Re & PC Richards Pty Ltd v Eggins

[2010] NSWWCCPD 2

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		RE & PC Richards Pty Ltd v Eggins [2010] NSWWCCPD 2
APPELLANT:		RE & PC Richards Pty Ltd
RESPONDENT:		Brendan Luke Eggins
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-3010/09
ARBITRATOR:	Ms J Peacock
DATE OF ARBITRATOR’S DECISION:		7 September 2009
DATE OF APPEAL DECISION:		11 January 2010
SUBJECT MATTER OF DECISION:		Section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 and Clause 200B of the Workers Compensation Regulation 2003 - preliminary or interim orders of an interlocutory nature; section 319 of the 1998 Act – medical dispute.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		Sparke Helmore
Respondent:		Burridge Harris Flynn
ORDERS MADE ON APPEAL:		Leave to appeal is refused.
Appellant is to pay the Respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. Brendan Luke Eggins (the worker) is 25 years of age and resides in Grafton, New South Wales.  He was first employed by RE & PC Richards Pty Ltd (the Appellant) to work as a millhand/tailer-out in approximately 1999.  The worker was so employed intermittently until he received a back injury in the course of his employment on 30 July 2004.  On that day, as he bent to lift a piece of timber, he sustained injury to his low back.  He ceased work immediately, sought treatment from his general practitioner and remained off work for approximately one week.  He attempted a return to work on light duties over a period of some weeks however experienced pain and discomfort in his back.  The worker again ceased work and has since been unable to secure full-time employment by reason of continuing back pain. 

1. It appears that liability in respect of compensation benefits was accepted by the Appellant’s insurer until 10 February 2005. The worker, through his solicitors, sought a review of the insurer’s decision to deny liability however the insurer maintained its decision. By letter dated 10 July 2007 the worker, again through his solicitors, made a claim against the Respondent and its insurer in respect of a lump sum pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) together with medical and related expenses.

1. The insurer disputed liability with respect to the lump sum and medical expenses as claimed and served a notice in respect of that denial upon the worker pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act (‘the 1998 Act’).  That notice was dated 1 August 2007. 

1. The worker filed an Application to Resolve a Dispute (‘ARD’) with the Workers Compensation Commission (‘the Commission’) on 21 April 2009.  That ARD alleged injury which was said to have occurred on 30 July 2004 and was described as – “injury to lumbar spine with L4/5 disc bulge.”  The worker sought orders with respect to medical, hospital and rehabilitation expenses totalling $1,269.35 together with a lump sum being $6,250.00 in respect of an alleged 5 per cent whole person impairment arising from the subject injury. 

1. The Application came before an Arbitrator for determination on 15 July 2009 at which time the worker amended his ARD by discontinuing his claim in respect of medical and associated expenses.  The matter proceeded to hearing and the Arbitrator reserved her decision.  A Certificate of Determination issued on 7 September 2009 accompanied by a Statement of Reasons (‘Reasons’).

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 7 September 2009 records the Arbitrator’s orders as follows:

“The Commission determines:

1.That the matter be remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of permanent impairment, if any, of the lumbar spine as a result of injury on 30 July 2004.

2.That the Application and all documents attached admitted.

3.That the Reply and all documents attached admitted.

4.That the Respondent have leave to rely on the documents produced by Dr Gak tendered at the arbitration and placed with the file and marked exhibit “A” and dated 15 July 2009.

5.That the Respondent have leave to rely on the documents produced by Coffs Harbour Base Hospital tendered at the arbitration and placed with the file and marked exhibit “B” and dated 15 July 2009.

A brief statement is attached to this determination setting out the Commission’s

reasons for the determination.”

1. An application seeking leave to appeal against the decision of the Arbitrator was filed on behalf of the Appellant on 6 October 2009.

ISSUES IN DISPUTE

1. The issues in dispute in this appeal are whether:

(i)the Arbitrator erred in law in determining that issues as to injury were not in dispute, and

(ii)the Arbitrator made an error of law in determining that she did not have jurisdiction to decide whether the worker had recovered from the effects of the work incident of 30 July 2004.

1. The issues as enumerated above appear in the two grounds of appeal which have been identified in submissions in support of the appeal.

ON THE PAPERS REVIEW

1. 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.”

1. 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

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

1. The worker in his submissions on this appeal argues that the determination made by the Arbitrator is one of an interlocutory nature within the meaning of section 352(8) of the 1998 Act and as such is not one in respect of which an appeal may be brought. It is further argued that, having regard to the Arbitrator’s order with respect to remitter of the matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’), there has been no order made by the Commission in respect of any amount of compensation and hence the monetary threshold requirement of section 352(2) is not met.

The Interlocutory Question

1. Section 352 of the 1998 Act permits, subject to the provisions of that section, an appeal against a decision of the Commission constituted by an Arbitrator. The term “decision” is defined in section 352(8) which provides:

“(8)  In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”

1. The worker submits that “no final order has been made”. There is no further submission amplifying the assertion that the order is of an interlocutory nature. It is implicit that the worker opposes the grant of leave to proceed with the appeal on the basis that the determination is not one which falls within the terms of section 352(8).

1. Clause 200B of the Workers Compensation Regulation 2003 provides:

“For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.”

1. The term interlocutory is not defined and, as has been stated in earlier Presidential decisions concerning section 352(8) and clause 200B, the distinction between final and interlocutory orders often is not clear-cut. As was observed by Roche DP in P&O Ports Limited v Hawkins [2007] NSWWCCPD 87 (Hawkins) (at [35]-[37]) care should be exercised when reference is made to common law authority concerning the nature of interlocutory orders when consideration is given to the meaning of the words “preliminary or interim orders… of an interlocutory nature” as appear in clause 200B. The basis for such caution was discussed in that decision and matters relevant include the nature of the Commission’s objectives and powers as prescribed by the Acts, the Commission’s powers of review, the regulation of the Commission’s power to award lump sum compensation subject to the role of an AMS, who is not a member of the Commission, and the availability of rights of appeal against an assessment made by an AMS.

1. The principle which, at law, guides a determination of whether an order is final or interlocutory is that as stated by Gibbs J, as he then was, in Licul v Corney [1976] 50 ALJR 439 (Licul) (at 443-444):

“The test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”

1. The test as stated by his Honour in Licul in my view affords valuable guidance when deciding whether an arbitrator’s order is interlocutory or otherwise, subject to the exercise of caution in applying that test in the context of Commission proceedings as has been suggested by Roche DP in Hawkins.

1. A helpful summary of Presidential decisions concerning the proper application of section 352(8) and clause 200B is to be found in the decision of Snell ADP in Moore v Greater Taree City Council [2009] NSWWCCPD 17 (Moore). In that matter particular attention was given to those cases in which orders had been made by arbitrators which included a referral of the matter to an AMS for assessment of permanent impairment ([31]-[39]). Following a summary of those cases it was observed by Snell ADP (at [40]):

“It is apparent from the above, that application of section 352(8) and Clause 200B, in circumstances where some findings or orders are made, but final orders depend upon assessment by an AMS, has the capacity to cause practical difficulties. The overall thrust of the above decisions, is that where an arbitration results in a matter being referred to an AMS for assessment, even accompanied by other orders to which one of the parties may object, such decisions tend to be characterised as ‘interlocutory’.”

1. The only submission on behalf of the Appellant concerning the interlocutory issue is to be found at [2.5] of submissions accompanying the appeal application where it is put:

“The decision appealed against is a decision of an arbitrator following arbitration and is not a preliminary or interim decision or award, order, determination, ruling or direction of an interlocutory nature.”

1. To enable resolution of the interlocutory question, that brief submission, in my view, requires consideration together with certain matters raised by the Appellant before the Arbitrator and on this appeal.

1. There had been two principal arguments raised in defence of the worker’s claim at the hearing before the Arbitrator. A transcript of the hearing (‘transcript’) is available. The evidence of the worker, who was cross-examined at the hearing, and the parties submissions are there recorded.

