P & O Ports Limited v Hawkins
[2007] NSWWCCPD 87
•3 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
REPORTED DECISION: P & O Ports Limited v Hawkins (2007) 6 DDCR 12
CITATION:P & O Ports Limited v Hawkins [2007] NSWWCCPD 87
APPELLANT: P & O Ports Limited
RESPONDENT: Alan Hawkins
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC10799-06
DATE OF ARBITRATOR’S DECISION: 18 October 2006
DATE OF APPEAL DECISION: 3 April 2007
SUBJECT MATTER OF DECISION: Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leitch Hasson Dent
Respondent: Turner Freeman
ORDERS MADE ON APPEAL: Leave to appeal is refused.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 14 November 2006 P & O Ports Limited (‘the Appellant Employer/P & O’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 October 2006.
The Respondent to the Appeal is Alan Hawkins (‘the Respondent Worker/Mr Hawkins’).
Mr Hawkins was born on 7 December 1941 and worked on the Sydney waterfront from 1964 until 18 October 1992 when he accepted a voluntary redundancy. His duties required him to work outdoors and exposed him to sunlight. After 1992 his work did not expose him to sunlight except for a couple of days when he worked on the waterfront’s ‘supplementary roster’.
He first developed ‘skin cancers’ in about 1986. Before he ceased work in 1992 he had those skin cancers removed without the need to take time off work.
On 17 October 2001 Mr Hawkins’ solicitor wrote to P & O in relation to his entitlements under the Workers Compensation Act 1987 (‘the 1987 Act’) and made a “formal claim”. The deemed date of injury was identified as being “1993” and the “type of injury” was described as “skin cancer condition (an occupational disease within the meaning of the Act) – materially aggravation, exacerbated, an [sic] accelerated, as a result of the nature and conditions of the worker’s employment as a waterside worker”.
On 24 December 2001 Mr Hawkins’ solicitors wrote to P & O claiming lump sum compensation under section 66 in respect of severe facial disfigurement and severe bodily disfigurement together with compensation under section 67 for pain and suffering.
On 27 December 2001 Mr Hawkins commenced proceedings (matter 58148/01) against the Appellant Employer in the Compensation Court of NSW (‘the Court’). That application was amended by a Proposed Amended Application for Determination filed on 23 January 2003. It claimed weekly compensation from 18 October 1992 to date and continuing, section 60 expenses and lump sum compensation in respect of severe facial and severe bodily disfigurement. It alleged a date of injury of 17 October 2001, being the “date of claim” (see paragraph one of the first application), and the “nature of injury” as being “skin damage, being a disease of gradual onset pursuant to sections 15 and/or 16 of the Workers Compensation Act, caused and/or aggravated by” Mr Hawkins’ duties as a waterside worker. A Third Proposed Amended Application for Determination is included in the papers before me but that document is not sealed and it is unclear if it was ever filed in the Court. That document added Container Terminals Australia Limited as a second Respondent and alleged a date of injury as “a deemed date after 18 October 1992…depending upon when/if it is found that the Applicant’s skin damage condition has incapacitated him”.
The first application was settled between P & O and Mr Hawkins on 30 October 2003 with an award in favour of Mr Hawkins in the sum of $12,000.00 in respect of 15% severe facial disfigurement and $7,500.00 in respect of 15% severe bodily disfigurement plus $10,500.00 under section 67 and $16,722.00 for section 60 expenses.
On 5 July 2005 Mr Hawkins’ solicitors wrote to P & O “in relation to his entitlements pursuant to the 1987 Workers Compensation Act” and made a “formal claim” for section 60 expenses and lump sum compensation is respect of 45% whole person impairment together with compensation for pain and suffering (‘the letter of claim’). The deemed date of injury is given as “5 July 2005” and the injury is described as “skin cancer (an occupational disease within the meaning of the Act) – materially aggravated, exacerbated, and accelerated, as a result of the nature and conditions of the worker’s employment as a waterside worker”.
On 14 July 2006 Mr Hawkins filed an Application to Resolve a Dispute (‘the Application’) in the Commission claiming compensation from P & O in the same terms as set out in the letter of claim dated 5 July 2006.
By its Reply filed on 7 August 2006 the Appellant Employer identified the following matters as being in dispute:
1. Mr Hawkins’ had been paid all compensation the Respondent was obliged to pay;
2. Mr Hawkins’ employment was not a substantial contributing factor to any further injury sustained by him;
3. the nature and conditions of Mr Hawkins’ employment were not as alleged and did not contribute to any further injury or condition suffered by him;
4. the Respondent has paid and continues to pay Mr Hawkins’ section 60 expenses;
5. Mr Hawkins has not suffered any further compensable loss under section 66 of the 1987 Act;
6. Mr Hawkins is not entitled to any further compensation for pain and suffering under section 67 of the 1987 Act;
7. any section 66 entitlement ought be the subject of a deduction under section 68A of the 1987 Act in respect of previous injury and/or pre-existing condition or abnormality;
8. the correct notional date of injury should be the date upon which Mr Hawkins’ claim for compensation was first made upon the Respondent, namely, 17 October 2001. As such any further section 66 entitlement ought be determined in accordance with the Table of Disabilities which applied to injuries suffered prior to 31 December 2001;
9. the settlement of the Court proceedings in matter 58148 of 2001 between the same parties raises the principles of res judicata and estoppel, and
10. there has been no deterioration in Mr Hawkins’ condition between the time of the award entered in the Court proceedings and the present date.
The matter was listed for teleconference before a Commission Arbitrator on 25 September 2006 when the solicitor for the Appellant Employer indicated there was no dispute that the Appellant Employer was liable to pay Mr Hawkins’ section 60 expenses reasonably necessary for his skin condition (T 3.3). I understand this concession to be a concession as to liability in respect of Mr Hawkins’ injury.
The matter was listed for conciliation and arbitration on 17 October 2006 when the only issues identified as being in dispute were:
a) whether the Appellant Employer could tender medical reports from Dr Mears and Dr Haertsch, both plastic surgeons (T 3.22);
b) the deemed date of Mr Hawkins’ injury (‘date of injury’) under section 16(1)(a)(ii) of the 1987 Act (T 3.31), and
c) whether any estoppel arises from the prior proceedings (T 4.25) that bind the parties on the issue of ‘date of injury’.
In an ex tempore decision delivered by the Arbitrator on 17 October 2006 he found that the deemed date of injury under section 16(1)(a)(ii) of the 1987 Act was 5 July 2005 and that the Appellant Employer could rely on either the report of Dr Mears of 8 February 2006 or the reports of Dr Haertsch dated 11 November 2002 and 8 September 2003.
P & O seeks leave to appeal the Arbitrator’s decision.
PRELIMINARY MATTERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
The Appellant Employer seeks an oral hearing “due to the complexity of the matter”. The Respondent Worker also seeks an oral hearing “if the appeal is to proceed”.
For the reasons set out below, leave to appeal is refused. The parties have provided additional written material dealing with the question of leave to appeal.
Having regard to 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 October 2006, records the Arbitrator’s orders as follows:
“1.That the date of the Applicant’s injury of aggravation, acceleration, exacerbation and deterioration of a skin cancer condition is for the purposes of his claim for compensation under sections 66 and 67 that is the subject of these proceedings deemed under section 16(1)(a)(ii) to have happened on 5 July 2005.
2.That the Respondent is allowed under clause 43 of the Workers Compensation Regulation 2003 to rely on either the report of Dr Meares dated 8 February 2006 or the reports of Dr Haertsch dated 11 November 2002 and 8 September 2003.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the Respondent Worker’s deemed date of injury for the purposes of his claim for additional compensation under sections 66 and 67 of the 1987 Act was 5 July 2005;
(b)failing to find that the Respondent Worker’s deemed date of injury for the purposes of his claim was either 17 October 2001, 24 December 2001 or 27 December 2001, and
(c)finding that under clause 43 of the Workers Compensation Regulation 2003 the Appellant Employer was not allowed to rely upon both the report of Dr Meares dated 8 February 2006 and the reports of Dr Haertsch dated 11 November 2002 and 8 September 2003.
LEAVE TO APPEAL
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)
The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’. Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (‘Regan’) it was held at [27] that:
“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”
As no compensation has been awarded in this matter the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. Mr Hawkins claimed $95,000.00 in respect of 45% whole person impairment and $25,000.00 is respect of pain and suffering. Allowing for a deduction for compensation paid in the prior settlement, the quantum of compensation “at issue” on appeal easily exceeds the $5,000.00 threshold in section 352(2)(a). As no compensation has yet been awarded it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(a)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCCPD 5).
Therefore, the monetary thresholds in section 352(2) are satisfied.
Interlocutory Order
In light of the above amendments to section 352(8) and the issues raised in the appeal, I issued the following Direction to the parties on 14 February 2007:
1. “The parties are directed to the provisions of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as amended by Act 113 of 2005, which excludes from the definition of ‘decision’, “any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations”.
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”.
Under Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 the above amendments to section 352 “apply in respect of a claim for workers compensation made before the commencement of the amendments”.
2. In light of the above amendments and in light of the fact that the Respondent Worker made a claim for compensation on 5 July 2005, the parties are directed to make written submissions on the following issues:
· whether the current appeal is against an order, ruling, determination or direction of an interlocutory nature, and, if so,
· the basis on which leave to appeal should be granted.
3. The Appellant Employer’s submissions are to be filed and served on or before Thursday 1 March 2007 and the Respondent Worker’s submissions are to be filed and served on or before Thursday 15 March 2007.”
In response to the above Direction the Appellant Employer filed further submissions on 28 February 2007 in which it made the following points:
a) the application for leave to appeal satisfies the requirements of section 352(2)(a) and leave to appeal should be granted;
b) the matters raised in the Direction of 14 February 2007 are only relevant in the event that section 352(2)(b) applies. That subsection does not apply because no compensation has yet been awarded;
c) in the alternative, the amending Act came into effect on 7 December 2005;
d) purely procedural decisions do not meet the threshold in section 352(2)(b);
e) part of the present appeal concerns the admissibility of certain medical reports in accordance with clause 43 of Workers Compensation Regulation 2003 (‘the 2003 Regulation’), accordingly, on the authority of Regan, leave to appeal should be granted, and
f) the ‘deemed date of injury issue’ has the real capacity to put the amount of compensation claimed in issue in the appeal because the Arbitrator’s decision affects whether Mr Hawkins’ entitlement to lump sum compensation is calculated by reference to the Table of Disabilities applicable to injuries before 31 December 2001, or by reference to the WorkCover Guides for the Evaluation of Permanent Impairment applicable to injuries sustained after 31 December 2001.
The Respondent Worker filed further submissions on 14 March 2007 in which he made the following points:
a) section 352(2)(a) is irrelevant unless the decision is capable of being appealed under section 352(1);
b) the test suggested by the Appellant Employer (raised in Regan) has been superseded by clause 200B of the 2003 Regulation;
c) if the decision under appeal is an order, ruling, determination, or direction of an interlocutory nature, the Appellant Employer has no basis for seeking leave to appeal as the decision is not one to which section 352(1) applies;
d) the Arbitrator’s decision is clearly a decision which is caught by clause 200B as it was a preliminary order. The decision was made so that Mr Hawkins could be appropriately referred to an Approved Medical Specialist (‘AMS’). That is why the decision only deals with two issues, the deemed date of injury and which reports were to be sent to the AMS, and
e) as a result the appeal should be dismissed.
The first question (not addressed by either party) is whether the amendment to section 352(8) is retrospective. The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation (D C Pearce and R S Geddes Statutory Interpretation in Australia 5th edition, page 250). The authority cited in support of this proposition is Maxwell v Murphy (1957) 96 CLR 261 where Dixon CJ said at 267:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.”
The authors also quote the following passage from Fisher v Hebburn Ltd (1960) 105 CLR 188 where Fullagar J said at 194:
“There can be no doubt that the general rule is that an amending enactment – or, for that matter, any enactment, - is prima facie to be considered as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.”
The wording of Schedule 6 Part 18J Clause 5 quoted above is in clear and unambiguous language. The relevant amendments to section 352 apply “in respect of a claim for workers compensation made before the commencement of the amendments” (emphasis added). The term ‘claim’ is defined in section 4 of the 1998 Act to mean “a claim for compensation or work injury damages that a person has made or is entitled to make”. In the present matter the Appellant Worker made a claim for compensation on 5 July 2005. Therefore, it is my view that the amendments to section 352 made by the amending Act do have retrospective operation and apply to the present appeal.
The distinction between a ‘final’ and ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL an others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206 (‘Southern Cross’)). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. His Honour added at 207:
“Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another.
The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.”
His Honour quoted from Gibbs J (as he then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444 where his Honour said that the established view in Australia was that what is interlocutory:
“…depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?”
A difficulty arises in determining what is interlocutory in proceedings in the Commission because, unlike common law courts assessing claims for damages, the Commission does not assess compensation on a ‘once and for all basis’. For the reasons set out below, care should be taken before automatically adopting common law authorities on the meaning of the term ‘interlocutory’ to the term “preliminary or interim orders…of an interlocutory nature” in clause 200B of the 2003 Regulation:
a) the Commission is a statutory tribunal and has only those powers conferred on it by the Workers Compensation Acts (the 1987 Act and the 1998 Act). Its objectives are set out in section 367 of the 1998 Act which sates:
“367 Objectives of Commission
(1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f) to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2) In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.” (emphasis added)
b) for the reasons explained below, the above objectives will be seriously frustrated if an unduly restrictive interpretation is given to the wording in clause 200B of the 2003 Regulation;
c) workers’ rights under the Workers Compensation Acts are ongoing and are subject to review under section 55 of the 1987 Act or reconsideration under section 350(3) of the 1998 Act. In this respect there is rarely an order (at least where the worker succeeds with his or her claim) by the Commission that ‘finally disposes of the rights of the parties’ in the sense that a common law verdict does. For example, further medical treatment may be required, or the worker’s condition may deteriorate requiring the entitlement to compensation to be reviewed and reassessed;
d) the Commission’s jurisdiction to award lump sum compensation is restricted in that, if there is a dispute about the degree of permanent impairment of an injured worker, an Arbitrator may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an AMS (section 65(3) of the 1987 Act). This will often require that an Arbitrator determine issues such as injury, worker, and substantial contributing factor (among other issues) before the matter is referred to an AMS. The effect of a determination by an Arbitrator on these issues is set out in section 350(1) of the 1998 Act which provides:
“350(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.”
e) such a decision clearly disposes of the parties’ rights and the findings made in such decisions or determinations do not become any less ‘final’ because of the unique statutory provisions under which the Commission operates;
f) an AMS is not part of the Commission (section 368 of the 1998 Act) and the procedures established under Part 7 make detailed provisions for ‘medical disputes’ (defined in section 319 of the 1998 Act) to be assessed by an AMS who then issues a Medical Assessment Certificate (‘MAC’) (section 325 of the 1998 Act) which is “conclusively presumed to be correct” (section 326 of the 1998 Act) as to the following matters:
· the degree of permanent impairment of the worker as a result of an injury,
· whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
· the nature and extent of loss of hearing suffered by a worker,
· whether impairment is permanent, and
· whether the degree of permanent impairment is fully ascertainable.
g) a party to a medical dispute may, in certain circumstances, appeal against a medical assessment under Part 7 (section 327). On appeal, a fresh MAC may be issued (section 328(5) of the 1998 Act). This process is time consuming and involves substantial cost;
h) the Commission’s objectives of ‘reducing administrative costs across the compensation system’ and providing a ‘timely service’ would be significantly frustrated if a final decision on ‘worker’ or ‘injury’ or ‘substantial contributing factor’ (or some other issue that finally determined the parties’ rights) was to be treated as being interlocutory and the worker was then required to attend an AMS and, perhaps, a Medical Appeal Panel, and then wait for a further Certificate of Determination to be issued at the conclusion of that process before an appeal could be heard under section 352. If the appeal is ultimately successful and the Arbitrator’s finding is overturned, the AMS and Medical Appeal Panel would potentially have been held for no reason and substantial unnecessary cost and delay would have been incurred;
i) on a question of statutory interpretation, a construction that promotes “the purpose or object underlying the Act or statutory rule…shall be preferred to a construction that would not promote that purpose or object” (section 33 Interpretation Act 1987);
j) in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase “preliminary or interim orders…of an interlocutory nature” to matters that are genuinely preliminary, provisional or interim in nature, and
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.
The question remains, were the orders made in the present case of the kind that fall within the terms of clause 200B? I have formed the view, with some reluctance, that the determinations made by the Arbitrator were “preliminary or interim…determinations of an interlocutory nature”.
I reject the Appellant Employer’s submission that the matters raised in the Direction of 14 February 2007 are only relevant in the event that section 352(2)(b) applies and that that subsection does not apply in the present case because no compensation has been awarded. It is now not sufficient that an appellant merely satisfies the thresholds in section 352(2). As noted by the Respondent Worker, meeting the threshold in that subsection is not, on its own, sufficient for leave to appeal to be granted. A prospective appellant must also satisfy the requirements of subsections 352(1) and (8) and establish that the order or determination appealed was not a ‘preliminary or interim…determination of an interlocutory nature’.
The Appellant Employer’s submission that the amending Act came into effect on 7 December 2005 overlooks the fact that the relevant amendments to section 352 came into effect on 1 November 2006 (see section 3 schedule 1 of the amending Act). It also ignores the effect of the Schedule 6 Part 18J Clause 5 of the 1987 Act.
The Appellant Employer’s reliance on Regan is misplaced and ignores the amended terms of section 352(8). For leave to appeal to be granted, it is now necessary for an appellant to establish that the appeal:
a) was filed within the time set out in subsection 352(4);
b) satisfies the thresholds in subsections 352(2)(a) and (b), and
c) is not an appeal from a “preliminary or interim…determination of an interlocutory nature”.
Whilst I agree with the Respondent Worker’s submission that if the decision appealed was an order, ruling, determination or direction of an interlocutory nature, then the Appellant Employer has no basis for seeking leave to appeal, it is not correct that the appeal should be dismissed. The proper order is that leave to appeal is refused, which has quite a different effect.
The determination of whether the Appellant Employer could rely on the reports of Dr Meares dated 8 February 2006 and Dr Haertsch dated 11 November 2002 and 8 September 2003 was clearly a preliminary ruling of an interlocutory nature. This ruling does not determine any rights and leave to appeal on this issue is refused.
The Arbitrator’s determination that the deemed date of injury was 20 July 2005 is more difficult. It amounts to a finding on a preliminary issue that is relevant to deciding if the Respondent Worker’s lump sum compensation is to be calculated under the Table of Disabilities or under the new WorkCover Guides for whole person impairment applicable to injuries sustained after 31 December 2001. The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor. The Appellant Employer conceded liability when it conceded that it was liable for Mr Hawkins’ section 60 expenses (T3.3). Therefore, the Arbitrator was only asked to determine 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 determination is in my view properly characterised as a preliminary ruling of an interlocutory nature. The ruling does not determine the parties’ rights but merely the date of calculation of the quantum of compensation. Therefore, leave to appeal the Arbitrator’s determination on this issue is also refused.
The Court of Appeal noted in Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) at [12] that a similar (but not identical) decision by an Arbitrator was interlocutory, but made no comment about the application of clause 200B to section 352(8). Nor did the Court comment on the proper interpretation or application of clause 200B in light of the Commission’s objectives set out in section 367. Therefore, I do not believe there is anything inconsistent with the views I have set out above and the decision of Edmonds.
Other Matters
The fact that leave to appeal is refused does not mean the Appellant Employer is prevented from appealing any Certificate of Determination that may be issued after the MAC is issued. Such further certificate will not be a preliminary ruling of an interlocutory nature and, if the interlocutory order or determination 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 the Commission’s ultimate Certificate of Determination 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). In that event the Appellant Employer will be entitled to challenge all steps in the procedure that have resulted in the ultimate determination.
The above situation (whilst most unsatisfactory) is unavoidable, even with the restricted meaning of “preliminary or interim…determination of an interlocutory nature” as detailed above in paragraph [37(k)]. If the Appellant Employer succeeds in a subsequent section 352 appeal (after the MAC is issued) that will result in the Respondent Worker having to attend a second AMS examination. If at all possible, that should be avoided as it is contrary to the objectives of the Commission as set out in section 367(1) of the 1998 Act and will result in further delay and unnecessary costs being incurred. In order to avoid the obvious inconvenience and waste of public funds that would result from another AMS examination, I strongly recommend that the current referral to the AMS be amended to request that the AMS assess the Respondent Worker’s losses under both the Table of Disabilities (deemed date of injury, either 17 October 2001, 24 December 2001 or 27 December 2001) and under the post 31 December 2001 WorkCover Guides (deemed date of injury, 5 July 2005), making the appropriate adjustments in each case for Mr Hawkins’ pre-existing losses.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
3 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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