Ryan v State Transit Authority of NSW

[2004] NSWWCCPD 81

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Ryan v State Transit Authority of NSW [2004] NSW WCC PD 81

APPELLANT:  Patricia Ryan

RESPONDENT:  State Transit Authority of NSW

FILE NUMBER:  WCC6791-04

DATE OF ARBITRATOR’S DECISION:          17 September 2003

DATE OF APPEAL DECISION:  17 November 2004

SUBJECT MATTER OF DECISION:                Leave to appeal out of time; appeal against decision of the Registrar acting as an Arbitrator; statutory process for appeal against a medical assessment by an Approved Medical Specialist.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming

HEARING:On the papers.

REPRESENTATION:  Appellant: Steve Masselos & Co Solicitors

Respondent: Sparke Helmore Solicitors

ORDERS MADE ON APPEAL:  1.         The decision of the Registrar, dated 17            September 2003, is revoked. 

2.The matter is remitted to the Registrar for determination in accordance with these reasons.

THE APPEAL

1. On 17 October 2003 Patricia Ryan sought leave to appeal against the decision of the Registrar, dated 17 September 2003. The Registrar was acting as an Arbitrator.

1. The Respondent to the Appeal is the State Transit Authority of NSW.

1. The appeal is against the Registrar’s determination of Ms Ryan’s claim for permanent impairment compensation for an injury to her back and legs, as follows:

1.“That the Respondent [State Transit] pay the Applicant [Ms Ryan], as lump sum compensation under section 66 of the Workers Compensation Act 1987, $1200.00 in respect of 2% permanent impairment of the back.

2.That the Applicant suffers 0% permanent loss of efficient use of the right leg at or above the knee attributable to this injury.

3.That the Applicant suffers 0% permanent loss of efficient use of the left leg at or above the knee attributable to this injury.

4.That the Applicant suffers 0% permanent impairment assessed as whole person impairment.

5.No order as to costs.”

1. This determination was issued in accordance with the medical assessment of an Approved Medical Specialist. 

1. Ms Ryan wants the decision set aside and the matter referred to an Arbitrator.   

1. The Respondent submits that leave to appeal should not be granted and that the appeal should be otherwise dismissed. 

1. I am satisfied that I have sufficient information to proceed ‘on the papers’, in accordance with section 354(6) of the 1998 Act without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

1. The appeal was not filed within 28 days of the decision appealed against, as required by section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Therefore the first issue to be determined is whether leave to appeal should be granted.

1. The appeal was received in the Commission on 17 October 2003, and was therefore two days late.  It was served on the Respondent under cover of a letter dated 15 October 2003.  There was considerable confusion on the Appellant’s solicitor’s part as to the correct form for appeal and the nature of the appeal.  Ultimately, I am satisfied that it is fair and reasonable to extend the time for filing of the appeal for two days, until 17 October 2004.

1. Leave to appeal is granted.

ISSUES IN DISPUTE

1. The Appellant submits, in summary, that:

   ·      Dr Funnell’s assessment contains a demonstrable error, which renders the Certificate of Determination that was based upon it, void.

   ·      Dr Funnell erred in his assessment of a reduction for a pre-existing impairment.

   ·      The Certificate of Determination is contrary to the legislation and the relevant authorities.

   ·      The Issue of the Certificate of Determination without allowing the parties to be heard on it is a denial of procedural fairness.

1. The Respondent submits that there has been no decision by an Arbitrator and therefore there is no jurisdiction to hear the appeal.

DISCUSSION AND FINDINGS

Has a reviewable decision been made?

1. Section 371 (1) of the 1998 Act provides that the Registrar “has and may exercise all the functions of an Arbitrator”.

1. In this matter the Registrar, exercising her power as an Arbitrator, made the decision and issued the Certificate of Determination as she was entitled to do under the Act.  Therefore a reviewable decision has been made.

Can Dr Funnell’s Medical Assessment Certificate be set aside?

1. A Presidential Member has no power to set aside a Medical Assessment Certificate issued by an Approved Medical Specialist.  A party who is dissatisfied with a Medical Assessment Certificate may appeal to a Medical Appeal Panel, subject to meeting certain criteria (sections 327 and 328 of the 1998 Act).

