Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor
[2009] NSWWCCPD 47
•4 May 2009
| WORKERS COMPENSATION COMMISSION | |||||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||||
| STATUS: Reported Decision: Peric v Lee and Ran (t/as Pure & Delicious Healthy) (2009) 7 DDCR 215 | |||||||||
| CITATION: | Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47 | ||||||||
| APPELLANT: | Jela Peric | ||||||||
| FIRST RESPONDENTS: SECOND RESPONDENT: | Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy WorkCover Authority of NSW | ||||||||
| FILE NUMBER: | A1-6399/08 | ||||||||
| ARBITRATOR: | Mr J McDermott | ||||||||
| DATE OF ARBITRATOR’S DECISION: | 24 November 2008 | ||||||||
| DATE OF APPEAL DECISION: | 4 May 2009 | ||||||||
| SUBJECT MATTER OF DECISION: | Sections 2A(2) and 65(3) of the Workers Compensation Act 1987; sections 105(1), 319 and 321 of the Workplace Injury Management and Workers Compensation Act 1998; jurisdiction of the Commission. | ||||||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||||||
| HEARING: | On the papers | ||||||||
| REPRESENTATION: | Appellant: | Leitch Hasson Dent | |||||||
| First Respondents: | No appearance | ||||||||
| Second Respondent: | Sparke Helmore | ||||||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 24 November 2008 is confirmed. | ||||||||
| No order as to costs. | |||||||||
BACKGROUND TO THE APPEAL
On 23 December 2008 Jela Peric (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 November 2008.
The Respondents to the Appeal are Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy (First respondents) and WorkCover Authority of NSW (Second respondent).
The Appellant worker, who is now 56 years of age, was employed by the First respondents as a shop assistant in March 2003. The Appellant’s duties included making sandwiches, beverages and serving customers. The evidence is unclear however it appears that the Appellant worked five hours per day, five days per week in this position. It seems that the Appellant had, up until a date in early September 2003, concurrent employment working at a retail store.
The Appellant alleges that she was injured in the course of her employment with the first respondents on 26 September 2003. The circumstances concerning the occurrence of such injury and any consequences of the incident are the subject of dispute. It is the Appellant’s allegation that, whilst operating an electric juicer, she received an electric shock by reason of the faulty operation of that appliance causing injury to various parts of her body. It appears that the Appellant was absent from work and paid wages for a period of two weeks by reason of alleged incapacity following which she returned to work performing what was described as “suitable duties” over two days. Thereafter, on 11 October 2003, it appears that the Appellant, by reason of pain in her left arm, sought treatment at Westmead Hospital. The Appellant, excepting a short period during which she worked as a babysitter, has not worked since October 2003.
It is common ground that the First respondents were not, at relevant times, the holders of a policy of insurance as required by the provisions of section 155 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 21 May 2008 a claim in respect of workers compensation benefits was made against the Second respondent on behalf of the Appellant by her solicitors. That claim was in respect of weekly payments, section 60 medical expenses and lump sums pursuant to section 66 of the 1987 Act. A dispute arose with respect to that claim and an Application to Resolve a Dispute (‘ARD’) was filed on behalf of the Appellant by her solicitors on 18 August 2008.
A notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) was given to the appellant by the Second respondent on 18 August 2008. That notice disputed the occurrence of injury and, in the alternative, stated that if such injury had been received the Appellant had recovered from same. Liability in respect of medical expenses was declined in that notice and it was asserted that the Appellant’s employment was not a substantial contributing factor to any injury as alleged. The Appellant’s claim in respect of a lump sum was declined upon the basis that no whole person impairment resulted from the alleged work injury. The notice particularised that the claim had been declined “… pursuant to the provisions of s4, s9A, s33, s59, s60 of the Workers Compensation Act 1987…”. That notice was annexed to the Reply filed on behalf of the second respondent in response to the ARD.
The ARD described the subject injury as having occurred on 26 September 2003 in the following circumstances: “The applicant was electrocuted whilst preparing a squeezed orange juice for a customer”. The injury description was: “Neck, head, left and right shoulders, left arm, legs, teeth and psychological [sic]” ( Part 4 ARD ).
The ARD claimed weekly benefits from 26 September 2003 to date and continuing, medical, hospital and rehabilitation expenses totalling $17,743.00 and a lump sum of $8,750.00 in respect of 7% whole person impairment resulting from injury to her spine.
The ARD came before an arbitrator on 14 November 2008 for conciliation/arbitration. The matter proceeded to a hearing of the dispute at which the Appellant and the Second respondent were represented by counsel. There was no appearance on behalf of the first named respondents. Following submissions put on behalf of those parties appearing the arbitrator reserved his decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ (COD), dated 24 November 2008 records the Arbitrator’s orders as follows:
“The Commission determines:
1. Award for the Respondent as regards the Applicant’s claim for compensation for permanent impairment and pain and suffering pursuant to Sections 66 and 67 of the Act.
2. Award for the Respondent as regards the Applicant’s claim for weekly benefits.
3. The Respondent to pay the Applicant’s reasonable medical expenses with respect to medical expenditure relating to her cervical spine up to 19 December 2006, upon production of accounts and/or receipts.
4. The Respondent to pay the Applicant’s costs as agreed or assessed.”
A Statement of Reasons (Reasons) accompanied that COD.
ISSUES IN DISPUTE
The application seeking leave to bring this appeal sets forth but one ground upon which the Arbitrator’s determination is challenged and is as follows:
“1. The arbitrator erred in adjudicating a medical dispute with respect to the applicant’s claim for lump sum compensation pursuant to section 66 and 67 of the 1987 Act.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the appellant and second respondent 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Appellant has indicated in Part A of its application concerning this appeal that, with respect to procedural matters, both requirements as to quantum and time prescribed by section 352 of the 1998 Act have been meet. No submission is otherwise made in support of that assertion.
The Second respondent in its Notice of Opposition to this appeal submits that:
“The respondent submits in the absence of submissions from the appellant leave should not be granted to appeal under s 252(2) [sic 352(2)] of the 1998 Act”
There being no issue between the parties as to the time requirements prescribed by section 352 I conclude that the requirements of subsection (4) of that section have been met given that the application concerning the appeal was filed with the registry on 22 December 2008.
The amount claimed by the Appellant in respect of weekly payments and lump sums as appears in the ARD clearly establishes that the amount at issue exceeds the monetary thresholds prescribed by section 352(2)(a), namely “at least $5,000.00”. The threshold prescribed by section 352(2)(b) being, “… at least 20% of the amount awarded in the decision appealed against” is of no relevance given that no amount of compensation has yet been awarded (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The matters summarised in [19] above are not the subject of dispute. In the circumstances I conclude that there is no impediment to entertaining the appellant’s application for leave to proceed with this appeal in the absence of any explicit submissions concerning the threshold questions raised pursuant to section 352 of the 1998 Act. The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the appellant to appeal to the Commission.
EVIDENCE
The documentary evidence which was before the Arbitrator is summarised at [7] of the arbitrator’s Statement of Reasons (‘Reasons’) and included the following:
1.the ARD lodged on 18 August 2008 together with its annexures;
2.the report of Dr A P McClure dated 22 July 2008;
3.an incident report prepared on behalf of the First respondents’ lessor;
4.documents detailing medical expenses which were the subject of the Appellant’s claim attached to an Application to Admit Late Documents lodged on 5 September 2008;
5.details of medical expenses claimed by the appellant contained in documents annexed to an Application to Admit Late Documents lodged with the registry on 12 September 2008;
6.a supplementary report from Dr Salu Dean, consulting psychologist, dated 17 September 2008;
7.Reply dated 29 August 2008 lodged on behalf of the Second respondent together with its annexures (excluding the report of Dr McClure dated 22 July 2008), and
8.an Application to Admit Late Documents lodged on 21 October 2008 on behalf of the Second respondent to which the records of Dr Teychenne and Dr Mukherjee were annexed.
There is before the Commission a transcript of proceedings conducted before the Arbitrator on 14 November 2008 (‘transcript’). That transcript records submissions put on behalf of the Appellant and the Second respondent at that hearing. As above noted there was no appearance by or on behalf of the First respondents.
The Arbitrator between paragraphs [9] and [12] of Reasons provides a detailed summary of the evidence and the parties’ submissions put on their behalf. It is not proposed to attempt a summary of the totality of the evidence, however reference is made below to that evidence which is relevant to the arguments raised on behalf of the parties and to the resolution of the issues which have been agitated on this appeal.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the afore mentioned subsection has most recently been considered by the NSW Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71. The Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator in the course of which the Deputy President approached his task by examining whether or not error had been displayed in the reasoning of the Arbitrator. It was held (Allsop P and Hoeben J, Beasley JA agreeing) that such was the incorrect test for the task of review of the decision under the 1998 Act.
In the joint judgment of Allsop P and Hoeben J is an extensive and detailed examination of relevant authority concerning the proper construction of the term “review” ([17]-[59]). Following discussion of the authorities it was stated (at [57] and [58]):
“57.Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
58.Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
It is clear from the Arbitrator’s reasons that at the hearing the Appellant had abandoned those allegations of injury contained in Part 4 of the ARD with the exception of an allegation of injury to the cervical spine/ neck and psychological injury. It appears that an amendment to “injury description” there appearing was made at a time when proceedings were not recorded and it may well be that such application was made and granted during the course of the conciliation process.
As above noted the only ground raised on this appeal is the suggestion of error on the Arbitrator’s part in “adjudicating a medical dispute with respect to the applicant’s claim for lump sum compensation…”. There is no challenge in this appeal with respect to the Arbitrator’s determination concerning the dispute as to injury nor as to his determination concerning no entitlement on the part of the Appellant to weekly compensation. It is to be noted, in particular, that no submission is put concerning the manner in which the Arbitrator has approached resolution of the dispute between the parties concerning the allegation of psychological injury.
It is appropriate to consider those findings made by the Arbitrator and his expressed reasons for so concluding before dealing with the specific submissions set forth in documents accompanying the application concerning this appeal.
It is recorded at page 3 of the transcript that counsel for the Appellant summarised the nature of the dispute in the following form:
“… The issue you will have to determine, Mr Arbitrator, is did she sustain an electric shock or other form of injury leading to her incapacity to work since that day and has any treatment that she has had for injury arising from that day been necessary and reasonable arising out of any injury from that date.”
The Appellant’s counsel at the hearing, when dealing with the question of entitlement to lump sums as claimed in respect of whole person impairment stated (at transcript page 52):
“… We're pressing that if you find that she was thrown back or did stagger back and injure her neck, then she's suffered a neck injury in the incident.”
Counsel for the Second respondent accepted the earlier summary put as to the nature of the dispute between the parties when he stated (at transcript page 10):
“… My learned friend started her address by referring you to the issue as to whether or not the applicant sustained an injury and, if so, of what nature. For example, did she suffer an electrical shock or other injury as she stated. And that really is the hub [sic] of a great deal of this case.”
The Arbitrator following his summary of both the evidence and submissions made the following observations and made the factual finding as noted at [15]:
“14. Four things however stand out as regards the early reports of the incident. They are:
a. The Westfield Representative, the ambulance record and the First Respondent’s account are consistent suggesting that the Applicant jumped back rather than having been thrown back or thrown against a wall.
The first two accounts were taken from the Applicant and, although they suggest a considerably less violent physical reaction than later accounts, they verify that she was at least surprised and jumped back.
On the balance of probabilities, they are accurate.
b. In the two earliest accounts, the Applicant reports that she “jolted her neck, feeling pain in her left side” and that she suffered “left neck pain”. Although the injury suffered was considerably less violent than suggested in later accounts, it seems clear that the Applicant did suffer a physical injury.
c. Whilst fairly clearly the orange juicer made “funny noises” and there almost certainly was a “bang”, there is no creditable early account of smoke or burns (to the Applicant’s hands, the power point or to the juicer) or of the electrical chord having been damaged or “melted”.
d. S&W Motor and Electrical Repairs Pty Limited in their report of 22 October 2003 state that:
“Upon inspection of JPS Juicing machine which was repaired on October 10 2003, which involved mechanical repair only, there was found to be no electrical fault with machine. It would therefore be very unlikely for electric shock to occur if machine was being operated in the correct manner”.
The report does not use a phrase equivalent to “assembled properly” as contained in the Applicant’s submissions. On the balance of probabilities, there was no electric shock and that the Applicant was therefore not electrocuted.
15. On balance, the evidence in this matter is that the Applicant suffered a minor injury to her neck when the orange juicer malfunctioned. It was related to her employment (Section 4) and her employment was a substantial contributing factor to it (Section 9A).
16. The Applicant however relies upon severe trauma, specifically having been electrocuted, to establish causation for her psychological difficulties and therefore can not establish causation on that basis.
The Applicant has a further difficulty in that Dr Roxanas is twice reported by other Medical Practitioners as having stated that, she apparently assuming that there had been an electric shock, the Applicant’s paranoid schizophrenia was not connected to it.”
The Arbitrator having found the occurrence of injury proven and that the Appellant’s employment was a substantial contributing factor to such injury in terms of section 9A of the 1987 Act, proceeded to address that claim brought by the Appellant pursuant to section 66 of that Act.
The Arbitrator, between paragraphs [17] and [22], summarised the evidence which he apparently considered relevant to a determination of any liability of the employer with respect to payment of a lump sum. The Arbitrator concluded by stating:
“23. On the balance of probabilities the Applicant, although suffering a minor injury to her neck, had recovered fully by the time of Dr McCusker’s report of 19 December 2006 which postdates that of Dr Evans by a little over one year. The Applicant has had ample opportunity to ask Dr Evans to review the report of Dr McCusker but has not done so.
He [sic, She], being a Psychiatrist, may not be as well placed as others to assess the neck. He (sic) is however well placed to assess the Applicant’s psychological condition and to assert that she is malingering.
24. On the balance of probabilities, the Applicant is not now suffering from any permanent impairment. This is therefore an issue which need not be remitted to the Registrar to be referred to an Approved Medical Specialist for assessment.”
It may be seen from the summary of the Arbitrator’s findings as set forth above that he has rejected the Appellant’s allegation that she suffered severe trauma in the incident which undoubtedly occurred on 26 September 2003. It is clear that the Arbitrator has rejected the allegation that the Appellant on that occasion sustained an electric shock.
The Arbitrator has further found (at [23]) that, notwithstanding suffering the injury to her neck as found, the Appellant had “recovered fully” by 19 December 2006.
It is plain from the terms of the Arbitrator’s reasons that he accepts that the Appellant has at relevant times experienced psychological problems, had a diagnosable psychological condition and had from time to time sought treatment in respect of such disability. It is however clear that, having regard to his finding as to the relatively minor nature of the subject trauma which occurred in the course of her employment, he was not satisfied that the Appellant had established a causative connection between that incident and her psychiatric disability. That finding, as noted above, is not the subject of any complaint in this appeal.
The submissions which accompany the Appellant’s application concerning this appeal make reference to the Arbitrator’s finding of fact concerning injury and proceeds to argue that: “5. The arbitrator also determined that there was no entitlement to compensation pursuant section 66 of the 1987 Act.”
The Appellant makes reference to the first paragraph appearing in the Certificate of Determination and proceeds to make reference to the provisions of section 319 of the 1998 Act and the text of the Workers Compensation Commission Guideline, The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission.
It is the Appellant’s argument that, having regard to the terms of the Guideline, an arbitrator when determining a dispute in respect of a worker’s entitlement to compensation for permanent impairment resulting from injury is limited to “resolving/determining” questions as to liability.
The Appellant proceeds to argue that the Arbitrator was obliged to “deal with the question of liability before dealing with the question of permanent impairment”. Reference is made to the decision of Gane v Dubbo City Council [2007] NSWWCCPD 140 (‘Gane’) and reliance was placed upon the statement by Deputy President Roche (at [72]):
“ 72. An Arbitrator should always deal with issues of liability before referring a matter to an AMS to prepare a binding MAC.”…
Further reliance was placed by the Appellant upon the decision of Gane in support of an argument that the Arbitrator, having made a determination with respect to injury, was obliged to refer the medical dispute to an Approved Medical Specialist (‘AMS’). Reference was made to the Deputy President’s observation in that case at [74]:
“ 74. Once the issues of injury and causation are determined the only course open in a claim for lump sum compensation where there is a dispute as to the degree of permanent impairment (section 319(c) of the 1998 Act) is to refer the claim to an AMS for assessment.”…
The Appellant develops the argument concerning the suggested error on the part of the Arbitrator citing the provisions of section 65(3) of the 1987 Act which states:
“(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
The Appellant relies upon those provisions of the Acts referred to, the content of the Guidelines and the decision in Gane in support of the submission that, “… the arbitrator acted beyond his power in determining that the appellant worker had no whole person impairment and no claim for compensation pursuant to section 66 and 67 [sic] of the 1987 Act.”
It is to be noted that there is no claim made pursuant to section 67 of the 1987 Act in these proceeding.
It may be seen that the Appellant’s challenge is to the determination made by the Arbitrator as recorded in paragraph [1] of the Certificate of Determination.
The Appellant, by inference, seeks an order on this appeal that paragraph [1] of the Arbitrator’s determination be revoked. The relief or remedy sought by the Appellant is an order which would satisfy those matters raised at paragraph [16] of the Appellant’s submissions:
“16. The appellant worker submits that this matter ought to be referred to an approved medical specialist for a determination of the appellant worker’s level of permanent impairment in relation to the claim for compensation pursuant to section 66 and section 67 [sic] of the 1987 Act.”
The Second respondent, in opposing this appeal, submits that the Arbitrator was correct in finding that “… the applicant had recovered from injury to her neck on or before 19 December 2006.” (paragraph 1.6 of submissions).
The Second respondent seeks to rely upon the decision of Snell ADP in Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33 (‘Waretini’). The facts of Waretini concerned a worker’s claim in respect of weekly payments, medical expenses and lump sums against his employer in which the arbitrator made a finding that the worker’s “back condition” arising out of injury with his employer had “resolved” and that “any symptoms that he now has are not work related”. The arbitrator proceeded to refer the issue of lump sum compensation resulting from the same injury to an approved medical specialist for assessment.
The Second respondent places particular reliance upon the determination of the Commission in Waretini found at [42]. The context of the Commission’s observations in Waretini is better understood by reference to [41] as well as that extract relied upon by the Second respondent:
“41.Whether the Respondent Worker’s back symptoms were caused by the employment injury was a matter for determination by the Arbitrator, not an AMS. Indeed the arbitrator dealt with the issue before the matter had been referred to an AMS.
42.The Arbitrator’s finding on causation resolved, amongst other things, the question of whether there was any permanent impairment resulting from the employment injury he had found. Accordingly, after the finding on causation was made, there was no dispute to be referred to an AMS.”
The Second respondent proceeds to argue that the Arbitrator’s finding that the appellant had recovered fully from the effects of a minor injury to her neck by the time of Dr McCusker’s report of 19 December 2006 was one as to “causation”. The Second respondent proceeds to argue that, “… the question of whether the appellant had sustained any permanent impairment had been found. Accordingly… there was no dispute to be referred to an AMS”.
It may be seen that the thrust of the Second respondent’s argument is that the Arbitrator, having found that the Appellant had recovered fully from the subject injury, had resolved the dispute between the parties with respect to the claim including that brought with respect to lump sum entitlement.
It may be seen from the summary of submissions appearing above that the Appellant has challenged the Arbitrator’s purported determination of her entitlement to lump sum compensation. Whilst not expressly stated it is apparent that the Appellant asserts that the Arbitrator had no jurisdiction to determine, as he has, that “… the applicant is not now suffering from any permanent impairment. This is therefore an issue that need not be remitted to the Registrar to be referred to an approved medical specialist for assessment.”
On the other hand the Second respondent argues that the Arbitrator’s finding was one with respect to “causation”. It is asserted that the finding that recovery had occurred by 19 December 2006 had resolved the dispute between the parties as to entitlement to a lump sum. In those circumstances there was no dispute between the parties in terms of section 319(c) of the 1998 Act which required referral by the Registrar to an AMS.
Whilst not expressly stated, the question raised on this appeal is whether the arbitrator had jurisdiction to decide, as he did, that the Appellant had recovered fully from the subject injury in the terms as stated at [23] of Reasons.
The arguments raised on the appeal also require determination as to whether the Arbitrator had jurisdiction to make the finding which appears at [24] of Reasons:
“24. On the balance of probabilities, the Applicant is not now suffering from any permanent impairment. This is therefore an issue which need not be remitted to the Registrar to be referred to an Approved Medical Specialist for assessment.”
The general provision concerning jurisdiction of the Commission is to be found in section 105(1) of the 1998 Act which provides:
“(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
The 1987 Act is to be construed with, and as if it formed part of, the 1998 Act (section 2A(2) of the 1987 Act). Section 65(3) of the 1987 Act provides:
“(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
A medical dispute is defined in section 319 of the 1998 Act which provides:
“‘medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 321 of the 1998 Act makes provision for the referral of a medical dispute for assessment. That section provides:
“321. Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4) The Registrar may not refer for assessment under this Part:(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
A medical assessment certificate (‘MAC’) issued by an AMS “is conclusively presumed to be correct… in any proceedings before a court of the Commission” concerning “(a) the degree of permanent impairment of the worker as a result of an injury” and “(b) whether any proportion of impairment is due any previous injury or pre existing condition” (section 326(1)(a) and (b) of the 1998 Act).
It may be seen from my attempted summary of the relevant provisions that the jurisdiction granted to the Commission by section 105 of the 1998 Act is qualified by the operation of section 65(3) of the 1987 Act. That last section requires assessment of permanent impairment by an AMS before the Commission may award compensation under that head of entitlement.
The degree of permanent impairment of the worker as a result of injury is to be determined in accordance with Part 7 of the 1998 Act. Of significance is section 321(3) which provides that the Commission may not refer for assessment… a medical dispute concerning permanent impairment of an injured worker. That subsection and subsection (4) of section 321 was introduced by way of amendment to the 1998 Act which came into operation on 1 November 2006. It may be observed that the wordage of the amendments is less than lucid and at first glance appear to be in conflict with the provisions of section 321(1).
Compliance by an arbitrator with the provisions of section 321(3) requires, in an appropriate case, that the matter be remitted to the Registrar for referral to an AMS to determine the degree of permanent impairment of the worker and whether any proportion of permanent impairment is due to any previous injury or pre existing condition or abnormality (section 326(a) and (b) of the 1998 Act).
There will only be such a referral by the Registrar in circumstances where an arbitrator has made a determination as to liability (section 321(4)(a)) and complied with Practice Direction No. 11. That Practice Direction stipulates, “… any dispute in respect of liability in relation to a claim for permanent impairment must be resolved or determined by the Commission constituted by an arbitrator, prior to the Registrar referring the dispute in relation to degree of permanent impairment for medical assessment.”
The term “liability” is not defined in the Acts. It was observed by Roche ADP (as he then was) in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’) that:
“… To decide liability the Commission must decide, among other things:
(a) whether the worker sustained an ‘injury’ within the meaning of section 4 of the 1987 and 1998 Acts;
(b) does the injury satisfy the conditions in section 9A of the 1987 Act, and
what are the consequences of the injury, that is, what pathology is said to result from the injury.”
The Commission, in Connor, proceeded to consider the meaning of “injury” and reference was made to the definition of that term as contained in the 1987 and the 1998 Acts. Reference was then made to the decision of Neilson J in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (‘Lyons’). Having regard to the matters stated in Lyons the following observation was made at [48]:
“… the determination of the issue of ‘injury’ requires not only an assessment of whether the ‘injurious event’ occurred in compensable circumstances but also whether the pathology found to exist (if any) has been caused by the work event. These are both threshold liability issues to be decided by the Commission not by an AMS or an Appeal Panel. Employment must be a substantial contributing factor to the work event and to the pathology found before liability arises under the legislation. The determination of these issues requires a consideration of all of the factual and legal issues in the case. It is not simply a medical question.”
In the present case the Arbitrator has, properly in my view, addressed the fundamental matters in dispute between the parties, namely, the occurrence and nature of the injurious event sustained by the Appellant and the nature of any resultant pathology. It was the Appellant’s allegation that she sustained an electrical shock which had very significant pathological consequences for her. The Second respondent’s argument before the arbitrator was that, whilst there may have been some injury sustained by the Appellant, such did not involve an electrical shock and the consequences of such injury were minimal and had ceased.
As noted above the Arbitrator concluded, after consideration of evidence contemporaneous with the occurrence of the injury alleged, that the Appellant suffered a minor injury to her neck (at [15] of Reasons) and that she had recovered fully by 19 December 2006 (at [23] of Reasons).
The questions as to jurisdiction raised in this appeal have, to an extent, been addressed by the Court of Appeal in the matter of Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (18 August 2008) unreported (‘Haroun’). That decision has been decided since the date of those judgments of the Commission relied upon by the parties in their submissions.
The relevant circumstances in Haroun were summarised by Handley AJA in his leading judgment (McColl JA and McDougall J agreeing) in the following terms:
“4. On 22 October 2006 the worker’s claim for lump sum compensation came before an Arbitrator in the Workers’ Compensation Commission. He made a number of findings by consent and, under s 321 of the 1998 Act, referred for assessment by an approved medical specialist (AMS) the following questions:
(a) The degree of permanent impairment of the worker as a result of the injuries;
(b) Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion.
5. It was common ground that the matters the Arbitrator referred to an AMS were medical disputes with [sic] s 319 of the 1998 Act.
6. The consent findings of the Arbitrator included a brief reference to each of the accidents and concluded:‘The effects of those injuries continue to contribute to any impairment suffered by the applicant’”
It should be noted that the dispute in Haroun came before an arbitrator on a date before the amendments to section 321 of the 1998 Act came into operation. In Haroun the reference of the question of assessment of permanent impairment was made by the arbitrator, and the terms of that reference were determined by him.
In Haroun the AMS to whom the matter was referred certified in a MAC that impairments as determined had resulted from earlier injuries or pre existing conditions. There was conflict between the MAC and the finding made by consent by the arbitrator at the time of referral. An appeal from the AMS certification was made to a medical appeal panel however the MAC was confirmed. Before the Court of Appeal it was submitted by counsel for the worker that, “… the consent finding of the arbitrator was a relevant matter which the panel were bound to take into consideration, but they had rejected it as utterly irrelevant.” That submission was rejected by Handley AJA when it was said (at [16]):
“16. In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion. The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers’ Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel.”
The Court of Appeal concluded (at [21]) that, “Since the arbitrator had no jurisdiction to decide the medical dispute he [sic] referred [sic, he] had no jurisdiction to make findings which were binding on the AMS or appeal panel. The finding of a person without jurisdiction cannot bind the person or the persons with jurisdiction, and cannot even be persuasive.”
The question arises in the present matter as to whether the Arbitrator’s findings concerning the consequences of the subject injury as outlined in [35] above were determinations in respect of which he had jurisdiction. It is acknowledged in the decision of Haroun that the scheme of the 1998 Act read with the 1987 Act makes provision for having factual and legal issues resolved by an arbitrator.
I am of the opinion that a question as whether an injury proven in proceedings before the Commission has caused ongoing disability or whether such injury has had a pathological effect limited to a particular period of time is a legal question (namely one of causation), which remains within the exclusive jurisdiction of the Commission (an arbitrator) to decide. Such questions arise for determination in various circumstances on a regular basis before the Commission (for example whether aggravation of a disease is permanent or otherwise; whether incapacity results from one or more identified injuries; whether apportionment among employers pursuant to section 22 of the 1987 Act is appropriate in case of multiple proven injuries). The fact that a claim may involve a question of the degree of permanent impairment as a result of an injury in terms of section 319 does not, in my view, deprive an arbitrator of jurisdiction to determine questions as to the duration of pathological consequences of an injury.
As noted above the Appellant places reliance upon the decision of the Commission in Gane. In my view Gane is distinguishable from the present matter. In Gane the Commission was dealing with an alleged “further loss” resulting from an undisputed injury. It was determined on appeal that the worker had an arthritic condition which resulted from that injury. It was there stated by Roche DP:
“It is accepted that issues of injury and causation are matters for Arbitrators to determine (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124). In the present matter it is my view that the evidence strongly supports a finding that the arthritis in Mr Gane’s left knee resulted from the injury on 7 November 1999 and that is the finding I make.”
The finding thus made in Gane required that the matter be referred to an AMS for assessment. In the present matter the arbitrator has determined the issue of “injury” as it appears at [23] of Reasons. Such findings, as stated, resolved the dispute in toto.
The Arbitrator’s finding made at [23] of Reasons may also, in my view, be readily distinguished from the “consent” finding purportedly made by the arbitrator in Haroun being that “ (the subject injuries)…continue to contribute to any impairment…”. There the AMS found, as it was entitled, no impairment. Here the finding resolved not only the dispute as to the true nature of the injuries suffered by the Appellant but also determined the dispute concerning the pathological consequences of such injury. Such finding, being one within the exclusive jurisdiction of the Commission, resolved the dispute.
The finding by the Arbitrator (at [24]) that, “On the balance of probabilities, the Applicant is not now suffering from any permanent impairment” may be characterised as both logical and axiomatic. However such finding must be seen as one in respect of which the arbitrator had no jurisdiction. That finding and the Arbitrator’s observation that there was no need for remission to the Registrar for referral to an AMS were made in error. I so conclude notwithstanding my earlier stated acceptance that the resolution of the dispute by the Arbitrator had been properly made within jurisdiction.
The errors identified, not being findings essential to the ultimate determination of the dispute, does not vitiate the Arbitrator’s decision.
The Arbitrator’s factual conclusion stated at [23] of Reasons was, in my view, available to him on the evidence and is a conclusion with which I respectfully agree. The Appellant’s ground of appeal is rejected and the appeal must fail.
DECISION
The decision of the Arbitrator dated 24 November 2008 is confirmed.
COSTS
No order as to costs of this appeal.
Kevin O’Grady
Deputy President
4 May 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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