Commission, and a number of authorities dealing with what is ‘interlocutory’. Ultimately the Deputy President determined the decisions appealed were ‘interlocutory’, as they did not finally determine the rights of the parties.
I considered section 352(8) in Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196 (‘Maricic’). In that matter a worker alleged injury to her back, neck and left shoulder. The arbitrator found the worker had sustained injury to her back, but not to the other body parts alleged. The matter was referred to an AMS to assess only impairment resulting from injury to the lumbar spine. I adopted the analysis by Roche DP in Hawkins of section 352(8) and Clause 200B of the Regulation. I found the arbitral decision in Maricic was not interlocutory:
“20.The Appellant Worker submits the nature of the Arbitrator’s determination is that “the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined”. Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney[1976] HCA 6; (1976) 50 ALJR 439. I accept this submission. It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’. Thus section 352(8) and Regulation 200B are not an impediment to the granting of leave.”
Candy ADP reached a similar conclusion in Zohrabi v Lexington International Pty Limited[2007] NSWWCCPD 233.
There have been a significant number of other Presidential decisions dealing with whether referrals (in various forms) to an AMS were decisions of an interlocutory nature. In McGuire v State Transit Authority of NSW (No 2) [2007] NSWWCCPD 109 a worker’s claim for lump sum compensation was assessed by an AMS. The AMS did not take into account some video submitted by the employer, as the AMS did not feel he could satisfactorily identify the worker as the person depicted in the video. At a subsequent arbitration hearing the worker’s counsel conceded it was the worker depicted in the video. By this point in time the employer had paid lump sum compensation to the worker consistent with the assessment by the AMS, although a formal award in this regard had not been entered. The arbitrator referred the matter back to the AMS, for re-assessment, on the basis the video depicted the worker. The worker appealed this decision. Byron DP, applying Hawkins, concluded the decision of the arbitrator referring the matter again to the AMS did not finally determine the rights of the parties, and accordingly was interlocutory and could not be appealed due to section 352(8) and Clause 200B.
In Arquero v DJ & T Denning Pty Limited t/as Capital Coast Steel [2007] NSWWCCPD 126 the dates of injury to be referred to an AMS were an issue. The arbitrator made findings regarding the dates when the worker had sustained injury, and referred the matter to an AMS. The worker sought to appeal the decision. Roche DP refused leave to appeal on the basis the orders were interlocutory, saying:
“I agree with the Respondent Employer’s submissions that the Arbitrator’s determination in the present matter has not determined any rights but has merely referred certain questions to an AMS for general assessment. The test of whether a court’s order, determination or ruling 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?” (per Gibbs J (as his Honour then was) in Licul v Corney[1976] HCA 6; (1976) 50 ALJR 439 at 443-444).”
Waverley Council v Sheen[2007] NSWWCCPD 127 was a decision of Roche DP, in which an arbitrator made various findings, including relevant dates of injury, and whether a proportion of an impairment resulted from previous injury. The employer raised an argument similar to one raised in the current appeal, that in so deciding the arbitrator had determined a question that should have been determined by an AMS, rather than the arbitrator. In refusing leave to appeal on the basis the orders were interlocutory, the Deputy President said:
“23.In respect of the third ground of appeal, I do not accept that the Arbitrator’s rulings on this issue have finally disposed of the parties’ rights. The Appellant Employer’s medical evidence will be placed before the AMS. It may or may not be appropriate for further submissions to be made after the AMS issues the Medical Assessment Certificate. However, as the Arbitrator’s orders currently stand, they are interlocutory in nature and cannot be appealed at this stage.”
In Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164, a worker’s claim for lump sum compensation in respect of orthopaedic injuries was supported by a report from a consultant physician. The employer disputed the claim had been properly made, given the speciality of the doctor supporting it. The arbitrator rejected the employer’s argument, and referred the matter to an AMS, a decision the employer sought to appeal. In characterising the arbitral decision as ‘interlocutory’, Roche DP said:
“22.The distinction between a ‘final’ and ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL and 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). 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.’
23.His Honour quoted from Gibbs J (as he then was) in Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439 at 443-444 where his Honour said 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?’
