Ozblue Constructions Pty Ltd v Lang

[2009] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ozblue Constructions Pty Ltd v Lang [2009] NSWWCCPD 3
APPELLANT:		Ozblue Constructions Pty Ltd
RESPONDENT:		Jayde Lang
INSURER:		CGU Workers Comp (NSW) Limited
FILE NUMBER:		A1-5947/08
DATE OF ARBITRATOR’S DECISION:		2 October 2008
DATE OF APPEAL DECISION:		12 January 2009
SUBJECT MATTER OF DECISION:		Interlocutory orders; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Sparke Helmore
Respondent:		Brazel Moore Lawyers
ORDERS MADE ON APPEAL:		Leave to appeal the Arbitrator’s determination of 2 October 2008 is refused.
The appellant employer is to pay the respondent worker’s costs of the appeal.

INTRODUCTION

1. This appeal concerns the nature of an interlocutory order and whether an order made by an arbitrator remitting a matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment of the worker’s whole person impairment resulting from his undisputed injuries was such an order.

BACKGROUND

1. On 26 July 2006, Mr Lang sustained multiple injuries when he fell onto concrete from a height of about 2.5 metres whilst working for Ozblue Constructions Pty Ltd (‘Ozblue’).  Oz accepted liability for Mr Lang’s claim for weekly compensation and it is not disputed that he injured his cervical spine (neck), thoracic spine, lumbar spine, left elbow, and left leg in the fall. 

1. Mr Lang was taken to hospital by ambulance where his left leg was x-rayed and he was discharged home on the same day.  His pain continued and he saw his local doctor a few days later.  In September 2007, x-rays were taken of his jaw, facial bones, cervical spine, thoracic spine, lumbar spine, pelvis, left elbow and left foot.  The x-rays revealed no fractures, but degenerative changes were noted in his thoracic spine and lumbar spine.

1. On 29 January 2007, Professor Ghabrial, orthopaedic and spinal surgeon, examined Mr Lang and recorded that he complained of tenderness in his neck, left elbow, back (thoracic spine and lumbar spine) and left leg.  He diagnosed his injuries to be:

“1.      Severe soft tissue injury to the neck.

2.        Soft tissue injuries to his back.

3.        Post traumatic medical epicondylitis.

4.Haematoma of the left thigh with the subsequent development of lateral cutaneous nerve [damage] of the thigh [causing] dysaesthesia and post traumatic chronic trochanteric bursitis.”

1. In accordance with the WorkCover Guides for the Evaluation of Permanent Impairment (‘the WorkCover Guides’) and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition (‘AMA5’), Professor Ghabrial assessed Mr Lang to have an 18% whole person impairment made up as follows:

(a)5% whole person impairment regarding the neck, according to DRE Cervical Category II;

(b)7% whole person impairment regarding the lumbar spine, according to DRE Lumbar Category II;

(c)0% whole person impairment regarding the thoracic spine;

(d)3% whole person impairment regarding left leg trochanteric bursitis, according to Table 17-33;

(e)3% whole person impairment regarding left leg dysaesthesia of the outer thigh, according to Table 17-37, and

(f)0% whole person impairment regarding the left elbow.

1. Based on Professor Ghabrial’s assessment, Mr Lang claimed lump sum compensation from Ozblue’s workers compensation insurer, CGU Workers Compensation (NSW) Limited (‘CGU’), in respect of 18% whole person impairment together with compensation for pain and suffering under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). As the letter making this claim was not tendered, it is not known when or in what terms the claim was made.

1. CGU arranged for Dr Powell, orthopaedic surgeon, to examine Mr Lang on 15 August 2007.  In his report of 27 August 2007, Dr Powell stated that he based his opinion entirely on the evaluation of the objective findings identified at examination on 15 August 2007.  He recorded that Mr Lang was aware of the following injuries:

“1.      Bruising over the lateral aspect of the lower left thigh.

2.        Cervical spine pain.

3.        Lower back pain.

4.        Jaw pain.

5.        Left elbow pain.”

1. This history was inaccurate, as Mr Lang has always complained of pain in his thoracic spine and Dr Powell examined his thoracic spine.  Dr Powell recorded that Mr Lang was symptomatic in “regards to the neck, lower back and left thigh”.  The “lower back” pain was described as an “intermittent sharp stabbing pain in the midline region of the thoracolumbar spine extending from the lower thoracic region into the lumbar spine and down into the sacrum”.  Dr Powell diagnosed the following injuries:

“1.Musculoligamentous injury [to the] cervical spine.

2.Musculogigamentous injury [to the] lumbar spine.

3.Left thigh haematoma and persisting anterolateral paraesthesia.

1. In accordance with the WorkCover Guides and AMA5, Dr Powell assessed Mr Lang to have a 7% whole person impairment made up as follows:

(a)6% whole person impairment regarding the cervical spine, according to DRE Category II;

(b)0% whole person impairment regarding the lumbar spine, according to DRE Category I;

(c)1% whole person impairment regarding the peripheral nerve injury to the left leg, according to Table 17-37 on page 552 and Table 16-10 on page 482.

1. On 4 September 2007, CGU offered to settle Mr Lang’s claim for lump sum compensation in the sum of $8,750 representing the compensation payable under section 66 of the 1987 Act for 7% whole person impairment.  After reviewing its file, CGU renewed that offer on 12 October 2007.

1. Mr Lang filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 31 July 2008 seeking lump sum compensation in respect of 18% whole person impairment as a result of injury to his cervical spine, lumbar spine, thoracic spine, left leg and left elbow in his fall on 26 July 2006.

1. In its Reply filed on 22 August 2008, Ozblue disputed the degree of whole person impairment and asserted that, as Mr Lang had not provided any assessment of impairment in respect of his left arm, the referral to an AMS should only be in respect of Mr Lang’s neck, back and left leg.

1. An Arbitrator heard the dispute on 17 September 2008 and, in a reserved decision delivered on 2 October 2008, determined:

“1.That the matter be remitted to the Registrar to refer to an AMS to assess the degree of permanent impairment the Applicant has resulting from the injuries specified in Part 4 of the Application to Resolve a Dispute.”

1. By an appeal filed on 29 October 2008, Ozblue seeks leave to appeal this determination.

PRELIMINARY MATTERS

On the Papers

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties, 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. 

Leave to Appeal

Monetary Threshold

1. 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’).

1. Ozblue submits, “The appeal relates to a claim which exceeds $5,000” (emphasis added). Mr Lang does not concede that the “two limb test of section 352(2) has been satisfied”, but has made no submissions as to why that is the case.

1. Since leave to appeal must be refused on a different ground, it is not necessary for me to determine if the monetary thresholds have been satisfied.  I note, however, that the Commission is not to grant leave to appeal unless “the amount of compensation at issue on appeal is both” (emphasis added) at least $5,000 and at least 20% of the amount awarded in the decision appealed against.  Without deciding this issue, it is difficult to see how, given Professor Ghabrial’s evidence, the threshold is satisfied in the present matter.  In other words, given that Professor Ghabrial has assessed Mr Lang’s whole person impairment as a result of the thoracic spine and left elbow injury to be nil, I doubt that the Arbitrator’s decision has the “real capacity” (Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7) to put “in issue” at least $5,000 of compensation.

Interlocutory

1. Section 352(1) of the 1998 Act provides that a party to a dispute in connection with a claim for compensation may appeal to a Presidential member against a “decision” by an arbitrator in respect of a dispute. Section 352(8), amended on 1 November 2006 by Act 113 of 2005, excludes from the definition of “decision”, “any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations”.

1. Under Clause 200B of the Workers Compensation Regulation 2003, as amended, “For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.

1. As the amendments apply to claims for compensation made before the commencement of the amendments (see Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 and P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’)), there is no doubt that they have retrospective effect and that they apply in the present matter.

1. I considered the distinction between a ‘final’ and an ‘interlocutory’ order in Hawkins where I said (at [37(k)]):

“k)given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”

1. In Hawkins, the issue was whether the respondent worker’s unchallenged entitlement to compensation was to be assessed in the manner and under the rates applicable before 1 January 2002 or those applicable after that date.  That decision did not finally determine the parties’ rights and was held to have been an interlocutory decision.  Accordingly, leave to appeal was refused. 

1. In the present matter, the Arbitrator has merely remitted the assessment of Mr Lang’s whole person impairment, as a result of his undisputed injuries sustained on 26 July 2006, to the Registrar for referral to an AMS for assessment.  No rights have been determined.  The parties rights will not be determined until a valid Medical Assessment Certificate (‘MAC’) is issued and orders are made for the payment of lump sum compensation in a final Certificate of Determination.

1. Once a final Certificate of Determination is issued, either party will be at liberty to appeal and, if an interlocutory order or determination (such as that made by the Arbitrator on 2 October 2008) was a “step in the procedure leading up to final judgment” (Crowley v Glissan (1905) 2 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal a step or steps in the procedure will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Bunning v Cross (1978) 141 CLR 54 at 82, Ramton v Cassin (1995) 38 NSWLR 88 and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543 at 549).

CONCLUSION

1. It follows that leave to appeal must be and is refused because the decision Ozblue seeks to appeal is an interlocutory order of a preliminary nature.  The matter must be remitted to an AMS in accordance with the terms of the Arbitrator’s determination.

DECISION

1. Leave to appeal the Arbitrator’s determination of 2 October 2008 is refused.

COSTS

1. The appellant employer is to paying the respondent worker’s costs of the appeal.

Bill Roche
Deputy President

12 January 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE