Scone Race Club Limited v Cottom
[2021] NSWPICPD 33
•19 October 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Scone Race Club Limited v Cottom [2021] NSWPICPD 33 |
| APPELLANT: | Scone Race Club Limited |
| RESPONDENT: | Gregory James Cottom |
| INSURER: | Racing NSW |
| FILE NUMBER: | A1-3314/20 |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| DATE OF APPEAL DECISION: | 19 October 2021 |
| ORDERS MADE ON APPEAL: | 1. Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The appellant’s application to rely on additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 3. The Arbitrator’s Certificate of Determination dated 1 February 2021 is revoked. 4. The matter is remitted to another non-presidential member for re-determination. |
| CATCHWORDS: | WORKERS COMPENSATION – Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – leave to appeal an interlocutory decision; s 352(6) of the 1998 Act – additional evidence admitted on the appeal – CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 considered and applied – s 329 of the 1998 Act – referral of a matter for further assessment or reconsideration – Read v Liverpool City Council [2007] NSWSC 320 discussed; procedural fairness – decision should be based on the issues litigated in matter – Chanaa v Zarour [2011] NSWCA 199 applied; a party must have an opportunity to deal with matters adverse to their interests – Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966; 190 ALR 601; Blacktown Workers’ Club Ltd v O’Shannessy [2011] NSWCA 265 applied |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr C Jackson, counsel | |
| Leigh Virtue & Associates | |
| Respondent: | |
| Mr C Hart, counsel | |
| Bale Boshev Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr P Young |
| DATE OF MEMBER’S DECISION: | 1 February 2021 |
INTRODUCTION
Mr Gregory Cottom (the respondent) suffered an injury to his right knee on 23 May 2008 in the course of his employment as a handyman/labourer with Scone Race Club Limited (the appellant). The respondent was paid weekly compensation and his treatment expenses were met. On 30 November 2015, the respondent made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 20% whole person impairment of the right lower extremity (knee). That claim resolved and on 29 February 2016, the parties entered into a complying agreement in respect of 20% whole person impairment.
The respondent’s weekly payments of compensation ceased on or about 26 December 2017 because s 39 of the 1987 Act precludes payments of weekly compensation after 260 weeks of payments, unless the injured worker’s permanent impairment as a result of the injury exceeds 20%.
The respondent commenced a claim for Work Injury Damages, in which he was ultimately unsuccessful. While those proceedings were on foot, the respondent was provided with a copy of a report of Dr Abraham Isaacs, orthopaedic surgeon, who had examined the respondent at the request of the appellant. Dr Isaacs provided an opinion that the respondent suffered from 41% whole person impairment as a result of the injury.
The respondent commenced proceedings in the Workers Compensation Commission, seeking to have his whole person impairment assessed by an Approved Medical Specialist in order to determine whether the impairment was greater than 20%, which would entitle him to ongoing weekly compensation. The matter came before Arbitrator Philip Young (as he then was), who issued consent orders on 10 September 2020. The orders included the following order:
“2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist Orthopaedic Surgeon (AMS) to determine the extent of the [respondent’s] whole person impairment, if any, which results from injury to the applicant’s right lower extremity (right knee, peripheral nerve damage and TEMSKI scarring) which occurred on 23 May 2008.”
A delegate of the then Registrar of the Commission arranged for the respondent to be assessed by Dr Mark Burns, occupational physician and Approved Medical Specialist. The respondent attended that appointment, and a Medical Assessment Certificate was issued by Dr Burns certifying the respondent as suffering from 20% whole person impairment.
On 17 November 2020, prior to the issuing of a Certificate of Determination, the respondent wrote to the Commission seeking a reconsideration of the Medical Assessment Certificate in accordance with s 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The reconsideration application was opposed by the appellant. The Arbitrator set a timetable for each party to provide written submissions and issued a Certificate of Determination on 1 February 2021, determining the reconsideration application in favour of the respondent. He remitted the matter to the Registrar for referral to an Approved Medical Specialist orthopaedic surgeon for determination of the extent of the respondent’s whole person impairment, if any, that resulted from injury to the respondent’s right lower extremity. The Arbitrator also requested that the Registrar withhold the Medical Assessment Certificate issued by Dr Burns.
The appellant appeals the Arbitrator’s decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
The appellant seeks an oral hearing. It submits that an oral hearing is required because:
(a) the issues in the appeal are complex in nature;
(b) there is very little guidance from the Supreme Court as to the proper application of s 329 of the 1998 Act;
(c) the appellant wishes to be heard in respect of alleged errors of fact, law or discretion, and
(d) the exchange between counsel and the Commission would assist in the determination of the appeal.
The respondent is content for the appeal to be determined on the papers.
I do not regard the issues involved in this appeal as being necessarily more complex than those routinely encountered in appeals in this jurisdiction and it is a pre-requisite to every appeal that the allegations of error are those of fact, law or discretion. Whether there is or is not relevant and applicable authority on point is not, in my view, a matter that necessarily indicates an oral hearing is required. The appellant has had the opportunity to file submissions in support of its appeal and the timetable set by the delegate of the President allowed for submissions from the respondent as well as submissions in reply to be filed by the appellant. The appellant has availed itself of the opportunity to file those submissions in reply.
I have had regard to the Commission’s Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions made by the parties. 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.