1. The 1998 Act provides a dual dispute resolution scheme with different methods of appeal against a medical assessment by an Approved Medical Specialist, and against a determination of entitlement by an Arbitrator.   

1. In this matter, Ms Ryan’s solicitors filed an appeal to the Medical Appeal Panel against the Medical Assessment Certificate on 6 November 2003.  This was after the Certificate of Determination was issued and was therefore not permitted under section 327(7) of the 1998 Act.  Ms Ryan’s solicitors submitted that the delay was due to their “confusion as to how we would go about lodging an appeal”.  This is clearly not an acceptable reason for failing to lodge the appeal within the statutory time limit.  The result was that the Registrar rejected the appeal to the Medical Appeal Panel.  There is no appeal to a Presidential Member against a Medical Assessment Certificate.

1. A Medical Assessment Certificate and a Certificate of Determination must comply with the requirements of the 1998 Act.  Given that the Medical Assessment Certificate is ‘conclusively presumed to be correct’ (section 326 of the 1998 Act) in relation to certain matters, it is reasonable to expect strict compliance.  Section 325 of the 1998 Act requires an AMS to ‘certify’ his or her medical assessment of the ‘matters referred’ and the reasons for that assessment.  As discussed in Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50, strict compliance with this obligation is critical to the determination of the rights and liabilities of both parties to a dispute. In that case the error occurred in the invalidity of the Medical Assessment Certificate due to the failure to properly ‘certify’ as to the matters that had been assessed (section 326 of the 1998 Act). In this matter the alleged error concerns the ‘referral’ of the matter to the Approved Medical Specialist (section 293 of the 1998 Act).

Should the Certificate of Determination be Set Aside?

1. The issue of a Medical Assessment Certificate finally determines matters such as the degree of permanent impairment of a worker as a result of an injury (Section 326 of the 1998 Act).  However it does not necessarily determine the whole of the dispute.  There may be other issues that should properly be decided by an Arbitrator (including the Registrar).  Only when the whole of the dispute is determined is a Certificate of Determination issued (Section 294 (2) of the 1998 Act).

1. It is for an Arbitrator to determine jurisdictional facts such as ‘injury’ and ‘date of injury’, as those terms are defined in the legislation, on the basis of logically probative evidence.  The Arbitrator’s findings on these matters should be set out in the referral to the Approved Medical Specialist who will then conduct a medical assessment. 

1. In this case, an Arbitrator held a telephone conference with the parties on 22 May 2003 and, after discussion with them, framed a referral document to be sent to an AMS to assess the degree of Ms Ryan’s permanent impairment to her back and legs. 

1. There is no doubt that the Arbitrator’s direction to the AMS contained an error.  The error was the incorrect reference to ‘1998’ as the date on which Ms Ryan ceased work with the Respondent.  It should have read ‘1988’. 

1. The Respondent’s solicitors advised the Commission on 27 May 2003, prior to the AMS conducting the assessment, that a critical date relating to when Ms Ryan ceased employment with one employer, had been wrongly recorded.  There is no record of any action being taken to correct the referral to the Approved Medical Specialist. 

1. Dr Funnell’s Medical Assessment Certificate was issued on 27 July 2003.  It is clearly based, in part, upon the wrong date.  That date was relevant to apportionment of liability between employers.  Dr Funnell expressly apportioned “one-tenth [of the percentage of permanent impairment] to the work accident which occurred in 1989:  that is, occurring during employment between 1 July 1987 and 31 December 1998”.  This reference to December 1998 should be December 1988.

1. Section 326 provides that a Medical Assessment Certificate is “conclusively presumed to be correct” as to the degree of permanent impairment and is therefore binding on the decision-maker.  In my view the Medical Assessment Certificate and the Certificate of Determination upon which it is expressed to be based, must be issued in compliance with the 1998 Act. 

1. Section 293 requires the Registrar to refer ‘the degree of permanent impairment’ that is in dispute to the Approved Medical Specialist.  In this case, the dates of Ms Ryan’s employment were matters of significance to that assessment.  The referral in this matter suffered from the error in the dates described above. 

1. The decision-maker, in this case the Registrar, has made an error of law in purporting to issue the Certificate of Determination on the basis of an invalid medical assessment.  The error in the referral has tainted the Medical Assessment Certificate and the Certificate of Determination (Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50). The Registrar has accepted that she was bound by the Medical Assessment Certificate of Dr Funnell (no more than this can be said as there is no statement of reasons attached as required by section 294(2) of the 1998 Act). There does not appear to have been any inquiry to ensure that the referral and the assessment were properly made in accordance with the 1998 Act. This is despite being put on notice of the error in the Arbitrator’s referral two months prior to the issue of the Medical Assessment Certificate.

1. Whether or not, as a result of the incorrect date, the decision is a nullity, will depend upon the express or implied intention of the particular statutory provisions that govern it (Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55 (Gray, Downes and Kenny JJ)). This must be determined by considering the objects of the language, objects and purpose of the statute, and the consequences of finding the decision invalid and of no effect (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). The application of these principles to disputes in the Commission has been discussed in other matters, see: Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50; Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 30).

1. In my view the proper referral of matters for assessment by an Approved Medical Specialist and the determination of threshold statutory issues by an Arbitrator are not merely procedural, but go to the substantive issues in the dispute.  It is patently unfair to issue a Certificate of Determination that is based upon an incorrect referral to the Approved Medical Specialist.  While the error in this case may not, ultimately, be material to the assessment, it is possible that the error in the referral may be critical to the medical assessment, and consequently to the worker’s entitlement to compensation.

1. While it appears to me from reading Dr Funnell’s report that this error may not have been material to the opinion that he formed as to the degree of permanent impairment of Ms Ryan’s back at the relevant times, I cannot be entirely sure that this is the case.  I am not certain that the correction of this error would result in Dr Funnell altering his medical assessment.  However he should be given the opportunity to issue a fresh Medical Assessment Certificate based upon the correct referral.  I see no difficulty in referring the matter back to Dr Funnell, rather than another AMS.  This is a matter for the Registrar.  However she chooses, the matter should be expedited so that the parties obtain finality. 

1. The Registrar’s decision should be revoked.  Clearly a fresh determination cannot be issued until the matter has been properly referred to the Approved Medical Specialist and another Medical Assessment Certificate issued.  The appropriate course is therefore to remit the matter back to the Registrar to be decided again, in accordance with these reasons.

Was the Appellant denied Procedural Fairness?

1. The Appellant claims that she was denied procedural fairness in not having the opportunity to be heard in relation to the Medical Assessment Certificate before the issue of the Certificate of Determination that was based upon it.  While being heard would clearly have assisted the resolution of this particular matter, I am not persuaded that the Registrar has an obligation to hear the parties on the Medical Assessment Certificate.  What occurred in this matter was not a denial of procedural fairness but an error in the referral to the Approved Medical Specialist. 

1. The nature of the decision under review, the provisions of the 1998 Act and the demands of the instant case determine the precise content of procedural fairness in Commission proceedings (Kioa v West [1995] 159 CLR 550).  A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj[2002] HCA 11).

1. The Registrar is bound by a medical assessment, properly referred to an Approved Medical Specialist who ‘certifies’ that assessment in accordance with the provisions of the 1998 Act.  In this case, as in most matters in the Commission, the parties had the opportunity to make submissions to the Arbitrator at the telephone conference.  Those submissions addressed issues such as the nature of the injury and the contribution of employment and apportionment.  At that point in the Commission’s process, the parties were required to have already filed all of their evidence and be ready for the matter to proceed (see the Workers Compensation Commission Rules 2003). There is no denial of procedural fairness in the Registrar not providing the parties with a further opportunity to be heard, on the same issues, once the Medical Assessment Certificate was issued. In any event neither the Registrar, nor an Arbitrator, have the power to go behind a properly made medical assessment. If the parties were dissatisfied they should have exercised their right of appeal to a Medical Appeal Panel.

DECISION

1. In this matter I make the following orders:

   1.        The decision of the Registrar, dated 17 September 2003, is revoked. 

   2.The matter is remitted to the Registrar for determination in accordance with these reasons.

Dr Gabriel Fleming

Deputy President  

17 November 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE