Prisk v Department of Ageing, Disability and Homecare

[2008] NSWWCCPD 106

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Prisk v Department of Ageing, Disability and Homecare [2008] NSWWCCPD 106
APPELLANT:		Garry Stephen Prisk
RESPONDENT:		Department of Ageing, Disability and Homecare
INSURER:		Allianz Australia Insurance Limited
FILE NUMBER:		WCC496-07
DATE OF ARBITRATOR’S DECISION:		10 June 2008
DATE OF APPEAL DECISION:		26 September 2008
SUBJECT MATTER OF DECISION:		Leave to appeal an interlocutory decision
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		MRM Lawyers
Respondent:		McLean Lawyers
ORDERS MADE ON APPEAL:		Leave to appeal the Arbitrator’s decision of 10 June 2008 is refused.
Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

1. Mr Prisk was born in 1951 and is currently 56 years old.  He completed an apprenticeship as a boilermaker with BHP in 1971 and worked with that company until 1972 when he left and worked as a labourer for Dunlop Tyres.  He then worked briefly as a groundsman and then as a driveway attendant.  He started work with the Department of Ageing, Disability and Homecare (‘the Department’) as a member of its ground staff in 1974 and, later, as a driver.  He remained working with the Department, as at 10 June 2008.  Over the years, his employment exposed him to noise from mowers, tractors, jackhammers, tar packing machines, whipper snippers, blowers, industrial vacuums, compressors and heavy vehicles.  He also worked around industrial laundries, carpenters, fitters, mechanics and plumbers.  He first noticed a problem with his hearing in or about 1995.

1. In proceedings commenced in the Compensation Court of NSW against the Stockton Centre in 1996, Mr Prisk claimed compensation for hearing loss (matter no. 9447 of 1996) (‘the first claim’). A Medical Panel dated 5 November 1996 assessed him to have 6.7% binaural hearing loss due to boilermaker’s deafness, and a 19% hearing loss in his left ear and 22% hearing loss in his right ear of uncertain origin. He settled his claim for compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) for $5,761.66 in respect of 6.7% binaural hearing loss in Terms of Settlement filed with the Court on 24 July 1997.

1. In proceedings commenced in the Court in 1997 against Stockton Centre (matter no. 20997 of 1997) (‘the second claim’), Mr Prisk sought the cost of hearing aids.  This claim was heard and determined by Curtis CCJ who made an award for the employer in a decision delivered on 11 November 1998.  His Honour noted the evidence of Dr Finlay-Jones, a specialist qualified by Mr Prisk, that all of Mr Prisk’s hearing loss had been caused by industrial noise, but held that he was bound to find that the issue of causation had been concluded by the Medical Panel by reason of section 131(5) of the 1987 Act, which provided that “Any such certificate of a medical panel shall be conclusive evidence as to the matter certified.”  As the evidence did not establish from which loss the need for the hearing aids arose, the worker failed.  His Honour calculated the binaural hearing loss of uncertain origin to be 19.7%.

1. In proceedings commenced in the Court in 2002 against the Department of Community Services, Mr Prisk claimed compensation for a further hearing loss (matter no. 13501 of 2002) (‘the third claim’). A Medical Panel dated 19 November 2002 assessed him to have, after adjustment for presbycusis, a binaural hearing loss of 7.6% due to boilermaker’s deafness, and a 21% hearing loss in his left ear and a 23% hearing loss in his right ear of uncertain origin. He settled this claim under section 66 of the 1987 Act for $585.00 in respect of 0.9% further binaural hearing loss in Terms of Settlement filed with the Court on 1 April 2003.

1. By letter dated 7 June 2006, Mr Prisk claimed compensation (‘the fourth claim’) from the Department in respect of “bilateral sensorineural loss of hearing having been caused by exposure to excessive levels of noise in the course of his employment”. He claimed $20,000 in respect of 15% “further WPI” under section 66 and $17,500 under section 67.

1. By letter addressed to Mr Prisk and dated 4 December 2006, the Department’s workers’ compensation insurer, Allianz Australia Insurance Limited (‘Allianz’), denied the claim and gave the following reasons:

“1.That you have not sustained a further loss of hearing as a result of a disease of gradual process.

2.That you are estopped from claiming that the entirety of your hearing loss is an injury in the nature of a disease of gradual process caused by exposure to industrial noise.

3. We rely upon sections 4, 15 and 17 of the Workers Compensation Act 1987.

4.In reaching this decision we rely in particular upon the report of Dr John Walker dated 13 September 2006.

5.In reaching this decision we have relied upon information in our possession with respect to your prior claims for lump sum compensation for industrial deafness.

6.We do not have in our possession at the time of preparing this notice the documents in relation to proceedings in the former Compensation Court in matter number 9447 of 1996 or in matter number 20997 of 1997 or those documents in relation to your assessment by a Medical Panel on 19 November 2002 but we do rely upon all of these documents which should be in your possession.”

1. Mr Prisk filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 30 January 2007, in which he claimed the same compensation set out in his letter of 7 June 2006.  He described his injury as “industrial deafness” due to “noise exposure” with a date of injury of 7 June 2006.

1. By a further notice from Allianz dated 8 February 2007, the “reasons for the decision” to deny the claim is stated to be “That you are estopped from claiming that the entirety of your hearing loss is an injury in the nature of a disease of gradual process caused by exposure to industrial noise.”

1. The Department filed a Reply on 21 February 2007, in which it essentially repeated the issues identified in Allianz’s letter of 4 December 2006.

1. At an arbitration held on 28 March 2007, the Arbitrator determined that Mr Prisk suffered an injury on 7 June 2006, being a further hearing loss which was of such a nature as to be caused by a disease of gradual onset (T25.54 28 March 2007) and he referred the matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment of that loss.  The medical dispute referred was “the nature and extent of the hearing loss suffered by a worker”. 

1. The AMS (Dr Fernandes) assessed Mr Prisk’s hearing loss and issued a Medical Assessment Certificate (‘MAC’) on 7 June 2007 (‘the first MAC’).  He assessed Mr Prisk to have a total binaural hearing loss of 29.2%, which converted to a whole person impairment of 15%.  He then noted Mr Prisk’s previous claim for 7.6% binaural hearing loss, which is 26.03% of 29.2%.  That is, Mr Prisk had previously been compensated for just over one quarter of his current loss.  Dr Fernandes then calculated the “balance” of the whole person impairment to be 73.97%.  Multiplying 15% by 73.97% gave 11.1%, which he rounded down to give an entitlement of 11% whole person impairment.  The doctor left blank the columns headed “Total % BHI” and “Occupational % BHI”.  The abbreviation “BHI” refers to binaural hearing impairment (see Workcover Guidelines for the Evaluation of Permanent Impairment, 24 October 2006, page 39).The reference to “BHL” is a reference to binaural hearing loss.  The schedule to the MAC states:

Notional date of injury	Frequency Hz	Left db HL Air   Bone	Right db HL Air    Bone	Total % BHI	Occupational % BHI
7/06/06	500	25	25
1000	35	30
1500	50	55
2000	50	50
3000	50	45
4000	50	40
Total % BHI: 29.2
Less Pre-existing non-related loss: 7.6
Less Presbyacusis [sic] correction: 0
Add % of severe tinnitus: 0
Adjusted total % BHI:   *
Resultant total BHI of *    % = 11* % whole person impairment (Table 9.1)
*Past Claims:  7.6 which is 26.03% of current BHL of 29.2% Balance WPI:  73.97% of current WPI of 15% is 11.10 Rounded WPI is  11% whole person impairment

1. The Department appealed this assessment to a Medical Appeal Panel (‘the Medical Panel’).  By a decision delivered on 12 December 2007, the Appeal Panel confirmed the first MAC and expressly agreed with Dr Fernandes’ assessment of 11% whole person impairment and his method of calculation (Medical Panel’s Statement of Reasons, 12 December 2007, at [31]).

1. At a further arbitration on 31 January 2008, counsel for the Department argued that Mr Prisk was bound by an estoppel arising from Curtis CCJ’s decision of 11 November 1998 to the effect that 19.7% of Mr Prisk’s binaural hearing loss was of uncertain origin and therefore unrelated to his employment. The Arbitrator determined that the first MAC was not conclusively presumed to be correct because no medical dispute, as defined in sections 319(c) and 319(d) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), had been referred to Dr Fernandes and his certification with respect to those matters was invalid. Using the power in section 329(1) of the 1998 Act, the Arbitrator again referred the matter to Dr Fernandes for him to assess the degree of permanent impairment Mr Prisk suffered as a result of the injury on 7 June 2006 and whether any proportion of that permanent impairment was due to any previous injury or pre-existing condition or abnormality and the extent of that proportion. The Arbitrator also determined that Curtis CCJ had found that Mr Prisk had suffered a binaural hearing loss of 19.7% of uncertain origin. This view was confirmed at a teleconference on 6 February 2008 and an Amended Certificate of Determination was issued on 7 February 2008 in the following terms:

“The determination of the Commission in this matter is as follows:

1.That in his judgement [sic] dated 11 November 1998 in Compensation Court proceedings 20997 of 1997, his Honour Judge Curtis found that the Applicant had suffered a binaural hearing loss of 19.7% of uncertain origin.

2.That the following matters be referred to AMS Dr Sylvester Fernandes for assessment:

a.The degree of permanent impairment of the Applicant as a result of the injury of further hearing loss deemed to have happened on 7 June 2006;

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.

3.That a copy of the referral to the AMS be provided to each party’s legal representative.”

1. On 14 April 2008, Dr Fernandes issued an Amended MAC, which reached the same conclusion as the first MAC, namely, that Mr Prisk had an 11% whole person impairment as a result of his further hearing loss injury deemed to have happened on 7 June 2006.  In respect of the deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality (see page four of the Amended MAC), Dr Fernandes answered “N/A”.  Unlike the first MAC, the columns “Total % BHI” and “Occupational % BHI” have been completed and Dr Fernandes’ calculations are different to those in the first MAC.  The schedule to the Amended MAC states:

Notional date of injury	Frequency Hz	Left db HL Air   Bone	Right db HL Air    Bone	Total % BHI	Occupational % BHI
7/06/06	500	25	25	1.4	1.4
1000	35	30	4.3	4.3
1500	50	50	9.7	9.7
2000	60	50	7.5	7.5
3000	50	45	4.2	4.2
4000	50	40	2.9	2.9
Total % BHI: 30.0
Less Pre-existing non-related loss: 0
Less Presbyacusis [sic] correction: 0.1
Add % of severe tinnitus: 0
Adjusted total % BHI: 29.9
Past Claims 7.6 which is 25.41% of current BHL of 29.9% Balance WPI: 74.58% of current WPI of 15% is 11.18 Rounded WPI is 11% whole person impairment

1. At a further teleconference on 19 May 2008, the Arbitrator directed the parties to file written submissions on the matters in dispute.  Essentially, the dispute revolved around the weight, if any, to be attached to the decision of Curtis CCJ and the previous Medical Panel certificates.  Both parties filed written submissions on 26 May 2008.

1. In the Certificate of Determination issued on 10 June 2008, the Arbitrator determined:

“The Commission determines:

1.That in a judgement [sic] dated 11 November 1998 in Compensation Court proceedings 20997 of 1997, his Honour Judge Curtis found that as at 5 November 1996, the Applicant had a binaural hearing loss of 6.7% due to boilermaker’s deafness and a binaural hearing loss of 19.7% of uncertain origin and the parties are bound by that finding in the current proceedings.

2.That under section 329(1) of the Workplace Injury Management and Workers’ Compensation Act 1998, this matter be referred again to AMS Dr Fernandes to assess the following medical dispute:

a.The degree of permanent impairment of the Applicant as a result of the injury of further hearing loss deemed to have happened on 7 June 2006;

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.

3.That in Dr Fernandes’ assessment of the Applicant’s permanent impairment resulting from the injury of further hearing loss on 7 June 2006, Dr Fernandes be asked to deduct any proportion of permanent impairment resulting from;

a.the hearing loss specified in determination 1;

b.the hearing loss the Medical Panel certified on 5 November 1996 the Applicant to have being a binaural hearing loss of 6.7% due to boilermakers deafness and a loss of hearing of 19% in the left ear and 22% in the right ear due to some condition other than boilermaker’s deafness and of uncertain origin;

c.the hearing loss the Medical Panel certified on 18 November 2002 the Applicant to have being a binaural hearing loss of 7.6% due to boilermakers deafness and a loss of hearing of 21% in the left ear and 23% in the right ear due to some condition other than boilermaker’s deafness and of uncertain origin.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