TRANSITIONAL MATTERS
After this case had been heard and determined and before the appeal in this matter was allocated to me, the New South Wales Workers Compensation Commission was abolished.[1] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[2] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the Arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, and thus the decision-maker involved in these proceedings became a member of the Personal Injury Commission. However, as at the time of the various orders made in the proceedings, the decision maker bore the title of Arbitrator, in this decision he will be referred to by his former title of “Arbitrator”.
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the 2020 Act.
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to subss 352(3) and 352(4) of the 1998 Act have been met.
Leave to appeal an interlocutory decision
The appellant concedes that the Arbitrator’s decision is interlocutory in nature as it has not finally determined all of the issues between the parties. Subsection 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
A “decision” is defined in subs 352(8) of the 1998 Act to include “an award, interim award, order, determination, ruling and direction”. The meaning of “interlocutory” in subs 352(3A) is undefined.
I accept that the decision of the Arbitrator is interlocutory in nature. The proceedings remain on foot and have yet to be determined. The nature of the application is one where, had the respondent not succeeded before the Arbitrator, a fresh opportunity to seek a referral for further assessment may have been available to him if based on different facts or circumstances. The decision, therefore, does not truly finally determine the rights of the parties.[3] Thus the appellant requires leave to bring this appeal.
[3] Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36.
The appellant asserts that it is in the interests of justice to grant leave to appeal the decision because the basis upon which the decision was made was factually incorrect, was wrong in principle and the potential consequences are significant and irreversible, in that it potentially impacts entitlements to weekly compensation and treatment expenses. The appellant contends that the only other remedy is by way of Supreme Court judicial review.
The respondent submits that the application for leave to appeal the decision should be refused because the appeal will not assist in any final determination in the matter and the appeal has no prospects of success.
Subsection 352(3A) of the 1998 Act precludes the granting of leave to appeal an interlocutory decision unless the Commission is of the opinion that determining the appeal is “necessary or desirable for the proper and effective determination of the dispute”.
If leave is not granted, the matter will require assessment by an AMS and a Medical Assessment Certificate and subsequently a Certificate of Determination to be issued, before the appellant can appeal the decision. This would involve significant delay in the resolution of the proceedings, and, if the appeal was successful, the expenses and other resources utilised in conducting a medical assessment would have been wasted. I have considered the merits of the appeal and discussed those merits below. I have also weighed the factors in favour of granting leave against the public interest in the finality of litigation.
Taking those matters into account, I find that the reasons for granting leave outweigh the factors that measure against doing so and I grant leave pursuant to s 352(3A) of the 1998 Act for the appellant to appeal the interlocutory decision.
Additional evidence
Subsection 352(6) of the 1998 Act provides that:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The appellant seeks to adduce evidence that it says is additional evidence that was not before the Arbitrator. The evidence consists of a chain of emails passing between the appellant, the respondent and the Commission dated 17 September 2020 concerning the appointment with Dr Mark Burns, AMS, as follows:
(a) the appellant wrote to the Commission, noting that the AMS appointment for the respondent to attend was with Dr Mark Burns, the Arbitrator had requested the AMS to be an orthopaedic surgeon, and enquiring whether Dr Burns was in fact an orthopaedic surgeon;
(b) the Commission advised the parties that Dr Burns was selected because he was qualified to assess all of the requisite body systems;
(c) the appellant indicated that the Arbitrator specifically requested the assessment be conducted by an orthopaedic surgeon, and
(d) the respondent noted that although the Arbitrator’s referral was to an orthopaedic surgeon, such referral was not at the request of the parties, but in any event, the respondent was happy to attend the appointment with Dr Burns.
The appellant submits that the full email chain was not filed by either party in the proceedings but was in the hands of the respondent and in the Commission’s file. It submits that an incomplete record of the emails (summarised at [24(b)] and [24(c)] above) was provided to the Arbitrator by the respondent, and the lack of the full email chain critically affected the Arbitrator’s decision.
The appellant submits that the evidence goes to whether the respondent’s attendance with Dr Burns was a “mistake,” which was not part of the respondent’s case put to the Arbitrator and was a central part of the Arbitrator’s finding. The appellant contends that the respondent’s case was limited to an allegation that the Registrar’s action in referring the matter for assessment by an occupational physician, rather than an orthopaedic surgeon, was ultra vires. The appellant explains that, because it was not relevant to the case put by the respondent, the appellant did not include the full email chain in the evidence adduced by it.
The respondent asserts that the complete emails were in the Commission’s file and discussed in the telephone conference held on 25 November 2020, prior to written submissions being filed. The respondent refers to the Arbitrator’s discussion of the emails at [21] of his statement of reasons and submits that the appellant ought not be entitled to “revisit the evidence”. The respondent does not contend that any procedural unfairness arises if the evidence was admitted on the appeal.
I have reviewed the evidence that was lodged by both parties in the matter, including the evidence attached to the respondent’s letter dated 17 November 2020 applying for a reconsideration. The only email correspondence lodged by the parties was the email dated 17 September 2020 from the appellant to the Commission and the Commission’s response of the same date, the substance of which is summarised at [24(b)] and [24(c)] above. Those emails were attached to the letter applying for the reconsideration and marked annexure “B”.
The Arbitrator discussed the email correspondence at [21] of this statement of reasons. He said:
“Evidence from the emails attached to the [respondent’s] 17 November 2020 submissions is to the effect that the [respondent’s] solicitor’s office was (at least a secretary was) made aware that the Commission was referring the matter to an occupational physician rather than an orthopaedic surgeon. That mistake by the [respondent’s] solicitor’s office is entirely understandable in the context of busy legal practice. The [appellant] makes the point that the [respondent] was happy to attend the appointment with Dr Burns. The [appellant] does not, it seems to me, say that this happiness overcomes the fact that what was agreed between the parties was a referral to an orthopaedic surgeon.” (my emphasis)
It is apparent that the Arbitrator was not referring to the email sent later that day by the respondent’s legal representatives in which the writer indicated that the respondent was aware that the appointment was not with an orthopaedic surgeon, but in any event was happy to attend the appointment. That email was not attached to the letter dated 17 November 2020 and was not otherwise tendered in evidence by either party.
The appellant therefore requires leave to admit the further emails on the appeal.
Subsection 352(6) requires that the evidence could not reasonably have been obtained by the party before the matter proceeded to arbitration. The complete email chain was available to both parties to tender into evidence before the Arbitrator. The appellant does not submit that the emails were unable to be obtained before the arbitration but explains that it did not seek to rely on the document because it was not part of the respondent’s case that he objected to the referral prior to the assessment taking place. Nonetheless, the evidence was available to the parties.
If the first limb of s 352(6) is not satisfied, then I am required to determine whether a failure to admit the documents would cause substantial injustice. In CHEP Australia Ltd v Strickland,[4] Barrett JA discussed the test to be applied in consideration of whether a failure to admit documents would cause a substantial injustice. At [30]–[31] of his decision, his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[5]
[4] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
[5] Strickland, [30]–[31].
Put simply, the second limb of s 352(6) requires an assessment of whether the Arbitrator would have come to a different conclusion had that evidence been before him. In order to make that assessment, it is necessary to consider the new evidence and determine whether, had it been available to the Arbitrator, it would have produced a different result.
Of particular note, at 3.57 pm on 17 September 2020, the respondent’s legal representatives responded to the emails passing between the appellant and the Commission, which were copied to the respondent’s legal representatives. The email, authored by Ms Renee Oliver, paralegal, was in the following terms:
“Afternoon,
We refer to the above matter and the below correspondence regarding the AMS referral.
Whilst we note that the Arbitrator did refer the matter to an Orthopaedic Surgeon as per the Consent Orders dated 10 September 2020, the specific issue of an the [sic] AMS being an Orthopaedic Surgeon was not requested by either party.
The [respondent] resides at Dungog NSW and is happy to attend Dr Mark Burns as requested on 14 & 15th October 2020 in Broadmeadow.
Please confirm the appointment as arranged with Dr Burns.”
I have reviewed the submissions made by both parties. The respondent’s application for reconsideration was indeed limited to an allegation that the referral was ultra vires of the Registrar’s power. The respondent did not put forward an absence of consent on his part or any allegation of a misunderstanding of the expertise of Dr Burns as a basis for a reconsideration. The appellant did not allude to the respondent’s consent to attend the assessment except briefly in its submissions in response to the respondent’s appeal from the Medical Assessment Certificate brought pursuant s 327 of the 1998 Act, which was not a matter for the Arbitrator’s consideration.
I accept that the complete email chain paints a different picture to that conveyed by the two emails annexed to the respondent’s letter seeking a reconsideration. In particular, the further email from the respondent’s legal representatives to the Commission indicates that the respondent acknowledged that the referral to an occupational physician was contrary to the terms of the remitter. It further indicates that, in any event, the respondent was happy to attend Dr Burns for the assessment. There is no suggestion that this email was sent by the legal representatives without instructions from the respondent. This evidence is critical to the conclusions reached by the Arbitrator that the respondent mistakenly attended the assessment with Dr Burns and that the referral was contrary to an agreement reached between the parties that the Approved Medical Specialist was to be an orthopaedic surgeon.
On the basis of the above, and for the reasons expressed below in respect of the merits of the appeal, I am satisfied that a failure to admit the evidence would cause substantial injustice in the case in the manner contemplated by Barrett JA in Strickland. The complete email chain is therefore admitted as evidence in the appeal.
THE ARBITRATOR’S REASONS
The Arbitrator provided an overview of the procedural history leading up to the telephone conference conducted on 25 November 2020, which was convened in order to deal with the respondent’s application for reconsideration made under cover of the letter dated 17 November 2020. The Arbitrator indicated that a timetable was put in place for the parties to provide written submissions in respect of the issue.
The Arbitrator observed that the issue under s 329 of the 1998 Act which required determination was a limited issue but involved broad considerations. He noted the parties’ submissions. It appears from the references to “grounds of appeal” that the Arbitrator took into account not only the matters raised by the respondent in respect of the application for reconsideration, but also those relevant to the appeal from the Medical Assessment Certificate lodged pursuant to s 329 of the 1998 Act. Those grounds of appeal and submissions were annexed to the respondent’s written submissions addressing the application for reconsideration.
The Arbitrator noted Dr Burns’ area of specialty and referred to his findings on assessment, in which Dr Burns was of the view that the respondent did not suffer from any peripheral nerve injury, assessed the respondent’s whole person impairment as 20%, and found there was no evidence of any pre-existing condition. The Arbitrator also noted Dr Isaac’s competing view in relation to loss of sensation in the right lower limb.
The Arbitrator referred to s 350 of the 1998 Act (now repealed), which provided the Commission with the power to reconsider its own decisions, and the principles relevant to the exercise of that power enunciated by Roche DP in Samuel v Sebel Furniture Limited.[6] The Arbitrator considered that those principles were relevant to the exercise of his power to reconsider in this case, particularly that the decision under reconsideration was not limited to orders, determinations, awards, directions or rulings. The Arbitrator concluded that s 350 applied in addition and complementary to s 329(2) in order to allow a reconsideration of the Registrar’s referral of a matter for further medical assessment. He considered that it was important to ensure that justice is done between the parties and noted that generally, fresh evidence is required to justify the reconsideration.
[6] [2006] NSWWCCPD 141 (Samuel).
The Arbitrator proceeded to consider the application. He noted that the respondent requested a referral to a neurologist and plastic surgeon, when the respondent had not, at any time previously, requested such a referral. The Arbitrator said that there was an agreement that the respondent was to be referred to an orthopaedic surgeon. The Arbitrator observed that the appellant had not had the opportunity to object to the terms of such a referral and it would not be in the interests of justice that one party could unilaterally change the terms of the referral.
The Arbitrator pondered that, if the earlier failure to refer the respondent to a neurologist and plastic surgeon was a mistake, then the principles in Samuel did not provide a ground for reconsideration. He added that, if the argument was that he had the power to extend the terms of the referral, that power should be exercised by applying principles of procedural fairness. The Arbitrator proceeded to consider the emails dated 17 September 2020 attached to the letter requesting a reconsideration. The Arbitrator’s reasoning, which is extracted at [29] above, was that:
(a) the solicitor’s office (probably a secretary) was made aware that the referral was to an occupational physician and not an orthopaedic surgeon;
(b) this was an understandable “mistake” in a busy legal practice;
(c) the appellant argued that the respondent was content to attend the appointment, and
(d) it was not part of the appellant’s case that the respondent’s willingness to attend the assessment overcame the fact that it had been agreed that the referral was to be to an orthopaedic surgeon.
The Arbitrator referred to a statement filed by the respondent in which he criticised the manner in which Dr Burns conducted the assessment, a statement which was prepared as part of the appeal from the Medical Assessment Certificate brought pursuant to s 327 of the 1998 Act. The Arbitrator said that it was not fair or appropriate to accept the statement on face value in circumstances where Dr Burns did not have an opportunity to respond.
The Arbitrator further referred to the appellant’s submission that the respondent’s remedy lay within the appeal mechanism provided for in s 327 of the 1998 Act. He observed that there were discretionary matters and considerations of fairness that could fall within s 329 but were not within the ambit of s 327, and arguments as to the “incorrect criteria” and” demonstrable error” that fall within s 327 were not relevant to s 329.
The Arbitrator concluded that he was not of the view that the Registrar’s action in referring the respondent to an occupational physician was ultra vires, he did not have the power to direct the Registrar to do anything and there was no lack of power vested in the Registrar to make the referral. The Arbitrator said that there was simply an inconsistency between the referral and the “the parties recorded agreement.”[7]
[7] Cottom v Scone Race Club Limited (3314/20, 1 February 2021) (reasons), [24].
The Arbitrator determined that:
“Whether the medical assessment should be performed again by an orthopaedic surgeon, is, however a different proposition. The parties were in agreement that an orthopaedic surgeon was appropriate and the Commission remitted the matter to the Registrar for referral to an orthopaedic surgeon. It is, in my view in the interests of justice (and I exercise my discretion) to remit the matter for reconsideration afresh by an AMS-orthopaedic surgeon. An additional reason for my decision in this regard is that the parties (in particular the [respondent]) were not afforded an opportunity to actively consent to any variation of the terms of the remitter and that this opportunity to fully consider the matter was not, as events unfolded, available. Merely ‘copying in’ by email the [respondent’s] solicitor’s secretary[8] is in my view insufficient to afford justice to the [respondent].”[9]
[8] Annexure “B” to the respondent’s submissions dated 17 November 2020.
[9] Reasons, [25].
The Arbitrator indicated that he proposed to refer the matter for further assessment, but recommended that the assessment by Dr Burns should not be included in the documents put before the new assessor because Dr Burns was not of the appropriate speciality.
The Certificate of Determination issued on 1 February 2021 records:
“The findings of the Commission are as follows:
1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist Orthopaedic Surgeon to determine the extent of the [respondent’s] whole person impairment, if any, which results from injury to the [respondent’s] right lower extremity (right knee, peripheral nerve damage and TEMSKI scarring) which occurred on 23 May 2008.
2. The Registrar is requested to place before the Approved Medical Specialist a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply filed 8 July 2020 and attachments, a copy of the Application to Admit Late Documents filed 3 September 2020 and attachments and a copy of this Certificate of Determination.
3. The Registrar is requested to withhold from disclosure to the Approved Medical Specialist the Medical Assessment Certificate of Dr M Burns dated 21 October 2020.”
GROUNDS OF APPEAL
The appellant brings four grounds of appeal, as follows:
(a) Ground One: the Arbitrator erred by misconceiving his task and in the exercise of his discretion by accepting that a referral to an occupational physician was within the Registrar’s power and then concluding that the “interests of justice” favoured a reconsideration;
(b) Ground Two: the Arbitrator erred in fact by finding that the respondent “mistakenly” agreed to the assessment with Dr Burns, which finding was material and central to the Arbitrator’s decision;
(c) Ground Three: the Arbitrator failed to provide the appellant with procedural fairness by exercising his discretion on a basis not put to him by either party, and
(d) Ground Four: the Arbitrator erred by wrongly withholding the assessment by Dr Burns from the Approved Medical Specialist appointed to conduct the reconsideration.
LEGISLATION
The reconsideration application brought by the respondent was made pursuant to s 329 of the 1998 Act. In his Statement of Reasons, the Arbitrator cited ss 327, 329 and 350 of the 1998 Act. After the Arbitrator’s Certificate of Determination was issued, the 2020 Act amended ss 327 and 329 and repealed s 350 of the 1998 Act. The sections of the Act, as they appeared at the time of the Arbitrator’s decision, were in the following form:
“327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds—
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.
(6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note—
Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).
…”
And:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
And:
“350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not—
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
SUBMISSIONS
For the reasons sets out below, it is not necessary to summarise the submissions made by the parties in respect of Grounds One and Four of the appeal.
Ground Two
The appellant’s submissions
The appellant submits that s 326 of the 1998 Act provides that a Medical Assessment Certificate is final and conclusively presumed to be correct (subject to an appeal to a Medical Panel brought pursuant to s 327 of the 1998 Act) and s 329(1)(b) of the 1998 Act provides an exception to that principle. The appellant submits that ss 327 and 329 sit side by side and Malpass AsJ was correct when his Honour observed in Read v Liverpool City Council[10] that the purpose of s 329(1)(b) may well be to provide a remedy where there are no grounds for appeal under s 327. The appellant points out that, in Milosavljevic v Medina Property Services Pty Ltd,[11] Roche DP applied that principle, which the appellant contends recognises the limited role of s 329(1)(b) in the context of the 1998 Act as a whole.
[10] [2007] NSWSC 320 (Read), [26].
[11] [2008] NSWWCCPD 56 (Milosavljevic).
The appellant submits that the Arbitrator erred by determining that the respondent’s agreement to attend for assessment by Dr Burns was a “mistake,” and that mistake could not be overcome by the respondent consenting to attend the assessment. The appellant submits that there was no basis upon which to conclude that the respondent’s attendance for assessment by Dr Burns was a “mistake.”
The appellant asserts that the finding was a material finding which affected the Arbitrator’s decision. The appellant refers to the email chain passing between the Commission and the appellant which it says discloses the fact that the appellant raised the fact that Dr Burns was an occupational physician, rather than an orthopaedic surgeon, and the Commission explained why the referral was to an occupational physician.
The appellant refers to the basis of the respondent’s reconsideration application, which was that the referral to an occupational physician was ultra vires of the Registrar’s power, and the Arbitrator’s conclusion that the referral was within power. The appellant further refers to the Arbitrator’s conclusion that it was in the interests of justice to remit the matter for re-assessment. The appellant says that the Arbitrator gave two reasons for that conclusion, namely that the parties had agreed that an assessment by an orthopaedic surgeon was appropriate, and that the parties had not been given the opportunity to consent to a variation of the referral.
The appellant submits that the Arbitrator’s finding that the attendance on Dr Burns was a “mistake” was not even consistent with the limited email chain annexed to the respondent’s letter seeking a reconsideration. The appellant says that it was readily apparent a month prior to the assessment that the respondent was aware the assessment was to be conducted by an occupational therapist and elected to attend the appointment, probably on the basis of advice from his legal representatives.
The appellant contends that it was not a “mistake” that the assessment went ahead. It asserts that the respondent’s legal representatives did not at any time after the assessment, including in the application for reconsideration, assert that either the referral or the election by the respondent to attend the assessment, was a “mistake.” The appellant describes the respondent’s attendance for assessment as a “deliberate choice,” and submits that once it was drawn to his attention that Dr Burns was an occupational physician rather than an orthopaedic surgeon, not only consented to the referral but expressed a preference for it and advocated for it.
The respondent’s submissions
The respondent submits that the appellant is wrong in asserting that the notion of “mistake” was central to the Arbitrator’s reasoning.
The respondent contends that it is clearly apparent that the appellant has failed to engage with the Arbitrator’s reasoning process. The respondent asserts that the “mistake” was the referral, which had been communicated to the “legal secretary.” The respondent further asserts that the respondent expressly consented to a referral to an orthopaedic surgeon. The respondent contends that the error in referring him to an occupational physician was central to his application for reconsideration and was the subject of submissions. The respondent submits that the ground of appeal should be rejected.
The appellant’s submissions in reply
The appellant points out that the full email chain included the fact that the Registrar had explained the referral before the respondent agreed to attend the appointment and the parties had not specifically requested an assessment by an orthopaedic surgeon. The appellant submits that, in the light of the contents of the full email chain, it was not possible to construe the referral as a “mistake” or oversight.
Ground Three
The appellant’s submissions
The appellant submits that the Arbitrator breached the requirements of procedural fairness by determining the matter on a basis not put by either party, relying on South Western Sydney Area Health Service v Edmonds,[12] and not first warning the parties of his intention to do so, in accordance with Siddik v WorkCover Authority of NSW.[13] The appellant maintains that the only argument put forward by the respondent in the application for reconsideration was that the exercise of referring the respondent for assessment by an occupational physician was invalid because it was outside of the Registrar’s power, being beyond the order made by the Arbitrator.
[12] [2007] NSWCA 16; 4 DDCR 421.
[13] [2008] NSWCA 116; 6 DDCR 228.
The appellant points out that this argument was rejected by the Arbitrator. The appellant reiterates that the application for reconsideration was not in any part based on an argument that the respondent’s attendance for assessment by Dr Burns was a “mistake”, either on his part or the part of his legal representatives. It was not a part of the application. The appellant submits that, had that argument been raised by the respondent, the appellant could have relied upon the evidence contained in the email chain to meet that argument and that evidence clearly showed that there was no such “mistake”.
The respondent’s submissions
The respondent submits that the appellant’s assertion that it was denied procedural fairness is wrong and this appeal ground should be rejected. The respondent asserts that any suggestion that the appellant suffered some “practical injustice” is baseless, as is disclosed by a review of the submissions put by the appellant to the Arbitrator.
The appellant’s submissions in reply
The appellant does not specifically reply to the respondent’s submissions in respect of this ground of appeal.
THE RELIEF SOUGHT
The appellant relevantly seeks to have the decision to refer the matter for further assessment set aside and, in its place, to have the application for reconsideration dismissed. The respondent submits that the Commission’s duty is to enable effective dispute resolution, which is best served by refusing the appeal and confirming the Arbitrator’s Certificate of Determination.
CONSIDERATION
Section 352 of the 1998 Act provides for an appeal against a decision of an arbitrator. Subsection (5) requires that an appeal is limited to a determination of whether the Arbitrator’s decision was affected by error of fact, law or discretion and to the correction of that error.
In this case, the Arbitrator was required to make a determination pursuant to s 329(1)(b) of the 1998 Act as to whether the respondent’s assessment of whole person impairment should be referred for further assessment by an Approved Medical Specialist. The observations of Malpass AsJ in Read (approved by Roche DP in Milosavljevic) were that s 329(1)(b) may have been intended to provide a remedy in cases where no grounds of appeal could be made out but the “dictates of justice” required a further referral for assessment. Thus, the exercise of discretion vested in the Arbitrator to grant or refuse the application should embrace notions of procedural fairness. The Arbitrator’s task therefore was to examine the facts and circumstances in this case and determine whether it was just to order the referral.
Ground Two
In its second ground of appeal, the appellant complains that there was no basis upon which to determine that the respondent mistakenly agreed to attend the assessment with Dr Burns. The respondent submits that the “mistake” referred to by the Arbitrator was that the referral was to an occupational physician and not an orthopaedic surgeon. The Arbitrator’s reasoning was that the mistake was that of the respondent’s solicitor’s office. Wherever the Arbitrator intended to lay the responsibility for the purported “mistake”, there is no evidence that the respondent mistakenly agreed to the referral, or that the respondent’s legal representatives mistakenly allowed or recommended the respondent to attend, or that the referral itself was a mistake. The full email chain discloses that:
(a) the Registrar intended to refer the respondent to Dr Burns, which was explained to be because Dr Burns had the necessary expertise to assess all of the respondent’s claimed body parts and systems;
(b) both parties, and the respondent’s legal representatives, were aware that the referral was not in the terms expressed by the Arbitrator in the remittal to the Registrar;
(c) the respondent himself expressed a preference to attend the appointment, and
(d) there was no agreement between the parties that the preferred Approved Medical Specialist was to be an orthopaedic surgeon.
Further, the respondent attended the assessment without objection. There is no evidence to support the Arbitrator’s conclusion that the referral was a mistake, wherever the mistake is said to have arisen. While the full email chain was not before the Arbitrator, the emails that were in evidence were insufficient of themselves to provide a foundation for the Arbitrator’s finding. The emails in evidence before the Arbitrator were, firstly, from the appellant to the Commission, pointing out that the referral was intended to have been with an orthopaedic surgeon, and secondly, the Commission’s response explaining why the respondent was referred to Dr Burns. The respondent was copied into those emails, using the email address provided in the Application to Resolve a Dispute as the email address to be used to contact the respondent’s legal representatives and thus the address for service of documents.
No argument was raised by the respondent that he mistakenly attended the assessment, no evidence was adduced that provided a basis to conclude that there was any mistake, and the full email chain clearly discloses that the Arbitrator’s conclusion in that regard was contrary to the facts. The Arbitrator’s finding that the referral was a “mistake” has no basis in the evidence and constitutes an error of fact. It follows that Ground Two of the appeal succeeds.
Ground Three
In Ground Three of the appeal, the appellant alleges that the Arbitrator breached the requirements of procedural fairness by determining the matter on a basis not put by either party. I have reviewed the documentation filed by the respondent in respect of his application for reconsideration. The respondent’s letter seeking the reconsideration:
(a) referred to the respondent’s substantive proceedings seeking weekly compensation and treatment expenses in accordance with s 39 of the 1987 Act;
(b) suggested a potential lodgment of an appeal from the Medical Assessment Certificate in accordance with s 327 of the 1998 Act, and
(c) asserted that the referral to Dr Burns was ultra vires because it was inconsistent with the Arbitrator’s Certificate of Determination dated 10 September 2020.
The respondent annexed to the letter his submissions in support of the application. He provided a summary of the background to the matter, which included reference to the body parts and systems pertaining to the right lower extremity requiring assessment (right knee, peripheral nerve damage and scarring) and to the fact that the Approved Medical Specialist was to be an orthopaedic surgeon. The respondent sought to tender fresh evidence in the form of a statement from the respondent dated 16 November 2020 as to how the assessment was conducted, which he submitted was evidence that Dr Burns did not have the necessary expertise. The respondent said that he sought to rely upon the statement for the purposes of both an appeal pursuant to s 327 and the s 329 application.
The respondent indicated that he was seeking orders from the Arbitrator that the Registrar be directed to appoint Approved Medical Specialists with areas of specialty in orthopaedics, neurology and plastic surgery. The respondent submitted:
“The Dispute Services Co-ordinator’s reference to Dr Burns (an Occupational Physician) was in conflict with the Certificate of Determination of Arbitrator Young on 10 September 2020, which ordered the Registrar to refer the assessment by an Orthopaedic Surgeon (see order 2). How this was revisited and allowed to be conducted by Dr Burns, is not apparent. The referral, on its face, was ultra vires.”[14]
[14] Respondent’s submissions in support of reconsideration application, [18].
The respondent added that the relief sought by him under s 329 was a fairer and cheaper alternative than seeking a judicial review of the Registrar’s referral. He submitted that there was demonstrated error on the face of the record and errors in application of the American Medical Association’s guidelines because of the limited expertise of the Approved Medical Specialist, which could have been avoided if the referral had been consistent with the Arbitrator’s orders.
The matters referred to in the statement dated 16 November 2020 were limited to the respondent’s assertions that Dr Burns did not take note of his complaints and did not perform a proper examination.
The respondent filed further submissions dated 4 December 2020 in accordance with the Arbitrator’s direction. The respondent submitted that the Arbitrator’s power to order a further referral fell within s 350 of the 1998 Act. The respondent also referred to the former s 368 of the 1998 Act, which provision allowed for the appointment of arbitrators as members of the Commission.
The respondent asserted that the Arbitrator’s power pursuant to s 329 of the 1998 Act is unfettered. He submitted that there has been no “valid exercise of power by the Commission relevant to the [Medical Assessment Certificate].”[15]
[15] Respondent’s submissions dated 4 December 2020, [6].
The respondent annexed a copy of his submissions made in respect of the intended appeal to a Medical Panel pursuant to s 327 of the 1998 Act.
The appellant filed submissions in respect of the application for reconsideration on 18 January 2021. The appellant submitted that the respondent relied entirely upon its arguments in support of its application under s 327 and said that in the respondent’s application for reconsideration, the respondent did not argue any error or injustice and thus there was no work for s 329(1)(b) to do. The appellant submitted that the section only applies where the appeal mechanism provided for in s 327 does not provide an adequate remedy.
The appellant asserted that none of the respondent’s complaints provided a proper basis for a reconsideration because they did not indicate that justice dictated a referral for reconsideration. The appellant contended that the operation of s 329(1)(b) was not “unfettered” and was to be construed in a manner consistent with the language and purpose of the statute as a whole. The appellant said the 1998 Act provided a clear path for review of approved medical assessments on defined grounds and within a strict timeframe. The appellant submitted that the power under s 329(1)(b) provided an exception to the strict requirements of s 327. The appellant referred to the observations by Malpass AsJ in Read, which the appellant said had been followed by Roche DP in Milosavljevic. The appellant said that the observations set a high threshold to be met in a reconsideration application and meant that the role of s 329(1)(b) was limited and purely supplementary to the appeal process provided for in s 327. The appellant pointed out that, in Milosavljevic, the application failed because of a lack of jurisdiction, but would have failed in any event because there was no denial of procedural fairness.
The appellant asserted that the respondent could not succeed because the respondent did not argue that an injustice had arisen and there was no basis upon which the Commission could find that the dictates of justice required a further referral. The appellant added that the respondent’s appeal under s 327 was without merit.
The appellant also annexed a copy of its submissions in respect of the appeal pursuant to s 327 of the 1998 Act.
The respondent filed further submissions in reply to the appellant’s submissions. The respondent contended that the appellant’s submission that s 329 had no work to do failed to recognise the additional evidence available and that the power to order a reconsideration under s 329 exists independently of s 327. The respondent asserted that the additional evidence (his statement) constituted evidence that the “dictates of justice” warranted a reconsideration.
The Arbitrator determined the matter without conducting an arbitration hearing, thus there were no oral submissions recorded and his determination was based solely upon the written submissions before him. It is apparent from a review of the written submissions by both parties that the respondent did not assert that he had “mistakenly” attended the assessment by Dr Burns. Further, the only reference the respondent made to any injustice resulting from having attended the assessment was that Dr Burns had not conducted a proper examination and failed to listen to his complaints. The Arbitrator specifically rejected the evidence about how the assessment was conducted. He reasoned:
“In relation to Dr Burns’ examination of the [respondent], it is in my view neither appropriate nor fair for the Commission to accept the matters in the [respondent’s] statement at face value in circumstances where the [appellant] has no opportunity to verify the claims made by requesting Dr Burns’ response and where Dr Burns cannot in any event be compelled to give evidence about those circumstances.[16]
[16] Reasons, [22].
The only injustices pointed to by the Arbitrator were that, in his view, the referral to Dr Burns was contrary to an agreement between the parties that the respondent would be referred to an orthopaedic surgeon and that:
“the parties (in particular the [respondent]) were not afforded an opportunity to actively consent to any variation of the terms of the remitter and that this opportunity to fully consider the matter was not, as events unfolded, available. Merely ‘copying in’ by email the [respondent’s] solicitor’s secretary is in my view insufficient to afford justice to the [respondent].”[17]
[17] Reasons, [25].
None of those matters were matters raised by the respondent as part of his application under s 329. The appellant maintained that, in its application for reconsideration, the respondent did not raise an argument that the dictates of justice required a further assessment and that there was no basis upon which the Commission could find that the dictates of justice required a further referral.
The Arbitrator’s conclusion that the respondent was not afforded an opportunity to consent to the variation in the specialty was clearly wrong. The consent was readily apparent from the email sent by Ms Oliver, paralegal, which was not in evidence because the respondent had not raised any issue that he had not consented or that he had not had the opportunity to consent to attend the assessment.
In Chanaa v Zarour,[18]Campbell JA (with Bathurst CJ and Tobias AJA agreeing) said (citations omitted):
“It is indisputable that a trial judge is required to conduct the proceedings in accordance with procedural fairness. 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.”[19]
[18] [2011] NSWCA 199 (Chanaa).
[19] Chanaa, [13].
An arbitrator’s finding must be based upon the evidence[20] and a decision based on a point not raised by the parties or the Commission constitutes a denial of procedural fairness.[21] As McHugh J observed in Muin v Refugee Review Tribunal:[22]
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests.”
[20] Strinic v Singh [2009] NSWCA 15.
[21] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, [78]; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45, [75].
[22] [2002] HCA 30; 76 ALJR 966; 190 ALR 601, [123].
Deputy President Roche considered the application of these principles in the context of the Workers Compensation Commission in Inghams Enterprises Pty Ltd v Jones[23] and observed:
“… [T]he Arbitrator decided the case on a basis that was never argued by the worker’s solicitor and without giving the appellant the opportunity to be heard. It is a basic rule of fairness, disregard of which can be an error of law, that a party must have an opportunity to deal with any material ingredient in a Court’s decision-making process (Smith Family v Dafinis (1991) 8 NSWCCR 9).
This principle was applied by Bathurst CJ (McColl JA agreeing) in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75], where it was observed that a decision or award based on a point not raised by the parties or by the Commission constitutes a denial of procedural fairness and is susceptible to challenge under s 353 of the 1998 Act, which is restricted to appeals from Presidential member where a party is ‘aggrieved by a decision of the Presidential member in point of law’. The same principle applies to proceedings before Arbitrators and appeals under s 352.
While I accept that an Arbitrator is not obliged to decide a case by reference only to the matters put by counsel, and that, in deciding a case, an Arbitrator is entitled to think for himself or herself (Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 212; [1978] 3 All ER 1033 at 1037 per Lord Wilberforce; Klein v Minister for Education [2007] HCA 2; 232 ALR 306 at [38], 315 per Gummow, Hayne and Heydon JJ), if an Arbitrator is minded to determine a case on a basis not argued, he or she is required to give the parties an opportunity to be heard. The Arbitrator erred in failing to do so in this case.”[24]
[23] [2012] NSWWCCPD 17 (Jones).
[24] Jones, [82]–[84].
The Arbitrator was not entitled to decide an entirely different issue which was not raised for his consideration, without giving notice to the parties that he proposed to take that course. Had the Arbitrator brought to the attention of the parties that he proposed to decide the matter on the basis that there had been a “mistake” in the referral and that the respondent had not had the opportunity to raise an objection to the referral, the appellant would have had the opportunity to seek to rely upon the email from Ms Oliver. That email was directed to the Commission and copied to the appellant. It advised that neither party had requested the referral be to an orthopaedic surgeon, the respondent was happy to attend the appointment, and the appointment with Dr Burns should be confirmed.
The information contained in the email was clearly at odds with the Arbitrator’s conclusions and the appellant ought to have been provided with the opportunity to address the Arbitrator’s considerations. Having failed to be afforded that opportunity, the appellant was denied procedural fairness and the real potential to achieve a different outcome.
It follows that Ground Three of the appeal succeeds.
CONCLUSION
Having established errors of the kind required by s 352(5) of the 1998 Act, it follows that the Arbitrator’s Certificate of Determination dated 1 February 2021 is revoked. It is not necessary to deal with the remaining two grounds of appeal.
Subsection 352(5) of the 1998 Act provides that, if a relevant error is established on appeal, the Presidential member has the power to correct that error. Subsection 352(6A) provides that the decision may be confirmed or may be revoked and a new decision made in its place, and subs (7) allows the Presidential member to remit the matter to the same, or a different non-presidential member for determination. The issue for determination is of limited compass. The case brought by the respondent is that the referral to Dr Burns was ultra vires of the Registrar’s power because it was at odds with the Certificate of Determination issued by the Arbitrator dated 10 September 2020. It is also apparent in the submissions made by the respondent to the Arbitrator that he complains of an injustice because of the manner in which the assessment was conducted.
The appeal before me relates to errors on the part of the Arbitrator in determining that there was a “mistake” in the referral and that the appellant was denied procedural fairness by not being provided with the opportunity to address that point. Those errors have been made out and corrected by a revocation of the Certificate of Determination dated 1 February 2021.
Section 352(5) specifically provides that the “appeal is not a review or new hearing.” The allegation that the referral was ultra vires of the Registrar’s power was determined against the respondent and that issue is not the subject of this appeal. The second complaint (that an injustice had arisen because of the manner in which the assessment was conducted) was not expressly raised until the respondent filed his submissions in reply to the appellant’s submissions. In my view, the second complaint made by the respondent was not sufficiently addressed by the parties in their written submissions to the Arbitrator. In those circumstances, it is not appropriate for me to re-determine the matter.[25]
[25] Ballina Shire Council v Knapp [2019] NSWCA 146.
The matter is therefore remitted to another non-presidential member for re-determination.
DECISION
Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act1998.
The appellant’s application to rely on additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is granted.
The Arbitrator’s Certificate of Determination dated 1 February 2021 is revoked.
The matter is remitted to another non-presidential member for re-determination.
Elizabeth Wood
DEPUTY PRESIDENT
19 October 2021
1
15
0