1. The first argument raised by the Appellant before the Arbitrator seemed to suggest that the worker had sustained a non-compensable injury to his lumbar spine at some time following the admitted injurious event which occurred in the course of his work on 30 July 2004. That argument is not pressed on this appeal.

1. The Appellant’s second argument before the Arbitrator appears to be summarised by counsel then appearing where it was stated (transcript 20):

“The only issue that the respondent disputes is that there’s any ongoing effects of July 2004 that can be referred to an AMS. In essence, the respondent says it has resolved.”

1. Counsel had emphasised in the course of argument the contrasting findings of MRI investigations of the worker’s lumbar spine conducted in December 2004 and November of 2005. The earlier study demonstrated minor desiccation of the L4/5 disc with no significant bulging whereas the latter demonstrated a postero-central focal disc bulging at L4/5 level without nerve root compression. Reliance was placed upon the opinion of Dr Tony Blue, orthopaedic surgeon, that the worker had sustained an acute muscle strain in the work incident from which, in Dr Blue’s view, he would have recovered “in six weeks”. Dr Blue’s evidence is found in two reports and it is to be noted that no reference is made by that practitioner to the second MRI study.

1. Reference was made by counsel before the Arbitrator to my decision in Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47 (Peric) and argument was advanced, as has been on this appeal, that the Arbitrator was required to determine the issue as to whether the worker had recovered from the effects of an undisputed injurious event before addressing the question as to the need or otherwise to remit the matter to the Registrar for reference to an AMS. This the Arbitrator declined to do and the matter was remitted.

1. The Arbitrator, both during exchanges with counsel at the hearing and in the course of her Reasons, has stated clearly that the only claim before her was one “for lump sum compensation in the context of an undisputed injury on 30 July 2004.” Having so characterised the dispute, orders were made remitting the matter for ultimate assessment.

1. The present facts plainly demonstrate the “practical difficulties” to which Snell ADP referred in Moore. The Appellant’s complaint is that the Arbitrator’s order of remitter has been made in the absence of any adjudication of the matters raised by the evidence of Dr Blue.

1. The dispute as characterised by the Arbitrator clearly falls within the definition of ‘medical dispute’ as provided by section 319 of the 1998 Act. The Commission (an arbitrator) may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an AMS: section 65(3) of the 1987 Act. The Commission (an arbitrator) may not refer a medical dispute for assessment: section 321(3) of the 1998 Act. The appropriate order in such circumstances is, as noted in Peric, that the dispute be remitted to the Registrar for referral to an AMS for assessment. Such an order has been made.

1. Concerning the Appellant’s reliance upon those matters stated in Peric (at [77]), and in so far as they may be relevant to a determination of the interlocutory issue, those observations must be understood to relate to the facts of that matter where the Arbitrator was required to determine liability issues, raised by the employer, as to the mechanics of the injury, that is, what in fact had occurred, including whether the worker had received an electric shock, and whether those events caused orthopaedic and psychological injury. That dispute concerned entitlement to weekly compensation, medical expenses and a lump sum. Those facts and circumstances are to be distinguished from the present where the dispute is limited to a claim for lump sum compensation in respect of whole person impairment.

1. The orders made by the Arbitrator, in my view, do not finally determine the rights of the parties. That being so I conclude that the Arbitrator’s orders are of an interlocutory nature within the meaning of section 352(8) and clause 200B and may not be the subject of an appeal brought pursuant to section 352(1). In the circumstances leave to proceed with the appeal must be refused. Having so concluded it becomes unnecessary to address those matters raised by the worker founded upon the provisions of section 352(2) however, should I be wrong in my determination that the subject order is interlocutory in nature, I consider it appropriate to record my view that the worker’s reliance upon that subsection as a bar to appeal proceedings is without merit (Fine Meat (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 and Mawson v Fletcher International Exports Pty Ltd [2002] NSWWCCPD 5).

DECISION

1. Leave to proceed with the appeal is refused.

COSTS

1. The Appellant is to pay the worker’s costs of the appeal.

Kevin O’Grady

Deputy President  

11 January 2010

I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE