Ponticello (as executrix of the estate of the late Giorgio Gino Ponticello) v De Martin & Gasparini Pty Ltd
[2010] NSWWCCPD 46
•4 May 2010
| WORKERS COMPENSATION COMMISSION | ||||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||||
| CITATION: | Ponticello (as executrix of the estate of the late Giorgio Gino Ponticello) v De Martin & Gasparini Pty Ltd and anor [2010] NSWWCCPD 46 | |||||||
| APPELLANT: | Nunziata Ponticello (as executrix of the estate of the late Giorgio Gino Ponticello) | |||||||
| FIRST RESPONDENT: | De Martin & Gasparini Pty Ltd | |||||||
SECOND RESPONDENT: | De Martin & Gasparini Contractors Pty Ltd | |||||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||||
| FILE NUMBER: | A1-003553/09 | |||||||
| ARBITRATOR: | Mr S Geordiadis | |||||||
| DATE OF ARBITRATOR’S DECISION: | 28 October 2009 | |||||||
| DATE OF APPEAL DECISION: | 4 May 2010 | |||||||
| SUBJECT MATTER OF DECISION: | Compensation for pain and suffering after death of worker, and section 67(5) of the Workers Compensation Act 1987 | |||||||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||||||
| HEARING: | On the papers | |||||||
| REPRESENTATION: | Appellant: | Villari Lawyers | ||||||
| Respondents: | Moray and Agnew | |||||||
| ORDERS MADE ON APPEAL: | The Certificate of Determination dated 28 October 2009 is confirmed, save for paragraph 2, which is revoked and the following order made in its place: “(2) An award for the respondents in respect of the claim pursuant to section 67 of the Workers Compensation Act 1987.” No order as to costs of the appeal. | |||||||
BACKGROUND TO THE APPEAL
Mr Ponticello worked as a concreter with the first respondent, De Martin & Gasparini Pty Ltd, from about 1982 until 30 June 1996 and with the second respondent, De Martin & Gasparini Contractors Pty Ltd, from 1 July 1996 to 8 February 2002. Mr Ponticello sustained injury to his back and both legs as a result of a number of frank incidences throughout his employment and as a result of the nature and conditions of employment. Mr Ponticello received voluntary compensation payments.
In 2002, Mr Ponticello brought proceedings against both respondents in the former Compensation Court on NSW (matter number 7300/02). He claimed lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’), in respect of injury to his back and both legs. These proceedings resolved by way of settlement on 4 September 2003.
On 6 December 2007, Mr Ponticello claimed compensation under section 66 in respect of 35% further permanent impairment of the back, 10% further loss of efficient use of the right leg at or above the knee and 5% further loss of efficient use of the left leg at or above the knee, together with medical expenses of $5,491.00. He also claimed additional compensation under section 67 for pain and suffering in the sum of $15,250.00.
On 31 October 2008, Mr Ponticello also gave notice to both respondents of a claim for 35% of use of sexual organs under section 66 and compensation under section 67 for pain and suffering.
On 7 May 2009, Mr Ponticello filed an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’). Against the first respondent, Mr Ponticello claimed injury as a result of the ‘nature and conditions’ of his employment from 1 July 1994 to 30 June 1996. Against the second respondent, he claimed injury as a result of the ‘nature and conditions’ of employment form 1 July 1996 to 8 August 2002, and frank injuries on 20 October 2001 and 30 November 2000. He claimed lump sum compensation under sections 66 in respect of 35% further permanent impairment of the back, 10% further permanent loss of efficient use of the right leg at or above the knee, 5% further loss of efficient use of the left leg at or above the knee, and 35% permanent loss of use of sexual organs. He also claimed additional compensation under section 67 for pain and suffering and medical expenses for an MRI scan and surgery in the form of a lumbar laminectomy.
The respondents filed a Reply on 19 May 2009 annexing a medico-legal report from Dr Maher, urological surgeon, dated 18 December 2008 and a letter from the Respondents’ solicitors to Mr Ponticello’s solicitors making an offer of settlement of $12,400.00 in respect of 20% loss of sexual organs ($9,400.00) and $3,000.00 further compensation under section 67.
The matter was listed for a teleconference on 12 June 2009. A Certificate of Determination - Consent Orders issued on 15 June 2009 in the following form:
“1. That the proceedings in respect of the lump sum dispute relating to sexual organs are discontinued and the requirement to lodge a notice of discontinuance is dispensed with. The parties agree to exchange a complying agreement in respect of this component of the claim.
2. That the matter be remitted to the Registrar for referral to an AMS for assessment of any FURTHER permanent loss of efficient use or impairment under the Table of Disabilities for the following:
a. Nature and conditions of employment from 1 July 1994 to 30 June 1996 in respect of the back;
b. Frank injury on 20 October 2000 [sic-2001] in respect of the back; right leg at or above the knee; and left leg at or above the knee;
c. Frank injury on 30 November 2000 in respect of the back; right leg at or above the knee; and left leg at or above the knee;
The documents to be sent to the AMS are those accepted into these proceedings, being the ARD and all attached documents and the Reply and all attached documents.
3. That the Respondent pay the Applicant up to the sum of $5,781.30 for section 60 of the 1987 Act expenses, upon production of accounts or receipts.”
Mr Ponticello and his solicitor, Ms Gabriela Faura, signed a ‘Complying Agreement for Permanent Impairment under section 66A of the Workers Compensation Act 1987’ (‘the Agreement’) on 12 June 2009. The document contained details of the claim in respect of 20% loss of use of sexual organs and previous awards of compensation. In the section headed “Amount of Compensation” the following was recorded:
| Amount of Compensation | |
| Section 66 injury amount: | $9,4000.00 [20% loss of use of sexual organs] |
| Section 66 interest amount: | In accordance with section 111 of the Workplace Injury Management and Workers Compensation Act 1998 |
| Section 67 pain and suffering amount: | To be agreed or assessed |
| Section 67 interest amount: | In accordance with section 111 of the Workplace Injury Management and Workers Compensation Act 1998 |
| Section 60 expenses: | |
| Costs | (as agreed or taxed) |
The matter was referred to the Registrar and an appointment was made with Dr Wilding, Approved Medical Specialist (‘AMS’), to assess the further loss claims under section 66 for the back, and both legs. Dr Wilding examined the worker on 22 July 2009.
Dr Wilding’s Medical Assessment Certificate (‘MAC’) dated 10 August 2009, was issued to the parties and the matter was set down for a further teleconference on 14 September 2009.
Mr Ponticello died on 3 September 2009. The solicitors for the appellant have now informed the Commission that the correct legal identity of the appellant is Ms Nunziata Ponticello, also known as Nunzia Ponticello, executrix of the estate of the late Mr Ponticello, (‘the appellant/Ms Ponticello’). The Commission record has been amended. The estate pressed the claims for the payment of additional compensation under sections 66 and 67.
At the teleconference on 14 September 2009, the respondents agreed to pay the estate compensation under section 66 in accordance with the findings of Dr Wilding’s MAC. However, after Mr Ponticello’s death, and in accordance with the terms of section 67(5) of the 1987 Act, the respondents refused to pay compensation under section 67 for pain and suffering.
The issue for determination by the Arbitrator was whether Ms Ponticello was entitled to receive compensation under section 67 in circumstances where the worker died after the MAC issued, but before a final settlement or determination of the claim under section 67. The Arbitrator directed the parties to file and serve written submissions and, after receipt of those submissions, he determined the matter on the papers.
Section 67(5) is in the following terms:
“Compensation under this section is not payable after the death of the worker concerned.”
The Arbitrator issued a Certificate of Determination and written Statement of Reasons (‘Reasons’) on 28 October 2009. He found that, in the circumstances, section 67(5) operated to preclude an award under section 67 and he dismissed the claim.
On 23 November 2009, leave was sought on behalf of the estate to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the decision dated 28 October 2009.
Both respondents are insured by CGU Workers Compensation (NSW) Ltd and were jointly represented before the Arbitrator and are jointly represented on appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 28 October 2009 records the Arbitrator’s orders as follows:
“1. That the Respondents pay the Applicant (in the interest of the Applicant’s estate) further lump sum compensation for permanent loss of efficient use or impairment pursuant to section 66 of the Workers Compensation Act 1987, agreed to total $40,500, in accordance with the medical assessment certificate (MAC) of Dr K Wilding (AMS) issued by the Commission.
