Podmore v Yarran Park Pty Ltd
[2004] NSWWCCPD 25
•7 May 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Podmore v Yarran Park Pty Ltd [2004] NSW WCC PD 25
APPELLANT: Gregory Martin Podmore
RESPONDENT: Yarran Park Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 14103-2003
DATE OF ARBITRATOR’S DECISION: 26 November 2003
DATE OF APPEAL DECISION: 7 May 2004
SUBJECT MATTER OF DECISION: Leave to file late Reply.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers.
REPRESENTATION: Appellant: Adams Leyland Solicitors
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
Each party is ordered to bear its own costs.
THE APPEAL
On 17 December 2003 Gregory Martin Podmore (‘the Appellant Worker/Mr Podmore’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 November 2003.
The Respondent to the Appeal is Yarran Park Pty Ltd (‘the Respondent Employer’).
The relevant insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘the Insurer’).
The appeal was referred to me for review on 30 April 2004.
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
ON THE PAPERS REVIEW
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.
Neither party has indicated a view as to whether this matter can be dealt with ‘on the papers’. However, 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 issue in dispute in the appeal is whether the Arbitrator erred in granting leave for the Respondent Employer to file the Reply out of time.
BACKGROUND TO THE APPEAL
An Application to Resolve a Dispute (‘the Application)’ was lodged in the Commission by the Appellant Worker on 25 August 2003. The Appellant Worker is claiming lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of an injury to his right leg at or above the knee suffered on 31 August 2001 during his employment with the Respondent Employer.
At the teleconference of 26 November 2003, leave was granted for an extension of time for the Respondent Employer to file a Reply to the Application. On 28 November 2003, the Respondent Employer duly filed and served the Reply in accordance with the order made by the Arbitrator.
The reason provided by the Arbitrator for granting leave to extend the time for the Respondent Employer to file its Reply was as follows:
“Following submissions made by each party and having regard to Practice Direction 9 I determine that a refusal to allow the Reply to be filed could cause substantial prejudice to the Respondent while not prejudicing the Applicant in terms of delaying the progress of the matter.”
SUBMISSIONS
The Appellant Worker
The Appellant Worker submits that, “to allow the lodgement of late Replies without reasonable excuse to become the normal and accepted practice of the Commission would undermine the integrity of the legislation and Rules of the Commission”. The Appellant refers to the decision in ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21 (‘Ferguson’) in which Deputy President Fleming found that the discretion to allow the filing of late documents should only be exercised in “exceptional circumstances”. The Appellant argues that the failure of the insurer to send the file to their solicitors within time is not an exceptional circumstance to warrant the grant of the discretion.
The Appellant Worker refers to a similar matter before another Arbitrator who refused such an Application and submitted that it is “desirable and necessary that the Commission have a consistent approach to this issue”.
The Appellant Worker submits that the omission of the Respondent Employer’s Reply will not result in substantial injustice or prejudice to the Respondent as the claim has been referred to an independent Approved Medical Specialist (‘AMS’) for the determination of permanent impairment.
The Appellant Worker further submits that the Reply addresses issues that are not in dispute as per the Respondent Employer’s letter of denial dated 6 November 2003, such as liability and medical expenses. The Appellant Worker argues that to allow the Respondent Employer to raise new issues in the Reply that were never previously notified as being in dispute would create a serious prejudice to the Appellant Worker’s claim and contravene section 74 of the 1998 Act.
The Respondent Employer
The Respondent Employer submits that Mr Podmore’s failure to attend a prearranged medical appointment with Dr Haynes on 7 July 2003 amounted to “a failure to prosecute the claim in a timely manner … and constituted a failure on the part of the Appellant to provide all relevant particulars about the claim in breach of section 282(2) of the 1998 Act”. The Respondent Employer argues that as a consequence of Mr Podmore’s default, an alternative appointment was made with Dr Sharp, an arrangement that prejudiced the Respondent’s preparation of a response, as it was not in a position to deal with the matter until the report from Dr Sharp came to hand.
The Respondent Employer further submits that the Appellant Worker’s grounds of appeal are “misleading in a number of material particulars”. The Respondent Employer maintains that the Appellant Employer’s assertion that there was no response to the notice of claim forwarded to the Respondent Employer’s Insurer on 4 June 2003 is incorrect. Furthermore, it was submitted that the Appellant Worker ought to have received a further letter dated 27 August 2003 advising of Mr Podmore’s failure to attend Dr Haynes’ medical appointment and that a further medical appointment had been arranged with Dr Sharp.
The Respondent Employer submits that it is improper and irrelevant for the Appellant Worker to rely on an unrecorded decision of an Arbitrator in another matter. The Respondent stated that, “whatever may have occurred in a teleconference on 3 December 2003 is irrelevant to these proceedings and an attempt to introduce that material is improper as it is clearly a matter where the Respondent is completely disadvantaged in attempting to respond to the assertion being made”.
Under the heading ‘Merits of the Respondent’s Case’, the Respondent Employer submits that the report of Dr Sharp raises an issue as to the stabilisation of the worker’s condition and that to deprive the Respondent of the opportunity of advancing that opinion to the AMS is a denial of natural justice. In support of this submission, the Respondent Employer refers to the objectives of the Commission under section 354 of the 1998 Act. Furthermore, the Respondent Employer contends that Dr Sharp’s report raises an issue that is not otherwise supplied by the Appellant Worker in support of his claim, and being relevant material, the issue raised as to section 74, as alleged by the Appellant, is incorrect.
The Respondent Employer further submits that the Arbitrator exercised a discretion where the parties had been accorded procedural fairness and had taken relevant factors into account. In such a situation it is not appropriate on review to interfere with the Arbitrator’s decision (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 (‘Sandford’)).
DISCUSSION AND FINDINGS
Dealing first with the issue of the report of Dr Sharp, there is no reason why that report cannot be referred to the AMS, whether or not leave is granted to admit the late Reply. An AMS has the power to consult with other medical practitioners who have currently or previously treated the worker; may call for the production of medical reports and may examine the worker (section 324 of the 1998 Act). The Commission has no power to restrict the disclosure of information, including medical reports, to an AMS, whether or not that information is admitted in proceedings before the Commission (Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7). The Respondent Employer is entitled to have Dr Sharp’s report submitted to the AMS, along with other medical reports and information relevant to the Appellant Worker, and is at liberty to arrange this with the Registrar.
I agree with the Respondent Employer that the Appellant Worker cannot rely upon an unreported decision of an Arbitrator in a teleconference in another matter that was determined on its merits, except to say that the Commission has stated in a number of decisions on appeal, including Ferguson, the bases upon which decisions are to be made by the Commission in relation to applications to admit late documents. It is not necessary to reproduce here what was said in that case.
The Arbitrator in the instant case had the opportunity to consider the submissions made by the parties. He was aware of the history of the proceedings before him and the steps taken by the Appellant Worker in bringing the dispute to the Commission, as well as the steps taken by the Respondent Employer. It is apparent to me, as undoubtedly it was to the Arbitrator, that neither party has pursued its case as it might have done. The substantive issues in the dispute between the parties are not yet settled, according to the Appellant Worker. However, this is a matter for the Arbitrator, in dealing with and determining the matter in the proceedings before him.
The exercise of the discretion to allow late documents is the exception rather than the rule, in the Commission. In this case there are flaws on both sides in relation to getting the dispute before the Commission. The Respondent Employer is not prejudiced regarding medical reports and information, whatever the decision in this appeal, as medical reports and information may be put before the AMS, as previously stated. However, the likelihood of prejudice arises if the medical reports and the contents of the Reply are excluded from the proceedings before the Arbitrator. As the medical reports may proceed to the AMS in any event, the Appellant Worker is not unduly prejudiced either, except to the extent that he will be required to address in the arbitral proceedings, having regard to his own submissions in this appeal, the clarification of the issues that are in dispute and, except for the issue of admission of late documents, whether they are properly before the Arbitrator, or not. I see no reason to displace the decision of the Arbitrator and consider that the grounds of the substantive dispute should be crystallised before the Arbitrator, and the dispute should proceed to be determined on its merits.
DECISION
The appeal is not allowed. The decision of the Arbitrator is confirmed.
COSTS
The Respondent Employer seeks an award of costs in this appeal. Having regard to the circumstances of the appeal, I order that each party is to bear its own costs.
OTHER MATTERS
The Registrar should ensure that the medical report and information submitted with the Reply are submitted to the AMS as soon as possible.
Gary Byron
Deputy President 7 May 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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