Patrick Stevedores Holdings Pty Ltd v Fogarty - [2014] NSWWCCPD 76

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Patrick Stevedores Holdings Pty Ltd v Fogarty [2014] NSWWCCPD 76
APPELLANT:	Patrick Stevedores Holdings Pty Ltd
RESPONDENT:	Steven John Fogarty
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-1688/14
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	22 August 2014
DATE OF APPEAL DECISION:	18 November 2014
SUBJECT MATTER OF DECISION:	Jurisdiction of the Commission to make award where liability conceded at the arbitration; alleged denial of procedural fairness; alleged failure to give reasons; incorrect wage rate; application of the slip rule; power to correct an “obvious error” in Certificate of Determination or statement of reasons; ss 105, 288, 289, 289A and 294(3) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	W G McNally Jones Staff
ORDERS MADE ON APPEAL:	1. Paragraph 1 of the determination of 22 August 2014, amended on 29 October 2014, is revoked and the following order made in its place: “1. Award for the applicant pursuant to section 37(1) of the Workers Compensation Act 1987 at the rate of $1,507 per week from 6 March 2014 to date and continuing.” 2. Paragraph 2 of the determination of 22 August 2014, amended on 29 October 2014, is confirmed. 3. No order as to costs.

INTRODUCTION

The main issue in this appeal concerns the Commission’s jurisdiction to make an award in terms consistent with concessions made by the respondent employer’s legal representative at the arbitration. The appeal also raises allegations of a denial of procedural fairness and a failure to give reasons. Apart from the correction of the rate at which weekly compensation is payable under the award, which was conceded by the respondent worker’s solicitor in any event, the appeal is unsuccessful.

BACKGROUND

The respondent worker, Steven Fogarty, has worked as a stevedore for the appellant employer, Patrick Stevedores Holdings Pty Ltd (Patrick Stevedores), for about 10 years. He spent 90 per cent of his time driving a “straddle crane” and the remaining 10 per cent doing lashing work on board ships. He alleged that he injured his back while driving a straddle crane in the course of his employment with Patrick Stevedores on two separate occasions.
The first injury was on 17 December 2012. On that day, he was driving a straddle crane when it hit a pothole. This caused the seat to “bottom” and Mr Fogarty’s spine to be jarred. He felt pain in his lower back, upper back and neck. Mr Fogarty reported the incident and saw the company doctor. He was told that it was a simple strain.
Patrick Stevedores’ insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz) accepted liability and commenced payments of weekly compensation. Mr Fogarty’s neck and upper back pain settled after about a week, but his lower back pain continued to give him trouble.
He returned to work in mid-January 2013, initially on light duties. After three days on light duties, he returned to full duties. By the time he had returned to work, his back pain had “improved a fair bit, but was still present”. By the end of May 2013, Mr Fogarty’s back was still not “100%, but [he] was able to work”.
The second incident occurred at about midnight on the evening of 31 May 2013. Mr Fogarty was again driving a straddle crane when it hit a particularly large pothole. His seat bottomed and he felt severe pain in his lower back and pain in the back of his right leg down to his knee. He reported the problem at work and went to first aid. He finished his shift at 6 am on the morning of 1 June 2013. This incident has been pleaded as having occurred on 1 June 2013, which is the date to which I will refer in this decision.
First aid records in evidence confirm that Mr Fogarty reported both incidents to the first aid office, as he claimed. An injury notification form, completed by a Patrick Stevedores’ representative, confirms that Mr Fogarty also reported the second incident, as he claimed.
A CT scan on 4 June 2013 showed a small central protrusion at L4/5. Mr Fogarty’s general practitioner, Dr Samaraweera, referred him to Dr Peter Moloney, neurosurgeon, who he saw on 8 July 2013. Dr Moloney took a history that the seats in the straddle crane “bottom out quite a lot” and that Mr Fogarty took “a lot of jolting”. Most of the time Mr Fogarty worked “twisted to the left side”. Dr Moloney recorded that the injury occurred on 31 May 2013 when Mr Fogarty noted right sided back pain that, over the next couple of days, progressed to gluteal, thigh and leg pain.
An MRI scan on 23 July 2013 revealed an annular tear at L4/5 with a shallow broad-based central disc protrusion without definite neural compression and disc degeneration.
On 8 October 2013, Dr Moloney gave Mr Fogarty a cortisone injection at Figtree Private Hospital. That injection did not help Mr Fogarty’s symptoms.
On 3 December 2013, a discogram showed an abnormality at L4/5 with pain reproduction at that level. Dr Moloney recommended spinal surgery (a lumbar fusion) and sought approval for that surgery from Allianz.
Meanwhile, on 5 December 2013, Mr Fogarty obtained a second opinion from Dr Timothy Steele, neurosurgeon at St Vincent’s Clinic. Dr Steele took a history that Mr Fogarty developed significant back and bilateral leg symptoms after sitting on a forklift chair (presumably the chair in the straddle crane) which bounced up and down. Dr Steele also discussed with Mr Fogarty the possibility of spinal surgery. He recommended that a disc replacement was preferred because of Mr Fogarty’s relative youth (30 at the date of this decision). Mr Fogarty decided to accept Dr Steele’s advice. He understood that Dr Steele sought approval from Allianz for the proposed surgery.
On 28 January 2014, Mr Fogarty saw Dr Vidyasagar Casikar, neurosurgeon, at the request of Allianz. In a report dated 29 January 2014, Dr Casikar took a history that on 1 June 2013 Mr Fogarty was driving a straddler when he developed acute pain in his back, which extended into his right hip and right knee. Under “previous history”, Dr Casikar said that Mr Fogarty suffered an injury to his neck and back in 2012 and that he returned to work after four weeks off. He recorded no history of the circumstances of the 2012 incident.
On examination, Dr Casikar said that Mr Fogarty had no movements in his back and that his gait was antalgic. Mr Fogarty was unable to lie on the examination couch. The examination was performed in the sitting position. Within the limits of the neurological examination, there was no evidence of dermatomal hypoaesthesia, nor suggestion of muscle weakness or wasting of any muscle groups. Deep tendon reflexes were normal. During the entire examination, Mr Fogarty was very restless and indicated that he had significant pain in his back.
After noting the radiological investigations, including the discogram, Dr Casikar diagnosed Mr Fogarty to have non-verifiable neurological symptoms that could have developed at about the same time or stage of his life, irrespective of his employment. Dr Casikar said that Mr Fogarty did not indicate a specific work related incident that triggered his symptoms. He did not believe Mr Fogarty’s employment was the main contributing factor to his presentation. (It should be noted that this is not the test in the legislation.)
As Mr Fogarty did not have significant degenerative changes in his back, Dr Casikar said that the question of aggravation and cessation of aggravation was not relevant. Dr Casikar said he found it “difficult to confirm Mr Fogarty’s current symptoms as a result of a specific incident which has resulted in change of his symptomatology or his capacity”.
Dr Casikar said that the surgery proposed by Dr Steele was mainly to address the very marginal degenerative changes at L4/5. He added that there was not much difference, as far as the outcome was concerned, between a fusion and a disc replacement. As Mr Fogarty had non-verifiable neurological symptoms and back pain, Dr Casikar thought it very unlikely that Mr Fogarty would improve with surgery. He noted that Mr Fogarty had not tried any alternative treatment, except a couple of cortisone injections.
Dr Casikar thought a more comprehensive pain management program would be a useful method. However, as there had been “no specific work related injury”, the recommended treatment was not “directly related to his employment” and was therefore not compensable. He felt that Mr Fogarty was not fit for the essential requirements of his employment and, until his symptoms of back pain and neurological symptoms were resolved, it would not be safe for him to start driving the equipment at the workplace.
Relying on Dr Casikar’s report, Allianz denied liability for the claim in a s 74 notice dated 19 February 2014 and advised that weekly compensation payments would stop from 5 March 2014. The basis for the denial was that Mr Fogarty had not sustained a workplace injury for which compensation was payable. It was asserted that though Mr Fogarty had reported pain in his lumbar spine when “driving a straddle” on 1 June 2013, he did not identify any “specific incident outside [his] routine duties” that caused him to feel symptoms. (That assertion was clearly incorrect.)
On 24 February 2014, Dr Samaraweera reported that he had treated Mr Fogarty for 15 years or so. Mr Fogarty had been in good health since Dr Samaraweera knew him, apart from two instances of work related lower back injury on 17 December 2012 and 1 June 2013. In both instances the cause of the back injury was due to constant jarring and jolting of Mr Fogarty’s back while driving a straddle crane at work. He noted that liability had been accepted and that Mr Fogarty had been assisted with medical investigations, specialist consultations and treatment, “including medications, physiotherapy etc”. Dr Samaraweera understood that Allianz had denied liability. He said that Mr Fogarty injured his back on 1 June 2013 at work and had not injured it outside work. In his opinion the L4/5 disc problem had been caused by constant jarring, bouncing and jolting while driving the straddle crane and not due to degenerative disease.
In March 2014, Dr Vote, orthopaedic surgeon, examined Mr Fogarty at the request of his solicitors. He took a history that Mr Fogarty injured his back while driving a straddle when it hit a pothole on 17 December 2012 and again in June 2013. He noted the radiological investigations and concluded that Mr Fogarty had an L4/5 disc protrusion and that his symptoms were related to his employment. Dr Vote felt that each of the proposed operations was acceptable and could be regarded as standard treatment for Mr Fogarty’s type of problem.
On 8 April 2014, Mr Fogarty’s solicitors filed an Application to Resolve a Dispute (the Application) in the Commission. The Application claimed weekly compensation of $1,507 from 6 March 2014 to date and continuing, together with a general order for hospital and medical expenses plus a specific order for the cost of the proposed disc replacement surgery.
On 22 April 2014, Patrick Stevedores’ solicitors filed a Reply that relied on the grounds identified in the s 74 notice of 19 February 2014.
On 16 June 2014, Senior Arbitrator Moore held a teleconference at which she gave leave to Patrick Stevedores to issue several Directions for Production, remitted the matter to the Registrar for referral to an Approved Medical Specialist (AMS) for a non-binding opinion on whether the proposed spinal surgery was reasonably necessary as a result of the injury, and listed the matter before herself for conciliation and arbitration on 21 August 2014.
On 30 July 2014, the AMS, Dr Robert Breit, issued a Medical Assessment Certificate (MAC). After taking a consistent history of the two work injuries, reviewing the radiology, and examining Mr Fogarty, Dr Breit diagnosed Mr Fogarty to have an L4/5 disc lesion – annular tear. Dr Breit correctly noted that, despite Dr Casikar’s contention that there was no traumatic event, there were two (events) that had been clearly documented.
Not surprisingly, Dr Breit said that there had been a “distinct localised injury with a tear of the L4/5 disc and no other pathology noted in the spine”. In his opinion, that was a “clear indication that there [was] no other significant prior pathology and the problem [was] not constitutionally based”. (This opinion was completely consistent with the evidence from Drs Moloney, Steele and Vote.)
As Mr Fogarty had had prolonged non-operative management with single level pathology that had been shown to be the “pain generator on discography”, which lent support to the proposed surgery, Dr Breit felt that the proposed surgery was “both reasonable and necessary as a result of the injury”. It should be noted the question in s 60 is whether the relevant treatment is “reasonably necessary” as a result of the injury, not the more demanding test of “reasonable and necessary”.
At the arbitration in Sydney on 21 August 2014, Mr Taylor, solicitor, appeared for Patrick Stevedores (sitting in for Mr Macken, solicitor, who was expected “shortly”) and Mr Halligan, barrister, appeared for Mr Fogarty. After the Senior Arbitrator noted the content of Dr Breit’s MAC, the following exchange occurred, starting at T2.21:
“SENIOR ARBITRATOR: I’ve got that report from Dr Breit. Now Mr Taylor, you say you want to make an application?
MR TAYLOR: Yes, Arbitrator. [Patrick Stevedores], following the receipt of the AMS report of Dr Breit, which as you have indicated, recommends that the surgery is reasonable. Now wishes - indicates that he’s [sic] prepared to pay for the future surgery, in light of the findings of the AMS. It is also prepared to reinstate the weekly benefits claimed at the appropriate rate.
MR HALLIGAN: Now can I just---
SENIOR ARBITRATOR: Well, can I - your application is to tell me that you now consent to pay, so I can simply enter an award in accordance with your agreement?
MR TAYLOR: No, Arbitrator, we say that since we now agree to pay the entirety of the claim, that we don’t have - there is no dispute before you and accordingly you have no jurisdiction to enter an award, because you can only hear a matter that is in dispute. As that matter is no longer in dispute---
SENIOR ARBITRATOR: It was in dispute - it was in dispute at 10 o’clock this morning, when I arrived here, Mr Taylor. At 10.30 when---
MR TAYLOR: Well, no it wasn’t, Arbitrator.
SENIOR ARBITRATOR: Just a minute, Mr Taylor. When I attempted to commence the matter, it remained in dispute. In the middle of the proceedings, you now say, you wish to withdraw your section 74 notice? That is not in the spirit of the Commission. It is absolutely outrageous in my view, and I don’t actually accept that I don't have jurisdiction, because the section 74 notice puts in dispute the - both medical expenses and weekly payments. Now the Commission and the rules require you to file - to rather, put on section 74 notice outlining matters in dispute. There is nothing in the legislation that I can see, permits a withdrawal in the middle of proceedings.
MR TAYLOR: Well, Arbitrator, firstly---
SENIOR ARBITRATOR: Just a minute please, Mr Taylor. In these circumstances, [Mr Fogarty] has indicated that he wishes to proceed with the matter. You have now indicated that you are prepared to pay [Mr Fogarty] the entitlements which he has claimed, but I don’t think you’re in a position to withdraw the application in the middle of the proceedings.
MR TAYLOR: Well, Arbitrator, it’s not in the middle of proceedings, with respect, as soon as I saw you this morning, I indicated what those instructions were. Those instructions were in fact communicated to my friends overnight, as Mr Trainor has indicated---”
Mr Taylor continued, at T5.13,
“MR TAYLOR: (Not transcribable). what is appropriate here is that you no longer have a dispute to determine. So I can’t understand what we’re doing here.”
In the absence of cogent authority to say the Commission had no jurisdiction, Mr Halligan submitted, at T5.26:
“you should follow the usual course and deal with the matter on the basis of the papers that are now filed and before you now. There is clearly a dispute raised.
The fact that [Patrick Stevedores] wishes to simply avoid having an award entered against it, is in the circumstances, a cynical and capricious attempt to give [Patrick Stevedores] the opportunity of revisiting its attitude to the claim and as we all know, without the - without an award and in the face of concessions by [Patrick Stevedores], that they are liable to pay, means that if Mr Taylor’s argument succeeds, [Patrick Stevedores] is at liberty to do whatever it likes within any period it chooses, giving [Mr Fogarty] no finality.”
In support of the above submission, Mr Halligan pointed out that the s 74 notice was “based on very unsatisfactory and flimsy grounds, as it turns out” (T6.16). Mr Taylor responded, somewhat facetiously, “[w]ell, all the more reason why you should be happy that we withdraw it” (T6.22).
The Senior Arbitrator said that what troubled her was that the Commission has an obligation to conduct proceedings with as little formality as possible, in all the circumstances, and that, if Mr Fogarty “left today” with the s 74 notice having been withdrawn, Mr Taylor would be at “liberty to revisit the claim against [sic, again] tomorrow and issue a further section 74 notice and not comply with what you have indicated you will do today” (T6.31). She pointed out that Mr Fogarty had travelled from Windang (south of Wollongong) in good faith and that he has a serious injury to his lumbar spine.
The Senior Arbitrator said that, in light of what Mr Taylor said, namely, that Patrick Stevedores accepted the MAC of Dr Breit, she intended to order “that [Patrick Stevedores] agrees to pay for the cost of surgery, in accordance with the MAC of Dr Breit” and would also order it to pay Mr Fogarty weekly benefits. She then asked Mr Halligan the rate for weekly payments claimed and was told $1,903.70 (T7.23). (It is agreed that this figure was incorrect and should have been $1,507.)
Mr Taylor pointed out that it was not his matter and that the best course was the person who was involved in the matter, who was apparently going to arrive in about five minutes, to argue the matter before “a determination is made in relation to conduct” (T9.23). The Senior Arbitrator pointed out that it was 11.10 am (the arbitration having been listed to start at 10 am). The next few lines of the transcript are incomplete.
Mr Taylor then said (at T10.7) that the person who was involved in the matter (presumably Mr Macken) had arrived. The Senior Arbitrator said that she was in the middle of conducting proceedings and did not interrupt (them) to allow other people to appear. She said that the orders would be as she indicated, because she did not consider “a withdrawal of a s 74 notice in the middle of proceedings to be appropriate conduct in the spirit of the Commission or the legislation” (T10.13).
The Senior Arbitrator said that she found no authority to suggest that a party has “an entitlement” (T10.19) to withdraw a s 74 notice, nor had she found an authority to say that a party does not (have that entitlement). She made her determination in accordance with her interpretation of the legislation and, particularly, the “spirit of this” (T10.23), noting that, to bring Mr Fogarty here in these circumstances, was unacceptable.
The Senior Arbitrator’s other reason for making the orders was that she was mindful that Patrick Stevedores is “entitled tomorrow, if necessary, to re-issue a section 74 notice and change its mind” (T10.27). She said that that was not in the spirit of the Commission and not fair to Mr Fogarty. The Senior Arbitrator added (at T11.6) that, in the absence of any evidence or authority to suggest that Mr Taylor had an entitlement to withdraw the s 74 notice in the middle of proceedings, she determined that she had jurisdiction.

Consistent with the Senior Arbitrator’s orders, the Commission issued a Certificate of Determination on 22 August 2014 in the following terms:
“The determination of the Commission in this matter is as follows:
1.Award for the applicant pursuant to section 37 (1) of the Workers Compensation Legislation Amendment Act 2012 at the rate of $1,903.70 per week from 6 March 2014 to date and continuing.
2.Award for the applicant pursuant to section 60, noting the respondent’s agreement to pay for the costs of surgery in accordance with the Medical Assessment Certificate of Dr Breit dated 30 July 2014.”
The Senior Arbitrator amended the Certificate of Determination on 29 October 2014 to delete “Workers Compensation Legislation Amendment Act 2012” and insert in its place “Workers Compensation Act 1987”.
On 22 August 2014, Mr Fogarty’s solicitor, David Trainor, wrote to Patrick Stevedores’ solicitor advising that as Mr Fogarty had already been paid his first 13 weeks of weekly compensation, the correct rate of weekly compensation should have been 80 per cent of his average weekly earnings, not 95 per cent as appeared in the order. Mr Trainor asked if Patrick Stevedores were happy for “us to apply under the slip rule in this regard”. By letter dated 29 August 2014, Mr Macken acknowledged receipt of the letter and advised that he would seek his client’s instructions. There is no evidence that Mr Macken ever obtained his client’s instructions, or, if he did, that he conveyed those instructions to Mr Fogarty’s solicitors.
On 15 September 2014, Patrick Stevedores appealed the Senior Arbitrator’s determination under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 16 October 2014, Mr Trainor wrote to Mr Macken advising that Patrick Stevedores had failed to make any payments of weekly compensation pursuant to the award. He said that Alicia Borg from Allianz had advised Mr Fogarty on 15 October 2014 that Allianz would not be making any payment of weekly compensation as “we have appealed everything”.
On 14 November 2014, Mr Macken advised the Commission that Allianz had still not satisfied the award for weekly compensation. (It should be noted that the filing of an appeal under s 352 does not act as a stay or otherwise affect the operation of a decision as to weekly payments of compensation and that those payments remain payable despite any appeal (s 352(5A)).)

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.”
Mr Macken submitted on 15 September 2014 that Patrick Stevedores was “currently of the view that the matter should not be determined on the papers but should be determined by an oral hearing before a Presidential Member but will make further Submissions in this regard when the Transcript is available”.
The Commission forwarded the transcript to the parties on 19 September 2014 and Mr Macken filed further submissions on 14 October 2014. Those submissions did not refer to the need for an oral hearing. Considering the issues involved, I do not believe an oral hearing is required.
Mr Fogarty has consented to the matter being determined on the papers. Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Senior Arbitrator erred in:
(a)     failing to give any or any adequate reasons (reasons);
(b)     the determination and calculation of the rate of weekly compensation (rate of weekly compensation);
(c)     determining that the Commission had jurisdiction (jurisdiction), and
(d)     denying Patrick Stevedores procedural fairness (procedural fairness).
As an Arbitrator’s duty to give reasons and afford a party procedural fairness depends on the circumstances of the case, it is convenient to deal with the jurisdiction issue first. That is because that issue gives the context for what occurred at the arbitration and for the other grounds of appeal.

JURISDICTION

Submissions

Mr Macken submitted that if it was the case that Patrick Stevedores “had properly withdrawn a dispute as to liability then the jurisdiction of the Commission (which is engaged by such a dispute) was removed in which case it was not open to an Arbitrator to make a determination”.
In the alternative, he submitted that if the jurisdiction of the Commission remained enlivened by reason of the s 74 notice, it was “encumbant [sic] upon the Arbitrator to make determinations in respect of that Notice after providing [Patrick Stevedores] with the opportunity of being heard and then giving reasons for the determination”. This has not occurred and constitutes an error requiring the decision to be revoked and the matter remitted.
Mr Trainor submitted that Pt 4 of the 1998 Act provides for the determination of disputes and, for the purposes of s 289, there were two disputes:
(a) Mr Fogarty’s entitlement to and the quantum of weekly payments, and
(b) the cost and reasonableness of future surgery.
He contended that, for both s 289 and s 289A of the 1998 Act, a “notice of dispute” is a s 74 notice (Department of Corrective Services v Bowditch [2007] NSWWCCPD 244). Both of the above disputes were properly before the Commission pursuant to s 289(1) and (2). Even if Patrick Stevedores were allowed to withdraw its s 74 notice at the door of the Commission, there is nothing in the legislation that removed the Commission’s jurisdiction, or prevented the Senior Arbitrator from determining the claim. She had a positive obligation to determine the matter.

Discussion and findings

Mr Macken’s submissions are untenable.
The Commission does not have inherent jurisdiction but only such powers that are incidental and necessary to the exercise of its statutory jurisdiction (per Santow JA (Spigelman CJ agreeing) in Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley [2006] NSWCA 235 at [66]). However, under s 105(1) of the 1998 Act, the Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under” the 1998 Act and the Workers Compensation Act 1987 (the 1987 Act).
Subject to a restriction on who may refer a dispute about a claim for lump sum compensation, which is not relevant in the present matter, any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission (s 288(1) of the 1998 Act). A “dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made” (emphasis added) either disputes liability for the claim (wholly or in part) or fails to determine the claim as and when required by the 1998 Act (s 289(1)). Section 289(2), which is in the same terms as sub-s (1), applies to a claim for medical expenses.
Section 289A provides for further restrictions as to when a dispute can be referred to the Commission. A “dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed” (s 289A(1)). A matter is taken to have been previously notified if, among other things, it was notified in a notice of dispute under the 1998 Act or the 1987 Act after a claim was made or a claim was reviewed.
The Commission may not hear or otherwise deal with any dispute if s 289A provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a matter (s 289A(3)). Despite sub-s (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.
The above provisions make it clear that, once a matter has been properly referred to the Commission, the Commission has exclusive jurisdiction to hear and determine all matters arising under the 1998 Act and the 1987 Act. That jurisdiction is not removed when one of the parties concedes that the matters previously disputed are no longer in dispute. If that were correct, the Commission would not have power to make consent orders after the parties have agreed to settle a claim. That would be because, according to Mr Macken’s argument, the parties having reached agreement, there would no longer be any dispute and no jurisdiction for the Commission to make orders. That is not correct.
Once the Commission has jurisdiction, by virtue of one or other of the avenues identified in s 289, it has power to determine that dispute by issuing a Certificate of Determination (s 294 of the 1998 Act). In the alternative, if the parties to proceedings in respect of a dispute agree as to the terms of an order to be made determining that dispute, and that order is an order that the Commission has power to make, the Commission may determine the dispute by making that order by consent (Pt 15 r 15.9 of the Workers Compensation Commission Rules 2011 (the Rules)).
In the present case, the serving of the s 74 notice dated 19 February 2014 triggered a dispute between the parties. Thus, the Commission was properly seized of jurisdiction to hear and determine Mr Fogarty’s claim. The admissions by Mr Taylor at the arbitration (discussed further below) did not deprive the Commission of jurisdiction to determine the matter. For good reasons, Mr Fogarty did not wish to discontinue his claim and accept voluntary payments of compensation, as, it seems, Patrick Stevedores was attempting to force him to do. He asked for orders in his favour. The Commission had jurisdiction to make those orders. (I should add that, given Allianz’s unsatisfactory behaviour in this matter overall (discussed further below), Mr Fogarty was well advised not to accept voluntary payments.)
Mr Macken’s submissions amount to this: we admit we are liable to pay your claim, but, because we have made that admission, the Commission cannot make orders for payment of the claim notwithstanding that the matter is properly before it. That is nonsense. Once the Commission has jurisdiction to determine a dispute, that jurisdiction cannot be removed at the whim of the respondent or its insurer. The suggestion that it can be is plainly wrong.
A power vested in a court should not be construed as subject to limitations not clearly to be seen (per Giles JA at [89] (Allsop P (as his Honour then was) and Hodgson JA agreeing) in Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206). Moreover, as Bathurst CJ observed (at [57]) in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 “[i]t is a well known principle that withdrawal of jurisdiction from a court will not be held to have taken place unless the implication is clear and unmistakeable: Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at [34]”.
Though several exchanges between Mr Taylor and the Senior Arbitrator suggest that the matter was being dealt with as an application by Mr Taylor to withdraw the s 74 notice, that was not an accurate way to describe what happened. Mr Taylor did not, initially at least, seek to withdraw the s 74 notice. He indicated that his client agreed to pay the “entirety of the claim”.
In any event, even if Mr Taylor was seeking to “withdraw” the s 74 notice, as the matter unfolded, and given the admissions made, that question was not relevant to the determination of the matter. Once the Commission is seized of jurisdiction, it has that jurisdiction unless there is some “clear and unmistakeable” withdrawal of that jurisdiction. The purported “withdrawal” of the s 74 notice, if that is the correct characterisation of what occurred, did not withdraw the Commission’s jurisdiction. Once a s 74 notice is issued, it cannot be “withdrawn”, though admissions may be made that are inconsistent with assertions in the notice.
Notwithstanding Mr Taylor’s admissions, the matter was before the Commission and the Commission had jurisdiction to deal with “all matters arising” under the 1998 Act and the 1987 Act. It could deal with it in one of four ways:
(a)     by the Senior Arbitrator making a determination (as Mr Fogarty sought);
(b)     by the parties asking the Senior Arbitrator to make orders by consent (which neither party sought);
(c)     by Mr Fogarty filing an Election to Discontinue Proceedings (Form 14B) under Pt 15 r 15.7 (which I infer was what Patrick Stevedores wanted Mr Fogarty do with, presumably, an understanding that voluntary payments would resume, at the discretion of Allianz), or
(d)     by the Commission dismissing the proceedings on one or more of the grounds identified in s 354(7A) of the 1998 Act (neither side suggested there was any basis for the operation of this section).
The Senior Arbitrator determined the matter, as she was entitled to do. This ground of appeal is therefore rejected. Mr Macken’s alternative submission under this heading – that if the Senior Arbitrator had jurisdiction it was incumbent on her to make determinations in respect of the s 74 notice after giving Patrick Stevedores the opportunity to be heard – is considered below.

REASONS

Submissions

Mr Macken submitted that the Arbitrator gave no reasons at all for determining any of the issues disputed in the s 74 notice.

Discussion and findings

The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The obligation to give reasons is related to and dependent upon the submissions presented to the judicial officer. There is no need to give reasons for accepting concessions by the counsel or to give reasons rejecting submissions never put (Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34 at [15] (Djuric)).
In the present case, based on the MAC issued by Dr Breit, Mr Taylor conceded liability for the proposed surgery and for weekly compensation and conceded that there was no longer any dispute. Specifically, he said “we now agree to pay the entirety of the claim” (T3.5). That concession carried with it clear admissions that Mr Fogarty had received a compensable injury in the course of or arising out of his employment with Patrick Stevedores, that he was incapacitated as alleged and that the proposed surgery was reasonably necessary as a result of his accepted injury. As in Djuric, it was not necessary for the Senior Arbitrator to give detailed reasons for accepting those concessions. Mr Fogarty did not make, or seek to make, any submissions on the “issues” in the s 74 notice and the Senior Arbitrator did not need to deal with those “issues”.
On the no jurisdiction argument, the Senior Arbitrator exposed her reasoning and articulated the essential ground on which she based her decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). She said:
(a)     she had not seen any authority to support Mr Taylor’s submission that the Commission had no jurisdiction (T8.9) (it should be noted that Mr Taylor did not refer the Senior Arbitrator to any authority);
(b)     the argument was not in the spirit of the Commission and the relevant legislation (T8.10);
(c)     the Commission had jurisdiction because a clear dispute notice was issued on 19 February 2014 (T8.12), and
(d)     she did not consider the withdrawal of a s 74 notice in the middle of proceedings to be appropriate conduct in the spirit of the Commission or the legislation (T10.13).
In the circumstances, these reasons were more than adequate to deal with an issue that was completely without merit and unsupported by any authority or reference to the legislation. I add that not only were Mr Taylor’s submissions at the arbitration unsupported by any authority, neither were Mr Macken’s submissions on appeal.

PROCEDURAL FAIRNESS

Submissions

Mr Macken submitted that “having determined that the jurisdiction of the Commission was enlivened and that it was necessary to determine the issues in dispute”, the Senior Arbitrator then denied Patrick Stevedores procedural fairness by failing to provide it with the opportunity to be heard in respect of the disputed issues or make submissions in respect of the s 74 notice or in respect of the appropriate rate of weekly compensation. He contended that this error constitutes an error of law which requires that the determination be revoked and the matter be remitted for re-determination.

Discussion and findings

In considering the application of the rules of natural justice to the Commission, Bryson JA (Handley and Bell JJA agreeing) held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [20] that:
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
The judgment by Gibbs CJ in National Companies and Securities Commission vNews Corporation Limited [1984] HCA 29; 156 CLR 296 at 312 is also instructive:
“In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: ‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’ The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.” (emphasis added)
As explained by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Muin v Refugee Tribunal [2002] HCA 30 McHugh J stated the requirement as follows, at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
Proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits (s 354(1)); the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits (s 354(2)); and it must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form (s 354(3)).
Mr Macken’s submissions have ignored s 354 and, more importantly, have ignored the way the case unfolded at the arbitration. Mr Taylor’s concessions, which were perfectly proper in the circumstances, amounted to a formal admission of liability. In these circumstances, it is completely specious and erroneous to argue that there was a denial of procedural fairness because Mr Taylor was denied the opportunity to make submissions on the matters in dispute.

Having conceded those matters, Mr Taylor did not seek to make any submissions on the matters in the s 74 notice. Not only did he not seek to make any submissions on the matters in the s 74 notice, he formally conceded them. In the circumstances, it is untenable to suggest, as Mr Macken has in his submissions in reply, that the Senior Arbitrator provided no opportunity to Patrick Stevedores to address the matters that needed to be determined.
Having regard to the legal context in which the Commission operates, the circumstances of the case, including the admissions by Mr Taylor, it is not open to suggest that Patrick Stevedores has suffered any practical injustice in the way the matter proceeded. This ground of appeal is rejected.
If I am wrong on this issue, and it is thought that Patrick Stevedores was denied the opportunity to make submissions, and that that amounted to an error, I am comfortably satisfied that the error made “no possible difference to the result” (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 146). That is because, on any objective view of the evidence, Patrick Stevedores did not have a case to put. The evidence overwhelmingly supports Mr Fogarty and, for the reasons discussed below, Allianz should never have denied the claim.

RATE OF WEEKLY COMPENSATION

Submissions

Mr Macken submitted that the amount awarded was wrong; noting that the amount claimed in the Application was $1,507 (80 per cent of the average weekly earnings).
Mr Trainor conceded, both in his submissions on appeal and in a letter to Patrick Stevedores’ solicitors dated 22 August 2014, that the correct rate of weekly compensation is $1,507 and has asked that the award be corrected under the slip rule. Why that was not done is unclear.

Discussion and findings

In the Supreme Court, the power to correct an error arising from an accidental slip or omission in a judgment or order is found in r 37.17 of the Uniform Civil Procedure Rules 2005 (NSW). In the Commission, if the Registrar is satisfied that a certificate as to a determination or a statement attached to the Certificate of Determination “contains an obvious error”, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error (s 294(3) of the 1998 Act). While not described as a “slip rule”, the power in s 294(3) serves substantially the same function as the slip rule in r 37.17.
The power in s 294(3) could and should have been used in the present case and Mr Macken’s submission that the incorrect figure of $1,903.70 was not a consequence of any slip or omission by the Arbitrator completely misses the point. The power exists for the correction of an “obvious error”, however that error occurred. Whether it is described as a correction under s 294(3) or under the slip rule is of no consequence.
Given Mr Trainor’s appropriate concession, made in writing on 22 August 2014 and repeated on appeal, that the figure of $1,903.70 was incorrect, and his request that it be corrected under the slip rule, that is what should have happened under s 294(3). It is most unsatisfactory, considering the terms of s 354 (see [78] above) and Mr Trainor’s letter, that it did not happen in this case. Where an apparent error can readily be addressed without the need to resort to time-consuming appeal proceedings, that course should be permitted and encouraged (by the Court, Basten and Campbell JJA and Rothman J, in Nominal Defendant v Livaja [2011] NSWCA 121 at [23]).
As the appeal is before me, and the error has not been corrected under s 294(3), it is appropriate that it now be corrected under the power in s 352(5). The amount of weekly compensation awarded is amended to delete $1,903.70 and to insert in its place $1,507.

OTHER MATTERS

There are a number of troubling features about this case.
First, notwithstanding that every specialist in the case took a history that Mr Fogarty injured his back when the straddle crane he was driving hit a pothole, Dr Casikar did not take that history. Instead, he seemed to have a history that Mr Fogarty’s symptoms started spontaneously at work with no provocation at all. Such a history was not consistent with Mr Fogarty’s evidence and was surprising, to say the least.
Moreover, Dr Casikar’s assertion that Mr Fogarty’s symptoms could have developed at about the same time or the same stage of his life, irrespective of his employment, was unsupported by any reasoning and stretched credulity to breaking, bearing in mind Mr Fogarty’s age and the lack of degenerative changes in his spine, something that Dr Casikar expressly noted. The basis for Dr Casikar’s assertion is not clear. Moreover, Dr Casikar’s suggestion that the proposed surgery was for degenerative changes in Mr Fogarty’s back was inconsistent with the objective evidence and further undermined the doctor’s credibility as an independent medical examiner.
These matters raise serious issues about Dr Casikar’s objectivity that warrant investigation into his status as a WorkCover approved impairment assessor.
Second, the general conduct of this matter has been seriously alarming. Notwithstanding Dr Casikar’s opinion, his report provided no proper basis for Allianz, viewing the matter objectively and fairly, to deny the claim. A fair reading of the history of the claim demonstrates a perfectly consistent story corroborated by complaints to first aid and strongly supported by all the treating doctors and by several objective investigations, namely, a CT scan, MRI scan and a positive discogram. Allianz had no proper reason for denying liability and should not have done so.
Third, it is apparent that, notwithstanding the admissions made by Mr Taylor at the arbitration, Allianz has not paid the weekly compensation awarded to Mr Fogarty and has thwarted his attempts to have the surgery recommended by four specialists. Allianz is a fund manager under the NSW workers’ compensation scheme. It would (or should) have been well aware of its obligation to pay an award of the Commission for the payment of weekly compensation, which obligation continues notwithstanding the filing of an appeal under s 352. Its failure to do so in the present case is reprehensible and will be referred to the WorkCover Authority of NSW for investigation.
Fourth, Allianz’s behaviour is all the more disgraceful given that it is obliged to act as a model litigant. That means more than acting honestly and in accordance with court rules, and more than lawyers acting in accordance with ethical obligations; it must be a “moral exemplar” (State of Queensland v Allen [2011] QCA 311 at [79]–[81]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [38], [39], and [40]–[42]). It is obliged to pay legitimate claims without litigation. Mr Fogarty’s claim was, without doubt, a legitimate claim that should have been paid without the need for litigation. Why it was not paid should also be investigated.
Fifth, the amendment of the award of weekly compensation could and should have been achieved by the application of the slip rule (s 294(3)), something that Mr Trainor sought to do in his letter of 22 August 2014. It is unsatisfactory that Allianz did not accede to that request, as it would have avoided the need for an appeal. That should also be investigated.

CONCLUSION

This appeal was without merit and should not have been filed. Mr Macken’s submissions were unsupported by any authority and completely ignored the way the arbitration proceeded and the clear admissions made by Mr Taylor. I can only assume that it was filed in an attempt to make Mr Fogarty bow to the insurer’s desire that he accept voluntary payments rather than an award.

DECISION

Paragraph 1 of the determination of 22 August 2014, amended on 29 October 2014, is revoked and the following order made in its place:
“1. Award for the applicant pursuant to section 37(1) of the Workers Compensation Act 1987 at the rate of $1,507 per week from 6 March 2014 to date and continuing.”
Paragraph 2 of the determination of 22 August 2014, amended on 29 October 2014, is confirmed.

COSTS

No order as to costs.

Bill Roche
Deputy President

18 November 2014

I, JACQUELINE HAGGER, 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