Nicholls v Department of Juvenile Justice
[2006] NSWWCCPD 229
•14 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Nicholls v Department of Juvenile Justice [2006] NSWWCCPD 229
APPELLANT: Bruce Alan Nicholls
RESPONDENT: Department of Juvenile Justice
INSURER:GIO Workers Compensation ( NSW) Limited
FILE NUMBER: WCC7337-03
DATE OF ARBITRATOR’S DECISION: 17 June 2005
DATE OF APPEAL DECISION: 14 September 2006
SUBJECT MATTER OF DECISION: Procedural fairness; validity of medical assessment certificate.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Phillips Fox
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 17 June 2005 is confirmed.
2. No order as to costs of the appeal
BACKGROUND TO THE APPEAL
Bruce Alan Nicholls (‘The Appellant Worker’) was employed by the Department of Juvenile Justice (‘the Respondent Employer’), as a youth worker. He claimed that on 14 June 2000, in the course of his employment, he suffered an injury to his right knee and again, on or about 30 March 2001, sustained an injury to his low back and both legs.
On 27 February 2003, the Appellant Worker filed an ‘Application to Resolve a Dispute’ in the Commission seeking permanent impairment/pain and suffering compensation as a result of the injuries claimed, together with medical expenses described as “TBA”.
Relevantly for the purposes of this appeal, the Appellant Worker lodged a further ‘Application to Resolve a Dispute’ being matter No. WCC7345-03 seeking permanent impairment/pain and suffering compensation in respect of injuries sustained to his neck, arms and back on 21 November 2001 whilst employed with another organisation, DTE Youth Services.
Both claims for permanent impairment compensation were apparently referred for medical assessment by an ‘Approved Medical Specialist’ who examined the Appellant Worker on 11 November 2003.
It appears that, following that examination, a single Medical Assessment Certificate was issued which provided assessments of permanent loss of efficient use or impairment in relation to the injuries forming the subject of both proceedings i.e matter No. WCC1337-03 and WCC7345-03.
The Appellant Worker lodged an Application to Appeal against the Medical Assessment Certificate on 31 January 2004. The appeal was successful. Two separate decisions in, respectively, WCC7337-03 and WCC7345-03, were handed down by the relevant Medical Appeal Panel on 17 December 2004.
The Medical Appeal Panel revoked the initial single Medical Assessment Certificate as it related to the injuries the subject of these proceedings, i.e. WCC7337-03, and issued a new Medical Assessment Certificate. That new certificate recorded assessments in respect of injuries said to have been sustained on 14 June 2000 and 30 March 2001. It is noted that the Medical Appeal Panel held the Medical Assessment Certificate as it related to injuries claimed in WCC7345-05 should be confirmed.
In the new Medical Assessment Certificate in WCC7337-03, issued on 17 December 2004, the assessment made was as follows:
·In relation to the injury on 30 March 2001, 10% permanent impairment of the back, 1% permanent loss of efficient use of the right leg at or above the knee and 4% permanent loss of efficient use of the left leg at or above the knee.
No deduction was made for any pre-existing injury, abnormality or condition.
·As to the injury ‘date’ of 14 June 2000, the loss was noted as 7% permanent loss of efficient use of the right leg at or above the knee. The proportion of permanent impairment due to pre-existing injury, abnormality or condition was noted as “All” and the total permanent percentage loss of efficient use or impairment attributable to that injury was described as “0%”.
A Teleconference was convened on 22 February 2005 to consider issues arising in this matter, WCC7337-03, following the issue of the Medical Appeal’s Panel decision.
At that Teleconference, the Appellant Worker took issue with the Medical Assessment Certificate only insofar as it certified that the percentage of permanent loss of efficient use of the Appellant Worker’s right leg at or above the knee, attributable to the injury on 14 June 2000 was “0%”. In summary, it was the Appellant Worker’s submission that the Medical Assessment Certificate incorrectly attributed all of the loss of efficient use of the Applicant’s right leg at or above the knee, in relation to the injury on 14 June 2000, to a pre-existing injury, abnormality or condition, and that this was an issue of causation which should be referred to arbitration.
Following the Teleconference on 22 February 2005, a detailed direction was issued by the Arbitrator. Briefly, it recited the background of the matter in similar terms described here, and noted the Arbitrator’s view, as communicated during the conference, that he had no power to adjudicate upon the correctness or otherwise of the ‘Medical Assessment Certificate’. Similarly, as to other matters raised by the Appellant Worker, the Arbitrator indicated that he had no jurisdiction to determine those issues.
