Ngu v Three Link-Up Pty Ltd
[2005] NSWWCCPD 5
•8 February 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Ngu v Three Link-Up Pty Ltd [2005] NSW WCC PD 5
APPELLANT: Kin Tek Ngu
RESPONDENT: Three Link-Up Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC5956-04
DATE OF ARBITRATOR’S DECISION: 26 August 2004
DATE OF APPEAL DECISION: 8 February 2005
SUBJECT MATTER OF DECISION: Appeal Against Arbitrator’s decision to ‘strike-out’ application; worker’s failure to submit to medical examination on behalf of insurer, failure to appear and to be available for personal examination by an Approved Medical Specialist.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Lexes Lawyers
Respondent: Rankin Nathan Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked.
No order as to costs.
THE APPEAL
Mr Ngu appeals against an order made by an Arbitrator on 26August 2004 striking out his ‘Application to Resolve a Dispute’ in the Commission, filed on 15 March 2004. The dispute is in relation to a claim for weekly benefits, lump sum compensation and medical expenses for an alleged work injury to his right hand.
Leave to appeal is granted.
I am satisfied that I have sufficient information to determine the appeal ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
The original application came before the Arbitrator at a telephone conference. Mr Ngu was legally represented and also joined in the conference personally, by telephone from Malaysia, where he now resides.
The Arbitrator identified a number of problems with Mr Ngu’s application and described his position in relation to prosecuting the claim as ‘hopeless’. His ‘identity’ was in issue and he was unable to attend an Approved Medical Specialist for the purposes of an assessment of any permanent impairment. Mr Ngu claimed to have been treated for his injury under the name of Ming Dai in order to claim on Medicare.
The application also raises other issues. Mr Ngu was not the holder of a valid visa in Australia when he was injured and he has since been deported. This will likely be relevant to any claim for weekly benefits compensation, although this claim is small (for the period 20 to 27 December 2001) relative to the claim for lump sum compensation ($36,000). Mr Ngu did not make his claim for compensation until about two years after the alleged injury.
Mr Ngu argues that the Arbitrator was wrong to strike out his application. He submits that the Arbitrator erred in not finding that Mr Ngu had established his identity, and thus his standing to bring the claim, and that the matter should have been referred to an Approved Medical Specialist to determine whether or not a medical assessment was possible in circumstances where Mr Ngu could not personally attend.
REASONS AND DECISION
In my view the Arbitrator erred in purporting to ‘strike out’ the application pursuant to the Workers Compensation Commission Rules 2003 to the extent that this was not, technically, the appropriate order. This order should therefore be revoked.
The exercise of the power to strike out a claim is dependent upon non-compliance with the Rules. Rule 6(4) provides that:
“If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.”
The Arbitrator has not identified any failure to comply with the Commission’s Rules. It is also not clear from the brief statement by the Arbitrator whether he made a determination that the proceedings are a nullity, in accordance with Rule 6(4). Such a determination is a prerequisite to striking out the claim (see Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSW WCC PD 83; Forman v Moree Plains Shire Council [2004] NSW WCC PD 85). In the absence of such a determination, a failure to comply with the Rules is to be treated only as an irregularity.
Nonetheless there remain a number of fundamental obstacles to Mr Ngu in the prosecution of his application to the Commission. The submissions made on his behalf, as to the alternatives to a personal examination by an Approved Medical Specialist are not consistent with the requirements of the legislation. It is correct to assert that it is for the Approved Medical Specialist to determine whether or not such an examination is required. However the Commission cannot determine an application for lump sum compensation for permanent impairment unless an Approved Medical Specialist has made an assessment. To suggest that Mr Ngu be assessed by a medical practitioner in Malaysia, as an alternative to an assessment by an Approved Medical Specialist, reflects a lack of understanding of the statutory scheme for the assessment of medical disputes.
His workers compensation claim form is dated 11 January 2004, more than two years after the alleged injury. The employer received it on 13 January 2004. Mr Ngu was, according to his own statement, deported to Malaysia on 14 January 2004. The employer has not had the opportunity of having Mr Ngu examined by a medical practitioner for the purpose of determining the claim (section 119, Workplace Injury Management and Workers Compensation Act 1998). It has stated that it wants to proceed with a medical examination (Part 4 of the ‘Reply to the Application to Resolve a Dispute’). I agree with the employer’s submission that it is not reasonable for this examination to be arranged and to occur in Malaysia. If the employer were agreeable to an examination in Malaysia then the situation would be different. In effect Mr Ngu cannot “submit himself . . . for examination by a medical practitioner” (section 119(1)) provided by the employer because he is in Malaysia and cannot return to Australia.
In failing to submit himself to a medical examination by the employer, Mr Ngu’s rights to recover compensation with respect to his injury are suspended (section 119 (3) of the Workplace Injury Management and Workers Compensation Act 1998). The result is that Mr Ngu’s ‘Application to Resolve a Dispute’ filed in the Commission, cannot proceed. This occurs by operation of statute while-ever his rights to recover compensation are suspended. In these circumstances there is no need to substitute the Arbitrator’s order with another order.
This is not a procedurally tidy result for either party, or for the Commission, however in my view, it is the only result that can be reached on the facts. The file remains open, but for all intents and purposes cannot progress. It would be more appropriate for Mr Ngu to discontinue the matter and make a further application, if he is able to return to the jurisdiction.
Mr Ngu’s application also gives rise to issues of procedural fairness. In practical terms Mr Ngu cannot pursue this claim. He is not available for a medical examination because he is unable to obtain a visa to return to Australia. While-ever he is unable to return to Australia he cannot participate in the Commission’s dispute resolution processes fully, and in particular his evidence, and his credibility, cannot be tested at an arbitration hearing. Establishing his true identity and that of ‘Ming Dai’ also remains problematic. I am not satisfied that these obstacles could be overcome by permitting the proceedings to be held by phone or video-conference.
DECISION
The decision of the Arbitrator is revoked.
COSTS
Mr Ngu has been ‘unsuccessful’ on the appeal (section 345(3)). The appropriate order is ‘No order as to costs’.
OTHER
This matter raises serious allegations against both Mr Ngu and his employer. These include alleged Medicare fraud, breaches of immigration law and attempts to undermine the application of the statutory workers compensation scheme. These matters are beyond the scope of the appeal. To the extent they concern alleged breaches of the Workers Compensation Act they are to be referred to the attention of the Workcover Authority
Dr Gabriel Fleming
Deputy President
8 February 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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