Parsons v Dell Australia Pty Ltd
[2020] NSWWCCPD 2
•15 January 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Parsons v Dell Australia Pty Ltd [2020] NSWWCCPD 2 |
| APPELLANT: | Jason Parsons |
| RESPONDENT: | Dell Australia Pty Ltd |
| INSURER: | AAI Limited trading as GIO – agent for the Workers Compensation Nominal Insurer |
| FILE NUMBER: | A1-1588/19 |
| SENIOR ARBITRATOR: | Mr G Capel |
| DATE OF ARBITRATOR’S DECISION: | 14 June 2019 |
| DATE OF APPEAL DECISION: | 15 January 2020 |
| SUBJECT MATTER OF DECISION: | Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 – the exercise of discretion to reconsider a Certificate of Determination – factors to consider Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 applied; whether error of discretion – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Ian Collins Solicitor | |
| Respondent: | |
| Mr A Combe, counsel | |
| Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application made pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 to adduce further evidence on appeal is refused. 2. The Certificate of Determination dated 14 June 2019 is confirmed. |
INTRODUCTION
Mr Jason Parsons (the appellant) brought proceedings by way of a Miscellaneous Application (application for reconsideration), seeking to have a previous Certificate of Determination (COD) dated 3 August 2015 issued by Ms Annette Farrell, Deputy Registrar, in matter no 2703/14 set aside. He also sought a reconsideration of the Medical Appeal Panel’s (MAP) Medical Assessment Certificate (MAC) dated 26 June 2015.
The application for reconsideration was allocated to Senior Arbitrator Capel, who issued a direction to the parties to file written submissions, following which he determined the matter on the papers before him. The Senior Arbitrator declined to reconsider the orders made in the COD dated 3 August 2015 and confirmed the COD.
The appellant appeals the Senior Arbitrator’s decision.
BACKGROUND
The appellant was employed by Dell Australia Pty Ltd (the respondent) as a hardware product specialist. During the course of his employment, the appellant suffered a psychological injury, which was deemed to have occurred on 1 August 2013.
In 2014, the appellant commenced proceedings in the Commission (matter no 2703/14) seeking weekly payments, treatment expenses and a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). That matter proceeded to arbitration and the appellant was awarded weekly payments and treatment expenses. The s 66 claim was referred to an Approved Medical Specialist (AMS), Professor Nick Glozier, who issued a MAC certifying the appellant’s whole person impairment (WPI) to be 15%. The respondent appealed to the MAP. The MAP found error in Professor Glozier’s assessment and revoked his MAC. The MAP issued a new MAC dated 26 June 2015 certifying the appellant’s WPI to be 7%. The appellant did not seek judicial review of the MAC dated 26 June 2015.
Section 65A(3) of the 1987 Act provides that in order to receive lump sum compensation pursuant to s 66 in respect of a psychological injury, the worker must be assessed as suffering at least 15% WPI. As the appellant’s WPI was assessed by the MAP as less than that percentage, the Deputy Registrar issued the COD dated 3 August 2015 in the following terms:
“The Commission determines:
1. The applicant suffers 7% permanent impairment resulting from psychological injury deemed to have happened on 1 August 2013.
2. The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 1 August 2013.
Brief statement of reasons:
3. The Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
4. The applicant did not reach the threshold for lump sum compensation, as required by section 65A (3) of the Workers Compensation Act 1987.
5. The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
The appellant subsequently brought these proceedings, alleging that his condition had deteriorated and, on that basis, the COD issued by the Deputy Registrar should be set aside and the MAP decision should be reconsidered. He relied on s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
ON THE PAPERS
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.”
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by 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.
THRESHOLD MATTERS
There is no dispute between the parties that the appeal was lodged within the time prescribed by s 352(4) of the 1998 Act.
Subsection 352(3) of the 1998 Act provides monetary and percentage thresholds to be satisfied before an appeal can be brought. The subsection provides:
“(3) There is no appeal under this section 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.”
The appellant indicated in the Application – Appeal Against Decision of Arbitrator (the appeal application) that the threshold as to quantum was satisfied. The respondent indicated in its Notice of Opposition to Appeal Against Decision of Arbitrator (opposition) that it raised no issue that the thresholds as to time and quantum were met. As the application for reconsideration filed in these proceedings did not nominate an amount in issue, a delegate of the Registrar issued a direction requiring both parties to make submissions as to whether the threshold requirement as to quantum pursuant to s 352(3) of the 1998 Act was satisfied.
The appellant’s submissions
The appellant submits that in his application for reconsideration, he sought orders that the COD dated 3 August 2015 be set aside “pursuant to s 350(3) of the 1998 Act” and to be paid compensation in respect of 17% WPI, consistent with the assessment by Dr Ben Teoh, psychiatrist, who was qualified by the respondent. In the alternative, the appellant says he sought referral for reassessment by the AMS. The appellant says that the respondent issued a notice pursuant to s 78 of the 1998 Act on 20 April 2018 advising that the appellant’s weekly payments would cease. In that notice the respondent contended that the appellant was assessed as having 17% WPI for the purposes of s 39 of the 1987 Act, which provides for the cessation of weekly payments after 250 weeks unless the worker is assessed at greater than 20% WPI.
The appellant refers to the assessment of 19% WPI made by Dr Patrick Morris, psychiatrist, on 21 November 2018 and the assessments made by Dr Jeff Bertucen, psychiatrist, in which Dr Bertucen assessed the appellant’s impairment as 17% WPI on 26 February 2014 and 22% on 11 March 2016. The appellant submits that Dr Morris’s evidence supported a deterioration in the appellant’s condition after the assessment by Professor Glozier.
The appellant contends that, whether or not the Commission sets aside the COD dated 3 August 2015 thus enabling the appellant to revisit his entitlements pursuant to s 66 of the 1987 Act, he is entitled to apply to the Commission for a further assessment by an AMS for the purposes of s 39 of the 1987 Act. The appellant submits that Anderson v Secretary, Department of Education[1] is authority for the proposition that an assessment for the purpose of s 39 is not precluded by s 322A of the 1987 Act.
[1] [2018] NSWWCCPD 32 (Anderson).
The appellant says that the claim pursuant to s 66 was denied in a notice dated 9 April 2018 issued pursuant to s 74 of the 1998 Act, and the assessments given by the medical experts would result in potential benefit to the appellant of an amount in excess of $5,000.00.
The appellant refers to Abu-Ali v Martin Brower Australia Pty Ltd,[2] and submits that in that matter, there was no compensation at issue because the issue related to a threshold issue and if the claim succeeded, it would not result in an order for payment. The appellant says that Abu-Ali was a claim about whether a secondary psychological condition could be included in an assessment of WPI of an orthopaedic injury for the purposes of meeting the definition of “high needs” pursuant to s 32A of the 1987 Act. The appellant points out that his assessment is for the purpose of a claim pursuant to s 66, unlike the assessment in Abu-Ali.
[2] [2017] NSWWCCPD 25 (Abu-Ali).
The appellant seeks to distinguish Anderson from the present case on the basis that Anderson involved a threshold dispute in relation to the issue of domestic assistance, where there was no monetary amount claimed, so that an appeal could not be brought. The appellant also seeks to distinguish O’Callaghan v Energy World Corporation Ltd[3] in which the dispute related to a potential work injury damages claim, so that the monetary threshold again was not met.
[3] [2016] NSWWCCPD 1 (O’Callaghan).
The appellant further submits that the threshold requirement in s 352(3)(b) also has to be met, and that in the circumstances where the Senior Arbitrator’s decision amounted to a complete dismissal of the appellant’s claim, the amount in issue is at least 20% of the amount awarded, citing Sheridan v Coles Supermarkets Australia Pty Ltd[4] and Howlader v FRF Holdings Pty Ltd[5] as authorities for that proposition.
[4] [2003] NSWWCCPD 3 (Sheridan).
[5] [2019] NSWWCCPD 55.
The respondent’s submissions
The respondent indicates that although initially it maintained that there was no dispute that the threshold requirements of s 352(3) had been met, it now resiles from that position. The respondent submits that the “amount of compensation” at issue on the appeal must be both at least $5,000.00 and 20% of the amount awarded in the decision appealed against. The respondent contends that the threshold requirements have not been met and the appeal cannot proceed.
The respondent refers to Sheridan, in which the amount in issue was less than $5,000.00 in weekly payments and treatment expenses, and that although an assessment of impairment had been obtained, a claim pursuant to s 66 was not before the Senior Arbitrator. As it was not in issue before the Senior Arbitrator, it could not be included to satisfy the monetary threshold.
The respondent recites the facts in O’Callaghan, where the Arbitrator refused to exercise the reconsideration power in s 350(3) of the 1998 Act in respect of consent orders. The consent orders related to payment of compensation in respect of 10% permanent impairment of the lumbar spine, but the worker later obtained a higher assessment that included the cervical spine, which reached the necessary threshold to bring a work injury damages claim. The respondent says the claim before the Arbitrator in O’Callaghan sought an assessment for the purpose of a work injury damages claim. The initial application was withdrawn and an appeal against the original AMS’s assessment was lodged but was dismissed because the consent orders were extant. The worker then lodged an application for reconsideration of the consent orders pursuant to s 350(3) on the basis of a deterioration of the appellant’s condition, but that application was dismissed because there was no evidence of the purported deterioration. The appellant appealed but did not satisfy the monetary threshold because there was no amount of compensation in issue before the Arbitrator. The claim was not for compensation but was for work injury damages.
The respondent further refers to Abu-Ali, in which the worker, in earlier proceedings had agreed to an award in favour of the employer in respect of an alleged psychological condition. The worker was subsequently assessed as suffering 50% WPI in respect of the psychological injury and brought a claim for lump sum compensation in the Commission. That claim was dismissed. The worker then made an application for referral to an AMS to be assessed for the purposes of ascertaining whether he had at least 20% WPI (high needs) or 30% WPI (highest needs) in order to retain his entitlement to weekly payments. The respondent says that because there was no compensation claimed, and the referral to the AMS was for the purpose of assessment for a work injury damages threshold, it was determined that Mr Abu-Ali could not appeal because there was no amount of compensation at issue in the proceedings.
The respondent also discussed the facts in Anderson, in which the worker sought assessment by an AMS for the purpose of qualifying for domestic assistance in accordance with s 60AA of the 1987 Act. In those circumstances there was also no right to appeal because there was no amount in issue, and the issue of liability may or may not, at some stage eventuate in an amount of compensation.
The respondent submits that the application for reconsideration filed in the present proceedings does not claim an amount of compensation and that the appellant relies on s 350(3) of the 1998 Act. The respondent disputes that the application for reconsideration claims compensation in relation to permanent impairment. The respondent says that the application for reconsideration originally included a claim for weekly payments and treatment expenses, but that those claims were discontinued at the telephone conference held in the matter.
The respondent contends that the issue before the Senior Arbitrator concerned an application to have the COD dated 3 August 2015 reconsidered under s 350 of the 1998 Act. The respondent submits that, consistent with Abu-Ali and O’Callaghan, there is no “amount of compensation at issue on the appeal” to satisfy s 353(3) of the 1998 Act. The respondent contends that the only orders the Senior Arbitrator had the power to make were to set aside the COD and refer the matter to an AMS for assessment of the WPI due to psychological injury. The respondent says that the referral to the AMS would determine whether there was a further entitlement to compensation because the appellant’s condition had deteriorated. The respondent submits that the position of the appellant in this case is analogous to that of the appellant in Anderson.
Discussion
Where no amount was awarded, as was the case in these proceedings, the threshold requirement in s 352(3)(b) that the amount appealed against is at least 20% of the sum awarded does not apply.[6]
[6] Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5; Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7.
In order to ascertain whether s 352(3)(a) is satisfied, it is necessary to review the steps taken after the MAC was issued on 26 June 2015 and in the commencement of these proceedings in the Commission.
On 24 March 2016, the appellant made a further claim pursuant to s 66, claiming a lump sum of $54,820.00 in respect of 22% WPI. He also claimed s 60 expenses, which were unquantified.[7]
[7] Application to Admit Late Documents (AALD) dated 17 May 2019, p 15.
The respondent’s insurer (the insurer) wrote to the appellant on 11 April 2016 advising that in accordance with s 66(1A) of the 1987 Act and the Court of Appeal decision in Cram Fluid Power Pty Ltd v Green,[8] the appellant was precluded from bringing a further claim pursuant to s 66.[9]
[8] [2015] NSWCA 250 (Cram Fluid).
[9] Reply, p 6.
The insurer wrote to the appellant on 18 January 2018. In that correspondence, the respondent advised the appellant that Dr Teoh, who had medically examined the appellant on 12 December 2017, assessed the appellant as suffering 17% WPI. The insurer informed the appellant that if he continued to receive weekly payments, he would have received 260 weeks of payments on 21 July 2018. The insurer advised that s 39 of the 1987 Act provides that in circumstances where the worker’s WPI is not greater than 20%, there is no entitlement to weekly payments beyond the first 260 weeks. Consequently, as the appellant’s WPI was assessed as 17%, the appellant would no longer be entitled to weekly payments from that date.[10]
[10] AALD, pp 26–27.
On 22 March 2018, the appellant requested the insurer to review and reconsider the appellant’s entitlements and advised “we therefore claim 17% WPI on our client’s behalf pursuant to Section 66 in relation to injury deemed 1/8/2013 for psychological injury.”[11]
[11] Application, pp 9–12.
On 9 April 2018, the insurer issued a notice pursuant to s 74 of the 1998 Act, denying liability in respect of the appellant’s claim pursuant to s 66. The insurer denied liability on the basis that the appellant’s previous claim that resulted in the MAC certifying 7% WPI and the COD dated 3 August 2015 constituted his “one claim” pursuant to s 66(1A). Consequently, the insurer said that the appellant was not able to bring a further claim.[12]
[12] Application, pp 6–8.
Further correspondence passed between the appellant and the insurer in respect of the appellant’s request for a review and the insurer’s denial of the request.
On 3 December 2018, the appellant again sought a review of the insurer’s decision and a reconsideration of the MAC, as well as making a claim for weekly payments, treatment expenses and a lump sum in respect of 19% WPI, based on the assessment made by Dr Morris on 21 November 2018.[13]
[13] Application, p 13.
The insurer subsequently issued two notices pursuant to s 78 of the 1998 Act, dated 22 January 2019[14] and 27 February 2019,[15] in which the insurer respectively declined liability for weekly payments of compensation and declined liability for treatment expenses and lump sum compensation pursuant to s 66.
[14] Application, pp 35–40.
[15] Application, pp 83–87.
The appellant then lodged the application for reconsideration in the Commission, requesting the COD to be set aside and “the matter be remitted to a further AMS to assess WPI in relation to Psychological injury. and weekly payments from 20/4/18.”[16]
[16] Application, part 5.
The matter proceeded to a telephone conference, in which the appellant discontinued the claim for weekly payments and any claim for s 60 expenses. Following receipt of the written submissions from the parties, the Senior Arbitrator proceeded to determine the matter “on the papers.”
The respondent’s submissions provided a review of the steps taken by the appellant and the insurer recorded above. It included reference to the notice issued pursuant to s 78 dated 27 February 2019 in which it disputed that the appellant was entitled to lump sum compensation pursuant to s 66 in respect of his injury. The respondent also noted that the letter referred to the appellant being precluded by s 66(1A) (erroneously referring to s 66(1)) from bringing a further claim because of the previous lump sum claim.[17] The respondent further submitted that the application for reconsideration pursuant to s 350(3) of the 1998 Act should be rejected because a further claim was precluded by the operation of s 66(1A).[18]
[17] Respondent’s submissions filed 3 June 2019, [8].
[18] Respondent’s submisisons, [11].
The respondent continued to make submissions in relation to the prohibition in s 66(1A) and also the application of Cram Fluid, and in concluding submissions contended that:
“It is tolerably clear that the applicant’s claim for review … is a second claim for lump sum compensation in circumstances where the claim was made after 19 June 2012.”[19]
[19] Respondent’s submissions, [22].
The Senior Arbitrator’s Statement of Reasons[20] from time to time also described the matter before him as “the claim” brought by the appellant.
[20] Parsons v Dell Australia Pty Ltd [2019] NSWWCC 210 (reasons).
