NSW National Parks and Wildlife Service v Winnett
[2004] NSWWCCPD 21
•16 April 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:NSW National Parks and Wildlife Service v Geoffrey Robert Winnett [2004] NSW WCC PD 21
APPELLANT: NSW National Parks and Wildlife Service
RESPONDENT: Geoffrey Robert Winnett
INSURER:GIO General Limited
FILE NUMBER: WCC 12707-03
DATE OF ARBITRATOR’S DECISION: 25 November 2003
DATE OF APPEAL DECISION: 16 April 2004
SUBJECT MATTER OF DECISION: Leave refused to file Reply out of time
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers.
REPRESENTATION: Appellant: Turks Legal, Solicitors
Respondent: Stacks the Law Firm, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant Employer is ordered to pay the Respondent Worker’s costs, as agreed or assessed.
THE APPEAL
On 12 December 2003 the NSW Parks and Wildlife Service (‘Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 November 2003. The appeal was received in the Commission on 15 December 2003.
The Respondent to the appeal is Geoffrey Robert Winnett (‘the Respondent Worker’).
The relevant insurer is GIO General Limited (‘the Insurer’).
The appeal was referred to me on 29 March 2004.
ISSUES IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in the exercise of her discretion. The Appellant Employer submits that the Arbitrator gave undue weight to the absence of an acceptable explanation for the delay, balanced against the prejudice to the Appellant Employer, in refusing to admit a ‘Reply to Application to Resolve a Dispute’ (‘the Reply’) and accompanying documents out of time.
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the concurrence of the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
BACKGROUND
An ‘Application to Resolve a Dispute’ (‘the Application’) was lodged in the Commission by the Respondent Worker, on 25 July 2003. The Respondent Worker is claiming lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of injuries to his back and both legs, suffered on 7 July 1987 during his employment with the Appellant Employer. Liability has been admitted, the dispute relating to a claim for lump sum for permanent impairment.
An ‘Application to Admit Late Documents’ and the Reply were lodged by the Appellant Employer, in the Commission on 5 November 2003. A teleconference between the parties and the Arbitrator was scheduled for 4.00 pm on that day. The teleconference was adjourned until 25 November 2003 as neither the Arbitrator nor the Respondent Worker had seen the document. Settlement discussions took place but a settlement was not reached. The Arbitrator noted on the file, “I refused leave to file the Late Reply as it was due to be filed by 18 August and the Application for a Late Reply was not filed until 5 November. The matter has been referred to an AMS. Referral form attached.” A Direction was issued on 28 November 2003, in the following terms:
There was a telephone conference on 25 November 2003 at which the following direction was made:
(1)Leave is refused for the Respondent to file their Reply out of time.
(2) That the matter be referred to an Approved Medical Specialist.
No formal written reasons were provided by the Arbitrator, and she advised Commission staff by email on 18 December 2003 that the teleconference proceedings were not recorded. Accordingly, there is no transcript of those proceedings. However, it is clear from the submissions made by the parties, that the Arbitrator conveyed her decision to them at the teleconference, and that they are conversant with and understood the Arbitrator’s decision to reject the application to file the Reply and associated documents out of time, and her reasons for that decision.
The documents that were before the Arbitrator, including the documents in connection with the ‘Application to Admit Late Documents’ and the Reply, are before me in this appeal.
SUBMISSIONS
The Appellant Employer, by way of explanation, states:
The reason given for the delay in responding to the Application to Resolve a Dispute was noted on instructions from GIO that the document had been scanned to an incorrect claim file following receipt [sic] had not been referred for further action.
GIO’s instructions were that the original claim file for the injury on 7 July 1987 had been destroyed.
The Arbitrator determined that a satisfactory explanation of the delay had not been provided and refused leave to the respondent to lodge the Reply out of time.
The Arbitrator referred the dispute to an AMS for assessment.
The Arbitrator indicated that the medical reports accompanying the Reply would not assist the AMS to whom the dispute was to be referred for assessment.
The Arbitrator declined to give written reasons for her decision.
The Appellant Employer made submissions substantially as follows, in support of the grounds of appeal set out at paragraph 4, above.