2. That the Application in respect of further compensation for pain and suffering pursuant to Section 67 of the Workers Compensation Act 1987, is dismissed.
3. That the Respondents pay the Applicant’s costs of these proceedings up to the point of the conclusion of the teleconference on 14 September 2009, as agreed or to be assessed.”
The Arbitrator confirmed that the worker’s section 66 rights were “accrued vested rights” within section 235 of the 1998 Act and survived for the benefit of his estate. He noted that the parties had resolved the section 66 claims, with the respondents agreeing to pay $40,500.00 in respect of the further loss and impairments assessed by Dr Wilding.
The Arbitrator rejected the submissions that the worker became entitled to further compensation under section 67 as at the date of the MAC, namely 10 August 2009. He also rejected the submission that the worker died during a period when judgment was reserved, rather than a period during the proceedings. The Arbitrator said at [22] of his Reasons:
“I do not accept that submission as there had been no conclusion reached in respect of section 67 matters to arrive at a point where reserved judgement was being contemplated. At best, given the MAC is conclusively presumed to be correct, in the absence of any appeal to the Medical Appeal Panel, it can only be said that the matter had reached conclusion in respect of lump sum compensation pursuant to section 66, but not section s67 pain and suffering which was still to be considered. It may be the case, for example, that post MAC the Commission may have elected to hear evidence from the Applicant in its deliberations regarding section 67-but that stage had not yet been reached as the matter had not at that time come before the Commission’s first stage of teleconference.”
The Arbitrator followed the reasoning of Priestley JA in Bresmac Pty Limited v Starr (1992) 29 NSWLR 318 (‘Bresmac’). The Arbitrator held that the express wording of section 67(5) made it clear that the entitlement to compensation under section 67 was personal and did not survive for the benefit of the estate. The purpose of section 67 was to compensate for actual pain and suffering, which could not be realised after the worker had died.
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 submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence on appeal.
ISSUES ON APPEAL
The issue in dispute in the appeal is whether the Arbitrator erred in finding that the worker’s rights to compensation under section 67 were extinguished on his death by operation of section 67(5) given that:
(i) the MAC issued prior to the worker’s death; and
(ii) the parties executed a Complying Agreement under section 66A prior to the worker’s death.
The appellant seeks an order that the estate is entitled to compensation under section 67 of the 1987 Act and that the matter be remitted for determination. The respondents seek to have the Arbitrator’s decision confirmed on appeal.
SUBMISSIONS
Appellant’s submissions
The appellant relies on written submissions on appeal and written submissions before the Arbitrator dated 28 September 2009. These are summarised below:
(a) The decision of Bresmac is authority that no compensation is payable under section 67 unless the worker who experienced the pain and suffering is alive at judgment to receive it. If, however, at judgment, the right under section 67 has been determined, the sum is recoverable by the estate of the worker who dies subsequent to judgment as a debt owing to the estate.
(b) In the Commission, a MAC, a Certificate of Determination, or an agreement, are all equivalent to “judgments” in a court and are all enforceable.
(c) Before his death, the worker underwent examination by Dr Wilding, who assessed a deterioration in his condition since the previous settlement in 2003.
(d) The current claim was in respect of a deterioration of the worker’s orthopaedic injuries. Section 67 compensation had previously been paid and, despite the terms of section 67(5), the worker was entitled to further compensation under section 67.
(e) The appellant relied on the unreported decision of Department of Education v Howlett (CA (NSW) No. 40284196 (27.4.96), which confirmed that workers who receive compensation under section 67 are entitled to claim further compensation under section 67, if there is a further loss as a result of the injury.
(f) Dr Wilding issued a MAC and assessed a permanent impairment in respect of deterioration of Mr Ponticello’s orthopaedic injuries to his back and both legs. The worker’s section 66 entitlements were not disputed and Dr Wilding’s MAC was not appealed.
(g) Section 326 of the 1998 Act confirms that a MAC is conclusively presumed to be correct as to the degree of permanent impairment as a result of the injury. Therefore the worker became entitled to compensation pursuant to section 67 at the date of the MAC (10 August 2009).
(h) Had the parties not reached agreement the Arbitrator would have made a determination on the material before him including the worker’s written statement dated 11 February 2009.
(i) The Commission is a “front end loaded system” where all the evidence is filed with the Application and Reply. In distinguishing the present case from Bresmac, the Appellant submits:
“In comparison with the Compensation Court system, it can be said that the worker in this mater died during a ‘reserve judgment’ period, rather than ‘during proceedings’.”
(j) The present matter is distinguished from TNT Australia Pty Ltd v Horne (1995) 11 NSWCCR 497 (‘Horne’), because, in that case, the worker died before the proceedings had been commenced.
(k) The Arbitrator erred in dismissing the worker’s argument on the basis that the present case was distinguishable from other cases because leave is required to call oral evidence. The Commission may elect to hear oral evidence in deliberations regarding section 67 (Reasons at [22]). The respondents did not submit that they required the worker for cross-examination prior to entering the Complying Agreement. The quantum of the section 67 compensation could have been determined on the papers.
(l) Before his death, Mr Ponticello entered into a Complying Agreement with the respondents to settle the claim for loss of use for sexual organs in respect of 20% under section 66 and section 67, pain and suffering compensation, was “[t]o be agreed or assessed”. Mr Ponticello was alive at the time of the Complying Agreement and that was the relevant time that compensation pursuant to section 67 became payable. The Complying Agreement is an enforceable agreement by the estate.
(m) In respect of the Complying Agreement “it is implicit in an agreement to pay compensation that the sum agreed upon cannot be NIL.” Alternatively, in the absence of agreement, the parties contracted that an Arbitrator should assess the section 67 entitlement.
(n) The estate was entitled to have the Complying Agreement for the loss of sexual organs enforced in relation to the section 67 component, that is, to have the section 67 entitlement assessed by an Arbitrator pursuant to section 66B of the 1987 Act.
(o) Pursuant to section 67(1), there is a dispute in respect of the worker’s entitlement to section 67 compensation under the Complying Agreement and, therefore, pursuant to section 67(4), the Commission may enter an award to give effect to the agreement and assess the worker’s entitlement, if the parties cannot agree.
(p) The Arbitrator’s reasons at pages 8 and 9 of his decision are inadequate and fail to address whether the Commission has jurisdiction to enforce the Complying Agreement under section 66B.
(q) There is a dispute as to the appellant’s entitlement to section 67 compensation under the Complying Agreement and, therefore, pursuant to section 66B(1) and 67(4), the Commission has jurisdiction to determine the claim for compensation under section 67.
Respondents’ submissions
The respondents rely on submissions on appeal and their written submissions before the Arbitrator dated 15 September 2009. These are summarised below:
(a) Dr Wilding issued a MAC on 10 August 2009. On 14 September 2009, the Arbitrator made orders pursuant to section 66. The section 67 claim was disputed by the respondents because the worker died after the MAC issued and before any determination was made.
(b) The appellant’s submissions are defective because they fail to demonstrate why section 67(5) does not apply.
(c) The respondents rely upon section 67(5), which is in explicit terms.
(d) The respondents also rely on the authorities of Bresmac per Priestley JA at 617 and Horne, and that no compensation is payable under section 67 unless the person who experienced the pain and suffering is alive at the date of judgment.
(e) The worker is not alive and, because there had not been a formal order or judgment in the worker’s favour prior to his death, section 67(5) applies and operates to disentitle the worker’s estate from receiving compensation under section 67, despite the fact the worker would have satisfied the threshold under section 67, had he been alive.
(f) A MAC had certified certain losses but there had been no Certificate of Determination reflecting an order of the Commission in favour of the worker prior to his death.
DISCUSSION AND FINDINGS
A number of the subsections in section 67 were amended by the Workers Compensation Amendment Act 2001 with the change effective from 1 January 2002. The section was amended to make it consistent with the changes to the assessment of permanent impairment under section 66. The operation of the section, however, remained largely unchanged, and subsections (4) and (5) remained unaltered. It reads:
“67 Compensation for pain and suffering
(1) A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.
…
The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.
…
Compensation under this section is not payable after the death of the worker concerned.
…
In this section:
pain and suffering means:
(a)actual pain, or
(b)distress or anxiety, suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.” (emphasis added)
Section 235 of the 1998 Act reads:
“235 Non-assignability of compensation
(cf 1926 s 55; 1987 s 273)
Compensation under this Act (including the 1987 Act and the former 1926 Act):
(a) is not capable of being assigned, charged or attached, and
(b) does not pass to any other person by operation of law, nor can any claim be set off against that compensation.
Subsection (1) has no effect to the extent to which (but for this subsection) it would operate to prevent:
(a) the satisfaction of an obligation by the worker to maintain another person pursuant to an order of a court of competent jurisdiction, or
(b) the passing of accrued vested rights of a deceased worker to the legal personal representative.” (emphasis added)
The Court of Appeal has considered the assigning of accrued vested rights to the deceased worker’s legal personal representative, and the construction and the operation of section 67(5) in a number of cases.
In Bresmac, the appellant appealed the decision of Manser CCJ who had awarded compensation under sections 66, 67 and 60 to Mr Starr, the executor of the estate of an injured worker, Mr Williamson. Mr Williamson died after commencing proceedings in the former Compensation Court, but before judgment was entered.
Bresmac appealed the award made under section 67 on the ground that Mr Williamson had died before judgment. Manser CCJ made the award on the basis that section 67(5) only denied operated compensation for future pain and suffering. Setting aside the award under section 67, and rejecting this interpretation, Priestley JA, with whom Handley JA and Sheller JA agreed, held at page 329:
“In my respectful opinion, the words of subs (5) cannot be read in that way. Even allowing for the possibility of different meanings inherent in quite limited sets of words, it seems to me that the meaning which the words in question would convey to the ordinary reader would be the very simple and obvious one: no compensation under s 67 is payable unless the worker who experienced the pain and suffering is alive at judgment to receive it. I cannot see anything in the words themselves or in their context in the Act (and bearing in mind its history) which give a plausible foothold to any other meaning.”
In Horne, the worker had died as a result of a work injury five weeks after falling onto his head, suffering quadriplegia. After his death, his executrix brought proceedings in the former Compensation Court for compensation under section 66. The lump sum compensation under section 66 had not been quantified by award or agreement prior to the worker’s death.
Duck CCJ, after considering the application of the 1987 Act, the provisions of the Law Reform (Miscellaneous Provisions) Act 1944 and the Court of Appeal authorities of Schlenert v HG Watson Contracting Co Pty Ltd [1979] 1 NSWLR 140 (CA), and Bresmac, held that the benefits under section 66 survived, and the executrix was entitled to bring proceeding and recover an award under that section. The employer appealed, submitting that the benefits under section 66 were personal rights, which died with the worker.
The Court of Appeal confirmed that there existed a long line of authority supporting the fundamental principle that accrued rights to statutory workers compensation benefits survived in favour of the worker’s estate. The Court confirmed that the right to have the worker’s compensation determined accrued immediately upon the injury. The fact that the worker did not live long enough to enforce the accrued right did not change its character. Pursuant to section 273 of the 1987 Act (now section 235 of the 1998 Act) the right had “vested” in him as a legal entitlement. Kirby P (as he then was) held, with Priestley JA agreeing at 509G:
“Critically the claim of the executrix to the deceased’s accrued entitlement to benefits under section 66 of the 1987 Act is dealt with by section 67(5) of the Act. It will be remembered that section 66 is the equivalent of section 16 under the 1926 Act, although substantially enlarged and changed. Section 67 is a wholly novel provision entitling workers to compensation for pain and suffering. Section 67(5) provides:
‘(5) Compensation under this section is not payable after the death of the worker concerned.’
There is no such equivalent provision in section 66 of the Act. By juxtaposition of these sections with their differentiated provisions, it is difficult to escape the conclusion that claims of the kind referred to in section 67, being highly personal and subjective to the worker concerned, are extinguished at the worker’s death. Claims of the more objective kind provided by section 66 survive the worker’s death – just as they have for a very long time before the 1987 Act under the authority of Simpson, Stevens and Schlenert. The foregoing argument is also confirmed by the terms of section 273 of the 1987 Act, set out above.”