The outcome of the Teleconference was that the Arbitrator would defer making any orders in the matter for a period of two weeks from the date of the telephone conference to afford the Appellant Worker’s solicitor an opportunity to consider the effect of the Arbitrator’s “prima facie view” as expressed during the Teleconference, and whether to institute proceedings in another forum to address issues relevant to the status of the Certificate. The ultimate directions, issued on 17 March 2005, were as follows:
“1. The parties are at liberty to file, should they wish to do so, any written submissions relevant to the terms on which the matter is to be determined, before 12:00noon on 24 March 2005.
2. The dispute will be determined ‘on the papers’ on 25 March 2005.”
The Appellant Worker lodged written submissions with the Commission on 23 March 2005, asserting, inter alia, that the matter should: “… be listed for Conference/Arbitration to provide the Applicant with a proper opportunity of having the issues which were raised to be determined by the Commission.”
Notwithstanding those submissions, the Arbitrator proceeded to determine the matter ‘on the papers’. Just when that was done is not clear, however a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued on 17 June 2005.
The decision of the Arbitrator dated 17 June 2005 was as follows:
1. “The Respondent shall, pursuant to s66 of the Workers Compensation Act 1987 (“the Act”) and in relation to the injuries sustained by the Applicant on 30 March 2001, pay lump-sum compensation to the Applicant of:
a. $6,000.00, in respect of 10% permanent impairment of the Applicant’s back;
b. $750.00, in respect of 1% permanent loss of efficient use of the Applicant’s right leg at or above the knee; and
c. $3,000.00, in respect of 4% permanent loss of efficient use of the Applicant’s left leg at or above the knee.
2. Award for the Respondent in respect of the Applicant’s claim for compensation pursuant to s66 of the Act relating to the injury to the Applicant’s right leg at or above the knee on 14 June 2000.
3. The claim in respect of s60 expenses is struck out, and the Applicant is given leave, in the event that such expenses remain in dispute, to lodge a new Application for relief pursuant to that section.
4. The Respondent shall pay the Applicant’s costs as agreed or assessed.”
On 14 July 2005, the Appellant Worker filed an ‘Appeal Against Decision of Arbitrator’. The Appellant Worker cites 12 grounds of appeal but they may be conveniently summarised as follows:
(a) The Arbitrator denied the Appellant Worker procedural fairness and natural justice by refusing him the opportunity of having an arbitration hearing.
(b) The Arbitrator erred in purporting to ‘strike out’ the Appellant Worker’s claim for section 60 expenses.
(c) The Arbitrator erred in apparently having regard to proceedings which were not before him against a different employer for different injuries, i.e., proceedings No. WCC7345-03.
(d)The Arbitrator erred in purporting to make a decision without having satisfied the requirements of section 355 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
(e) The Arbitrator’s interpretation of the Medical Assessment Certificate and its purported ‘binding nature’ was incorrect.
(f) The Arbitrator erred in not awarding the Applicant lump sum compensation for the right leg based on at least 7% loss of use of the right leg once the Arbitrator had determined, in favour of the Appellant Worker, the occurrence of the injury on 14 June 2000.
On 30 September 2005, the Respondent Employer filed a ‘Notice of Opposition’ to the appeal. Briefly, the Respondent Employer submits that the appeal fails to satisfy the threshold requirements set out in section 352(2) of the 1998 and that the appeal was not served in time, and it first became aware of the appeal by correspondence from the Commission to it on 29 September 2005.
As to the substance of the appeal, the Respondent Employer submits that no proper grounds of appeal have been made out by the Appellant Worker and that the decision of the Arbitrator ought be confirmed.
ON THE PAPERS REVIEW
The Respondent Employer submits that the matter is suitable for a determination ‘on the papers’. The Appellant Worker submits that an oral hearing is required on the following basis:
“1. The Appellant says firstly that it is not yet able to finalise all of its Submissions and Grounds of Appeal as it has sought information from the Commission as to what was apparently before the Arbitrator and is awaiting this information.
2. The information referred to in paragraph 1 is not yet available and as this matter involves complex issues including jurisdictional issues it is the view of the Appellant that the matter cannot be dealt with on the papers and requires the appointment of a Hearing before a Presidential member.”
As to the first point made by the Appellant Worker, in paragraphs 15 and 16 of the ‘Statement of Reasons’ the Arbitrator clearly identified all of the material before him which was taken into account in making his determination. He stated as follows:
“Documentary Evidence
15. ‘All of the documents filed by the Applicant were taken into account in making this determination. Of particular relevance are:
· Statement of Applicant dated 10 February 2003.
· Reports of Dr David Prendergast dated 27 December 2001, 31 January 2002 and 12 July 2002.
· Report of Dr E Resnekov dated 27 January 2002.
· Report of Dr Alan Searle dated 7 July 2002.
16. I have also considered the Medical Assessment Certificate issued by the AMS and the Decision of the Medical Appeal Panel.”
I am somewhat at a loss to understand the Appellant Worker’s submission on this point. Presumably, all the material before the Arbitrator to which he has referred was in the possession of the Appellant Worker’s solicitor prior to the determination of the matter such that he should be aware of “all of the documents filed by the Applicant” to which the Arbitrator referred.
True, the Arbitrator has made reference to the other proceedings being matter No. WCC7345-03, but it is clear that reference to this matter was made by way of “background” and in the context of an explanation for the convening of a ‘Medical Appeal Panel’ and the issuing of a subsequent certificate following the Appellant Worker’s success before the Appeal Panel. Again, the Appellant Worker’s solicitor having represented him in both sets of proceedings, it is presumed that the Appellant Worker’s solicitor was also in possession of relevant material relating to that file.
In the circumstances, I do not see that this submission carries any weight for the purposes of the determination of the appeal. No particulars have been provided by the Appellant Worker
as to precisely what “information” he has sought from the Commission. There is no letter in the Commission file from the Appellant Worker’s solicitor addressing this issue. The only correspondence which may have been of some relevance was a letter from the Appellant Worker’s solicitor dated 8 August 2005 requesting that the Commission “locate the decisions” in both matters No. WCC7337-03 and WCC7345-03. This correspondence appears to relate more to the Appellant Worker’s solicitor’s letter to the Registrar of the Commission dated 14 January 2005 requesting the Registrar “correct [the] error” in the fresh Medical Panel Certificate issue on 17 December 2004 in matter No. WCC7337-03.
In addition, it is noted that the Appellant Worker’s solicitor wrote to the Commission on 19 October 2005 in the following terms:
“We understand that the solicitors for the Respondent have sought to file a Notice of Opposition in respect of this appeal and we advise that if our understanding is correct we require the opportunity of being heard in respect of that Notice and any submissions particularly as they contain a number of inaccuracies and errors.”
As a consequence of this letter, the Commission issued a direction on 8 November 2005 in the following terms:
“1. By 16 November 2005, the Appellant:
(a) May file with the Commission and serve on the Respondent further written submissions in relation to the ‘Notice of Opposition’ lodged by the Respondent on 30 September 2005;
(b) File with the Commission a ‘Certificate of Service’.
2. By 23 November 2005, the Respondent:
(a) May file with the Commission and serve on the Appellant written submissions in response to the above;
(b) File with the Commission a Certificate of Service.”
A memorandum to the Presidential Office from the Appeals Unit dated 30 November 2005 confirms that no further submissions had been filed by either party.
As to the second point raised by the Appellant Worker on this issue, whilst it may be the Appellant Worker’s view that this matter involves complex issues including jurisdictional issues and requires an oral hearing, I do not regard the issues as being particularly complex. No application has been made pursuant to the provisions of section 351 of the 1998 Act for referral of a question of law to the Commission constituted by a Presidential member.
Section 354(6) of the 1998 Act provides that:
“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 for formal hearing.”
In the present case, I am satisfied that I have “sufficient information” within the meaning of section 354(6) to determine the issues raised by the Appellant Worker ‘on the papers’. I have before me the Arbitrator’s ‘Statement of Reasons’, all the evidence before him, all the relevant Commission files, and the lengthy submissions by both parties on appeal. I have also had regard to the factors relevant to a determination ‘on the papers’ as set out in Practice Direction No. 1.
I do not consider that the issues raised on appeal need to be further elucidated by oral argument such that the appropriate course in the circumstances is to proceed ‘on the papers’.
LEAVE TO APPEAL
The appeal was filed within the time limits prescribed by section 352(4) of the 1998 Act. However, the Respondent Employer maintains that it was never served with that document, and that it first became aware of the appeal in September 2005 following communication from the Commission.
The Appellant Worker claims that he filed a Certificate of Service with the Commission on 30 July 2005. It appears that this document was mislaid by the Commission, and a further Certificate of Service was re-filed on 7 September 2005. That document describes the “service date” as 29 September 2005, but it would appear to be a typographical error as suggested service was effected on 29 July 2005.