24. The order made in the present matter has not finally disposed of any rights but has merely determined that the assessment of the claim for lump sum compensation may be referred to an AMS for assessment.”
An order, referring certain specific questions to an AMS, was found by Roche DP to be interlocutory in YKK Australia Pty Ltd v Skoric [2008] NSWWCCPD 44. Decisions referring matters to an AMS without first determining issues of injury were found to be interlocutory by Byron AP in Bagtrans Pty Limited v Simunic[2007] NSWWCCPD 212, and O’Grady ADP in All Australian Greetings Pty Limited v Houghton[2007] NSWWCCPD 236.
In Ozblue Constructions Pty Ltd v Lang [2009] NSWWCCPD 3 (‘Lang’) an employer sought to challenge a referral to an AMS of all of the body parts claimed by the worker to have been injured in the relevant accident. The employer had disputed whether one of the body parts could be referred to an AMS, on the basis the worker had not provided any assessment of impairment of it. In refusing leave to appeal, Roche AP said:
“25. In the present matter, the Arbitrator has merely remitted the assessment of Mr Lang’s whole person impairment, as a result of his undisputed injuries sustained on 26 July 2006, to the Registrar for referral to an AMS for assessment. No rights have been determined. The parties rights will not be determined until a valid Medical Assessment Certificate (‘MAC’) is issued and orders are made for the payment of lump sum compensation in a final Certificate of Determination.
26. Once a final Certificate of Determination is issued, either party will be at liberty to appeal and, if an interlocutory order or determination (such as that made by the Arbitrator on 2 October 2008) was a “step in the procedure leading up to final judgment” (Crowley v Glissan[1905] HCA 13; (1905) 2 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal a step or steps in the procedure will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd[2002] HCA 22; (2002) 209 CLR 478, Bunning v Cross[1978] HCA 22; (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).”
It is apparent from the above, that application of section 352(8) and Clause 200B, in circumstances where some findings or orders are made, but final orders depend upon assessment by an AMS, has the capacity to cause practical difficulties. The overall thrust of the above decisions, is that where an arbitration results in a matter being referred to an AMS for assessment, even accompanied by other orders to which one of the parties may object, such decisions tend to be characterised as ‘interlocutory’.
I ultimately have concluded the orders made by the arbitrator in his Certificate of Determination dated 7 October 2008 should be characterised as ‘interlocutory’. The arbitrator made a finding of ‘injury’ on 16 September 2004. As was observed by Roche AP in Lang, the parties’ rights in respect of lump sum compensation for that injury will not be determined until a valid MAC is issued, and orders made in a final Certificate of Determination. It is only then that an order will be made that finally disposes of the rights of the parties. The current situation can be distinguished from that in Maricic, where there was a finding that the worker had not suffered certain of the injuries on which she relied. In the current matter, the arbitrator has made a formal finding of the only injury on which the worker relied, and has then referred the issue of the impairment resulting from that injury to an AMS. It is consistent with the above decisions that such orders be regarded as ‘interlocutory’. Neither party has challenged the appropriateness of the matter being referred to an AMS, although the Appellant Worker obviously takes issue with some of the findings made by the arbitrator in the course of doing so.
The situation would have been different, had the arbitrator entered an award in the Respondent Employer’s favour, based on his reasons. The arbitrator’s reasoning, going to the significance of the effect of the pleaded incident on the Appellant Worker’s back condition, are to be found essentially at [65] to [74] of his reasons. Although they do not spell it out in so many words, the reasons are generally consistent with a finding that the incident relied upon was a temporary aggravation of the Appellant Worker’s condition, and the effects of such aggravation had ceased. In Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 (‘Waretini’) I dealt with a case where the arbitrator, in dealing with a claim for weekly compensation, made a finding that the effects of injury had resolved, and any ongoing symptoms were not work related. He subsequently referred the issue of lump sum compensation resulting from the same injury to an AMS. In holding the earlier finding precluded the later referral to an AMS, I said:
“41. Whether the Respondent Worker’s back symptoms were caused by the employment injury was a matter for determination by the Arbitrator, not an AMS. Indeed the arbitrator dealt with the issue before the matter had been referred to an AMS.
