Northern Star Ltd v Mark Druissi
[2007] NSWWCCPD 64
•27 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Northern Star Limited v Druissi [2007] NSWWCCPD 64
APPELLANT: Northern Star Limited
RESPONDENT: Mark Druissi
INSURER Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC2238-06
DATE OF REGISTRAR’S DECISION: 4 October 2006
DATE OF APPEAL DECISION: 27 February 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; ‘medical dispute’ as defined by section 319 of the Workplace Injury Management and Workers Compensation Act 1998; Items 1.02; 2.04A; 2.06; 3.01, and 4.09 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: Ellison Tillyard Callanan
Respondent: Lee Sames Egan
ORDERS MADE ON APPEAL: 1.Paragraph one of the decision of the delegate dated 4 October 2006 is revoked and the following order is made in its place:
“(i) Pursuant to the Applicant’s Bill of Costs, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.”
2. Paragraphs two, three and four of the delegate’s decision are confirmed.
3. The Appellant, Northern Star, is to pay the Respondent, Mr Druissi’s costs in this appeal in the amount of $275.00 (inclusive of GST).
BACKGROUND
Prior proceedings
On 24 October 2005 Mr Mark Druissi (‘Mr Druissi’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC18178-05). Mr Druissi named Northern Star Limited (‘Northern Star’), as the Respondent employer and claimed that he suffered injuries to his back; both legs, and sexual organs as a result of the nature and conditions of his employment as a tradesman printer from 11 July 1979 to July 2002. Mr Druissi sought medical and related expenses pursuant to section 60 of the Workers CompensationAct 1987 (‘the 1987 Act’) in the amount of $495.00 as at 16 August 2005. The claim was made on the basis that the medical and related expenses were ongoing.
On 25 October 2005 the Registrar issued a Notice to Parties (‘the Notice’) requiring Mr Druissi to serve the Application and Notice on Northern Star and deferring the requirement for Northern Star to lodge a reply. The parties were also advised that the dispute was to be set down for a teleconference before a delegate of the Registrar.
Mr Druissi filed further submissions on 28 October 2005 and an Application to Admit Late Documents on 9 November 2005. On 3 November 2005 Northern Star filed submissions and documents in reply.
A teleconference was conducted on 15 November 2005 by a delegate of the Registrar and on that day the Commission issued a “Notation” of the consent agreement made by the parties that: the Respondent pay the outstanding Bowen therapy expenses rendered between 1 February 2005 to 5 August 2005; credit be given to the Respondent for any treatment already paid; the Respondent pay the Applicant’s costs as agreed or assessed; the Respondent was to submit to the Applicant an alternative treatment plan, and continue to pay for Bowen therapy until cessation of any alternative treatment carried under such a plan. The Registrar’s delegate also deemed that the matter be dealt with pursuant to section 292 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
On 16 February 2006 Mr Druissi’s solicitor lodged an ‘Application for Assessment of Costs’. On 15 March 2006 Northern Star’s solicitor filed submissions in reply.
The Registrar’s decision in relation to this application, by her delegate, a Commission arbitrator, (‘the delegate’) was made on 4 October 2006. The delegate’s decision was accompanied by a ‘Statement of Reasons’. The decision is set out as follows:
“1.Pursuant to a Notation given by Consent dated 15 November 2005 the Respondent is liable to pay the Applicant’s costs of the substantive proceedings as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $4,331.90.
3.The Respondent is to pay the Applicant’s costs of the Assessment assessed at $550.00.
4.The Respondent is to therefore pay the Applicant a total amount of $4,881.90 if those costs have not already been paid.”
Lodgement of the appeal
On 31 October 2006 Northern Star’s solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’. Northern Star is insured by Allianz Australia Workers Compensation (NSW) Limited.
On 1 November 2006 Mr Druissi lodged submissions in reply to the Appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act states:
“(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.”
Neither party has made submissions in respect of the requirement for a formal hearing. Neither party has sought to adduce fresh evidence. Having regard to the submissions, Practice Directions Numbers 1 and 6 and the documents that are before me 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.
SUBMISSIONS, DISCUSSION AND FINDINGS
Issues in dispute
Northern Star’s solicitor submits that the delegate erred in law in his determination that the dispute was not a ‘medical dispute’ as defined by section 319 of the 1998 Act, and in his determination of Item 3.01 of the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the Workers Compensation Regulation 2003 (‘the WC Regulation’). Further submissions in relation to the items in dispute are set out below. Mr Druissi’s solicitor’s submits that the Appellant has failed to identify an error of law and his submissions in relation to the items in dispute are also set out below.
