Morris v University of NSW

[2008] NSWWCCPD 31

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Morris v University of NSW [2008] NSWWCCPD 31

APPELLANT:  Angela Maria Morris

RESPONDENT:  University of NSW

INSURER:Self-insured

FILE NUMBER:  WCC2221-07

DATE OF ARBITRATOR’S DECISION:          31 October 2007

DATE OF APPEAL DECISION:  12 March 2008

SUBJECT MATTER OF DECISION:                Appeal against decision of Registrar acting as an Arbitrator; validity of Medical Assessment Certificate; circumstances in which a Medical Assessment Certificate can be revoked on appeal to a Presidential Member

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      P K Simpson & Co

Respondent:   Bartier Perry

ORDERS MADE ON APPEAL:  The Registrar’s determination dated 31 October 2007 is confirmed.

No order as to costs of the appeal.

INTRODUCTION

1. This matter concerns an appeal against a decision by a Registrar, acting as an Arbitrator, to a Presidential Member of the Commission under section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) in circumstances where the Registrar based her decision on an allegedly flawed Medical Assessment Certificate (‘MAC’).

BACKGROUND TO THE APPEAL

1. Angela Morris (‘the Appellant Worker/Ms Morris’) sustained a Colles’ fracture of her right dominant wrist when she slipped and fell at work on 30 November 2005.  In an Application to Resolve a Dispute (‘the Application’) registered with the Commission on 30 March 2007 she sought lump sum compensation in the sum of $20,000.00 in respect of an alleged whole person impairment of 15%.  By its Reply filed on 20 April 2007, the University (‘the Respondent Employer’) disputed the quantum of Ms Morris’ entitlement to lump sum compensation.

1. The Registrar’s delegate referred the assessment of the degree of permanent impairment as a result of the injury to an Approved Medical Specialist (‘AMS’) on 15 June 2007.  The AMS (Dr Silver) examined Ms Morris on 19 July 2007 and issued a MAC on 30 July 2007 in which he assessed her to have 0% whole person impairment as a result of her injury.

1. On 9 August 2007, Ms Morris lodged an Application to Appeal the Decision of the AMS on the grounds that the assessment was made on the basis of incorrect criteria (section 327(3)(c) of the 1998 Act) or that the MAC contains a demonstrable error (section 327(3)(d) of the 1998 Act).  By a Decision delivered on 4 October 2007 the Registrar’s delegate was not satisfied that at least one of the grounds of appeal as specified in section 327(3) of the 1998 Act had been made out and the appeal was not to proceed.

1. By a Certificate of Determination dated 31 October 2007 the Registrar, acting as an Arbitrator, made the following determination:

“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 0% permanent impairment assessed as a percentage of whole person impairment, attributable to the injury of 30 November 2005.”

1. The Registrar attached to the Certificate of Determination a Statement of Reasons in accordance with Rule 15.6 of the Workers Compensation Commission Rules 2006.

1. By an appeal filed on 23 November 2007, Ms Morris seeks leave to appeal the Registrar’s determination.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. 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 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

1. The University submits that, in effect, the Appellant Worker seeks to appeal from the decision of 4 October 2007 and is now out of time to do so. This submission is misguided and incorrect. Under section 352 of the 1998 Act a party can only appeal to a Presidential Member against an Arbitrator’s decision. There is no power to appeal to a Presidential Member from a decision by the Registrar or her delegate. However, under section 371 of the 1998 Act the Registrar has and may exercise all the functions of an Arbitrator. In issuing the Certificate of Determination of 31 October 2007, the Registrar acted as an Arbitrator and a Presidential Member has power under section 352 of the 1998 Act to hear and determine appeals from such a determination.

1. The appeal was lodged within 28 days of the determination of 31 October 2007 in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

PRELIMINARY MATTERS

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

ISSUE IN DISPUTE

1. The issue in dispute in the appeal is whether the Registrar, acting as an Arbitrator, erred in making a determination based on a Medical Assessment Certificate that was allegedly flawed because of the adoption of demonstrable error or incorrect criteria.

REVIEW

1. 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.”

1. 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.”

1. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 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]).

1. 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 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.”

1. 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).

1. I intend to apply the above principles in the matter before me.

SUBMISSIONS AND FINDINGS

1. Ms Morris’ argument is that since the Registrar’s determination of 31 October 2007 is based on a flawed MAC, the Registrar made an error of law and fell into jurisdictional error.  Reliance is placed on Craig v The State of South Australia (1994-1995) 185 CLR 163 at 179, where the Court held:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

1. The argument that the MAC is flawed is based on the contention that the AMS failed to compare range of motion assessments of both upper extremities/wrists, failed to carry out actual measurements by means of a goniometer or linear measurements of both upper extremities/wrists, as required by AMA5 at 16.4a at page 451, and erred in conducting a “passive guidance of active movements” when the WorkCover Guides for the Evaluation of Permanent Impairment (‘WorkCover Guides’) provides that only “active motion is measured, not passive motion”.

1. To consider the merit of this appeal it is necessary to consider the statutory scheme established under the 1998 Act.  The legislation provides that when a dispute concerns the degree of permanent impairment of an injured worker, the Registrar must refer that dispute for assessment under Part 7 of the 1998 Act.  There is no issue that the Registrar properly referred the medical dispute as to Ms Morris’ whole person impairment to an AMS for assessment.  Nor is there any dispute that the AMS was asked the correct question and was provided with all necessary information to enable him to conduct his assessment.

1. Once a MAC is issued under Part 7, it is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of the injury (section 326 of the 1998 Act). It is true that a MAC that does not comply with section 325(1) and (2) may well be invalid and a Certificate of Determination based on such a MAC is also invalid (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 at [38] (Jopa)).  In Jopa, the MAC under challenge was held to be invalid because the AMS (Dr Breslin) based his opinion on a “condition subsequent” that was never met. That being so, he had not been fully informed of the facts on which his assessment was based and his MAC did not comply with section 325(1) and (2). As a result, his assessment was invalid.

1. In the present matter there is no issue that the AMS had all relevant information to enable him to properly assess the question referred to him.  He conducted that assessment and issued a valid MAC.  In circumstances where there is no issue as to liability, that MAC is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of the injury (section 326).  Part 7 provides for an appeal against a MAC in the circumstances set out in section 327 of the 1998 Act and the Appellant Worker filed an appeal under that section arguing that the AMS’s assessment was made on the basis of incorrect criteria (section 327(3)(c)) or that the MAC contained a demonstrable error (section 327(3)(d)).  Such an appeal “is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.”  The Registrar, through her delegate, was not satisfied that at least one of the grounds for appeal specified in subsection (3) was made out and therefore decided that the appeal was not to proceed.  There is no provision for a party to appeal against that decision to a Presidential Member.

1. In the present appeal, the Appellant Worker repeats the submissions she made to the Registrar in support of her Application to Appeal the Decision of the AMS and adds that the Registrar’s delegate erred in that he failed to distinguish between “active motion” and “passive motion” in relation to hand and wrist movements and the requirements of the WorkCover Guidelines that modify the application of AMA5.  She also submits that the Registrar’s delegate appears to have fallen into error in attempting to make findings as to the ultimate merits of the appeal and to have therefore trespassed on the function of the Medical Appeal Panel.  Whether that is so or not is not for me to determine, as there is no power to appeal against a decision by a Registrar or her delegate to a Presidential Member.

1. The Appellant Worker submits that the review powers under section 352 are very broad and extend to permit a Presidential Member to consider and determine whether an “Arbitrator” (in this case, the Registrar acting as an Arbitrator) made an error of law or fell into jurisdictional error in relation to the MAC or the refusal to allow the medical appeal to proceed. I do not accept this submission. The power to revoke a Certificate of Determination based on an invalid MAC is restricted to the circumstances identified in Jopa and the authorities noted below and do not extend to an examination of the merits of the delegate’s decision under section 327(4). 

1. The Commission considered the circumstances in which a Presidential Member may revoke a decision by a Registrar, acting as an Arbitrator, in Box v State Transit Authority of NSW [2005] NSWWCCPD 29 (‘Box’), Ryan v State Transit Authority of NSW [2004] NSWWCCPD 81(‘Ryan’) and Vogel v Eagle Landscapes Pty Ltd [2005] NSWWCCPD 10 (‘Vogel’).  In Box and Vogel, the Registrar erred in determining the matter without giving adequate reasons for her determination.  There is no issue that the Registrar in the current matter gave adequate reasons for her determination and no submission has been made to the contrary.

1. In Ryan, the Arbitrator’s direction to the AMS wrongly referred to the worker having ceased work in 1998 when the correct date was 1988.  The MAC was found to have been based, in part, on the wrong date and was therefore held on appeal to a Presidential Member to be invalid.  Deputy President Fleming held, after noting that there is no appeal to a Presidential Member against a MAC, that:

   “18. A Medical Assessment Certificate and a Certificate of Determination must comply with the requirements of the 1998 Act. Given that the Medical Assessment Certificate is ‘conclusively presumed to be correct’ (section 326 of the 1998 Act) in relation to certain matters, it is reasonable to expect strict compliance. Section 325 of the 1998 Act requires an AMS to ‘certify’ his or her medical assessment of the ‘matters referred’ and the reasons for that assessment. As discussed in Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50, strict compliance with this obligation is critical to the determination of the rights and liabilities of both parties to a dispute. In that case the error occurred in the invalidity of the Medical Assessment Certificate due to the failure to properly ‘certify’ as to the matters that had been assessed (section 326 of the 1998 Act). In this matter the alleged error concerns the ‘referral’ of the matter to the Approved Medical Specialist (section 293 of the 1998 Act).” (at [18])

1. Deputy President Fleming added at [27]:

“The decision-maker, in this case the Registrar [acting as an Arbitrator], has made an error of law in purporting to issue the Certificate of Determination on the basis of an invalid medical assessment. The error in the referral has tainted the Medical Assessment Certificate and the Certificate of Determination (Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50). The Registrar has accepted that she was bound by the Medical Assessment Certificate of Dr Funnell (no more than this can be said as there is no statement of reasons attached as required by section 294(2) of the 1998 Act). There does not appear to have been any inquiry to ensure that the referral and the assessment were properly made in accordance with the 1998 Act. This is despite being put on notice of the error in the Arbitrator’s referral two months prior to the issue of the Medical Assessment Certificate.”

1. In the present matter there is no issue that the AMS properly ‘certified’ his medical assessment of the ‘matters referred’ under section 325. Therefore, the defects held to invalidate the MACs in Jopa and Ryan are not present in the matter before me.

1. Ms Morris’ challenge is that the AMS’s assessment was made on the basis of incorrect criteria and demonstrable error.  In these circumstances an aggrieved party is entitled to appeal under section 327.  Ms Morris has unsuccessfully pursued that course.  A Presidential Member has no power to set aside a valid MAC.  Given that a valid MAC is conclusively presumed to be correct and given that there are no liability issues in the present matter, the Registrar made no error of fact, law or discretion in making the orders in the Certificate of Determination of 31 October 2007 and the appeal must fail.

OTHER MATTERS

1. Ms Morris suffered a Colles’ fracture of her right radius that required open reduction and internal fixation.  She was hospitalised for two days and her recovery was complicated by the development of regional pain syndrome.  She continues to complain of pain and a restricted range of movement in her right wrist.  Dr Rea assessed her to have a 15% whole person impairment and Dr McKessar, qualified on behalf of the Respondent Employer, assessed her to have a 2% whole person impairment.  In these circumstances the AMS’s assessment of 0% whole person impairment seems incongruous and inconsistent with the objective evidence.  Whilst this appeal has failed, the parties will no doubt be aware of the Commission’s broad reconsideration powers in sections 350, 329 and 378 which, subject to compliance with the Registrar’s Guideline dealing Requests for Reconsideration and with the principles discussed in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141 and Nan v Country Road Freight Services Pty Ltd [2006] NSWWCCPD 160, may provide a more appropriate remedy in this matter.

DECISION

1. The Registrar’s determination dated 31 October 2007 is confirmed.

COSTS

1. No order as to costs of the appeal.

Bill Roche

Deputy President  

12 March 2008

I NING DONG CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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