42. The Arbitrator’s finding on causation resolved, amongst other things, the question of whether there was any permanent impairment resulting from the employment injury he had found. Accordingly, after the finding on causation was made, there was no dispute to be referred to an AMS.”
The possible relevance of Waretini does not appear to have been raised with the arbitrator by the parties. Notwithstanding the factual findings in the arbitrator’s reasons arguably may have justified it, an award in favour of the Respondent Employer was not entered, and the appropriateness of referring the matter to an AMS for assessment (leaving to one side the issue surrounding the orders accompanying such referral) is not disputed.
The main substantive ground raised in the grounds of appeal, is the extent to which it was permissible for the arbitrator to make the findings he did, going to the nature of the injury, prior to assessment by an AMS. There is a line of Presidential decisions, holding that decisions regarding injury, substantial contributing factor, and causation are for the Commission to determine. After the Commission has determined such threshold questions, it is appropriate for a matter to be referred (if necessary) to an AMS for assessment pursuant to Chapter 7 Part 7 of the 1998 Act. Examples of such decisions are Jopa Pty Ltd (t/as Tricia’s Clip-n-Snip) v Edenden (2004) 5 DDCR 321, Issott v North Sydney Leagues Club (t/as Seagulls Club) [2005] NSWWCCPD 38, Davies v Bisaxa Pty Ltd (t/as Sir Joseph Banks Nursing Home) [2006] NSWWCCPD 103, Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2006) 5 DDCR 337 and Ooi v NEC Business Solutions Ltd (2006) 5 DDCR 461.
The above decisions predate the decision of the Court of Appeal in Haroun. In Haroun an arbitrator made a consent finding that two work injuries (to the lower limbs) continued to contribute to any impairment suffered by a worker, and the question of assessment of impairment was referred to an AMS. The AMS to whom the matter was referred issued a MAC, which certified various of the found impairments resulted from previous injuries or pre-existing conditions. The MAC was at odds with the consent finding made by the arbitrator before the matter was referred. The MAC was referred to a Medical Appeal Panel, which confirmed the MAC. Challenging the MAC in the Supreme Court, it was submitted on the worker’s behalf that the consent finding of the arbitrator was a relevant matter that the Appeal Panel was bound to take into account. Rejecting this argument, Handley AJA said:
“16. In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion. The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers’ Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel.
17. Section 65(1) and (3) of the 1987 Act provides that in the event of a dispute the degree of permanent impairment that results from an injury is to be assessed in accordance with Part 7 of the 1998 Act. This includes ss 321, 323, 326, 327 and 328.
18. Section 326(1) provides that a MAC “is conclusively presumed to be correct … in any proceedings before a Court or the Commission” as to (a) “the degree of permanent impairment of the worker as a result of an injury” and (b) “whether any proportion of permanent impairment is due to any previous injury or pre-existing condition.” This section also applies to a MAC issued by a Panel: s 328(5).
19. The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker’s total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise.
20. If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but “may refer it for assessment” by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244.
21. Since the Arbitrator had no jurisdiction to decide the medical dispute he, referred had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive.
22. Section 350(1) of the 1998 Act provides that “Except as otherwise provided by this Act” a decision of the Commission [which includes an Arbitrator] “is final and binding on the parties and is not subject to … review”. This section did not make the consent findings of the Arbitrator binding on the parties because the Act otherwise provides. A MAC which is conclusively presumed to be correct under s 326(1) trumps any inconsistent findings by an Arbitrator and such findings are neither final nor binding on the parties.”
The above passage illustrates the extent to which it is appropriate to regard the arbitral decision as ‘interlocutory’, notwithstanding the findings and reasons of the arbitrator. Applying Haroun, an AMS assessing the Appellant Worker, and issuing a MAC as a consequence, would be at liberty to treat the arbitrator’s findings as irrelevant, if the AMS independently came to a different conclusion. The findings of the arbitrator in such circumstances could not finally dispose of the rights of the parties.
For these reasons, I have concluded the decision dated 7 October 2008 is an interlocutory order of a preliminary nature. It is accordingly necessary that I refuse leave to appeal, and I do so.
DECISION
Leave to appeal is refused.
COSTS
I make no order as to costs of this appeal.
Michael Snell
Acting Deputy President
20 February 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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