Shariffie v Burrangong Skin & Hides Pty Limited
[2005] NSWWCCPD 75
•22 July 2005
WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:Shariffie v Burrangong Skin & Hides Pty Limited [2005] NSW WCC PD 75
APPLICANT: Asadulla Shariffie
RESPONDENT: Burrangong Skin & Hides Pty Limited
INSURER:NRMA Workers Compensation NSW (No.2) Pty Limited
FILE NUMBER: WCC18882-03
DATE OF DECISION: 22 July 2005
SUBJECT MATTER OF QUESTION: ‘Novel or complex’ question of law.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Acting President
HEARING:On the Papers
REPRESENTATION: Applicant: McCabe Partners Lawyers
Respondent: Moray & Agnew Solicitors
ORDERS MADE: Leave to refer a question of law is refused.
The Appellant is to pay the Respondent’s costs of the ‘Application to Refer a Question of Law’, as agreed or assessed
.
BACKGROUND
Asadulla Shariffie claims workers compensation by way of weekly benefits, medical expenses and lump sum compensation for permanent impairment, against his former employer Burrangong Skin & Hides Pty Limited. He claimed to have suffered an injury to his back on 4 September 2002 when carrying a heavy piece of equipment. He returned to work after the incident and was on light duties until 10 February 2003 when his employment was terminated.
Burrangong holds workers compensation insurance with NRMA Workers Compensation NSW (No.2) Pty Limited. NRMA dispute Mr Shariffie’s claim. An ‘Application to Resolve a Dispute’ was filed in the Commission on 3 December 2003. The dispute has been before an Arbitrator and referred to Dr Brian Hagan, Approved Medical Specialist.
On 22 July 2004 Dr Hagan issued a Medical Assessment Certificate wherein he assessed Mr Shariffie as having a 4.5% Whole Person Impairment attributable to an injury to the lumbar spine and a 2% whole person impairment attributable to an abdominal hernia. Dr Hagan assessed Mr Shariffie’s combined total whole person impairment as 7%.
Mr Shariffie appealed against Dr Hagan’s assessment to the Medical Appeal Panel, who made its decision, supported by written reasons, on 2 May 2005. The Panel revoked the Medical Assessment Certificate and issued a new one, which assessed Mr Shariffie as having a 4.5% whole person impairment attributable to the lumbar spine, but nil% impairment due to an abdominal hernia. The total whole person impairment assessed by the Medical Appeal Panel was 5%.
On 31 May 2005, Mr Shariffie, by his legal representative, sought leave to refer a Question of Law to the President of the Workers Compensation Commission.
On 20 June 2005 the Registrar issued a ‘Direction’ to the parties to file submissions, including a ‘Direction’ to Mr Shariffie to file a ‘clear and concise expression of the question of law’, which was being referred. On 4 July 2005, the Arbitrator also issued a ‘Direction’ in relation to the filing of submissions, and gave the parties 14 days to comply. Submissions have been received from both parties.
Both parties consent to the matter being determined ‘on the papers’ pursuant to Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). 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.
THE QUESTION
Before granting leave to refer the question, the President must be satisfied that the question meets the requirements of section 351(3) of the 1998 Act, which provides:
(3)The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.
The submission filed by Mr Shariffie’s legal representative fails to articulate the ‘question of law’ that is referred. The first submission was filed on 31 May 2005. This sets out the history of the matter in the Commission in relation to the referral of the medical dispute to the Approved Medical Specialist and the appeal to the Medical Appeal Panel. The submission then sets out a number of matters which are relied upon namely:
i)That the Appeal Panel ignored relevant material, being the medical reports of Dr Endry-Walder, Dr Millions and Dr Rozario.
ii)The Appeal Panel made a wrong finding of fact, being that there “is no evidence of injury”.
iii)The Appeal Panel applied the wrong test and asked the wrong questions because it “was not requested to deal with the hernia question”.
iv)The Appeal Panel made an unreasonable decision, being to negate the effect of the hernia on the effect on an assessment of whole person impairment.
v)The Appeal Panel decision “resulted in a denial of procedural fairness” because it decided the issue as to the hernia without seeking “ the Applicant’s evidence on relief”.
Mr Shariffie’s legal representative filed a second submission in this application on 8 July 2005. This submission is almost incomprehensible in terms of it’s articulation of the law relevant to this application. The submission makes the following points:
· The Commission has power to reconsider a decision pursuant to section 350 of the 1998 Act.
· The powers of an Approved Medical Specialist are wide and include calling for medical records and examining the worker.
· The Medical Appeal Panel also has wide powers and may call for reports and examine the worker.
· An appeal from an Arbitrator is not a rehearing de novo.
· An application may be made to the Supreme Court in respect of a decision of an Appeal Panel.
I am not clear as to the relevance of the reference to section 350 of the 1998 Act because, as this submission correctly states, neither the Approved Medical Specialist nor the Medical Appeal Panel are ‘the Commission’. Nor is the reference to the role of a Presidential Member on an appeal from an Arbitrator’s decision of relevance to this application, which is for leave to refer a question of law.
The Respondent argue that Mr Shariffie’s submissions “do not disclose a question of law” or, “in the alternative, any question of law which arises is not novel or complex within the meaning of s352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)”. The Respondent further submits that the application is misconceived and should be dismissed.
If anything is clear from the submissions filed by Mr Shariffie’s legal representative, it is that these ‘grounds’ expose his general dissatisfaction with the Medical Appeal Panel decision. They are more appropriate to an application to the Supreme Court for judicial review of that decision, which, as the legal representative should know, is the only avenue to achieve the relief he seeks, namely to have the Panel decision set aside. A Presidential Member has no jurisdiction to review the decision of a Medical Appeal Panel.
This ‘Application for Leave to Refer a Question of Law’ is none other than an appeal to the President to interfere in the Medical Appeal Panel decision. The application is misconceived. I agree with the Respondent’s submissions. The legal representative of Mr Shariffie has not even attempted to pose a ‘novel or complex question of law’ section 351(3) of the 1998 Act, which might be considered. Leave should be refused.
DECISION ON LEAVE
Leave to refer a question of law is refused.
COSTS
Part 8 of the 1998 Act governs costs in proceedings in the Commission The starting point for a consideration of whether a costs order should be made in relation to this application is the power to award costs contained in section 341.
“341 Costs to be determined by Commission
(1)Costs to which this Division applies are in the discretion of the Commission.
(2)The Commission has full power to determine by whom, to whom and to what extent costs are to be paid.
(3)The Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 (or in relevant regulations under Division 4 of this Part) or on an indemnity basis.
(4)The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.
(5)If the Commission is satisfied that a part only of a claim was frivolous or vexatious, fraudulent or made without proper justification, the Commission may order the claimant to pay the costs relating to that part of the claim.
(6)Any party to a claim may apply to the Commission for an award of costs.
In my view this application was made ‘without proper justification’ (section 341(4) of the 1998 Act). No ‘question of law’ has been articulated. The application seeks relief, which the President has no jurisdiction to grant. If Mr. Shariffie seeks review of the decision of the Medical Appeal Panel his legal representative should have advised him to apply to the Supreme Court for judicial review of the decision. This application has resulted in unnecessary litigation and costs. It has also delayed the finalisation of Mr. Shariffie’s dispute by an Arbitrator and resulted in further delay in providing him with his proper entitlement, if any, to compensation for his injury. It would be manifestly unfair to require the Respondent to pay the costs of this application.
The matter is listed before the Arbitrator for a conference on 22 September 2005 and should proceed, hopefully to finalisation, on that date.
The Appellant is to pay the Respondent’s costs of the ‘Application to Refer a Question of Law’, as agreed or assessed.
Dr Gabriel Fleming
Acting President 22 July 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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