Although the application filed by the appellant lacked any reference to an amount of compensation, it can clearly be inferred from the circumstances surrounding the proceedings and the defence raised by the respondent that the appellant was attempting to pursue a lump sum claim for compensation pursuant to s 66, despite the lackadaisical manner in which that claim was pursued.
The authorities referred to in the parties’ submissions can be distinguished from the present matter.
In Sheridan, no claim had ever been made for a lump sum, and the compensation claimed in the proceedings amounted to less than $5,000. In the current matter, the appellant had made a claim pursuant to s 66 and the entitlement to that claim was clearly in issue. While O’Callaghan concerned an application pursuant to s 350(3) of the 1998 Act, the proceedings involved a threshold dispute in respect of work injury damages. It was held that “damages” was not “compensation”. There is no reference in the present proceedings to the appellant seeking to obtain an assessment for the purposes of a work injury damages claim. In Abu-Ali, the worker brought proceedings for an assessment of his WPI in order to meet the definition of “high needs” or “highest needs” as defined in s 32A of the 1987 Act. Had the worker succeeded in that application, no award of compensation would be made. In the present proceedings, the appellant is clearly in pursuit of an amount of compensation pursuant to s 66. Whether or not he could succeed in such a claim was disputed and was an issue to be determined by the Senior Arbitrator. In Anderson, the worker claimed an entitlement to domestic assistance pursuant to s 60AA of the 1987 Act. I determined that unlike issues concerning lump sum claims pursuant to s 66, claims for domestic assistance are not “compensation.”
I am satisfied therefore that the appeal concerns a dispute in connection with a claim for compensation and meets the threshold requirement in s 352(3)(a) of the 1998 Act. The appeal can proceed.
THE APPELLANT’S APPLICATION TO ADDUCE FURTHER EVIDENCE
The appellant seeks to adduce evidence on the appeal that was not evidence before the Senior Arbitrator. The documents are said to assist the appellant to show that the Senior Arbitrator was wrong in respect of his conclusion that he ought not to exercise his discretion to reconsider the COD because there had been an unexplained delay on the part of the appellant in bringing the application for reconsideration.
The documents are:
(a) the appellant’s Application to Resolve a Dispute (ARD) in matter number 2982 of 2016 (the 2016 proceedings);
(b) the respondent’s Reply to Application to Resolve a Dispute (reply) in the 2016 proceedings;
(c) a report of Dr Graham George, psychiatrist qualified by the respondent and dated 17 May 2016, and
(d) the Certificate of Determination issued in the 2016 proceedings by Arbitrator Moore on 29 June 2016.
The appellant submits that the documents should be admitted because the Senior Arbitrator elected to decide the matter “on the papers” and operated on an incorrect premise that the appellant had taken no action to pursue a reconsideration between 2015 and early 2018.
The appellant submits that the 2016 proceedings were “similar” proceedings and had the Senior Arbitrator raised the issue of delay with the parties, he would have been informed of those proceedings. The appellant says that the Senior Arbitrator decided the matter on the basis of the delay in bringing the proceedings without a dispute about that issue being raised and without the parties having the opportunity to make submissions. The appellant submits that the “fresh evidence” deals with that issue.
The respondent opposes the granting of leave to have those documents admitted.
The respondent submits that the Commission can only grant leave to have the documents admitted on the appeal in accordance with s 352(6) of the 1998 Act. That is, in circumstances where:
(a) the evidence was not available to the party seeking to adduce the evidence or could not reasonably have been obtained before the proceedings at first instance, or
(b) the failure to grant leave would cause substantial injustice in the case.
The discretion to admit the evidence can only be exercised if one of those two alternatives are satisfied.[21]
[21] State of NSW v Stockwell [2015] NSWWCCPD 9 (Stockwell), [66].
The respondent refers to Chep Australia Ltd v Strickland[22] as authority for the proposition that to satisfy the second limb, a decision is required as to what result would emerge if the evidence were taken into account and what would emerge if it were not. The respondent submits that if the result of each would be the same, the ends of justice are not defeated if the material is excluded.
[22] [2013] NSWCA 351; 12 DDCR 501 (Strickland), [31].
The respondent says that the first proposition cannot be satisfied in this case because the evidence was available and in the hands of the solicitor prior to the arbitration. There was no reason why the material could not have been annexed to the application for reconsideration.
The respondent contends that the second proposition also could not be satisfied because the appellant cannot show that a substantial injustice would occur if the documents were not admitted. The respondent asserts that the material would make no difference to the Senior Arbitrator’s assessment of the delay.
The respondent submits that there is no evidence as to why the 2016 proceedings were discontinued. The respondent asserts that the “delay” referred to by the Senior Arbitrator was the delay in bringing the application for reconsideration, not some other proceedings. The respondent points out that the appellant did not seek a reconsideration of the COD in the 2016 proceedings, so that the pleadings in those proceedings are of no or little weight in determining the issue of delay. The respondent further points out that both parties submitted that the principles set out in Samuel applied to the exercise of the discretion.
The respondent submits that the appellant cannot show that the admission of the evidence would have influenced the Senior Arbitrator’s decision when the matter before the Senior Arbitrator was a discrete application made on 2 April 2019 for reconsideration of the COD issued in 2015. The respondent says that the evidence does not go to show an earlier endeavour to bring an application for reconsideration.
The respondent further submits that the medical report of Dr George did not contain an assessment of the appellant’s WPI, but that the report plainly put the appellant on notice that the appellant had no further entitlements pursuant to s 66 of the 1987 Act because of the operation of s 322A of the 1998 Act. The respondent maintains that there was no explanation for the delay of nearly two years after the 2016 proceedings were discontinued before the appellant approached the respondent seeking a review of the COD. The respondent says the further evidence does not address the absence of explanation for the delay as identified by the Senior Arbitrator.
For those reasons, the respondent maintains that the further evidence, if admitted, would not be likely to result in a different outcome.
Discussion
The evidence sought to be relied upon is said to be for the purposes of establishing error on the part of the Senior Arbitrator in respect of his finding that there was an unexplained and unreasonable delay in the appellant bringing these proceedings.
As the respondent points out, the documents were clearly available to the appellant and could have been relied upon by him in the proceedings before the Senior Arbitrator. The first limb of s 352(6) is therefore not satisfied. The Court of Appeal made it clear in Strickland that the evidence must be such that the admission of the evidence would be likely to show that the Senior Arbitrator’s decision was wrong. The 2016 proceedings did not seek to have the COD set aside or the MAP decision reconsidered. The time line set out by the Senior Arbitrator was accurate and the pleadings in the 2016 proceedings, the report of Dr George and the Certificate of Determination issued in the 2016 proceedings bear no relevance to a consideration of steps taken in respect of bringing an application for reconsideration of a COD certifying the appellant’s WPI to be 7%. In fact, the action taken by the appellant in bringing proceedings but not making such an application, and in discontinuing those proceedings without resolving any issue about the previous MAP decision, tends to add to the reasons for finding the appellant unnecessarily and without explanation delayed bringing these proceedings.
I have below discussed the effect of the appellant appealing only the Senior Arbitrator’s decision in respect of the delay in bringing the present proceedings. For those reasons and the reasons expressed above, I conclude that the evidence sought to be adduced would not materially affect the outcome of the proceedings at first instance and do not assist the appellant in this appeal.
The documents are not admitted.
THE EVIDENCE
The Medical Appeal Panel
The MAP consisted of Dr Robert Gertler and Dr Gregory Steele, psychiatrists, and Mr J Harris, Arbitrator.
In their statement of reasons, the MAP noted that the MAC issued by Professor Glozier was appealed pursuant to s 327(3) of the 1998 Act, alleging that the assessment was made on the basis of incorrect criteria and that the MAC contained a demonstrable error.
The MAP reviewed the available medical evidence, which included:
(a) reports obtained by the respondent from Associate Professor Gordon Davies, psychiatrist, dated 2 August 2014 and 18 September 2014;
(b) reports by Dr Jeff Bertucen, psychiatrist, dated 26 February 2014 and 29 June 2014, who was qualified by the appellant, and
(c) a report from the appellant’s treating psychologist, Ms Bradshaw.
The MAP reviewed the history of the injury, the appellant’s treatment and presenting symptoms, and the effects of the injury on the appellant’s activities of daily living.
The MAP revoked the MAC issued by Professor Glozier in respect of his assessment of class 3 for the appellant’s Social and Recreational permanent impairment rating because the appellant had been able to travel to Thailand on his own. The MAP assessed the Social and Recreational rating as class 2, which gave an aggregate impairment score of 14, resulting in 7% WPI.
Dr Jeff Bertucen
The appellant relied on reports from Dr Bertucen dated 26 February 2014 and 11 March 2016. The report dated 29 June 2014, which was in evidence in the previous proceedings, was not relied on in these proceedings.
In his report dated 26 February 2014, Dr Bertucen took a detailed history of the effects of the appellant’s injury and presenting symptoms. He conducted a mental state examination and diagnosed the appellant as suffering from a chronic adjustment disorder with features of depressed mood and anxiety. Dr Bertucen provided a psychiatric impairment rating (including class three for social and recreational activities) which resulted in an assessment of 17% WPI.
In the report dated 11 March 2016, Dr Bertucen was of the view that the appellant’s psychological disorder had developed into a melancholic major depressive disorder with features of anxiety and panic. Dr Bertucen described the appellant’s clinical features, which he said were characteristics of that diagnosis.
Dr Bertucen provided a psychiatric impairment rating. On this occasion he rated:
(a) social functioning as class three instead of two;
(b) employability as class five instead of three, and
(c) self-care and hygiene as class two instead of the previous class three.
Dr Bertucen’s impairment ratings resulted in an assessment of 22% WPI.
Dr Patrick Morris
Dr Morris was qualified by the appellant’s legal representatives to provide a forensic medical opinion and assessment. In his report dated 21 November 2018, Dr Morris diagnosed the appellant as suffering from a major depressive disorder with anxious distress. Dr Morris noted the history provided by the appellant was of reports of worsening symptoms over the previous three years. Dr Morris expected the appellant’s condition would be likely to deteriorate further and described the appellant’s condition as severe to the extent that the appellant was not fit to work at all, and the appellant may require hospitalisation. Dr Morris observed that it appeared the appellant’s condition was worse than Professor Glozier’s assessment of 15% WPI.
Dr Morris assessed the appellant as suffering from 19% WPI.
Ms Sara Hosking, clinical psychologist
Ms Hosking provided a psychological assessment report dated 14 October 2018 on behalf of the appellant. Ms Hosking recorded a history of the appellant’s increasingly severe feelings of anxiety and depression which left the appellant suicidal and unable to function. Ms Hosking noted that the appellant’s ongoing treatment regime had not resulted in any amelioration of the appellant’s extreme depression and anxiety.
Ms Hosking, who was not accredited to make an assessment of whole person impairment, assessed the appellant’s WPI as 17%.
Dr Ben Teoh
In his report dated 20 December 2017, Dr Teoh diagnosed the appellant as suffering from a chronic adjustment disorder with mixed depressed and anxious mood, which had not improved significantly since its onset in 2013. As referred to above, Dr Teoh assessed the appellant as suffering from 17% WPI.
THE SENIOR ARBITRATOR’S REASONS
In his statement of reasons, the Senior Arbitrator summarised the submissions made by the parties and reproduced the relevant sections of both the 1987 and 1998 Acts, including:
(a) section 322A of the 1998 Act, which provides that a MAC is conclusively presumed to be correct;
(b) the limitation that there can only be one claim and one assessment of WPI, and only one MAC issued in respect of that assessment (s 66(1A) of the 1987 Act and s 322A of the 1998 Act);
(c) that there can be no appeal against a MAC once the dispute has been determined by the Commission (s 327(7) of the 1998 Act);
(d) the power of the Commission to refer a matter for further assessment or reconsideration of a previous assessment (s 329 of the 1998 Act), and
(e) the power of the Registrar or the MAP to reconsider a matter dealt with by the Registrar or MAP (s 378 of the 1998 Act).
The Senior Arbitrator clarified the nature of the appellant’s application. He noted the appellant sought to have the COD set aside so that the appellant’s claim for WPI could be referred to an AMS for assessment. The Senior Arbitrator took the view that such an application was misconceived but considered that that was not fatal to the application. He noted that if he reconsidered the COD and revoked it, it was a matter for the Registrar to decide whether to refer the claim back to an AMS or a MAP. The Senior Arbitrator further noted that any assessment of WPI would be a matter for the MAP and not the AMS, because the earlier AMS’s MAC was revoked by the MAP.
The Senior Arbitrator observed that s 329 of the 1998 Act provides that the Registrar may refer a matter to an AMS for assessment as an alternative to an appeal, but only where the matter could otherwise have proceeded to an appeal pursuant to s 327 of the 1998 Act. The Senior Arbitrator again referred to s 378 and the power of the Registrar and the MAP to reconsider, rescind, alter or amend any matter that they had dealt with, which in his view included an assessment of a worker’s WPI.
The Senior Arbitrator pointed out that the appellant’s application sought relief pursuant to s 350(3) of the 1998 Act, which gives the Commission power to reconsider, rescind, alter or amend any previous decision of the Commission, on the ground that there had been a deterioration of the appellant’s condition. The Senior Arbitrator pointed out that the application was on the background of the conclusive and unchallenged determination by the MAP dated 6 June 2015. He observed that there would have been no legislative barrier to such an application prior to the 2012 amendments to the workers compensation legislation, in particular the introduction of s 66(1A) of the 1987 Act and s 322A of the 1998 Act, which he said created issues for the appellant.
The Senior Arbitrator discussed the Court of Appeal’s decision in Cram Fluid, noting the Court’s conclusion that s 66(1A) could not be construed as allowing one further claim after 19 June 2012. The Senior Arbitrator also pointed to cl 11 of Part 1 of Schedule 8 to the Workers Compensation Regulation 2016, which was introduced following the decision in Cram Fluid, which he said clarified the impact of the 2012 amendments. He further discussed Presidential decisions dealing with what constituted a “claim” for lump sum compensation.
The Senior Arbitrator identified an earlier arbitral decision of the Commission, Lizdenis v Centrel Pty Ltd,[23] in which he considered the facts were remarkably similar. In that case, Arbitrator Harris was required to determine whether a COD, which was issued after an unsuccessful appeal against a MAC pursuant to subs 327(3)(b) and (c) of the 1998 Act, should be reconsidered so that Ms Lizdenis could lodge a second appeal against the MAC because of a deterioration in her condition. Arbitrator Harris found that Ms Lizdenis’ condition had deteriorated but noted the conflict between s 66(1A) of the 1987 Act and s 327(3)(a) of the 1998 Act, which provided for an appeal from the MAC where there had been a deterioration in the worker’s condition that resulted in a further impairment. Arbitrator Harris determined that it would be inconsistent with s 66A(1) of the 1987 Act to allow an appeal based on a deterioration of the worker’s condition after a MAC had been issued.
[23] [2016] NSWWCC 21 (Lizdenis).
The Senior Arbitrator reviewed the facts in the current matter, in which the appellant had made a claim in 2014 and was assessed by Professor Glozier as having a 15% WPI. The respondent successfully appealed the MAC, and the appellant was precluded from receiving compensation because the MAP assessed the WPI as less than 10%. The appellant did not pursue judicial review of that assessment. The Senior Arbitrator noted that the appellant made two later claims for a further lump sum entitlement on 24 March 2016 and 3 December 2018. The Senior Arbitrator did not find it surprising that the insurer rejected those two claims on the basis that the appellant had already made one claim after 19 June 2012, that is on 17 March 2014.
The Senior Arbitrator said that on the basis of the relevant authorities discussed in his reasons, he was satisfied that the appellant had made his “one claim” and that any further claims were precluded by s 66(1A) of the 1987 Act. Further, in the absence of an appeal pursuant to s 327 of the 1998 Act, s 322A restricted the appellant to only one assessment. On that basis, the Senior Arbitrator declined to reconsider the COD.
The Senior Arbitrator was of the view that, in the event that the above conclusion was wrong, it was appropriate to consider the merits of the application for reconsideration.
The Senior Arbitrator observed that the appropriate forum for review of a MAP decision was the Supreme Court, and not the Commission. The MAP, however, did have the power to reconsider its own decision (s 378 of the 1998 Act) and the Commission had the power to reconsider the COD (s 350(3) of the 1998 Act).
The Senior Arbitrator referred to the summary of the principles relevant to the power of the Commission to reconsider a matter enunciated by Arbitrator Johnstone in Howell v Stringvale Pty Ltd[24] and the decision of Acting Deputy President Roche (as he then was) in Samuel v Sebel Furniture Ltd,[25] in which Roche ADP cited with approval the Court of Appeal decision in Schipp v Herfords Pty Ltd.[26] The Senior Arbitrator noted that Roche ADP extracted from Schipp the relevant factors to take into consideration in the exercise of the discretion to a reconsider a decision, which were:
(a) the delay in bringing the application;
(b) whether there was a right of appeal from the decision which the party did not exercise;
(c) any waiver or estoppel issues that arose, and
(d) whether a rescinding of the earlier award would allow a party to bring fresh proceedings.[27]
[24] [2005] NSWWCC 64 (Howell).
[25] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).
[26] [1975] 1 NSWLR 413 (Schipp).
[27] Samuel, [45].
The Senior Arbitrator also noted that in Samuel, Roche ADP took into account the Compensation Court authority dealing with the former s 17 of the Workers’ Compensation Act 1926 (the equivalent provision) in Maksoudian v J Robins & Sons Pty Ltd,[28] in which Bishop CCJ refused the worker’s application for reconsideration. The application was refused because there was an unexplained delay of over three years in bringing the application, and the new evidence, had it originally been put before the Court, would not have materially affected the outcome.
[28] [1993] NSWCC 36; 9 NSWCCR 642 (Maksoudian).
The Senior Arbitrator returned to the decision in Samuel and the principles enunciated by Roche ADP as applicable in respect of reconsideration applications. The Senior Arbitrator was of the view that Roche ADP’s classification of the principles as “applicable” did not mean that those principles were determinative. The Senior Arbitrator cited as an example Roche ADP’s decision in Atomic Steel Constructions Pty Ltd v Tedeschi,[29] in which the Deputy President set aside consent orders on the basis that it was in the interests of justice to do so. In that case the settlement amount was mistakenly outside the ambit of the worker’s claim and the ambit of the appellant’s instructions.
[29] [2013] NSWWCCPD 33.
The Senior Arbitrator referred to the appellant’s submissions and the authorities cited by the appellant, which he considered were largely unremarkable and merely followed the principles discussed in Samuel. The Senior Arbitrator considered the facts in Iredale v State of NSW,[30] a further decision from Arbitrator Harris, upon which the appellant sought to rely in respect of the wide discretion vested in the Commission to set aside the orders. The Senior Arbitrator observed that decision to be factually different to the present case, in that there was no issue in Iredale in relation to s 66(1A) and the Arbitrator was not required to consider the effect of the decisions in Cram Fluid and Stella Maris College v Robin-True,[31] in which Roche DP followed Cram Fluid.
[30] [2015] NSWWCC 273 (Iredale).
[31] [2015] NSWWCCPD 57 (Robin-True).
The Arbitrator said that he had a wide discretion to reconsider the COD in accordance with s 350(3), but that the discretion had to be exercised fairly and required the matters identified in Samuel to be given consideration.
The Senior Arbitrator referred to the fresh evidence, which, apart from the report of Dr Bertucen dated 11 March 2016, could not reasonably have been obtained prior to the MAP decision being issued. This was particularly so in respect of the report of Dr Teoh, which was commissioned by the respondent. That being the case, the Senior Arbitrator turned his mind to consider whether the fresh evidence supported a deterioration in the appellant’s condition since the MAP decision was issued. The Senior Arbitrator noted that the appellant bore the onus in showing such deterioration and that onus needed to be discharged before consideration could be given to the application for reconsideration of the COD.
The Senior Arbitrator cited Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission,[32] which was relied upon by the respondent, as authority in relation to what is to be taken into account in assessing whether there has been a deterioration of a condition. That is, s 327(3)(a) does not authorise a challenge to the correctness of the MAC, and that the focus should be entirely on what has occurred since the issue of the MAC.
[32] [2007] NSWCA 149.
The Senior Arbitrator said that he needed to consider whether the evidence supported a deterioration in the appellant’s condition such that it was likely the MAP would find an impairment of 15% or more. The Senior Arbitrator was of the view that the evidence of a deterioration was far from satisfactory. The Senior Arbitrator commented that the histories provided to the various medical experts were similar to those recorded by the AMS in the MAC, and also considered by the MAP. Further, it was regrettable that there was no statement from the appellant in relation to the alleged deterioration of his condition since 2015.
The Senior Arbitrator noted the variation in the assessments between the experts of the individual classes and categories and further noted that there was some conflict in the WPI assessments provided by those experts. The Senior Arbitrator pointed out that Dr Bertucen was the only doctor who had examined the appellant before and after the MAC and the MAP decision and was thus in a better position to assess any deterioration since 2016. He described it as strange that a re-examination with that doctor was not undertaken. When Dr Bertucen examined the appellant in March 2016, he did not record any history of a deterioration or need for increased treatment. In fact, the Senior Arbitrator observed, the assessment of the category of Self-care and Personal Hygiene when compared with the first report indicated there was some improvement and Dr Bertucen’s ratings for other categories suggested there was no change. Further, the assessments by Dr Bertucen in his first report were similar to those of the AMS, but the MAP took exception to the assessments by both the AMS and Dr Bertucen of the Social and Recreational activities as falling within class three. The Senior Arbitrator added that the only higher assessment recorded in the second report of Dr Bertucen was in respect of Social Functioning and Employability, and yet Dr Bertucen’s descriptions of Social Functioning in both reports was remarkably similar. Additionally, despite Dr Bertucen’s later assessment of the appellant’s employability as class five instead of class three, the comments in Dr Bertucen’s first report were consistent with those in the second report, and in any event, that was the same assessment made by the AMS which was not disturbed by the MAP.
The Senior Arbitrator indicated that in his view, those matters were not consistent with evidence of a deterioration. The Senior Arbitrator remarked that Dr Bertucen did not comment on the binding assessment of 7% WPI made by the MAP, and considered that an acknowledgment of that assessment, as well as an explanation as to the appellant’s deterioration, would have made Dr Bertucen’s opinion more persuasive.
The Senior Arbitrator considered it significant that the assessments made by Dr Teoh and Ms Hosking of 17% WPI were the same as that of Dr Bertucen in 2014, even though they were based on different categories, and said that, of course, that assessment had been rejected by the MAP. The Senior Arbitrator also considered it significant that the history taken by Dr Teoh was very brief, did not record any history of deterioration since the MAP determination and only noted there had not been any significant improvement in the appellant’s condition, without reference to any deterioration. The Senior Arbitrator referred to Dr Teoh’s assessments of Social and Recreational Activities and Travel and Social Functioning, which could be consistent with a deterioration because they differed from those of the AMS and the MAP, but were higher than Ms Hosking and Dr Morris in respect of Travel and higher than Dr Morris in respect of Social Functioning. Moreover, the Senior Arbitrator said Dr Teoh’s assessment of employability was less than all of the other experts, which suggested perhaps some improvement. The Senior Arbitrator concluded that it was arguable that Dr Teoh’s report did not suggest a deterioration in the appellant’s condition when compared to the other expert reports, particularly that of Dr Bertucen.
The Senior Arbitrator noted the assessment by Ms Hosking but afforded her evidence little weight because she was not a SIRA Approved Assessor of Permanent Impairment.
In respect of the opinion of Dr Morris, the Senior Arbitrator observed that the doctor had examined the appellant on one occasion only in 2018, which the Senior Arbitrator felt impacted the doctor’s ability to assess any deterioration since the MAP assessment. The Senior Arbitrator also observed that the history taken by Dr Morris of the appellant’s treatment and symptoms was consistent with the history taken by the other experts, and that Dr Morris’ opinion that there would likely be a deterioration in the future did not necessarily mean that there had been a deterioration since 2015. Further, the evidence disclosed that the history taken by Dr Morris of weight gain and elevated alcohol intake was a complaint that had been fluctuating over time and not confined to the time from 2015. The Senior Arbitrator said that Dr Morris did not provide an explanation for his opinion that the appellant’s condition had worsened since the examination by Professor Glozier.
The Senior Arbitrator commented that the assessments by Dr Morris in 2018 were less than those of Dr Bertucen, and that Dr Morris did not appear to have been provided with the report of Dr Bertucen or the determination of the MAP. The Senior Arbitrator said that those reports should have been provided to Dr Morris and been the subject of comment from Dr Morris.
The Senior Arbitrator concluded that the appellant’s treating psychologist, Ms Joanna Atkinson, and the appellant’s general practitioner Dr Philip Wirin (incorrectly referred to by the Senior Arbitrator as the treating psychiatrist), who had both been treating the appellant frequently over a number of years, would be best placed to provide an opinion on any deterioration but no such reports or clinical notes were in evidence.
The Senior Arbitrator concluded that the above analysis of the evidence left some doubt in his mind as to whether there was sufficient evidence to establish that there had been a deterioration in the appellant’s condition that would result in a different assessment to that of the earlier MAP if there was to be a further referral.
The Senior Arbitrator said that in any event, there were other factors to be considered before the discretion could be exercised in favour of the appellant. The Senior Arbitrator referred again to Maksoudian, which was authority to say that after the receipt of fresh evidence, the application must progress with appropriate speed and diligence to bring the matter before the court. The Senior Arbitrator did not accept that the appellant had proceeded with such speed and diligence, in circumstances where the appellant had obtained fresh evidence form Dr Bertucen dated 11 March 2016, made a claim on 24 March 2016 and did nothing further until 3 May 2018, when the appellant sought the insurer’s consent to set aside the MAC issued by the MAP. Further, the application for reconsideration of the COD was not made until 3 December 2018 and the application for reconsideration was not lodged with the Commission until 2 April 2019, almost four years after the MAP decision was issued. The Senior Arbitrator said that there was no explanation as to why such an application was not made in 2016 or 2017 after the opinions of Dr Bertucen and Dr Teoh were available. The Senior Arbitrator considered the facts of this matter to be analogous to those in Maksoudian and concluded that because of the delay in bringing the application for reconsideration, he was not persuaded that he should exercise his discretion in favour of the appellant.
The Senior Arbitrator observed that he was required to weigh the finality of litigation against the interests of justice. In the circumstances of this case, where there had been significant delay and the respondent had been put to some expense in dealing with the earlier claim and subsequent notices of claim, he was of the view that it was not in the public interest to expose the respondent to further litigation. The Senior Arbitrator concluded that there was no practical unfairness or injustice in the circumstances where:
(a) there was insufficient evidence to establish a deterioration in the appellant’s condition;
(b) there had been an unacceptable delay on the part of the appellant;
(c) the appellant had not appealed the MAP decision, and
(d) a successful outcome was unlikely,
which were all matters of relevance.
The Senior Arbitrator concluded that he was not satisfied that the application for reconsideration should be granted and declined to reconsider the COD.
The Certificate of Determination issued on 14 June 2019 records:
“The Commission determines:
1. The applicant’s application pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 for reconsideration of the orders made in the Certificate of Determination dated 3 August 2015 is declined.
2. The orders in the Certificate of Determination dated 3 August 2015 are confirmed.
3. No order as to costs.”
GROUNDS OF APPEAL
The appellant’s application to appeal the decision of the Senior Arbitrator is not compliant with the requirements as set out in Practice Direction No 6. The Practice Direction requires that each ground of appeal must be clearly and succinctly stated, and that all submissions must clearly and succinctly address each ground of appeal separately. It is not satisfactory to present an appeal in a format where the Presidential unit is required to comb through the documentation and submissions in order to identify the grounds of appeal relied upon. A failure to comply with the Practice Direction can result in an appeal being rejected.
After reviewing the submissions made by the appellant, and consistent with the submissions made by the respondent in its opposition, it is apparent that the appellant brings the following grounds of appeal:
(a) Ground one: error of law in that the Senior Arbitrator declined to exercise his discretion because there had been unnecessary delay in bringing the proceedings, and
(b) Ground two: error of discretion in that the Senior Arbitrator failed to properly exercise his discretion in circumstances where a manifest injustice had occurred.
LEGISLATION
Section 66 of the 1987 Act relevantly provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury …”.
The following sections of the 1998 Act were considered by the Senior Arbitrator and are relevant to the appeal:
“322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment).”
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
“327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds:
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.
(6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note. Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act …”.
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
“350 Decisions of Commission
(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.
(2) A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
“378 Reconsideration of decisions of Registrar or Appeal Panel
(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.
(2) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.
(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).
(4) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.
(5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.”
SUBMISSIONS
The appellant’s submissions
The appellant refers to a number of authorities, including authorities for the proposition that statutes are not to be interpreted as depriving courts of their power unless an intention to do so is clear and unmistakeable.[33]
[33] Clissold v Perry [1904] HCA 12; 1 CLR 363; Commonwealth v Hazeldell Limited [1918] HCA 75; 25 CLR 552; Magrath v Goldsbrough Mort & Co Ltd [1932] HCA 10; 47 CLR 121.
The appellant further refers to Acting Deputy President Roche’s consideration of s 350(3) of the 1998 Act in Samuel at [58], in which Roche ADP made the following observations:
“1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
The appellant cites various decisions of the Commission’s arbitrators in which the arbitrators were asked for various reasons to reconsider decisions of the Commission.[34] The appellant contends that the interests of justice in the exercise of a “review” override the public interest in finality of litigation, citing Bakarich v Commonwealth Bank of Australia.[35]
[34] Organ v Shoalhaven City Council [2014] NSWWCC 270; Hobson v Port Waratah Coal Services Limited [2013] NSWWCC 458; Ahmad v Decina Bathroomware Pty Ltd [2016] NSWWCC 61; Barsamian v Woolworths Limited [2019] NSWWCC 20; Iredale.
[35] [2010] NSWCA 314, [8].
The appellant further refers to and quotes from Arbitrator Johnstone’s summary of the principles regarding reconsideration in the decision of Howell, as follows:
“The subsection and its predecessors have been considered in a number of cases. Having reviewed those cases the following summary of principles may be made as to its application:
1. The power to reconsider is unlimited: Hilliger v Hilliger (1952) 52 SR (NSW) 105, but discretionary: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192. However, it is important to keep in mind the distinction between the existence of the power and the occasion of its exercise: Hilliger at 108.
2. The general rule is that public interest requires that litigation should not proceed interminably, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. Nevertheless, it is appropriate to exercise the power to remedy some manifest injustice: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26].
3. The power applies to both questions of fact and law, and is not limited to changed circumstances or fresh evidence: Hardaker v Wright & Bruce Pty Ltd (1960) 62 SR (NSW) 244 at 248 and 249.
4. The section overrides the common law doctrine of estoppel: Lambidis v Commissioner of Police (1995) 12 NSWCCR 225, but the discretion should not be exercised where the party has unreasonably refrained from raising the issue in the earlier proceedings: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26]. See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
5. New evidence must be distinguished from additional evidence as opposed to fresh evidence: Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642. If the evidence was readily available at the time of the first hearing, this is a factor to be weighed in considering whether or not to exercise the discretion: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [58]. However, any new evidence must be such that it would have been a determining factor in the decision: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192.
6. Other grounds for the exercise of discretion include where the original decision maker did not consider an available and possibly determinative argument: Lasaitis v Email Ltd (1990) 6 NSWCCR 154 at 171A. But where the Commission does not have jurisdiction to determine the particular matter asserted, the discretion should not be exercised: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192.
7. Mistake or inadvertence on the part of legal advisers is an insufficient ground: Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] 27 WCR (NSW) 29 at 30. But disposal of litigation by legal advisers on a basis contrary to their instructions has been held to be sufficient: Sorcevski v Steggles Pty Ltd (1991) NSWCCR 315.
8. An application must be brought without delay and the matter raised must be of such a nature that it would have affected the outcome of the original decision: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26].”[36]
[36] Howell, [27].
The appellant contends that it is not necessary for the appellant to prove that the further evidence will change the outcome of the case, relying on Ly v Pierlite Australia Pty Ltd.[37]
[37] [2017] NSWWCC 24, [63].
The appellant submits that the Senior Arbitrator declined to exercise his discretion primarily because in his view, there was an unnecessary delay in bringing the application for reconsideration basing his decision on Maksoudian which the Senior Arbitrator considered to be factually consistent with the appellant’s case. The appellant asserts that the Senior Arbitrator erred in law for the following reasons:
(a) In Maksoudian, there was a delay in bringing proceedings where the fresh evidence, had it been before the court in the original proceedings, would more likely than not have affected the outcome of the proceedings. In the appellant’s matter, the application for “review” was precipitated by the respondent’s action in notifying the appellant his benefits would cease because Dr Teoh had assessed the appellant’s impairment at 17% WPI. The appellant submits that he immediately sought a review based on the evidence of Dr Teoh, which was declined by the respondent. The appellant says that once he was aware of the assessment by Dr Teoh, he acted expeditiously to bring the claim;
(b) the Senior Arbitrator considered that the appellant ought to have acted on the reports of Dr Bertucen, when the appellant contends that he did act on those reports by:
(i)relying on the report dated 26 February 2014 in proceedings the subject of the MAP decision;
(ii)relying on the report dated 16 March 2016 in previous proceedings before Arbitrator Moore (matter no 2982/16), which proceedings were discontinued with an agreement that the respondent would pay the appellant’s unpaid treatment expenses; and
(iii)by pursuing a reconsideration as soon as the appellant had knowledge of the assessment by Dr Teoh, whose evidence was contrary to the report from Dr George, relied on in the 2016 proceedings. It was when the appellant became aware of the assessment by Dr Teoh that the appellant believed that manifest injustice had occurred, and
(c) the respondent made no submission and raised no issue in the dispute notice that delay in bringing the proceedings was a factor mitigating against a reconsideration. There were no submissions made by either party on the issue of delay and the Senior Arbitrator erred in deciding the matter without that issue being raised before him.
The appellant contends that the Senior Arbitrator failed to exercise his discretion in circumstances where it is apparent that a manifest injustice has occurred according to the substantial merits of the case.
The appellant submits that the WPI assessments before the Senior Arbitrator were consistent with the appellant having a WPI in excess of the WPI the subject of the MAP decision. The appellant asserts that in the exercise of his discretion, the Senior Arbitrator failed to address the weight of the evidence (including the respondent’s evidence) that suggests the MAP decision was in error and does not correctly reflect the true position in respect of the appellant’s level of WPI.
The respondent’s submissions
The respondent submits that, in order for the appellant to succeed in the appeal, he must establish that:
(a) the Senior Arbitrator’s decision was affected by error of fact, law or discretion in accordance with s 352(5) of the 1998 Act, and
(b) in accordance with the principles enunciated in Raulston v Toll Pty Ltd,[38] in the exercise of his discretion, the Senior Arbitrator;
(i)made an error of legal principle;
(ii)made a material error of fact;
(iii)took into account some irrelevant matter;
(iv)failed to take into account, or give sufficient weight to a relevant matter, or
(c) arrived at a result so unreasonable or unjust as to suggest one of those errors occurred, even though it did not appear to have occurred on the face of the Senior Arbitrator’s reasoning.
[38] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
The respondent submits that in an appeal against a discretionary decision, a Presidential Member cannot intervene simply because he or she might have come to a different conclusion or preferred an alternate outcome.[39] The appeal is not a review or re-hearing.
[39] Raulston, [28].
The respondent contends that the submissions made by the appellant at [7]–[31] of its submissions (summarised at [112]–[116] above) are an attempt to conduct a review or re-hearing rather than identifying an error of fact, law or discretion in the decision appealed against. The respondent says that the caselaw relied upon by the appellant in those submissions was considered by the Senior Arbitrator and distinguished, and that the fact that the appellant seeks to rely on those cases on appeal indicates that the appellant is seeking a review or a new hearing.
The respondent refers to the allegation of error of law in the Senior Arbitrator declining to exercise his discretion “primarily” because of the delay in bringing the proceedings and submits that this ground is based on the false premise that this was the primary reason the Senior Arbitrator rejected the application for reconsideration. The respondent asserts that this is a mis-statement of the Senior Arbitrator’s reasons. The respondent submits that it is apparent from the reasons that the Senior Arbitrator’s primary reason for rejecting the application was that the appellant had already had his “one claim” after 19 June 2012 pursuant to s 66(1A) of the 1987 Act. The respondent says that it raised and argued this issue at arbitration, and the Senior Arbitrator accepted that the appellant had made further claims for lump sum compensation after his claim on 17 March 2014. The respondent also submits that the Senior Arbitrator applied the relevant authorities of Cram Fluid, Robin-True and Lizdenis.
The respondent contends that the Senior Arbitrator’s reasons for declining to exercise his discretion pursuant to s 350(3) of the 1998 Act because of the delay in bringing the proceedings was in the alternative to his refusal to exercise his discretion because of the preclusion in s 66A(1). Further, the respondent says that “delay” was only one of the alternate reasons for declining the application.
The respondent points out that the appellant does not challenge the Senior Arbitrator’s decision in respect of s 66(1A) and does not address the application of s 66(1A) in this appeal. The respondent submits that s 66(1A) precluded the Senior Arbitrator from exercising his discretion in favour of the appellant, and because the appellant has not challenged the Senior Arbitrator’s decision on that issue, the appeal must be dismissed.
The respondent submits that in any event, the decision is not affected by any error of law. The respondent refers to the appellant’s submission that “delay” was not put in issue or argued before the Senior Arbitrator. The respondent asserts that this submission ignores the fact that the appellant submitted to the Senior Arbitrator that the principles set out in Samuel applied to the exercise of the discretion in s 350(3), and the respondent agreed. The respondent says that both parties were appraised of the principles in Samuel, which included “delay” as a relevant factor. The respondent submits that it was open to the Senior Arbitrator to consider the delay in bringing proceedings, and to assert otherwise is contrary to the manner in which the application for reconsideration was conducted at first instance.
The respondent contends that prior to the Senior Arbitrator’s consideration of the delay in bringing the proceedings, the Senior Arbitrator considered the “fresh evidence” and the alleged deterioration in the appellant’s condition. The respondent submits that the appellant has not appealed the Senior Arbitrator’s finding that there was not enough evidence to satisfy him that the appellant’s condition had deteriorated since the MAP decision in 2015 such that it would warrant a further referral to the MAP, “if a further referral was an option”.[40] The respondent asserts that the Senior Arbitrator’s reference to “if a further referral was an option” plainly refers to the limitation imposed by s 66(1A).
[40] Rreasons, [170].
The respondent further submits that the Senior Arbitrator also considered the issues of estoppel, indefinite litigation and concepts of fairness and justice, found against the appellant on those issues, and the appellant has not challenged the findings in respect of estoppel and indefinite litigation on this appeal. The respondent submits that the totality of the findings made by the Senior Arbitrator militate against the exercise of the discretion under s 350(3) and against the appeal being granted. The respondent contends that it was appropriate that the Senior Arbitrator declined to exercise his discretion in favour of the appellant when all the unchallenged factors are considered.
In any event, the respondent submits, the appellant has not identified error on the part of the Senior Arbitrator in respect of his finding that there was an unacceptable delay in bringing the application for reconsideration. The respondent refers to the delay of approximately three years and eight months between the issue of the COD, the lodgment of the application for reconsideration, and the delay of three years between the receipt of the report of Dr Bertucen dated 11 March 2016, the making of the further claim on 24 March 2016 and the lodgment of the application for reconsideration. The respondent says that the delay has not been explained, and the onus rested with the appellant to persuade the Senior Arbitrator to exercise his discretion in the appellant’s favour. The respondent asserts that the failure of the appellant to address and adduce evidence to explain the delay does not mean that the Senior Arbitrator could ignore a relevant factor in the exercise of his discretion.
The respondent submits that if leave is granted to the appellant to file fresh evidence on this point in the appeal (which it opposes), the evidence does not support the appellant and only exacerbates the unreasonableness of the delay. The respondent says the appellant was on notice of the issue in respect of s 66(1A) and the respondent’s reliance on the assessment of 7% WPI when the appellant received the correspondence from the respondent dated 11 April 2016. The respondent asserts that the proceedings brought by the appellant on 9 June 2016 did not seek a reconsideration of the COD under s 350(3) and there is no explanation as to why such a reconsideration was not pursued in those proceedings. The respondent points out that the appellant did not seek the insurer’s consent to a reconsideration of the COD until 16 April 2018, almost two years after the 2016 proceedings were discontinued, and there is no explanation for that delay. The respondent adds that as at 20 April 2018, it was plain that it did not consent to a reconsideration, and yet the appellant delayed a further 11 months before lodging the application for reconsideration, without any explanation for that further delay. Further, the respondent says that the appellant was served with a copy of the report of Dr Teoh as early as 18 January 2018.
The respondent indicates that it finds it unclear what the appellant complains of in respect of a manifest injustice having occurred. The respondent submits that the appellant’s reference to the “substantial merits of the case” ignores the Senior Arbitrator’s primary reason for declining to exercise his discretion, which was a conclusion reached by the Senior Arbitrator on the basis of the legislation and consistent with the decisions in Cram Fluid, Robin-True and Lizdenis, and that conclusion is not appealed. The respondent contends that the substantial merits of the case mandate that the appeal be dismissed because the appellant is precluded from seeking a reconsideration of the COD by operation of s 66(1A).
In respect of the appellant’s submission that the weight of the evidence suggests that the MAP decision that the appellant suffers a 7% WPI was wrong, the respondent submits that this argument ignores the fact that the MAC is conclusively presumed to be correct and was not appealed through the appropriate forum, the Supreme Court of New South Wales. The respondent points out that the MAP decision cannot be the subject of a reconsideration pursuant to s 350(3) because the “Commission” referred to in s 350(3) is the Commission as constituted by an arbitrator or Presidential member, and not a MAP constituted under s 328 of the 1998 Act. The power of the MAP to reconsider its decisions is separately provided for in s 378 of the 1998 Act.
The respondent notes that the Senior Arbitrator was, however satisfied that he had the power to reconsider the COD. The respondent contends that the Senior Arbitrator was wrong in that respect and provides submissions in support of that contention. As the Senior Arbitrator did not exercise his discretion to reconsider the COD, it is not necessary to consider those submissions in this appeal.
The respondent says that in any event, in order for the appellant to succeed in his application for reconsideration, it was incumbent upon him to establish there had been a deterioration in his condition since 2015. The respondent submits that the Senior Arbitrator conducted an extensive review of the medical evidence and concluded that there was doubt as to the deterioration of the condition such that it would result in a different assessment. The respondent maintains that this conclusion has not been appealed and so the appellant’s submission that the assessments show that the MAP assessment was erroneous cannot be accepted. The respondent submits that simply adducing evidence of higher assessments is not sufficient to show that there was an error in the MAP assessment. The respondent contends that the Senior Arbitrator’s analysis of the medical evidence was thorough, accurate and without error.
The relief sought
The appellant seeks to have the decision of the Senior Arbitrator revoked and the matter to be referred to an AMS for determination. The respondent seeks to have the appeal dismissed.
DISCUSSION
It is well accepted that s 350(3) of the 1998 Act provides the Commission, as constituted by an arbitrator or Presidential member, with a wide discretion to reconsider its decisions.[41] The appellant’s case presented to the Senior Arbitrator was that:
(a) the MAP’s assessment of 7% WPI was correct, but that since that assessment was made the appellant’s condition had significantly deteriorated which warranted a review of the decision; or
(b) the MAP’s assessment was incorrect, indicating a manifest injustice had occurred, the remedy for which was to set aside the MAP decision and the COD.[42]
[41] Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137.
[42] Appellant’s written submissions to the Senior Arbitrator dated 13 May 2019, p 2.
The Senior Arbitrator correctly identified that his role was confined to the power pursuant to s 350(3) to reconsider the COD, and any application for a reconsideration of the MAP decision was a matter for the Registrar or the MAP.
It is abundantly clear from the written submissions presented by both parties that in his consideration of whether to exercise the discretion conferred upon him, the Senior Arbitrator was required to take into account the factors set out in Samuel, and the delay in bringing the proceedings for reconsideration was one of those factors. In those circumstances, the complaint now brought by the appellant that, in essence, complains of some procedural unfairness in not affording the appellant the opportunity to make submissions and adduce evidence to explain any delay is profoundly misplaced. It is a matter for the appellant, who was clearly cognisant of the matters to be addressed, to adduce sufficient evidence and make appropriate submissions to establish his case. The Senior Arbitrator cannot be said to be in error in following the path of reasoning which was said by both parties to be the correct reasoning process, and which was correct.
The appellant asserts that in any event, the Senior Arbitrator erred because there was no undue delay. The appellant asserts that once he became aware of the assessment made by Dr Teoh, he acted expeditiously to bring his claim. As identified by the Senior Arbitrator, there was a significant delay of three years following the receipt of Dr Bertucen’s second report dated 16 March 2016 and the first application for reconsideration, which was in fact these proceedings brought in 2019. Putting that delay aside, there was a further delay of over twelve months from when the appellant received the report of Dr Teoh in January 2018 and when he initiated these proceedings. The appellant cannot say that he acted with expedition to bring his application for reconsideration to the attention of the Commission.
The documents relating to the 2016 proceedings have not been admitted on the appeal because they did not relate to an application for reconsideration and were unlikely to affect the outcome of the proceedings before the Senior Arbitrator. The appellant points to no evidence that the Senior Arbitrator failed to take into account, or that the Senior Arbitrator failed to afford sufficient weight. The Senior Arbitrator carefully considered each of the medical opinions and gave reasons as to why the evidence was in his view not sufficiently probative. The appellant has failed to establish that the Senior Arbitrator made an error in the application of a legal principle, made a material error of fact or took into account an irrelevant consideration.
The Senior Arbitrator’s conclusion that there was an unacceptable delay in bringing the application for reconsideration was based on an accurate review of the time frame from the issue of the MAP decision and COD in 2015 and the commencement of these proceedings in the Commission. That conclusion is not affected by any error of fact or law, and the appellant has failed to demonstrate that any of the factors identified in Raulston have occurred which would indicate an error in the exercise of the Senior Arbitrator’s reasoning that led to an error of discretion.
The appellant complains that the Senior Arbitrator’s failure to exercise his discretion has resulted in a manifest injustice. The appellant relies upon the various assessments of WPI provided by the medical experts as evidence that the MAP assessment was incorrect. The Senior Arbitrator considered and gave appropriate weight to the various opinions of the medical experts. He provided reasons as to why he was not satisfied that the appellant had established a deterioration in his condition which could warrant a disturbance of the COD. The appellant’s global submission that the Senior Arbitrator ought to have accepted that the MAP was wrong because all of the experts provided higher assessments does not identify how it is alleged the Senior Arbitrator erred in the task before him. It is not sufficient to submit that the Senior Arbitrator ought to have reached a different conclusion, and it is incumbent upon the appellant to establish that there was an error of either fact, law or discretion in the decision-making process.[43] The appellant has failed to identify such an error.
[43] Raulston.
It follows that the grounds of appeal brought by the appellant are not made out and they fail.
The appeal must fail in any event. The appellant refers to the Senior Arbitrator’s determination that there was undue delay in bringing the application for reconsideration as the primary decision. This is patently incorrect.
The Senior Arbitrator firstly and primarily determined that because of the operation of s 66(1A) of the 1987 Act and s 322A of the 1998 Act, the appellant was prevented from bringing a further claim for lump sum entitlements and prevented from further assessment of his WPI.[44] On that basis, he declined to reconsider the COD, as it would be of no effect.
[44] Reasons, [94]–[117].
The Senior Arbitrator proceeded in the alternative to consider the factors of delay, the absence of an appeal having been brought against the MAP, the weight of the new evidence before him and the interests of the parties. That process was entered into by the Senior Arbitrator who expressly did so on the condition that his primary decision not to exercise his discretion because the further claim was precluded was wrong.
There is no appeal before me that challenges the Senior Arbitrator’s primary decision not to exercise his discretion because there could be no further lump sum claim. It follows that the Senior Arbitrator’s decision must stand, regardless of the outcome of the grounds of appeal brought by the appellant.
The Senior Arbitrator’s Certificate of Determination dated 14 June 2019 is therefore confirmed.
DECISION
The appellant’s application made pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 to adduce further evidence on appeal is refused.
The Certificate of Determination dated 14 June 2019 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
15 January 2020
23
0