I am unable to explain why the appeal was not received by the Respondent Employer, but on the information before me in the Commission files, I accept that the document was served in accordance with the Certificate of Service such that the requirements of section 352(4) have been satisfied.
As to compliance with the criteria set out in section 352(2) of the 1998 Act, the Respondent Employer submits that this requirement has not been satisfied. The Respondent Employer submits that: “Given that the MAC provided by the Medical Appeal Panel is not the subject of an appeal, such that its findings are binding on the parties, the Respondent submits that the Appellant has failed to establish that the necessary threshold … has been satisfied”.
The Appellant Worker submits that the amount in issue in the appeal exceeds $5,000.00 firstly because the total amount claimed in the application is $56,250.00, and the amount of the award is only $9,750.00. The Appellant Worker submits that:
“The appeal relates in part to whether there has been any valid referral to an approved medical specialist [but] even if there is a valid Medical Assessment Certificate the purported Award in favour of the Respondent in respect of the claim for lump sum compensation in respect of the right leg for the injury on 14 June 2000 involves an amount of $5,250.00 and if that claim is successful, the Appellant then has a further entitlement to lump sum compensation under s.67.”
I accept the Respondent Employer’s submission that the Appellant Worker cannot establish that the $5,000.00 threshold has been obtained simply because medical evidence upon which the claim was duly made provided assessments of permanent impairment far in excess of those contained within the MAC. However, leaving aside the issue as to the merits of the appeal for the moment, and dealing only with the threshold requirements contained in section 352 of the 1998, it seems clear that the thrust of the Appellant Worker’s submissions on appeal involve the Medical Appeal Panel’s determination that, whilst the Appellant Worker may suffer a 7% loss of efficient use of his right leg, the loss resulting from the injury alleged was determined as 0%.
The relief sought by the Appellant Worker is, inter alia, that the award in favour of the Respondent Employer in respect of the injury to the right leg should be revoked and an award made under section 66 of the 1987 Act in the amount of $5,250.00 substituted, with the matter then to be remitted to the Arbitrator for assessment of any section 67 entitlement.
In those circumstances, I am satisfied that the amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
Leave to appeal is granted.
SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Procedural Fairness’ Issue
The Appellant Worker submits that:
“The Arbitrator erred in denying the Appellant procedural fairness and natural justice by refusing the Appellant the opportunity of having an arbitration hearing and by limiting the opportunities to the Appellant to have his claim properly considered.”
The Appellant Worker further submits that:
“The Arbitrator erred in considering that a telephone conference afforded a proper opportunity to the Appellant to be heard when such a conference is clearly not in the nature of an arbitration and therefore, afforded no such opportunity at all. In addition the Arbitrator erred in considering the appropriateness or otherwise of the ‘conference’ when what was in fact sought (and required) was an ‘Arbitration’.”
It is clear from the terms of the detailed direction made by the Arbitrator following the Teleconference on 22 February 2005 that the Arbitrator considered, in his preliminary view, that he had no power to adjudicate upon the correctness or otherwise of a Medical Assessment Certificate. The Arbitrator also noted in that direction:
“Other issues were raised by the Applicant’s solicitor regarding the competence of the Medical Appeal Panel to make certain of the assessments it purported to make. These arguments too are not matters I can decide.”
It was following that Teleconference that the Arbitrator stated, as set out in the direction issued to the parties on 17 March 2005 that:
“I advised the parties that I would defer making any Orders in the matter for a period of two weeks from the date of the Telephone Conference. That would afford the Applicant’s solicitor an opportunity to consider the effect of my prima facie view as expressed at the time of the Telephone Conference, and whether to institute proceedings in another forum to address issues relevant to the status of the Certificate.”
Formal directions were that the parties were at liberty to file, should they wish to do so, any written submissions “… relevant to the terms on which the matter is to be determined … before 12:00 noon on 24 March 2005”. The Arbitrator then stated “the dispute will be determined ‘on the papers’ on 25 March 2005.
In the ‘Statement of Reasons’ accompanying the ‘Certificate of Determination’ which issued on 17 June 2005, at paragraph 30 the Arbitrator stated:
“The Applicant’s representative lodged written submissions with the Commission on 23 March 2005, asserting that the matter should ‘be listed for conference/arbitration to provide the Applicant with a proper opportunity of having the issues which remained to be determined decided by the Commission.’”
The Arbitrator went on at paragraph 31 as follows:
“The outstanding issues, such as they were raised on behalf of the Applicant, do not, in my view, warrant that a conference/arbitration be convened. The Applicant’s representative was afforded a proper opportunity to present argument at the time of the Telephone Conference, and, as indicated above, was afforded the further opportunity to make written submissions. I have carefully considered those submissions. A further conference will not contribute to my understanding of the case which the Applicant seeks to make out, and there is sufficient material before me to facilitate a determination of the matter … I am satisfied, in the circumstances, that a conference will not yield an agreed basis of resolution and that I must therefore determine the matter.”
At paragraph 12 of the ‘Statement of Reasons’ the Arbitrator noted that:
“I am required to decide whether the dispute is to be determined on the basis of the assessments recorded in the Medical Assessment Certificate issued by the Medical Appeal [Panel], or whether I should convene a Conciliation Arbitration hearing to consider a varied basis of determination as proposed by the Applicant’s representative.”
I have previously set out the terms of section 354(6) of the 1998 Act which essentially permits the Commission to determine matters without holding “… any conference or formal hearing.” Moreover, section 354(4) of that Act provides that “proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties …” The Arbitrator advised the Appellant Worker of his intention to determine the matter without an “Arbitration hearing” in the directions issued following the Teleconference on 22 February 2005.
It is the Appellant Worker’s submission that the Arbitrator’s determination, as recorded in the ‘Statement of Reasons’ related to the convening of a “conference” when the Appellant Worker, apparently, required an “arbitration hearing”.
It is quite clear from the lengthy direction issued by the Commission on 17 March 2005 that all parties were well aware of the issues to be determined. Simply put, the Appellant Worker submitted, in his written submissions before the Arbitrator, that although a Medical Assessment Certificate may address “whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality”, such a certificate may not ascribe “all” to a previous injury or pre-existing condition or abnormality. It was submitted that the reasons for this included that “all” and likewise, “0”, could not be regarded as “any proportion”, and could therefore have no meaning in this context.
In respect of this proposition, the Arbitrator stated at paragraph 32 of the ‘Statement of Reasons’ “… the sustainability of this reasoning requires an evaluation with reference to the legislative scheme for determination of medical disputes.”
The Arbitrator then went on to consider the relevant legislative provisions before concluding, at paragraph 41, that “the argument is in my view artificial … I cannot conceive of how the objects of the legislation would be served by placing constraints of the kind proposed by the Applicant on the assessments which are to be made by an AMS”.
The Arbitrator concluded at paragraphs 44 and 45 of the ‘Statement of Reasons’ as follows:
“The Applicant’s criticisms regarding the Medical Assessment Certificate are matters for the Applicant to have pressed in proceeding with an appeal against the assessment originally made by the AMS … The arguments now ventured on behalf of the Applicant would, regardless of their merit, ostensibly fall under the Appeal grounds of demonstrable error or incorrect criteria contemplated by s327(3) of the 1998 Act … to conclude, I have no power to determine the degree of permanent impairment which is a result of an injury. That is the function of an AMS. My role as Arbitrator is to determine liability, and, having done so, to give effect to the assessments recorded in the ‘Medical Assessment Certificate’ in so far as those assessments relate to injuries in respect of which the Respondent has been determined to be liable.”
In my view, the Arbitrator adequately and properly addressed the issues in dispute by reference to the evidence before him and the legislative requirements. The question of “liability” was determined in the Appellant Worker’s favour at paragraph 23 of the ‘Statement of Reasons’ as follows:
“… noting … the absence of any evidence contradicting the Applicant’s account, I determine that, on 14 June 2000 and 30 March 2001, the Applicant suffered injuries arising out of and in the course of his employment with the Respondent, and that his employment with the Respondent was a substantial contributing factor to each of those injuries.”
The Arbitrator’s conclusions in paragraphs 44 and 45 of the ‘Statement of Reasons’ were a proper summation of the task required of him.
Given, as the Arbitrator pointed out, the opportunities afforded the Appellant Worker at the Teleconference and in written submissions, I can see no basis upon which it could be maintained that the Arbitrator denied the Appellant Worker procedural fairness and natural justice in the manner of his determination of the issues in dispute.
It seems that no ‘alternative’ proceedings were brought by the Appellant Worker following the Arbitrator’s direction on 17 March 2005. The reasoning behind the Arbitrator’s decision not to proceed to an arbitration hearing is well documented in the ‘Statement of Reasons’. Nothing in the Appellant Worker’s submissions identifies how it is alleged the Arbitrator denied the Appellant Worker the opportunity to have his claim properly considered such that in my view, the Appellant Worker’s submission on this issue must fail.
The ‘Section 60 Expenses’ Issue
The Appellant Worker submits:
“That the Arbitrator erred in purporting to ‘strike out’ the Appellant’s claim for s60 expenses despite there being no identified non-compliance with the Rules nor any consideration of whether the proceedings in this respect were capable of being considered a ‘nullity’.”
As I said previously, the only claim made by the Appellant Worker for medical expenses was merely described as “TBA”, presumably, “to be advised”.
Section 103 of the 1998 Act places restrictions on commencing proceedings in respect of claims for medical and related expenses. Those restrictions do not apply where proceedings are commenced in respect of other claims, such as weekly payments of compensation. Nonetheless, no claims can be made unless a “dispute” exists. Nothing in the Appellant Worker’s application indicated that there was any dispute in relation to medical expenses. No particular expenses were identified.
In the circumstances, the Arbitrator’s statement at paragraph 14 of the ‘Statement of Reasons’ that:
“There is no evidence on file regarding medical expenses incurred by the Applicant. Insofar as there is any dispute regarding the Applicant’s medical expenses, I intend to strike out this aspect of the claim, and to give the Applicant leave to lodge a fresh application, duly supported by evidence of medical expenses.”
was an appropriate determination.
There was simply nothing for the Arbitrator to determine in the absence of any evidence accompanying the Appellant Worker’s application.
Section 354(7) of the 1998 Act provides that: “An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission …” The Appellant Worker had ample opportunity both at the Teleconference and in its submissions to deal with any dispute as to the payment of outstanding medical expenses.
The Arbitrator’s determination on this issue does not reflect any “findings” to the effect of any non-compliance with the Rules or “nullity” of the claim but rather an inability to determine the matter in the absence of any evidence
The ‘Different Employer’ Issue
The Appellant Worker submits that: “The Arbitrator has erred in apparently having regard to proceedings which were not before him against a different employer for different injuries.”
No particulars of any “error” have been identified. It is true, as I said earlier, that the Arbitrator made, by way of “background” or “history” of the matter, reference to proceedings WCC7345-03. As was noted by the Arbitrator, that application was in respect of injuries to the Appellant Worker’s neck, arms and back.
As I understand the Appellant Worker’s appeal, it relates primarily to the Arbitrator’s determination in respect of the right leg injury sustained in the course of employment with the Respondent Employer on 14 June 2000 and/or 30 March 2001.
No issue appears to be taken by the Appellant Worker as to the Arbitrator’s summary of the nature of the proceedings in WCC7345-03. Nowhere in the Arbitrator’s determination of the issues before him can I identify any aspect which would suggest that his decision was in any way “influenced” by other proceedings.
In these circumstances, I can see no basis upon which the Appellant Worker maintains that the Arbitrator has “erred”, and this ground of appeal must fail.
The ‘Interpretation of the Medical Assessment Certificate’ Issue
The Appellant Worker makes a number of submissions in relation to this aspect of the appeal as follows:
·“The Arbitrator has erred in considering those matters which were alleged to be the subject of a Medical Assessment Certificate (whether this or any other matter has been the subject of a valid referral to an Approved Medical Specialist) and in considering the nature and effect of any Medical Assessment Certificate issued either in respect of this matter or at all.
·The Arbitrator has erred in incorrectly identifying the issues which the Arbitrator was required to determine.
·The Arbitrator has erred in any consideration of the correctness or otherwise of a Medical Assessment Certificate in circumstances firstly where this consideration did not arise and secondly, where the Medical Assessment Certificate (even if valid) was capable of binding the Arbitrator only as to percentage loss and not as to causation (which was determined in favour of the Applicant).
·The Arbitrator was in error in his interpretation of what he considered to be the Medical Assessment Certificate.”
It was the Appellant Worker’s submission before the Arbitrator that the ‘Medical Assessment Certificate’ (‘MAC’) incorrectly attributed all of the loss of efficient use of the right leg at or above the knee to a pre-existing injury, abnormality or condition, and that this issue was one of causation which required arbitration hearing. The Arbitrator then noted that he was required to decide whether the dispute between the parties was to be determined on the basis of the assessments recorded in the MAC or whether he should consider “a varied basis of determination” as proposed by the Appellant Worker.
In paragraphs 17 – 23 inclusive of the ‘Statement of Reasons’, the Arbitrator considered the evidence of “injury”, and determined that the Appellant Worker had indeed suffered injuries within the meaning of the Act on 14 June 2000 and 30 March 2001 in the course of his employment with the Respondent Employer.
The Arbitrator then noted at paragraph 24:
“In light of my determination regarding the Applicant’s injuries, entitlement by the Applicant to compensation for permanent impairment is dependent upon assessment by an AMS of whether, and the extent to which, any permanent impairment is attributable to such injuries.”
At paragraph 25, the Arbitrator stated, “My view, as communicated during the Telephone Conference, is that I have no power to adjudicate upon the correctness or otherwise of a ‘Medical Assessment Certificate’”. Such a Certificate was “conclusively presumed to be correct” in accordance with the provisions of section 326 of the 1998 Act.
The Section 355 of the 1998 Act Issue
Section 355(1) provides as follows:
“The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.”
At paragraph 11 of the ‘Statement of Reasons’ the Arbitrator listed the “issues in dispute” between the parties and noted that:
“The Respondent’s representative disputed the reasoning of the Applicant’s representative [in relation to the MAC] and required that the matter be resolved on the basis of the assessments made by the Medical Appeal Panel.”
Further, at paragraph 31 of the ‘Statement of Reasons’ the Arbitrator stated:
“A further conference will not contribute to my understanding of the case which the Applicant seeks to make out, and there is sufficient material before me to facilitate a determination of the matter. It is also relevant that the Respondent’s representative has made it plain that the Respondent regards the ‘Medical Assessment Certificate’ issued by the Medical Appeal Panel as conclusive, and that the Respondent will not entertain a varied basis of resolution. I am satisfied, in the circumstances, that a Conference will not yield an agreed basis of resolution and that I must therefore determine the matter.”
It is clear from the Arbitrator’s ‘Statement of Reasons’ and indeed, to the detailed direction issued on 17 March 2005 to the parties, that he had clear regard to the requirements of section 355 of the 1998 Act, in his ‘Statement of Reasons’, in my view, demonstrate that he has satisfied those requirements.
I can see no error by the Arbitrator in this regard
In the following paragraphs, the Arbitrator went on to consider the status of the MAC as set out in Part 7 of the 1998 Act, in particular section 326.
At paragraph 32 of the ‘Statement of Reasons’ the Arbitrator noted this:
“It was asserted, in the written submissions lodged on behalf of the Applicant, that although a Medical Assessment Certificate may address ‘whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality’, such a Certificate may not ascribe ‘all’ to a previous injury or pre-existing condition or abnormality. It was submitted that the reasons for this included that ‘all’ and, likewise, ‘0’, could not be regarded as ‘any proportion’, and could therefore have no meaning in this context”.
The Arbitrator then said at paragraph 33: “The sustainability of this reasoning requires evaluation with reference to the legislative scheme for determination of medical disputes.”
Thereafter, the Arbitrator went on to consider various relevant sections of the 1998 Act, in particular sections 323 and 326. In essence, it was the Appellant Worker’s submission that “all” or “0” cannot be regarded as a “proportion”. This indeed is a novel concept, but as the Arbitrator pointed out at paragraph 41:
“The argument is in my view artificial. It concedes scope for the deduction of degrees of impairment rating from 0.1% to 99.9%, where such degrees of impairment are assessed as being due to a previous injury, yet excludes the possibility for marginally different assessments of 0 and ‘all’/100%. The legislative scheme provides for compensation to be payable in respect of impairment which results from a compensable injury, not in respect of impairment which has some other source …I cannot conceive of how the objects of the legislation would be served by placing constraints of the kind proposed by the Applicant on the assessment which are to be made by an AMS.”
The Arbitrator then went onto consider the proper construction of the work “proportion” but concluded, at paragraph 43:
“The focus on the literal meaning of ‘proportion’ is, in any event, a red herring … The material enquiry is whether the worker has sustained a degree of permanent impairment that results from an injury. The assessment by an AMS of ‘the degree of permanent impairment of the worker as a result of an injury’ is, in accordance with s.326 of the 1998, conclusively presumed to be correct … The AMS of a Medical Appeal Panel assessed that no permanent impairment resulted from [injury on 14 June 2000]”.
The Arbitrator concluded at paragraph 44 that:
“The Applicant’s criticisms regarding the Medical Assessment Certificate are matters for the Applicant to have pressed in proceeding with an appeal against the assessment originally made by the AMS. That is the process provided for a party to address any deficiency in the [MAC]… The arguments now ventured on behalf of the Applicant would, regardless of their merit, ostensibly fall under the Appeal grounds of demonstrable error or incorrect criteria contemplated by in s327(3) of the 1998 Act. The findings of the Medical Appeal Panel which must be taken to constitute the conclusive determination of any issues relating to the form and content of the [MAC], endorsed use of “All” and “0” as appropriate assessments for the purposes of ‘deduction’ pursuant to s323(1) of the 1998 Act.”
The Arbitrator concluded at paragraph 45 as follows:
“I have no power to determine the degree of permanent impairment which is as a result of an injury. That is the function of an AMS. My role as Arbitrator is to determine liability, and, having done so, to give effect to the assessments recorded in the Medical Assessment Certificate insofar as those assessments relate to injuries in respect of which the Respondent has been determined to be liable.”
As a consequence, the Arbitrator entered an award in favour of the Appellant Worker in accordance with the Medical Appeal Panel’s MAC.
I can see nothing in the Appellant Worker’s submissions on appeal that would suggest that the Arbitrator erred in his determination of the issue raised by the Appellant Worker with respect to the validity of the MAC.
The mere ‘occurrence’ of an injury does not necessarily result in any ‘permanent’ loss of use or impairment of a limb. As the Arbitrator correctly noted, if the Appellant Worker took issue with the Medical Appeal Panel’s ‘deduction’, for whatever reason, that was an issue clearly within the domain of an appeal panel as is contemplated by section 327 of the 1998 Act. That section sets out a number of grounds for appeal which include inter alia, “incorrect criteria” and “demonstrable error”. This was not the task of the Arbitrator.
Similarly, I do not understand on what basis it is suggested by the Appellant Worker that the Arbitrator has “erred in considering those matters which were alleged to be the subject of a Medical Assessment Certificate … and in considering the nature and effect of any Medical Assessment Certificates …” As the Arbitrator rightly pointed out, once he had decided “liability” in favour of the Appellant Worker, the issue as to his entitlement to compensation for “permanent impairment” was a matter for medical assessment.
The Arbitrator provided detailed reasons as to his findings on material questions of fact and his understanding of applicable law as his required by Rule 73 of the Workers Compensation Commission Rules 2003 ([‘the Rules’).
I can see no error by the Arbitrator in his “interpretation” of the content and effect of the ‘Medical Assessment Certificate’ issued by the ‘Medical Appeal Panel’.
The ‘Failure to Award Compensation’ Issue
The Appellant Worker submits that the Arbitrator:
“… Erred in failing to award the Applicant lump sum compensation in respect of loss of use of the Applicant’s right leg at or above the knee consequent upon the injury on 14 June, [2000], referable to at least a 7% loss of use having considered that the Respondent did not dispute liability, did not put injury in issue and did not assert that employment was not a substantial contributing factor to any injury.”
Once again, these were issues considered by the Arbitrator. It is quite true that the Respondent Employer did not dispute liability nor put “injury” in issue nor assert that the Appellant Worker’s employment with it was not a substantial contributing factor to his injury. The issue was whether or not that injury resulted in any loss of use of the right leg. The Medical Appeal Panel determined that it did not, but that the Appellant Worker nonetheless had a 7% permanent loss of use of the right leg at or above the knee as a consequence of a “pre-existing injury, abnormality or condition”.
Again, if the Appellant Worker took issue with that assessment, that was a matter to be brought before a Medical Appeal Panel. As the Arbitrator correctly pointed out, he had no power “… to adjudicate upon the correctness or otherwise of a Medical Assessment Certificate.”
The Arbitrator was not entitled to enter an award in favour of the Appellant Worker inconsistent with the findings of the Medical Appeal Panel and the ‘Medical Assessment Certificate’. It does not automatically follow that an ‘injury’ will result in any permanent loss or impairment.
There has been no error by the Arbitrator on this issue. He was required simply, as he said, in the circumstances of this particular case, “… to give effect to the assessments recorded in the ‘Medical Assessment Certificate’ insofar as those assessments relate to injuries in respect of which the Respondent has been determined to be liable.”
CONCLUSION
The Arbitrator has made valid findings of fact based on the evidence before him, and his reasons adequately reflect those findings.
The Appellant Worker has failed to demonstrate any errors of law, fact and/or discretion to justify revocation of the Arbitrator’s decision.
DECISION
The decision of the Arbitrator dated 17 June 2005 is confirmed.
COSTS
No order as to costs of the appeal.
Deborah Moore
Acting Deputy President
14 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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