·The Appellant Employer explained that the delay in lodging the Reply was due to an internal administrative error. It was open to the Arbitrator to find that this explanation was not satisfactory, but this is not a pre condition to the grant of an extension of time and that the Arbitrator ought to have had proper regard to the prejudice caused to the Appellant Employer by her refusal to admit the Reply. Specifically, it is submitted that the prejudice lies in excluding documents that may be relevant to the determination of the dispute, namely medical reports by specialists who have examined the Respondent Worker at the request of the Insurer and provided assessments of permanent disability.
·The Arbitrator erred by determining that the Approved Medical Specialist (‘the AMS’) to whom the dispute is to be referred for assessment would not be assisted by the reports, and that the AMS should properly have the reports made available and give weight to them as considered appropriate in the circumstances. It is further submitted that allowing the Reply to be lodged with the accompanying reports for submission to the AMS “would not cause any prejudice to the worker taking account of the anticipated time frame for the examination by an AMS to be scheduled.”
·The Arbitrator erred by failing to decide what is fair and reasonable in the particular circumstances of the case, being a claim for lump sum compensation in respect of injuries suffered 16 years previously, for which liability has been admitted, while the issue of permanent impairment is to go to an AMS for assessment.
·It is in the interests of justice that the Reply be admitted with the accompanying reports so that any entitlement may be determined having regard to all of the evidence and the substantial merits of the case.
·An order is sought revoking the Arbitrator’s decision “…and leave be given to extend the time in which to file the Reply and that the matter proceed to assessment by an AMS.”
The Appellant Employer purports to have annexed to its written submissions on appeal, a copy of a letter from the Insurer to Turks Legal, dated 6 November 2003. The copy of the letter is not in fact annexed to or enclosed with the ‘Appeal Against Decision of Arbitrator’, and I am unable to locate any such copy elsewhere amongst the documents on the Commission file.
The Appellant Employer cites ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21 and Steven Tagg v International Flavours & Fragrances (Australia) Ltd [2003] NSW WCC PD 5, without comment.
The Respondent Worker provides a brief background and chronology of events in relation to the Application before the Commission. These need not be reproduced here. The submissions made are essentially as follows:
· The Respondent Worker objected to the admission of the Reply and the attached medical reports as the Application had been served on 31 July 2003. Turks Legal, the legal representatives of the Appellant Employer, advised Stacks, the legal representative of the Respondent Worker, on 3 October 2003 that they had been instructed to act in the matter. The Insurer had not taken any action on the telephone calls from Stacks on 12 and 20 August 2003 until 3 October 2003. The last day to lodge a Reply was 18 August 2003.
·Notwithstanding that Turks Legal were instructed to act on 3 October 2003, Stacks were not supplied with a copy of the Reply and the Application to Admit Late Documents until just over two hours before the teleconference on 5 November 2003. The Commission had advised on 22 October 2003 that the teleconference was scheduled for 5 November 2003.
·The Appellant Employer claims in its grounds of appeal that the Reply had been scanned to an incorrect file. However, Stacks had received communications from the Insurer on 12 August 2003 advising the claim number and that the Newcastle Office was handling the matter. On 20 August 2003 the Insurer wrote to Stacks requesting further details. It is submitted that “the file was obviously being worked on in August 2003”.
·The instructions from the Insurer are that the original claim file for the 7 July 1987 injury had been destroyed. However, attached to the Reply is a report of Dr J Roth, addressed to the Insurer and dated 24 November 2000. The Respondent Worker submits that this report could not have been produced if the file in fact, had been destroyed.
·The Insurer had from 28 May 2002 to 24 July 2003 when the Application was filed to serve the reports of Dr Roth. Stacks had contacted the Insurer twice during this period and no response was received.
·The Respondent Worker submits that he will be prejudiced should the reports of Dr Roth dated 24 November 2000 be submitted to the AMS. It contains two dates of injury and both are incorrect. Dr Roth also provides opinion about injury prior to 7 July 1987 without any investigative reports being viewed. It is submitted that Dr Roth only viewed a CT scan of the lumbar spine performed on 15 August 2000 after the injury on 7 July 1987, the subject of the proceedings before the Commission. It is submitted that Dr Roth’s report will provide misleading information to the AMS.
·The reports of Dr Jeremy Powers are dated 3 July 2001, and the Insurer had every opportunity prior to the last date for the submission of the Reply to be lodged, to serve the reports. It is submitted that one report is misleading as it uses the incorrect assessment procedure in that it was prepared using the AMA Guides to the Evaluation of Permanent Impairment 4th Edition. The correct assessment procedure is the AMA Guides to the Evaluation of Permanent Impairment 5th Edition. Dr C Maron’s report is dated 7 February 2003 and the Insurer had every opportunity prior to the last date for a Reply to be lodged, for this report to be served.
·If the appeal is allowed, and the medical reports are to be provided to the AMS, it is submitted that a direction should be made allowing the Respondent Worker to submit a statutory declaration providing answers to the incorrect information contained in those medical reports.
·In summary the Respondent Worker submits:
1. The Applicant Employer has not served any evidence supporting the Appeal – at the very least the facts asserted by way of explanation for the delay should have been supported by sworn evidence from someone within the GIO.
2. The Respondent Worker will be prejudiced if the Appeal is allowed.
3. The insurer has shown a contumelious disregard for the provisions of section [sic] 39(1) and if the Appeal is allowed then section [sic] 39(1) will be rendered virtually useless and will provide no incentive for insurers to comply with the timetable set by the Commission.
By letter of 13 February 2004 the Appellant Employer provided further submissions to the Commission in response to the submissions made by the Respondent Worker in reply to the matters put by the Appellant Employer in support of this appeal. There is no indication that this document has been served on or otherwise provided to, the Respondent Worker who therefore, has had no opportunity to make comment or submissions in relation to matters raised in that document. Accordingly, the further submissions are not taken into account in the determination of this appeal.
DISCUSSION AND FINDINGS
The exercise of the discretion to admit late documents is discussed in ADCO Constructions Pty Ltd v Kenneth Ian Ferguson (supra), cited by the Appellant Employer in this appeal. In that matter, Deputy President Fleming, in referring to the Interim Workers Compensation Commission Rules 2001, replaced by the Workers Compensation Commission Rules 2003 (‘the Rules’), observed that the Rules with respect to the Commission’s procedures must be read in light of the objectives of the Commission and the statutory provisions that govern its procedures, in particular, sections 367 and 354 of the 1998 Act, which outline the objectives of the Commission and the procedure before the Commission, respectively. Amongst others, the Deputy President made the following, pertinent statements:
The Rules accord with the objectives of the Commission, found in section 367 of the 1998 Act, specifically the provision of a timely dispute resolution service for workers compensation disputes. It is entirely proper that an Arbitrator should approach the exercise of discretion…with the view that parties should comply with the requirements of the Commission’s Rules.
She went on to say:
It is clear that the Minister intended, in the making of Rules establishing the procedures of the Commission, that those Rules should be adhered to and be given full force and effect. While Rule 5 [now Rule 6] allows the Commission to dispense with compliance with any of the requirements of the Rules, this discretion is likely to be exercised only in exceptional circumstances. The exercise of discretion to allow non-compliance with the Commission’s Rules is not, and cannot be, the normal and accepted practice of the Commission.
Rule 6 (2) provides that the Commission may if it thinks fit, on terms, dispense with compliance with any of the requirements of the Rules, either before or after the occasion for the compliance arises.
Rule 39 of the Rules, provides:
39 Reply by the respondent
(1) The respondent in any proceedings must, within 21 days from the date of registration of the application to resolve a dispute in the proceedings, lodge a reply to the application and serve a sealed copy of the reply on the applicant and any other party to the proceedings.
(2) …
(3) …
Practice Direction No. 9 was issued by the President of the Commission on 12 July 2003 and is intended to assist legal practitioners and parties in relation to the lodgment of late documents, being either late evidence or late Reply to an Application to Resolve a Dispute. It provides in part:
In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
· the submissions of the parties, including, if any, oral or written objections to the grant of leave,
·the effect, if any, on the timely resolution of the dispute,
·the extent of the prejudice to the other parties, if any, that would result from granting leave,
·the requirements of the Act and the Rules, and
·the objectives of the Commission.
In proceedings before the Commission, the onus lies with the party seeking the exercise of the discretion to admit late documents, to demonstrate that an extension of time to lodge them should be granted. In this matter, the Arbitrator declined to exercise her discretion to admit the late Reply and accompanying documents, as she was not satisfied that the Appellant Employer had demonstrated that the application should be granted. It is not disputed that the last day for lodging the Reply was 18 August 2003, but the documents were not lodged until 5 November 2003, and within a very short time prior to the commencement of the teleconference scheduled for that day. In the ‘Application to Admit Late Documents’ the legal representatives for the Appellant Employer stated that instructions to act in this matter were not received from the Insurer until 3 October 2003.
Subject to the requirements of the relevant legislative provisions, the Rules and the Practice Direction, Arbitrators are required to exercise the discretion in accordance with what is fair and reasonable in the particular circumstances of each matter. Deputy President Fleming outlined a number of factors in ADCO Constructions Pty Ltd v Kenneth Ian Ferguson (supra) that are relevant to a determination:
·the conduct of the party seeking leave, in particular whether there is an acceptable explanation for the delay, although this factor is not a precondition to the grant of an extension of time (Dix and Another v Crimes Compensation Tribunal [1993] 1 VR 297, Workers Compensation Commission Practice Direction 9),
·whether or not the refusal to admit the Reply will cause a substantial prejudice or injustice to the party seeking leave. It will also be relevant whether that prejudice can be remedied by other means, for example, by an order for costs,
·the prejudice, if any, that would result to the other party, in admitting the Reply, although the mere absence of prejudice is not necessarily sufficient to grant an extension of time (Hunter Valley Developments Pty Ltd v Cohen [1984] 58 ALR 305, Practice Direction 9),
·whether or not the delay in filing the Reply was attributable to the legal representative and not the party personally, although this does not necessarily entitle the party seeking leave to an extension of time (Sophron v The Nominal Defendant [1957] 96 CLR 469; Gallo v Dawson [1990] 64 ALJR 458),
·the nature of the proceedings, including the nature of the relevant statutory scheme and the objectives of the legislation (Workers Compensation Commission Practice Direction 9), and
·general considerations of fairness and justice between the parties (Hunter Valley Developments Pty Ltd v Cohen [1984] 58 ALR 305; Gallo v Dawson [1990] 64 ALJR 458).
A consideration of these factors…represents a balancing of interests as between the parties, and the public interest in the fair and efficient resolution of disputes by the Commission, in accordance with its statutory objectives.
Having regard to the facts and the circumstances of this matter, it is clear that the explanation provided for the failure to file the Reply and associated documents on time, by the Appellant Employer, is not acceptable and the Arbitrator’s view of this is reasonable in the circumstances. The Appellant Employer put forward a number of explanations for the delay: the Insurer scanned the document to the wrong file; the Insurer had lost the original file, and Turks Solicitors were not instructed to act until after the last date for the filing of the Reply. Further to this, no attempt was made to lodge the Reply or bring it to the notice of the Respondent Worker until just before the telephone conference was due to commence, on 5 November 2003. The Solicitors for the Respondent Worker claim and I accept, notwithstanding the Insurer’s explanations, that the Insurer continued to work on the matter notwithstanding that the file had been lost and further, that there was a degree of unresponsiveness from the Insurer in its dealings with the Solicitors. However, the assumption by the Respondent Worker that Dr Roth’s report could not have been produced if the file was lost is not safe, as there is no evidence as to what records were on hand and available to the Insurer, nor when or for how long the file was lost. Given that dealings between the Insurer and the Respondent Worker’s legal representatives were ongoing to some extent, some records must have been available. I do not take the Respondent Worker’s assumption into account. There is no reason given for the delay by the Insurer in instructing the Solicitors, other than what has been set out above. While there is an absence of an adequate explanation for the delay in filing the Reply and associated documents, other considerations must be taken into account.
The delay is attributable substantially to the Insurer rather than the legal representatives. However, the disadvantage to the Respondent Worker by reason of the delay in filing the Reply until immediately before the teleconference was scheduled to commence, is obvious. The Arbitrator had no option but to adjourn the teleconference, in these circumstances. Having done so, the disadvantage to the Respondent Worker was ameliorated.
The statutory scheme and procedures for the determination of disputes in claims for workers compensation is embodied in the 1998 Act, in the Rules made under that Act and the Practice Directions made by the President. Compliance with the 1998 Act, the Rules and the Practice Directions is a reasonable expectation. The Commission operates to achieve its statutory objectives set out in section 367 of that Act. The Arbitrator is entitled to expect that the parties will be substantially compliant. An exemption from the requirements of the Rules is not to be granted routinely, but only in appropriate and exceptional circumstances. One of the statutory objectives by which the Commission is bound, is to provide a timely dispute resolution service (section 367(1) (c) of the 1998 Act).
From reading the submissions made by the parties, the issue of prejudice between them was discussed with the Arbitrator and taken into account by her. However, to what extent this was done is not clear. The fundamental principle of the statutory scheme is that a worker who has sustained an injury is to receive compensation from the worker’s employer in accordance with the legislation (section 9 of the 1987 Act). A Reply is a fundamental document in a dispute and contains the evidence of a respondent - in this matter, the Appellant Employer. Notwithstanding the best efforts of the Arbitrator and the parties, this matter could not be settled and the dispute still stands in respect of the claim for lump sum compensation under sections 66 and 67 of the 1987 Act. The question of the admission into evidence of a Reply can go beyond the procedural aspects of a matter to the distinct possibility that refusal to admit documents may work a substantial injustice to a party and in effect, determine the substantive rights of the parties, in a particular case (Coles Myer Limited v Victorian WorkCover Authority and Frew [2002] VSCA 144 (10 September, 2002)), and, “…the courts will in the interests of justice correct any kind of error or mistake” (Walshe v Prest (by her next friend Darren Prest) [2004] NSWCA 94 (31 March, 2004)).
According to the submissions, the Arbitrator said that the Approved Medical Specialist would not be assisted by the medical reports attached to the Reply. However, I am unable to discern the reason or reasons for this conclusion. The Respondent Worker submits that he would be prejudiced should the reports be allowed into evidence because there are errors as to dates in Dr Roth’s reports; that these contain an opinion about an injury prior to 7 July 1987 “without any investigative reports being viewed”, and that Dr Roth only viewed a CT scan of the lumbar spine after the injury of 7 July 1987, the subject of the proceedings before the Commission. It is claimed that Dr Roth’s reports will provide misleading information to the AMS. Prejudice is also claimed given that the Insurer had ample time to serve the reports of Dr Powers and that the incorrect assessment procedures were used.
An AMS has the power to consult with other medical practitioners who have currently or previously treated the worker; may call for the production of medical reports and examine the worker (section 324 of the 1998 Act). The Commission has no power to restrict the disclosure of information, including medical reports, to an AMS, whether or not that information is admitted in proceedings before the Commission (Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7 (‘Fletchers’).
Any substantial prejudice that is claimed by the Appellant Employer in this case, lies almost entirely in the fact that pursuant to the decision of the Arbitrator, the medical reports in the Reply may not be made available to the AMS. Having regard to what is said in Fletchers, this does not follow, whatever the view of the Arbitrator as to their usefulness to the AMS, and the objections of the Respondent Worker. Absent this consideration, I can find no substantial prejudice or injustice to the Appellant Employer. The objections raised by the Respondent Worker relate to delay, but also, substantially to the availability of the medical reports to the AMS. As I have said, the Commission has no power to restrict the disclosure of information, including medical reports, to an AMS.
Notwithstanding the administrative errors put forward in explanation on behalf of the Insurer of the Appellant Employer, the delay was exacerbated by the inordinate delay in instructing Turks Solicitors, and the month that then elapsed before the Reply was submitted on the day of the scheduled teleconference. These are not mere errors, the impact of which should be corrected by the Commission. The Rules were disregarded and the delay and lack of communication on the part of the Insurer for the Appellant Employer were out of proportion in the prevailing circumstances. Given that liability is not in issue and prejudice has not been claimed (except for the issue of the production of the medical reports to the AMS, which is not relevant), I find that there is no undue prejudice to either party. Having regard to all of the circumstances, including due considerations of justice and fairness between the parties, I find that the Arbitrator was entitled to exercise her discretion and refuse to admit the Reply into the proceedings before her.
DECISION
The appeal is not allowed. The decision of the Arbitrator is confirmed.
COSTS
The Appellant Employer is ordered to pay the Respondent Worker’s costs, as agreed or assessed.
OTHER
The Registrar should provide all medical reports and information, including such reports and information attached to the Reply in this matter, to the Authorised Medical Specialist, as a matter of urgency, so that an assessment of the worker may be made, and so that the substantive dispute may be determined by the Arbitrator as soon as possible.
Gary Byron
Deputy President
16 April, 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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