Kirby P noted that firstly, there was a presumption against construing legislation so that it interferes with accrued rights and liabilities. To deprive a worker of those rights would require a specific legislative exemption like section 67(5) or a general disqualifying provision. Secondly, if Parliament had intended to deprive workers of such rights (under section 66), the intention would have been expressed clearly, and it was not.
In the present case, the appellant argues that the MAC and the Complying Agreement are the equivalent of a judgment and, as the right to section 67 compensation has been determined, the appellant was entitled to recover that compensation.
Turning first to the status of the MAC, Approved Medical Specialists are not members of the Commission (see section 368 of the 1998 Act) and the issuing of a medical assessment by an AMS is not a “proceeding” before the Commission as defined under Chapter 7, Part 9 of the 1998 Act (see Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Jopa’) at [26]).
Under section 326 of the 1998 Act, a MAC is conclusively presumed to be correct as to the matters listed in section 326(1). However as held by Deputy President Fleming in Jopa at [27]:
“…the issue of a MAC does not equate to a determination of the dispute by the Commission.”
Entitlement to compensation is determined by the Commission not by an AMS (see Milosavljevic v Medina PropertyServices Pty Ltd [2008] NSWWCCPD 56, Issott vNorth Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38, Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWWCCPD 124 and Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131).
Approved Medical Specialists do not determine section 67 compensation, but merely assess section 66 impairments.
Whilst a judgment in earlier proceedings between the same parties may create an estoppel binding on the parties in later proceedings, a MAC, in the absence of any determination by the Commission of the issues in dispute in earlier proceedings, does not bind the parties in later proceedings (JC Equipment Hire Pty Ltd v The Registrar of the WorkersCompensation Commission of NSW [2008] NSWCA 4 and Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 (‘Livaja’).
I accept the appellant’s submission that, under section 326 of the 1998 Act, the MAC is conclusively presumed to be correct as to the degree of permanent impairment under section 66. However, a MAC does not determine the parties’ rights and is not a judgment or a Certificate of Determination.
The MAC was not a decision of the Commission and, as expressly held in Jopa, it does not determine the issues in dispute. Further, whilst an early judgment between the same parties may create issue estoppels binding on both parties, as noted in Livaja, a MAC does not have such effect. A MAC in an earlier proceeding does not create a binding estoppel in later proceedings between the same parties.
In the current proceedings, Dr Wilding’s MAC was issued on 10 August 2009, but the worker’s claim for lump sum compensation under section 66 was not finalised until 28 October 2009, after Mr Ponticello’s death, when the Commission issued the Certificate of Determination ordering the respondents to pay the applicant (in the interest of the applicant’s estate) further lump sum compensation for permanent loss of efficient use or impairment pursuant to section 66 agreed at $40,500.00.
As a result of the legislative presumption under section 326 of the 1998 Act, an AMS’s assessments are conclusively presumed to be correct in respect of the matters listed in 326(1), but the entitlement to compensation for pain and suffering under section 67 and the quantum of that compensation must be determined by agreement or, failing agreement, by a Commission arbitrator.
The Appellant’s submission that, because the Commission is a “front end loaded system”, all the evidence is filed with the Application and Reply, and, therefore, Mr Ponticello died during a “reserved judgment” and not during the proceedings, is without merit. The hearing of Mr Ponticello’s entitlement, if any, to section 67 compensation had not started.
Whilst the dispute resolution model of the Commission is focused on the early exchange of information between the parties, the filing of the Application and Reply is not the commencement of the hearing. In the current matter, the parties attended a teleconference on 12 June 2009, Mr Ponticello was examined by Dr Wilding, and after Dr Wilding issued the MAC, the Commission listed the matter for a further teleconference for submission on the further conduct of the matter, including, the entitlement to section 67 compensation. Only after both parties have tendered the evidence upon which they rely, and have made submissions, either orally or in writing, have the proceedings before the Arbitrator concluded. It is only then that the decision is “reserved”.
Therefore, I am not satisfied that the current legislative scheme has modified the application of the binding authorities of Horne and Bresmac. The plain words of section 67(5) require that section 67 is not payable after the death of the worker concerned. The issuing of the MAC did not constitute a “judgment”. Disputes are determined in the Commission by the issuing of a Certificate of Determination (section 294). That did not occur until 29 October 2009. Mr Ponticello died during proceedings and prior to the issuing of the Certificate of Determination finalising those proceedings.
The appellant raises an alternative argument that it is entitled to section 67 compensation by operation of the Complying Agreement into which the parties entered in respect of the claim for compensation for loss of use of sexual organs. Whilst the copy of this Agreement was only executed on behalf of the worker, the respondents have not taken issue with the validity of the Agreement and, pursuant to the Agreement, compensation under section 66 has already been paid.
I accept the appellant’s submission on appeal that the Arbitrator’s decision fails to disclose that he considered this alternative argument. However, for the reasons given below, I do not consider that this omission affects the ultimate outcome.
Section 66A(1) and (2) reads as follows:
“66A Agreements for compensation
(1) In this section, complying agreement means a written agreement:
(a) under which a worker who has received an injury, and an employer or insurer, agree as to either or both of the following:
the degree of permanent impairment that has resulted from the injury,
the amount of pain and suffering compensation to which the worker is entitled in respect of the injury, and
(b) in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice before entering into the agreement.
(2) If a worker enters into a complying agreement in relation to an injury:
(a) the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed, and
(b) the pain and suffering compensation to which the worker is entitled in respect of the injury is the amount so agreed.” (emphasis added)
Section 66B expressly precludes the Commission from entering an award to give effect to a complying agreement unless the proceedings also relate to some dispute in connection with the worker’s claim for compensation under the Act.
The terms of the Complying Agreement particularised the degree of permanent impairment for loss of use of sexual organs of 20% and the compensation payable under section 66 in the sum of $9,400.00. There is no dispute that the percentage of permanent impairment exceeded the 10% threshold in section 67(1).
Section 66A(1)(a)(ii) provides for a Complying Agreement to specify “the amount of pain and suffering compensation to which the worker is entitled”. The agreement that the appellant seeks to enforce stated that the section 67 compensation was “to be agreed or assessed”.
Given that the quantum of the pain and suffering compensation remained an issue in dispute, the Commission had jurisdiction under section 66B to entertain proceedings.
However, no agreement had been reached between the parties and the Commission had not determined the quantum of section 67 compensation. The Agreement was no more than an agreement to agree, which is unenforceable (Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600). The Complying Agreement did no more than preserve the worker’s right to agree, at a later date, the quantum of compensation under section 67 or, alternatively, to have the quantum determined by the Commission under section 67(4).
Mr Ponticello died before the resolution of the claim for compensation under section 67. The date at which the Arbitrator determined the outstanding dispute post-dated the worker’s death. The Arbitrator, in making the assessment, was bound by the legislative provisions, including the express statutory prohibition in section 67(5).
Consistent with Kirby P’s observations in Horne, if it was Parliament’s intention that when creating the new statutory workers compensation scheme under the jurisdiction of the Workers Compensation Commission, compensation under section 67 survived the death of a worker for the benefit of the worker’s estate, it would have expressed it in clear terms. It did not. Rather, subsection (5) of section 67 was retained when the section was amended in 2001. The express terms of section 67(5) extinguish the right to the payment of compensation under section 67 after the death of the worker concerned.
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249), I am not persuaded that there is any basis for this Commission to depart from the established law that section 67(5) operates to extinguish a worker’s rights to compensation for pain and suffering under section 67 after his death. Mr Ponticello’s entitlement to compensation under section 67 as a result of a deterioration and further loss under section 66 and also as a result of the loss of use of sexual organs was not settled or determined prior to his death and his rights to such compensation were extinguished upon his death. Therefore, Ms Ponticello has no entitlement to pain and suffering compensation benefits under section 67.
The Arbitrator, having come to the same conclusion, albeit for different reasons, at paragraph (2) of his decision, made an order dismissing the claim under section 67. This was not the correct order. The formal order that should have been made, and which I make on appeal, is “an award for the respondents”.
DECISION
The Certificate of Determination dated 28 October 2009 is confirmed, save for paragraph 2, which is revoked and the following order made in its place:
“(2)An award for the respondents in respect of the claim pursuant to section 67 of the Workers Compensation Act 1987.”
COSTS
No order as to costs of the appeal.
His Hon Judge Keating
President
4 May 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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