Popovic v Liverpool City Council
[2017] NSWWCCPD 49
•10 November 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Popovic v Liverpool City Council [2017] NSWWCCPD 49 | |
| APPELLANT: | Ruzica Popovic | |
| RESPONDENT: | Liverpool City Council | |
| INSURER: | Self-insurer | |
| FILE NUMBER: | A1-1837/17 | |
| ARBITRATOR: | Mr P Sweeney | |
| DATE OF ARBITRATOR’S DECISION: | 8 August 2017 | |
| DATE OF APPEAL DECISION: | 10 November 2017 | |
| SUBJECT MATTER OF DECISION: | Whether a ‘general order’ pursuant to s 60 of the Workers Compensation Act 1987 satisfies the monetary threshold for an appeal; 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Carroll & O’Dea Lawyers |
| Respondent: | Bartier Perry Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal. | |
INTRODUCTION
The worker was employed as an early childhood education officer. Her duties required her to use her hands repetitively which, she alleged, caused a physical injury or an aggravation of a pre-existing disease condition. It is also alleged that she suffered a secondary psychological injury. The Arbitrator concluded that the worker had suffered such injuries but that the effects of both injuries ceased on 10 May 2017. The employer was ordered to pay the worker’s hospital and medical expenses in respect of the injury as found.
This appeal challenges the Arbitrator’s findings that the effects of the injuries ceased on 10 May 2017. As the case unfolded before the Arbitrator, the claim for weekly compensation was abandoned and the matter proceeded only in respect of the hospital and medical treatment. The worker sought a general order for the payment of her hospital and medical expenses, without particularisation and clarification of the amount of compensation sought.
This appeal concerns whether the amount of compensation at issue on the appeal satisfies the monetary threshold required by 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
BACKGROUND
The appellant, Mrs Popovic, was employed by the respondent, Liverpool City Council (the Council). She worked with children in the 0-3 age group at the Warwick Farm Early Education and Care Centre.
Mrs Popovic claimed that she was required to change nappies frequently throughout the day and that this task resulted in injuries to her thumbs. On 11 May 2016, Mrs Popovic submitted a WorkCover NSW Certificate of Capacity issued by Dr Kalid. He diagnosed that she suffered from “? Bilateral Carpal Tunnel Syndrome”. He certified her fit for duties for 8 hours a day for 3 days a week during the period of 11 May 2016 to 11 June 2016. He placed a limitation on her capacity to lift and carry to 2.5 kg. It appears that a claim was made for compensation in accordance with that medical certificate, although that is not readily apparent from the documents filed.
On 13 May 2016, the Council issued a notice pursuant to s 267(1) of the 1998 Act, declining provisional liability payments. It alleged that Mrs Popovic’s injuries were not work related and that insufficient medical evidence had been submitted to establish that she had suffered from a compensable condition.
On 11 April 2017, Mrs Popovic lodged an Application to Resolve a Dispute in the Commission (the Application). The Application recorded the following description of injury: “Bilateral thumbs, secondary injury”. It also recorded that Mrs Popovic’s injury was due to repetitive changing of “children in the babies room” at the respondent’s premises. She further alleged an aggravation of a pre-existing bilateral osteoarthritis condition. The Application states that Mrs Popovic also developed depression and anxiety as a consequence of her prolonged debilitating symptoms and withdrawal of suitable duties by the respondent. She claimed weekly compensation from 7 May 2016, however, that claim was subsequently withdrawn. Mrs Popovic also pursued a claim for past medical treatment in the amount of $5,000. However, at the arbitration hearing Mrs Popovic abandoned any claim for a specific sum of compensation for her medical expenses and instead pursued a “general order” only.
On 1 May 2017, the Council filed a Reply to the Application. The Reply set out at some length the exchanges between the parties in relation to the medical evidence in support of the claim. However, the Council identified that it rejected the claim on the following basis:
(a) no injury was sustained within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) alternatively, any symptoms experienced were due to a pre-existing arthritic condition;
(c) the employment was not a substantial contributing factor within the meaning of s 9A of the 1987 Act;
(d) alternatively, the employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease within the meaning of s 4(b) of the 1987 Act;
(e) the worker had not sustained a consequential psychological injury;
(f) any claim for permanent aggravation was not made in accordance with the provision of s 254 of the 1998 Act;
(g) the claim for compensation was not made in accordance with s 261 of the 1998 Act;
(h) no incapacity resulted from the alleged injury, and
(i) medical treatment undertaken was not in respect of a compensable injury and was therefore not recoverable under s 60 of the 1987 Act.