1. As a result of the Arbitrator’s orders of 10 June 2008, the matter was referred to Dr Fernandes for a third time.  On 25 July 2008 Dr Fernandes issued a third MAC, which was forwarded to the parties by letter dated 25 July 2008.  In compliance with the Arbitrator’s decision of 10 June 2008, the AMS has now assessed Mr Prisk to have a 1% whole person impairment.  The schedule to the third MAC states:

Notional date of injury	Frequency Hz	Left db HL Air   Bone	Right db HL Air    Bone	Total % BHI	Occupational % BHI
7/06/06	500	25	25	1.4	1.4
1000	35	30	4.3	4.3
1500	50	50	9.7	9.7
2000	60	50	7.5	7.5
3000	50	45	4.2	4.2
4000	50	40	2.9	2.9
Total % BHI: 30.0
Less Pre-existing non-related loss: 19.7
Less Presbyacusis [sic] correction: 0.1
Add % of severe tinnitus: 0
Adjusted total % BHI: 10.2
Past Claims 7.6 which is 74.50% of current BHL of 10.2% Balance WPI: 25.50% of current WPI of 5% is 1.27 Rounded WPI is 1% whole person impairment

1. Consequent upon this MAC being issued, the Commission notified the parties that a further teleconference had been appointed for 14 August 2008.  That teleconference was cancelled after receipt of the current appeal.

1. By an appeal filed on 1 August 2008, Mr Prisk seeks leave to appeal the Arbitrator’s determination of 10 June 2008.

ON THE PAPERS

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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 TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements in section 352 of the 1998 Act.

2. There is no issue that the monetary thresholds in section 352(2) are satisfied.

Time

1. Though the appeal is incorrectly date stamped 1 July 2008, it was not filed until 1 August 2008, well outside the 28-day time limit set in section 352(4) of the 1998 Act, which expired at 4.30pm on 9 July 2008.  Mr Prisk seeks an extension of time in which to appeal. 

1. An extension of time in which to appeal is governed by Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006, which provides:

“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

1. On 20 June 2008, Mr Prisk’s solicitor wrote to the Commission advising that their client was considering appealing against the Arbitrator’s determination of 10 June 2008.  A copy of that letter was forwarded to the Department’s solicitor.

1. On 11 July 2008, Mr Prisk’s solicitor filed and served what he called an “Application for an Order for Extension of Time” (‘Application for Extension’) together with an affidavit in support.  This Application for Extension sought an extension of time in which to appeal pursuant to Part 3 Rule 3, or, in the alternative, under Part 16 Rule 16.2(11).  Rule 3 gives the Commission power to extend or abridge any time fixed by the Rules or under Part 9 of the 1998 Act.  The Commission has no form styled “Application for an Order for Extension of Time”.  If a party seeks to appeal out of time, the Appeal Against Decision of Arbitrator (Form 9) contains the appropriate application to extend time (see Form 9, Part A: 2.1).  An application to extend time to appeal against an Arbitrator’s decision can only be determined by a Presidential member and, apart from the referral of questions of law to the President under section 351 (Form 13), an application can only come before a Presidential member if a Form 9 appeal is filed.  Therefore, in the absence of an appeal having been filed, the Commission has no power to deal with an application to extend time to appeal under Rule 16.  The Application for Extension was misguided and inappropriate. 

1. In support of his application to extend time (in the Form 9 application), Mr Prisk relies on an Affidavit sworn by a Peter Garry Rogers on 11 July 2008, which sets out the history of the matter.  Essentially, Mr Rogers swears that he forwarded the Certificate of Determination of 10 June 2008 and the Arbitrator’s Statement of Reasons for Decision to Mr Prisk’s counsel, Mr Taperell, in an email on 12 June 2008.  On 3 July 2008, Mr Rogers contacted Mr Taperell to discuss the prospect of an appeal and was informed that Mr Taperell did not have the relevant documents.  Copies were forwarded to him, but he was unable to attend to the matter because he was going on leave from 4 to 15 July 2008.  Attempts to retain alternative counsel were unsuccessful, though no details of those attempts have been provided.  It is submitted that not allowing an extension of time to appeal will result in a demonstrable and substantial injustice to Mr Prisk and that the Department will not be prejudiced by if time to appeal is extended.

1. The Department opposes time to appeal being extended and submits that such an application should only be granted in exceptional circumstances.  Exceptional circumstances are out of the ordinary, or unusual, or special, or uncommon, but they need not be unique, or unprecedented, or very rare (Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]). Reference is also made to the decision of Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:

“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”

1. The Department submits that, in determining whether to extend time to appeal, it is always necessary to consider the putative appellant’s prospects of success on appeal and that Mr Prisk has made no submissions on that issue.  Therefore, so it is argued, he has not demonstrated a reasonable prospect of success so as to warrant the extension of time.

1. The Department also relies on Iovanescu v McDermott [2004] NSWCA 106 (‘Iovanescu’), a case concerning an application under the District Court Rules seeking an extension of time in which to seek a rescission of a dismissal order. In that case Young CJ in Eq observed (at [5]):

“prima facie the rules must be observed and that a person who seeks dispensation from them, particularly because of delay, must show good reason why such dispensation should be granted and must explain away his or her apparent blameworthiness in connection with the total delay involved”.

1. The Department further argues that:

(a)the letter from Mr Prisk’s solicitor dated 20 June 2008 did not act as a stay, or comply with the Rules;

(b)Mr Prisk does not rely on the email of 12 June 2008 and there is no evidence that Mr Taperell did not receive the email;

(c)Mr Prisk’s solicitor should have known that an extension of time cannot be granted until an appeal has been lodged;

(d)Mr Prisk has not sought to rely on any correspondence passing between his solicitor’s office and Mr Taperell;

(e)the submissions filed in support of the appeal are almost identical to those filed by Mr Prisk at the arbitration;

(f)Mr Prisk has not provided any substantive submissions in relation to either “exceptional circumstances” or “demonstrable and substantial injustice”, and

(g)there are no grounds which would warrant an extension of time.

1. Whilst I do not accept the Department’s submissions (save as to points (a) and (c) at [32] above), I am not satisfied that exceptional circumstances exist such that the failure to extend the time to appeal will result in a substantial injustice to Mr Prisk. Though the circumstances resulting in the appeal being filed out of time were most unsatisfactory, I base my decision on the fact that Mr Prisk will not lose the right to appeal the Arbitrator’s orders of 10 June 2008 if time to appeal is not extended. The orders of 10 June 2008 have not finally determined the parties’ rights and are clearly orders of an interlocutory nature (see section 352(8) of the 1998 Act and Sydney Institute of Technology – NSW TAFE Commission v Fleming [2007] NSWWCCPD 97 and Arquero v D J & T Denning Pty Ltd t/as Capital Coast Steel [2007] NSWWCCPD 126) and there is no right of appeal against such an order.

1. Therefore, the refusal of extension of time to appeal will not result in any injustice to Mr Prisk.  Once a final Certificate of Determination is issued, either party will be at liberty to appeal.  Such a final certificate will not be a preliminary ruling of an interlocutory nature and, if an interlocutory order or determination (such as that made on 10 June 2008) was a “step in the procedure leading up to final judgment” (Crowley v Glissan (1905) 2 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal those steps in the procedure will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Bunning v Cross (1978) 141 CLR 54 at 82, Ramton v Cassin (1995) 38 NSWLR 88 and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543 at 549). In that event, either Mr Prisk or the Department will be entitled to challenge the steps in the procedure that have resulted in, or led to, the ultimate determination. One such step was the order of 10 June 2008.

1. As a result, I decline to extend the time to appeal and leave to appeal must be and is refused.  This decision is based on the fact that the order Mr Prisk seeks to appeal is in the nature of an interlocutory order and, as it appears that it will be a critical step in the procedure leading to the final determination, his right to appeal that order remains intact should he choose to appeal after the final Certificate of Determination is issued.

OTHER MATTERS

1. The Commission’s practice and procedure with respect to arbitral appeals is clearly set out in Practice Direction No 6 and in numerous Presidential decisions delivered over the last six years.  Parties should be well aware that:

(a)the unavailability of counsel to settle a notice of appeal will rarely (if ever) amount to exceptional circumstances under Rule 16.2(11), and

(b)the Commission’s Rules do not provide for an application to extend time to be filed other than as part of the Form 9 Appeal Against Decision of Arbitrator.

1. Whilst it is not appropriate for me to comment on the substantive issue in this matter, the parties are directed to the decision of Rinker Group Limited v Mackell [2008] NSWCCPD 100 and the authorities cited in it.

DECISION

1. Leave to appeal is refused.

COSTS

1. Each party is to pay his or its own costs of the appeal.

Bill Roche
Deputy President

26 September 2008

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE