Neville v Choice One Pty Ltd

Case •

[2023] WADC 79

•

18 JULY 2023

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   NEVILLE -v- CHOICE ONE PTY LTD [2023] WADC 79

CORAM:   HUGHES DCJ

HEARD:   29 JUNE 2023

DELIVERED          :   18 JULY 2023

FILE NO/S:   APP 35 of 2022

BETWEEN:   DONALD XAVIER NEVILLE

Appellant

AND

CHOICE ONE PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE

Coram:   ARBITRATOR NUNN

File Number            :   A100128


Catchwords:

Workers' Compensation - Appeal from the Workers' Compensation Arbitration Service - Whether the arbitrator erred in law finding s 93P of the Workers' Compensation and Injury Management Act 1981 (WA) precluded the worker from claiming expenses - Election under s 93K of the Workers Compensation and Injury Management Act 1981 (WA) to retain the right to seek damages

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), div 2 pt IV, s 3(d), s 92, s 93K(4)(a), s 93K(4)(b), s 93L(2), s 93L(6), s 93L(8), s 93P, s 93P(23)(c)(ii), s 93P(2)(c)(iii), s 96L(6), s 217B, s 247(1), s 247(7)

Workers' Compensation and Injury Management Regulations 1982 (WA), reg 22

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant : Mr F A Robertson
Respondent : Mr G Bourhill SC

Solicitors:

Appellant : Law Access
Respondent : McCabes

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

East Metropolitan Health Service v Lee [2022] WASC 54

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Re Monger; Ex Parte TNT Australia Pty Ltd [2002] WASCA 223

Thomas Peacock and Sons Pty Ltd v Abreu [2013] WASCA 19

Trac v Fero Reinforcing Pty Ltd [2019] WADC 115

HUGHES DCJ:

  1. This is an appeal from the decision of Arbitrator Nunn (the learned Arbitrator) delivered and published on 13 May 2022 finding the appellant (Mr Neville) was barred from recovering 'any other expenses' incurred after the 29 March 2019 by operation of s 93P(2)(c)(iii) of the Workers' Compensation and Injury Management Act 1981 (WA), (the Act).

  2. The appeal is brought pursuant to s 247(1) of the Act.  Leave to appeal is required.  Leave may not be granted unless there is a question of law involved.  It is well established that where a question of law is involved, the whole decision appealed from is open to review, not merely the question of law, and that the appeal court is required to conduct a real review.[1]  A decision does not involve a question of law unless the error is material to the decision.[2]  

    [1] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].

    [2] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

  3. The sole ground of appeal contained in the amended notice of appeal filed on 15 November 2022 is whether the learned Arbitrator erred in law by concluding s 93P of the Act precluded the appellant from making a claim.

  4. For the following reasons, leave to appeal is refused and the appeal dismissed. 

Background

  1. The background to this case is as follows;[3] on 29 March 2017 Mr Neville fell at work and injured his back.  He submitted a claim for this injury.  The respondent (Choice One, the employer) admitted liability to compensate the appellant for weekly payments and statutory expenses for his back injury.  On 30 October 2017, Mr Narula performed surgery on the appellant's back.  

    [3] Taken from Arbitrator Nunn's decision delivered and published on 13 May 2022; Appeal Book Vol 1, tab 2.

  2. On 30 January 2018, the appellant sought an extension of his termination day, being the last day he could elect to seek damages.  The director of WorkCover (the Director) advised the appellant his last day to elect was 29 March 2019.  

  3. The appellant continued to experience ongoing symptoms with his back and in October 2018, 12 months after the initial surgery, the respondent's consulting surgeon Mr Wong, expressed the view the appellant may benefit from revision surgery.  Notwithstanding Mr Wong's opinion the respondent declined to pay for the appellant's revision surgery.  This was communicated to the appellant's lawyers as early as November 2018.  No reasons were provided by the respondent and it was unclear whether monies remained in the prescribed amount that could have been applied to the surgery.  

  4. The appellant did not bring an application under the Act to seek payment for the revision surgery.  The appellant elected to have the surgery and pay for the surgery through his private health care provider.  At the time the appellant was in the process of gathering material to commence his common law claim.  The appellant intended to recover the costs of the revision surgery as part of his common law claim and reimburse his private health care provider.  

  5. The revision surgery was scheduled for 5 March 2019, however, due to the unavailability of the operating theatres, the revision surgery was not performed until 1 April 2019 by Mr Narula.  

  6. However, one day before the revision surgery on 29 March 2019, the Director registered the appellant's election to seek damages.  Confirmation was sent to the appellant's lawyer on the same date.  

  7. On 10 July 2019 the appellant commenced common law action against the respondent in the District Court.  On 6 August 2019 the appellant amended the writ naming Newcrest Mining Ltd as a second defendant to the action.  Both the respondent and Newcrest Mining Ltd denied liability in respect to the action and declined to offer any financial compromise.  

  8. On 9 November 2020 consent orders were sealed indicating the appellant consented to the action being dismissed and each party bearing their own costs. 

  9. Approximately six months later, the appellant made a fresh claim to WorkCover.  On 25 May 2021 conciliation was attempted, but was unsuccessful.[4]  On 12 June 2021 the appellant applied for arbitration.[5]  The matter proceeded to hearing before the learned Arbitrator on 3 February 2022.  The appellant was unrepresented prior to and on the date of the hearing.[6]  

    [4] Appeal Book, Vol 3, tab 6.

    [5] Appeal Book, Vol 3, tab 7.

    [6] The transcript of the hearing is in Appeal Book, Vol 1, tab 3.

Ground of Appeal

  1. The amended notice of appeal filed on 15 November 2022 raised one issue of law, namely:

    The learned Arbitrator erred in law by erroneously concluding that s 93P of the Act precluded the claim by the appellant, when the learned Arbitrator ought to have concluded that s 93P did not preclude his claim.

    Particulars

    (a)Section 93P of the Act only applies if the worker elects to retrain the right to seek damages under section 93K(4);

    (b)Section 93K(4)(b) together with regulation 22(2)(a) of the Workers' Compensation and Injury Management Regulations 1982 (WA) required the director to register the election on the day it is received, 28 March 2019.

    (c)On 28 March 2019, the appellant was prohibited by section 93L(2) from making an election under section 93K(4) because there had been no recorded agreement or assessment of Mr Neville's degree of permanent whole of person impairment;

    (d)In any event, Mr Neville did not make the requisite election because regulation 22 of the Regulations read together with the Form 33 required that the signature of Form 33 be that of the appellant.

The law

  1. In general terms, the Act precludes an injured worker from recovering both compensation and damages, s 92 of the Act. The purpose of div 2 of pt IV of the Act is 'to deter small, disproportionately costly, claims for damages being brought in respect of workplace accidents'.[7]  

    [7] Thomas Peacock and Sons Pty Ltd v Abreu [2013] WASCA 19 [30].

  2. The effect on a worker's election to retain the right to damages under the Act was considered and helpfully summarised in the case of Trac v Fero Reinforcing Pty Ltd.[8]  Lemonis DCJ set out a summary of the prescribed steps prior to a worker commencing court proceedings for common law damages, which are:

    [8] Trac v Fero Reinforcing Pty Ltd [2019] WADC 115.

    (a)the worker's degree of impairment has been agreed with their employer, or assessed by an approved medical specialised, to be at least 15%;48

    (b)the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations;49

    (c)the worker elects in the manner prescribed in the regulations to retain the right to seek damages;50

    (d)where the worker has made a claim for compensation by way of weekly payments, such election is not made after the termination day;51

    (e)the Director registers the election in accordance with the regulations;52 and

    (f)the Director gives the worker written noticed that the Director has registered the election.53

    (FN 48: Section 93L(2))

    (FN 49: Section 93L(2))

    (FN 50: Section 93K(4)(a))

    (FN 51: Section 93L(4))

    (FN 52: Section 93K(4)(b))

    (FN 53: Section 93K(4)(c))

  3. Once the appellant's election was recorded by the Director in accordance with the regulations it cannot be withdrawn or a subsequent election made: s 93L(6) of the Act.  The decision is final and the consequences of registering the election apply immediately from the date of registration.  

  4. Whilst s 93L(8) of the Act allows the Director to rectify an error made in recording an agreement or assessment or the registration of an election, the Director's power is limited to the correction of administrative errors and does not extend to removing or invalidating the recording of an election:[9]  

    In my view, this section provides the Director the ability to correct administrative errors made in the recording of an agreement or assessment or registering an election.  For example, where the record of an assessment incorrectly records the percentage recorded in the assessment.  In my view, this section does not provide to the Director a general supervisory power.  As has been explained, the Director's ability to refuse to record an assessment or to register an election, is limited.

    [9] Trac v Fero Reinforcing Pty Ltd [61].

  5. This interpretation of s 93L(8) was adopted in the case of East Metropolitan Health Service v Lee[10] by Archer J at [90] - [96] confirming the power in s 93L(8) does not extend to the removal or invalidation of the recording of an assessment or the registration of an election.  

    [10] East Metropolitan Health Service v Lee [2022] WASC 54.

The issue in this case

  1. The issue in this appeal is whether the learned Arbitrator erred in law proceeding on the basis s 93P(2)(c)(iii) prevented the appellant from making a claim under the Act, when the election was invalid.

The appellant's submissions

  1. The appellant submits the election made by Mr Neville was invalid because Mr Neville's degree of impairment had not been agreed with the employer or assessed by an approved medical specialist to be at least 15% at the time the election was signed, as required in s 93L(2) of the Act. It was also submitted Mr Neville's election was not in the prescribed manner because he did not sign the election as required in reg 22 of the Workers' Compensation and Injury Management Regulations 1982 (WA) (the Regulations). Therefore, the election was 'not in the prescribed manner' and the learned Arbitrator erred in law by finding s 93P(2)(c)(iii) prevented Mr Neville's claim. The appellant seeks the matter be remitted back to WorkCover for arbitration.

  2. At the appeal hearing, I raised with counsel for the appellant whether the appellant's complaint about the Director's action in registering the election was more appropriately dealt with by way of judicial review in a different court.  I referred counsel to the case of Re Monger; Ex parte TNT Australia[11] where Anderson J raised in obiter the very issue of whether an election signed by the worker's lawyer and not the worker was an election 'in the prescribed manner' as required under the Act.  Anderson J ultimately decided: [12]

    … Whilst I think there is force in this submission, it is not necessary to decide the point in this case and therefore I think it should be left for another day.

    (original emphasis)

    [11] Re Monger; Ex Parte TNT Australia Pty Ltd [2002] WASCA 223 [23].

    [12] Re Monger; Ex Parte TNT Australia Pty Ltd [23].

  3. Whilst that case involved the previous legislative regime,[13] it serves to demonstrate by way of example the correct forum and remedy for particulars of the amended appeal notice. Counsel for the appellant relied on the statutory interpretation of the words 'in accordance with the regulations' in s 93L(2) (the worker's degree of impairment) and s 93K(4)(b) (registering the worker's election) and 'in the manner prescribed' (the worker's election) in s 93K(4)(a) as matters within the scope of the learned Arbitrator to determine and disregard the effect if found to be not met.

    [13] Before the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) came into effect.

The respondent's submissions

  1. The respondent submits the appeal ground relied on by the appellant is beyond the scope of this court's jurisdiction and does not arise from the learned Arbitrator's decision. It was submitted there was no error of law or fact or both in the learned Arbitrator's finding that the appellant's election had been registered on 29 March 2019, nor is there any error in finding the consequences that flowed from the election being registered, namely the appellant is precluded from recovering any expenses after the election was registered, pursuant to s 93P of the Act.

  2. The respondent submits the appellant's complaint is with the Director's decision to register the election in circumstances where the appellant submits the election was not done in the prescribed manner as required in the Regulations.  The particulars of the amended appeal notice are properly the subject of an application for judicial review and not this appeal.  Further, the appellant has not made an application to have either the election or recording of the assessment set aside and the powers of this court on appeal[14] do not extend to quash the decision of the Director to register the election.

    [14] Section 247(7) of the Act.

Determination

  1. Firstly, I find there was no error by the learned Arbitrator in finding that the appellant's election had been registered.  In fact, after the election was registered the appellant behaved in a manner that was entirely consistent with a worker who made the election.  The appellant commenced civil proceedings.  The appellant was represented at the time the election was made and when civil proceedings commenced and ceased.  Presumably after the election was registered, weekly payments eventually ceased and there were no further applications to WorkCover by the appellant for either weekly payments or medical expenses during 2019 - 2020.  This is not a case where a person's conduct after the fact is so wholly inconsistent to indicate there was an anomaly.  

  2. Secondly, I also find there was no error in law by the learned Arbitrator in finding the appellant's registered election precluded the appellant from making a further claim as to expenses as set out in s 93P of the Act. The effect of s 93P is not disputed by the appellant.

  3. Thirdly, the particulars of the amended appeal notice are challenges to the Director's action by registering the election.  It must be correct that upon the Director registering the election that it is presumed to be valid on its face and that all parties, including the worker, can rely upon its validity.  To allow either party, a worker or employer to challenge the validity of an election, either at an arbitration or in this court would be inconsistent with the legislative scheme.  The purpose of the scheme is for the hearing and determination of workers' compensation matters in a manner that is fair, just, economical, informal and quick.[15]  The legislative scheme also promotes finality.  For example s 93L(6) and s 93L(8) of the Act have effect of making the worker's decision to seek damages final and s 217B of the Act has the effect of making the decision of an arbitrator final unless otherwise provided for in the Act.

    [15] Section 3(d) of the Act.

  4. In the case Trac, the issue was whether the process by which the special evaluation was obtained by the worker complied with the Act, and if it did not comply, did the worker have the right to make the election and was the election that the worker had made, and was registered by the Director valid or of no effect. Lemonis DCJ found at [127] - [132] that the Director's recording of the assessment and registration of the election valid on its face, and that the validity of the assessment cannot be challenged in the civil case for damages on the basis of a failure to comply with the processes set out in the Act. In that case it was the employer who submitted the election was invalid due to non‑compliance with the requisite process and that the matter could be determined as part of the civil proceedings for damages.

  5. In accepting the reasons of Lemonis DCJ in Trac that the validity of the assessment and election cannot be challenged as part of the civil proceedings for damages, it makes it even less likely that the same challenge could be made before an arbitrator, which is what was essentially submitted by the appellant.  Whilst the appellant says the learned Arbitrator was undertaking an exercise of statutory interpretation, what the appellant was essentially requiring the learned Arbitrator to do was assess the validity of the registered election.  And for all the same reasons, including the need for efficiency and certainty in the scheme, it cannot be the case that either a worker or an employer are able to challenge the validity of an election at an arbitration.  Further, there is no section in the Act that gives the arbitrator the power to even review, let alone change an election registered by the Director, other than the limited powers set out in s 93L(8) of the Act.  

  6. Having reached this conclusion, I have not formed a view either way on the merits of judicial review.  The appellant has not brought such an application and it could not be brought before me.

Order

  1. Leave to appeal refused.  Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

CK

Associate to the Judge

17 JULY 2023


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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Craig v South Australia [1995] HCA 58
Australian Broadcasting Tribunal v Bond [1990] HCA 33