The matter was allocated to a Commission Arbitrator and proceeded to arbitration hearing on 29 June 2017 and 7 August 2017. No oral evidence was given at the hearing. At the completion of the hearing on 7 August 2017, the Arbitrator delivered an ex-tempore decision. The Arbitrator found that Mrs Popovic suffered an injury arising out of and in the course of her employment, namely an exacerbation of bilateral osteoarthritis in the thumbs by reason of the nature of her work. He also found that she suffered a secondary psychological injury. However, the Arbitrator concluded that Mrs Popovic had not established the effects of the aggravation of the osteoarthritis or the secondary psychological injury, consequent upon it, continued after 10 May 2017.
On 7 August 2017, the Commission issued a Certificate of Determination in the following terms:
“1. Amend the application herein by inserting the date 1 December 2015 in lieu of 15 October 2015 as the notional date of injury and deleting the claim for weekly payments.
2.In and prior to December 2015, the applicant suffered injury arising out of, and in the course of her employment, namely an exacerbation of bilateral osteoarthritis of her thumbs by reason of the nature of the work.
3.The applicant’s employment was the main contributing factor to the injury.
4.As a consequence of the injury, the applicant suffered a secondary psychological injury.
5.The applicant has not established that the effects of the exacerbation of osteoarthritis or the secondary psychological injury consequent upon it continued after 10 May 2017.
6.Respondent to pay the applicant’s medical and hospital expenses in relation to the injury pursuant to section 60.”
Mrs Popovic appeals the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions No 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
Section 352(3) provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
Mrs Popovic’s Submissions
Mrs Popovic submits that the monetary threshold pursuant to s 352(3) of the 1998 Act has been satisfied. She submits:
“Whilst a general order was made, the effect of the arbitrator’s order is that [Mrs Popovic] rights for treatment are now at an end (although this should not be taken as a concession in any future proceedings). In that respect, it is akin to an ‘award for the respondent’.
As such, as the amount claimed in the application was in the sum of $5,000, (together with weekly compensation), the appellant has satisfied the threshold: Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWCCPD 164 [Fine Meat].
The threshold in s 352(b) does not apply: Mawson v Fletcher International Exports Pty Ltd [2002] NSWCCPD 5.”
The Council’s Submissions
The Council disputes that Mrs Popovic satisfies the monetary threshold.
It submits that when the matter was first before the Arbitrator on 29 June 2017, the Application sought “weekly compensation from 07.05.16 to date and continuing” [part 5, 1], together with a claim for past medical treatment expenses in the sum of $5,000 [part 5.3]. The sum of $5,000 was not supported by any evidence of accounts, receipts or Medicare charge.
Mrs Popovic amended part 5.3 on the first day of the hearing to claim medical expenses by way of “a general order” only. Mrs Popovic’s counsel made the following submission:
“A general order, I, if I haven’t already done it I don’t want a specific order for past section 60’s, just the general order is fine.”[1]
[1] Citing Transcript of Proceedings, Popovic v Liverpool City Council (WCC, 183/17, 8 August 2017, Arbitrator Sweeney, 29 June 2017 (T)), T 21.10, 32.15.
On the second day of the hearing, Mrs Popovic made a forensic decision to further amend her application by deleting the claim for weekly compensation in 5.1.[2]
[2] Citing Transcript of Proceedings, Popovic v Liverpool City Council (WCC, 183/17, 8 August 2017, Arbitrator Sweeney, 7 August 2017 (T2)), T2 5.25.
Thus, so it is submitted, the only “compensation at issue” was Mrs Popovic’s claim for past medical expenses by way of a general order for s 60 expenses. In these circumstances, the respondent submits that s 352(3) of the 1998 Act has not been satisfied and no appeal should be allowed.
The Council submits that the present appeal is identical to the appeal in Inghams Enterprise Pty Ltd v Grigor[3] where Snell DP refused the appeal on the basis that the monetary thresholds in s 352(3), in particular s 352(3)(a), had not been met.
[3] [2017] NSWCCPD 23 (Grigor).
The Council submits that the present appeal is consistent with the decision in Grigor, in that the only order of the Arbitrator is a general order for the payment of s 60 expenses. There is no agreement or schedule in regard to the amount of the relevant expenses and there are no specific expenses the subject of the order that determines the entitlement of Mrs Popovic to the recovery of specific expenses. The evidence does not support the conclusion that the “compensation at issue on the appeal” is at least $5,000.
The Council submits that there is no right of appeal under s 352. The appeal, in its entirety, should be dismissed pursuant to s 352(3) of the 1998 Act.
Mrs Popovic’s Submissions in Reply
Notwithstanding directions made for the filing of submissions in reply, no submissions in reply were lodged in the Commission within the time allowed. No application for an extension of time was made.
CONSIDERATION
Mrs Popovic submits that the threshold issue should be decided in her favour because of the way in which the case was pleaded. Namely, that an amount of $5,000 was pleaded in the Application as the amount sought in compensation. I do not accept that submission. It is apparent that Mrs Popovic abandoned that claim on the first day of the hearing. The matter proceeded before the Arbitrator on the basis that only a general order was sought in respect of medical and hospital expenses. There was no particularisation of the extent of the medical expenses sought to be recovered.
Cases are decided on the evidence tendered and arguments presented, not on the pleadings.[4] This is especially so in the Commission, which has a statutory obligation to act according to the substantial merits of the case.[5]
[4] Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279, at 296–7 (Dawson J).
[5] Workplace Injury Management and Workers Compensation Act 1998, s 354(3); Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, at [71].
In Chanaa v Zarour[6] the Court said:
“It is indisputable that a trial judge is required to conduct the proceedings in accordance with procedural fairness: Adamson v Ede[2009] NSWCA 379 at [53]- [63] and cases there cited. One aspect of that requirement of procedural fairness is that the decision should be given on the basis of issues that have been litigated in the course of the trial. In Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] 169 CLR 279 at 286-7 Mason CJ and Gaudron J said:
‘The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq) [1916] HCA 81; (1916) 22 CLR 490 per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, eg, Browne v Dunn (1893) 6 R 67 at 76; Mount Oxide Mines at 517-518.’”[7] (emphasis added)
[6] [2011] NSWCA 199 (Chanaa v Zarour).
[7] Chanaa v Zarour, at [13] (Campbell JA (Bathurst CJ and Tobias AJA agreeing).
It follows that the reference to a claim for “$5,000” pleaded in the Application is not decisive of whether the monetary threshold has been satisfied. What is decisive is the way in which the Application was run and decided, namely, on the basis of a claim for a general order for medical expenses rather than a claim for any quantified sum.
Mrs Popovic’s reliance on Fine Meats is misplaced. In that matter the worker sought lump sum compensation in the sum of $32,250. There was a challenge to the worker’s assessment of whole person impairment on the basis that his doctor was not appropriately qualified to make the assessment. In an interlocutory decision the Arbitrator found that the doctor was appropriately qualified and referred the matter to the Registrar for referral to an Approved Medical Specialist for an assessment of the worker’s impairment. On appeal Deputy President Roche held that as no compensation had been awarded by the Arbitrator the amount of compensation at issue on the appeal was assessed by reference to the amount claimed. As lump sum compensation of $32,250 had been claimed, the threshold requirements of s 352 were satisfied. The decision in Fine Meats is distinguishable from the instant case because Mrs Popovic’s counsel abandoned any claim for weekly compensation and made a forensic decision at the arbitration hearing to pursue only a general order with respect to the medical expenses claim.
I accept the Council’s submission that the issues on this appeal are the same as those dealt with by Snell DP in Grigor. In Grigor, the application claimed weekly compensation and $20,000 in respect of future medical treatment being a lumbar fusion operation. The Arbitrator was not satisfied that the worker was entitled to an award of weekly compensation because the worker had no economic incapacity during the period claimed. With respect to the claim for medical expenses, the claim in respect of the proposed surgery was abandoned. The only claim for medical expenses pursued was for a general order that the respondent pay the worker’s medical expenses. The sum claimed was not quantified. In those circumstances Deputy President Snell found that the monetary threshold in s 352 of the 1998 was not satisfied. He held:
“In Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213 Roche DP at [55] said of such an order ‘It was no more than a ‘general order’ and, as such, it is of limited efficacy.’ In NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76 [Murray] Roche DP at [84] discussed the effect of a ‘general order’ for the payment of medical expenses. At [82] the Deputy President said that to make a ‘general order’ the Arbitrator had to be satisfied on the issues of ‘worker’ and ‘injury’. The Arbitrator did not have to determine that the relevant treatment was reasonably necessary as a result of the injury. The Deputy President continued at [84]:
‘I do not accept Mr Lehmann’s submission that, by making a general order for the payment of s 60 expenses, the Arbitrator effectively restricted the appellant’s capacity to decline liability for those expenses to the issue of whether they were ‘reasonably necessary’. The appellant is at liberty to decline liability for any medical expenses submitted by Mrs Murray. Notwithstanding the admission of injury, to recover the cost of her medical and related expenses, Mrs Murray will have to establish that they were ‘reasonably necessary’ and that the need for the treatment resulted from the relevant injury. This will require her to prove that, at the time she received the particular treatment, the effect of the injury was continuing.’”[8] (emphasis in the original)
[8] Grigor, at [28].
I agree with the approach adopted in Grigor and with Deputy President Roche’s findings in Murray. The order made by the Arbitrator did not determine the entitlement of Mrs Popovic to recover any specific expenses. Such expenses may potentially be recovered if there is a proper evidentiary basis to do so. Notwithstanding the Arbitrator’s award, it remained open to the respondent to dispute any claimed medical expenses on the basis of a lack of proven causation or whether such expenses were reasonably necessary.
It follows that the monetary threshold in s 352(3) of the 1998 Act is not satisfied and there is no right of appeal.
DECISION
The monetary thresholds in s 352(3) of the 1998 Act have not been met and there is no right of appeal.
Judge Keating
President
10 November 2017
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