Following consideration of the relevant legislation I will deal with each disputed item in turn. The following matters are in dispute:
·whether the delegate erred in determining that the dispute was not a ‘medical dispute’, and
·whether the delegate erred in determining Items 1.02; 2.04A; 2.06; 3.01, and 4.09 of the Table.
The relevant legislation
The relevant legislation concerning appeals to the Commission against an assessment of costs contained in the 1998 Act and the WC Regulation has been considered in a number of decisions: Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146 (‘Fuentes’); Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCCPD 28 (‘Orr’); McManus v Gosford City Council [2004] NSWWCCPD 61 (‘McManus’), and Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWWCCPD 30 (‘Flegerbein’) and need not be canvassed again in this decision.
In conducting his assessment the delegate relied upon the agreement that the Respondent pay the Applicant’s costs as recorded in the Notation dated 15 November 2005. I have considered the application of Clauses 98 and 99 in Berry v South Eastern Sydney and Illawarra Area Health Service [2006] NSWWCCPD 256 and I adopt the reasoning set out at paragraph 32 of that decision in finding that the notation of the delegate set out at paragraph four does not constitute an order of the Commission for the purposes of Clause 99 of the 2003 Regulation. Notwithstanding this minor error by the delegate, I apply the reasoning set out in Mayne Group at paragraph 13, in finding that the delegate had jurisdiction to entertain the application pursuant to clause 98 of the 2003 Regulation. Clause 98 allows for an application to be made, and for the Registrar to entertain, an assessment of costs in the absence of an order for the payment of costs and in circumstances where the bill of costs fulfils the requirements set out. I am satisfied that Mr Druissi’s solicitor’s bill of costs dated 16 November 2005 fulfils these requirements. Accordingly I find that the WC Regulation and Legal Profession Regulation2005 (‘the LP Regulation’) apply to the bill of costs (see discussion in Woodbury v Miles [2006] NSWWCCPD 55).
Clause 84 of the WC Regulation which fixes the maximum costs recoverable by legal practitioners and agents to those set out in the Table. The maximum permissible under the Table has been considered by the Commission in a number of decisions including Berger and Orr. These decisions set out the Commission’s reasoning and application of the authority provided in Fuentes in respect of the maximum amount allowable under the Table being the maximum total for the type of activity/event set out in Column 4.
Clause 110 provides the Registrar with discretion to determine whether or not it was reasonable to carry out the work to which the costs relate, and what is a fair and reasonable amount of costs for the work concerned. Clause 119(1) limits the grounds on which an appeal may be made against the decision of the Registrar on an assessment of costs ‘to a matter of law’ arising in the proceedings. An error of law arises only where the discretion can be said to have miscarried because it has been exercised unfairly and unlawfully (see discussion in Flegerbein at paragraphs 27 – 29).
Did the delegate err in determining that the dispute was not a ‘medical dispute’ as defined by section 319 of the 1998 Act and Item 3.01 of the Table?
Northern Starr’s solicitor submitted that the dispute was a ‘medical dispute’ and accordingly Clause 8 of Schedule 6 of the WC Regulation applies and limits the maximum payable for the costs of the dispute to $200.00. The submissions are founded on: the Registrar’s determination to deal with the dispute as an expedited assessment in accordance with section 292 of the 1998 Act to which Part 5 applies; the restriction on costs payable prescribed by clause 3 of Schedule 6 applies as a result of the Registrar’s determination and the different procedures for resolution of the dispute that ensue; the assertion that the Registrar had no power to make an order for the payment of costs, and the resolution by agreement that the Respondent pay the Applicant an $495.00 being an amount less than $1,000.00 as prescribed by Clause 8. Mr Druissi’s solicitor submitted that Clause 8 only applies to a ‘medical dispute’ as defined by section 319 of the 1998 Act and that provision does not include a dispute as to the reasonableness, necessity or costs of medical treatment. Accordingly the costs scale generally applies. Following his consideration of the submissions and the relevant authorities the delegate determined that the matter was not a ‘medical dispute’ as defined by section 319 of the 1998 Act. The delegate relied upon the authority provided in the decision of Barbeyto v Trak Speed Pty Limited (WCC 8610-05) (‘Barbeyto’) that section 319 of the 1998 Act does not define ‘medical disputes’ as including disputes as to the entitlement to compensation for the costs of medical treatment.
On appeal Northern Starr’s solicitor repeats and adopts its submissions to the delegate and submits that the delegate’s determination gives rise to a matter of law. Mr Druissi’s solicitor submits that: the appellant has failed to identify a matter of law; no exclusion in accordance with section 336 of the 1998 Act arises, and the Registrar by her delegate had full power to determine the application.
‘Medical dispute’ as defined by section 319 of the Act has been considered by the Commission in a number of recent decisions (Fraczyk v Spicer Axle Australia Pty Ltd [2006] NSWWCCPD 20 (‘Fraczyk’) and Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124) and need not be repeated again here. I adopt the reasoning set out in Fraczyk at paragraphs 27 to 44 that the modern approach to statutory interpretation insists that the context be considered in the first instance and not at some later stage when ambiguity might arise, and the context in its widest sense must be considered (see also discussion in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).
Accordingly, in my view the commencement point for consideration of the meaning of ‘medical dispute’ as it relates to the matters raised on appeal is contained in ‘Part 4 – Compensation Dispute Determination’ of the 1998 Act. This Part empowers the Commission to entertain disputes and describes the manner in which the Commission may deal with disputes.
Section 289 provides:
“289 Restrictions as to when dispute can be referred to Commission
(1)…
(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
(3)…
(4)…
(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission”.
On my review, the application sought the payment of medical expenses for which the Insurer had denied liability and accordingly the Commission was empowered to entertain the application in accordance with section 289(2) of the 1998 Act. The Registrar’s delegate, in the absence of an application for expedited assessment (as required to enliven Item 3.01 of the Table) determined to deal with the dispute as an expedited assessment in accordance with section 292 of the Act which allows ‘medical expense compensation’ disputes to be dealt with as expedited assessments.
Northern Star’s solicitor submits that the Registrar’s delegate’s determination to deal with the dispute in accordance with section 292 of the 1998 Act gives rise to a finding that the dispute was a ‘medical dispute’ as defined by section 319 of the Act. As I have set out Part 4 and in particular sections 289 and 292 of the 1998 merely contain the legislative framework in which disputes may be resolved by the Commission. The provisions of themselves do not assist in defining a ‘medical dispute’. Accordingly I must consider this submission in the context of section 319 of the 1998 Act.
Section 319 of the 1998 Act provides:
“319 Definitions
In this Act:
. . . . . .
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Whilst the definition provided by section 319 of the 1998 Act includes a dispute related to ‘the treatment proposed or provided’ in my view a claim for ‘medical expenses compensation’ does not of itself constitute a ‘medical dispute’ as defined by section 319 of the 1998 Act. The claim was made pursuant to section 60 of the 1987 Act. That provision does not provide any basis for applying the definition contain in section 319 of the 1998 Act to claims made under section 60 of the 1987 Act and I note that this view was also expressed by the delegate in Barbeyto.
The Registrar’s delegate did not declare that the matter was a ‘medical dispute’. Rather the delegate ‘deemed’ that the matter be dealt with in accordance with section 292 of the Act in order to expedite the dispute resolution process. This deeming or determination of the manner in which the dispute should proceed does not in my view, give weight to Northern Star’s solicitor’s submissions that the dispute was a ‘medical dispute’ particularly in circumstances where an application for expedited assessment was not made by Mr Druissi’s solicitor. In the present matter I find no evidence before me that this ‘medical expenses compensation’ claim must be considered a ‘medical dispute’ as submitted by Northern Star’s solicitor. Accordingly the restriction on costs contained clause 8 and clause 3 as it relates to Item 3.01 of the Table have no application (see discussion at paragraph 22 of this decision) and therefore the submissions in this regard must also fail. Accordingly I see no error of law arising in relation to the delegate’s determination that the matter was not a ‘medical dispute’ and that Item 3.01 of the Table had no application.
Northern Star’s solicitor also submits that the delegate of the Registrar had no power to order the payment of costs. On my assessment the Registrar’s delegate did not ‘order’ the payment of costs as the dispute, in its entirety, was resolved by a consent notation. The force of this consent notation as it relates to the assessment of costs has been considered at paragraph 14 of this decision and I do not propose to revisit this issue.
Did the delegate err in determining Items 1.02; 2.04A; 2.06, and 4.09 of the Table?
Item 1.02
Mr Druissi’s solicitor claimed $100.00 under Item 1.02 for lodging the claim with the Insurer. Northern Star’s solicitor submitted that the item applies only to the making of a permanent impairment/pain and suffering compensation claim and no such claim was made in the substantive proceedings. The delegate found that the Respondent’s submissions were correct and disallowed the claim.
On appeal Northern Star’s solicitor repeats her earlier submissions. Mr Druissi’s solicitor’s relies upon his earlier submissions. Item 1.02 has no application. The claim was not for permanent impairment or pain and suffering compensation. I find no error in the delegate’s determination of this issue. However as the delegate found Northern Star’s solicitor’s submissions correct in this regard I find Northern Starr’s solicitor’s submissions on appeal misconceived.
Item 2.04A
Mr Druissi’s solicitor claimed $150.00 under Item 2.04A for preparing witness statements. Northern Star’s solicitor submitted that the work of obtaining a statement is encompassed by Item 2.01. The delegate noted that Item 2.01 was allowed in the maximum and that Mr Druissi’s solicitor had not provided submissions sufficient to advance his claim. The delegate relied upon the decision McManus and found that the Respondent’s submissions were correct. Accordingly the delegate disallowed the claim.
On appeal Northern Star’s solicitor repeats her earlier submissions. Mr Druissi’s solicitor’s relies upon his earlier submissions. In the present circumstances I find no error sufficient to disturb the delegate’s determination of this issue. However as the delegate found Northern Star’s solicitor’s submissions to be correct I find Northern Starr’s solicitor’s submissions on appeal misconceived.
Item 2.06
Mr Druissi’s solicitor claimed $500.00 under Item 2.06 for requesting a review of the claim by the Insurer. Northern Star’s solicitor submitted that the Applicant’s solicitors may not make a charge for reviewing the file. The delegate relied upon the decision in Whitty v Town and Country Rural Fening Pty Limited [2004] NSWWCCC20 in finding that the activities described by Mr Druissi’s solicitor fell within the type of events/activities envisaged under the item and made an allowance in the amount claimed, being $500.00.
On appeal Northern Star’s solicitor repeats her earlier submissions. Mr Druissi’s solicitor relies upon his earlier submissions. I have reviewed the file and located the request for review dated 16 August 2005 relied upon by Mr Druissi’s solicitor. I am satisfied that the activities took place and I find no error sufficient to disturb the delegate’s determination of this issue (see discussion in Flegerbein at paragraphs 27 – 29).
Item 4.09
Mr Druissi’s solicitor claimed $125.00 under Item 4.09 for attending and participating in a conference with an arbitrator on 15 November 2005. Northern Star’s solicitor submitted that the item only applies to attending and participating in a conference with “an Arbitrator” and in the present case the teleconference was conducted by a delegate of the Registrar and not an Arbitrator. The delegate found that the Registrar can delegate to any member of staff of the Commission any of the Registrar’s functions under section 371(1) of the 1998 Act including the functions of an Arbitrator and allowed the claim.
On appeal Northern Star’s solicitor repeats her earlier submissions. Mr Druissi’s solicitor’s relies upon his earlier submissions. Item 4.09 refers to a “type of activity/event”. The Registrar delegated her functions and her delegate conducted a teleconference in furtherance of resolving the dispute. The parties participated in the teleconference which in my view is the “type of activity/event” (emphasis added) envisaged by Item 4.09 of the Table. Accordingly I find no error sufficient to disturb the delegate’s determination of this issue.
Summary
I have determined the disbursements and professional costs challenged by Northern Star’s solicitor as follows:
The delegate’s determination that the dispute was not a ‘medical dispute’ as defined by section 319 of the 1998 Act is confirmed.
Professional Costs
The delegate’s disallowance of the claim under Item 1.02 is confirmed.
The delegate’s disallowance of the claim under Item 2.04A is confirmed.
The delegate’s allowance of $500.00 (plus GST) for the claim under Item 2.06 is confirmed.
The delegate’s determination in relation to Item 3.01 is confirmed
The delegate’s allowance of $125.00 (plus GST) for the claim under Item 4.09 is confirmed.
DECISION
Paragraph one of the decision of the delegate dated 4 October 2006 is revoked and the following order is made in its place:
“(i) Pursuant to the Applicant’s Bill of Costs, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.”
Paragraphs two, three and four of the delegate’s decision are confirmed.
COSTS
Neither party has made submissions in relation to the costs of the appeal. However Mr Druissi’s solicitor submits that Northern Star’s solicitor’s has acted unconscionably in challenging the bill of costs. I note that on appeal Northern Star’s solicitor raised matters in which the delegate’s determination reflected her submissions and in my view the appeal as it relates to these items was baseless.
The Appellant has not been successful on appeal. The appropriate order is that the Appellant, Northern Star, is to pay the Respondent, Mr Druissi’s costs in this appeal in the amount of $275.00 (inclusive of GST).
Elizabeth Tydd
Acting Deputy President
27 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ELIZABETH TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
9
0