Robinson v Forster Tuncurry Memorial Services Club Limited
[2007] NSWWCCPD 84
•28 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Robinson v Forster Tuncurry Memorial Services Club Limited [2007] NSWWCCPD 84
APPELLANT: Raymond Robinson
RESPONDENT: Forster Tuncurry Memorial Services Club Ltd
INSURER:Employers Mutual NSW Limited
FILE NUMBER: WCC10128-06
DATE OF ARBITRATOR’S DECISION: 27 September 2006
DATE OF APPEAL DECISION: 28 March 2007
SUBJECT MATTER OF DECISION: Jurisdiction to determine a claim for medical expenses not yet incurred; application of Widdup v Hamilton [2006] NSWWCCPD 258; leave to appeal.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Stacks
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Leave to appeal the Arbitrator’s decision of 27 September 2006 is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 11 October 2006 Raymond Robinson (‘the Appellant Worker/Mr Robinson’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 September 2006.
The Respondent to the Appeal is Forster Tuncurry Memorial Services Club Limited (‘the Respondent Employer’).
Mr Robinson was born on 8 October 1941 and was at all relevant times employed as a bus driver with the Respondent Employer. On 17 April 2004 he sustained an injury to his right knee when his foot slipped on the metal step on a bus and he hit his knee “coming down the side of the bus” (T10.6).
The incident was reported on the day it happened and Mr Robinson completed a ‘Report of Injury’ form, though that document is undated. He first sought medical treatment after his accident on 26 April 2004 when he saw his general practitioner, Dr Hunter. He did not complete a claim form until 5 April 2005.
As no statement was tendered from Mr Robinson it is difficult to precisely piece together the chronology of events after the fall, but the documents tendered in evidence suggest that he did not cease work as a result of his accident until 11 May 2005 when he underwent a right knee arthroscopy at the hands of Dr White, orthopaedic surgeon. The evidence does not disclose whether liability was accepted for the cost of that surgery but the Respondent Employer’s submissions filed on 26 October 2006 suggest that it may have been (paragraph three).
Ultimately, Dr White recommended that Mr Robinson undergo a knee replacement operation but by letter dated 16 January 2006 Employers Mutual NSW Limited (‘Employers Mutual’) declined to accept liability for the proposed treatment and the operation did not proceed.
Mr Robinson filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 4 July 2006 seeking medical and hospital expenses in the sum of “$11,000.00 approx”. By its Reply filed on 26 July 2006 the Respondent Employer disputed the claim on the ground that the expenses claimed were not “reasonably necessary or do not relate to the injury relied upon” and that the employment with the Respondent Employer was not a substantial contributing factor to Mr Robinson’s condition. It also relied upon “medical evidence and relevant legislation”.
A Commission Arbitrator conducted an Arbitration hearing on 22 September 2006 when oral evidence was heard from Mr Robinson and the parties made submissions. In an ex tempore decision the Arbitrator held that the need for the proposed surgery had not resulted from the accepted work injury and made an award for the Respondent Employer.
The Appellant Worker seeks leave to appeal the Arbitrator’s decision.
PRELIMINARY MATTERS
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.”
In his written submissions filed on 11 October 2006 the Appellant Worker sought an oral hearing of the appeal on the grounds that the transcript of the evidence and the Arbitrator’s decision was not available. Since those submissions were filed the transcript was forwarded to the parties on 17 October 2006 and further submissions have been received from each party.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Employer 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
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘ . . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularised by the Applicant.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 it was held at [27] that:
“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21)).”
A difficulty arises in the present matter, as the only amount claimed in the Application was in respect of section 60 expenses that had not been incurred. In Widdup v Hamilton [2006] NSWWCCPD 258 (‘Widdup’) the President of the Commission, Justice Sheahan, held at [20] that:
“…there will be a dispute pursuant to section 60, and in accordance with the provisions of section 289 (2) of the 1998 Act, only if the Commission is empowered to make a declaratory order that the need for the treatment is ‘as a result of an injury’, and the proposed treatment is ‘reasonably necessary’ pursuant to section 60 (1) of the 1987 Act. If the Commission does not have the power to make a declaration of that kind, then it has no jurisdiction to hear and determine the application.” (emphasis added)
The President went on to hold that the Commission does not have jurisdiction to make a declaratory order in respect of liability for future medical or hospital expenses. When that is the only relief sought in the Application to Resolve a Dispute, the Commission has no jurisdiction to hear and determine such a claim.
As Widdup was decided after the Arbitration hearing in the present matter no issue was taken at the Arbitration as to whether the Commission had jurisdiction to hear and decide a claim for medical expenses not yet incurred. However, the Commission is a statutory tribunal and has only those powers conferred on it by the legislation (the Workers Compensation Act 1987 and the 1998 Act). Parties cannot confer jurisdiction on the Commission by consent (see Strachan v Gleaner Co Ltd & anor [2005] 1 WLR 3204 at [28], cited by McColl JA in Deveigne & anor v Askar [2007] NSWCA 45 at [95] (‘Deveigne’)). Therefore, if the relevant section 60 expenses have not been incurred no ‘compensation’ could be claimed and, on the authority of Widdup, there was no ‘dispute’ properly before the Commission.
The relevance of Widdup to the present appeal was raised in the Respondent Employer’s submissions filed in the appeal on 26 October 2006. As a result, I issued a Direction on 17 January 2007 inviting the Appellant Worker to make submissions “dealing with the applicability of the decision of Widdup v Hamilton”.
In response to that Direction the Appellant Worker filed ‘submissions in response’ on 15 February 2007 in which he made the following points:
a) it was open to the Commission to make factual findings to the effect that the proposed surgery was reasonably necessary treatment as a result of a work injury and Widdup does not prevent such a finding;
b) it was open to the Commission to order that the Respondent Employer pay the cost of specified future treatment, once that cost has been incurred. Such an order would be a ‘monetary benefit’ as referred to in paragraph [43] of Widdup;
c) the requirement for ‘compensation’ to be a ‘monetary benefit’ as “propounded in paragraphs [43] and [26] of the Widdup decision is misconceived and arises from a misinterpretation of the words of the legislation, readily apparent in paragraph [26] of the decision wherein the President adopts an exclusive meaning for ‘compensation’ from an inclusive example given in the definition” (submissions in response, paragraph seven). It is argued that there is no legal basis for adopting such an interpretation of the word ‘compensation’ so as to exclude compensation, which is not in the form of a ‘monetary benefit’. To do so would rob the legislation of much of its usefulness in providing prompt and necessary treatment to injured workers regardless of their ability to pay for that treatment;
d) the objective of the 1998 Act is “to assist in securing the health, safety and welfare of workers” (section 3(a)) and to provide “prompt treatment of injuries” (section 3(b));
e) the wording of section 60 also reinforces the beneficial nature of the workers compensation legislation as a whole;
f) where it is open to the Commission to “adopt interpretations and/or make findings as outlined above which would give effect to the objectives of the legislation, the correct and proper approach is to do so in order to avoid the mischief that the Widdup decision may otherwise cause” (submissions in response, paragraph 12), and
g) the Appellant Worker was not seeking a declaration of liability but was seeking an order for the “costs and associated expenses for right knee arthroplasty” in an amount of “approximately $11,000.00”.
For the following reasons, I do not accept the Appellant Worker’s submissions:
a) it is only open to the Commission to make factual findings to the effect that proposed treatment is reasonably necessary if the Commission is otherwise properly seised of jurisdiction to hear and determine the claim. In the present matter the only ‘claim’ before the Commission was a claim for treatment that had not been incurred. Such a ‘claim’ for a potential future expense was not a claim for ‘compensation’ within the meaning of that term in the legislation. Therefore, the Arbitrator did not have jurisdiction to hear and determine the matter, or to make any factual findings;
b) it is not open to the Commission to order the payment of future medical and hospital expenses under section 60 because that section is an indemnity provision (NSW Sugar Milling Co-Opinion Ltd v Manning (1998) 44 NSWLR 442 (‘Manning’) and only authorises payments to be made after the cost has been incurred and properly verified;
c) ‘compensation’ as defined in the 1998 Act means “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts” (section 4 of the 1998 Act). An employer is liable to pay “in addition to any other compensation” (section 60(1) of the 1987 Act) the cost of any medical or hospital treatment reasonably necessary as a result of a work injury. The President noted at [41] of Widdup:
“Manning is binding authority that section 60 is an indemnity provision under which orders can be made for the payment of the cost of hospital and medical treatment. A ‘cost’ is ‘a financial liability to pay for services provided.’ If no ‘cost’ has been incurred then there is no financial liability involved. Therefore, in my view Manning creates an insurmountable barrier to the making of a declaratory order for the payment of specific future hospital and medical expenses pursuant to section 60, because those anticipated expenses are not ‘costs’ within the meaning of that term in section 60.” (emphasis added)
d) the objects of the 1998 Act are clear and it is because of those objects that the President recommended that this area of the legislation be reformed to avoid hardship (Widdup at [49]);
e) on the facts of the present case it is not open to adopt any of the interpretations urged by the Appellant Worker in order to “avoid the mischief that the Widdup decision may otherwise cause”, and
f) the Appellant Worker’s submission that he was not seeking a declaration of liability (which, in my opinion, he was) is of no assistance because he was seeking an order the Commission did not have power to make.
On a correct application of the principles discussed in Widdup, the Arbitrator did not have jurisdiction to hear and determine the claim and should have dismissed the Appellant Worker’s Application because of a lack of jurisdiction.
In respect of the appeal, leave to appeal must be refused because, for the reasons outlined above, there is no “amount of compensation at issue” in the appeal. The Appellant Worker seeks to argue on appeal something the Commission had no jurisdiction to order, that is, the payment of medical expenses that have not been incurred.
Leave to appeal is refused.
STATUS OF THE ARBITRATOR’S ORDER
Since the Arbitrator’s order was made without jurisdiction, the question arises as to the status of award made. McColl JA, in Deveigne, considered a similar issue in an appeal from the District Court. Her Honour reviewed and quoted the relevant authorities at [129] to [135] inclusive. In summary, the authorities quoted by her Honour support the conclusion that orders made by courts (and, I infer, tribunals) of limited jurisdiction (such as the Commission) without power to do so are a ‘nullity’ (Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214 at [11]) and may be disregarded (Pelechowski v Registrar, Court of Appeal(NSW) (1999) 198 CLR 435 at [27]). Thus, without expressing a concluded view on this issue, it seems doubtful that the Arbitrator’s findings would prevent the Appellant Worker from bringing a further claim if he ultimately incurs the medical expenses that were foreshadowed in the present Application, or in the event that the legislation is amended to give the Commission jurisdiction to provide the relief originally sought.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
28 March 2007
I 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
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