Singh v B & E Poultry Holdings Pty Ltd
[2018] NSWWCCPD 52
•3 December 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52 | |
| APPELLANT: | Jasbir Singh | |
| RESPONDENT: | B & E Poultry Holdings Pty Ltd | |
| INSURER: | AAI Ltd trading as GIO – Agent for Insurance for NSW | |
| FILE NUMBER: | A1-2440/18 | |
| ARBITRATOR: | Ms D Moore | |
| DATE OF ARBITRATOR’S DECISION: | 26 July 2018 | |
| DATE OF APPEAL DECISION: | 3 December 2018 | |
| SUBJECT MATTER OF DECISION: | Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – leave to appeal an interlocutory decision, s 352(6) of the 1998 Act – admission of fresh or additional evidence on appeal, s 322A of the 1998 Act – one assessment of the degree of permanent impairment, s 329 of the 1998 Act – application for further assessment by an Approved Medical Specialist | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Buttar, Caldwell & Co |
| Respondent: | Rankin Ellison Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Leave to appeal an interlocutory decision is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Arbitrator’s decision that the appellant was not, in the circumstances, entitled to obtain a new Medical Assessment Certificate is confirmed. 3. The Arbitrator’s decision dated 26 July 2018 is otherwise revoked. 4. The matter is remitted to the same Arbitrator, to determine any remaining issues consistently with these reasons. | |
INTRODUCTION AND BACKGROUND
Jasbir Singh (the appellant) suffered injury to his back on 25 February 2013, lifting in the course of his employment as a delivery driver with B & E Poultry Holdings Pty Ltd (the respondent). He came to surgery (L5/S1 microdiscectomy) on 11 June 2014, at the hands of Professor Van Gelder. He subsequently tried various forms of part-time, alternative duties, with the respondent, at a laundry and taxi driving. The respondent accepted liability for the claim.[1]
[1] Appellant’s statement dated 7 May 2018, Application to Resolve a Dispute (ARD), pp 1–3.
The appellant was examined by Dr Bodel, an orthopaedic surgeon, who in a report dated 26 October 2015 assessed whole person impairment (WPI) relating to the lumbar spine at 13 per cent.[2] The appellant was examined on the respondent’s behalf by Dr Casikar, a neurosurgeon, who in a report dated 7 January 2016 assessed WPI at 10 per cent.[3] The respondent denied the permanent impairment claim in a s 74 notice dated 12 January 2016, on the basis that the appellant’s permanent impairment was not greater than 10 per cent.[4] The appellant commenced proceedings in the Commission, number 1870/16, and was examined by an Approved Medical Specialist (AMS), Dr Wong, who issued a Medical Assessment Certificate (MAC) dated 29 June 2016.[5] Dr Wong assessed WPI at 14 per cent. The appellant lodged an Election to Discontinue Proceedings on 1 July 2016, bringing those proceedings to an end.[6] The MAC was not the subject of appeal. No Certificate of Determination was issued in those proceedings.
[2] Reply, pp 24–30.
[3] Reply, pp 8–14.
[4] Reply, pp 42–44.
[5] Reply, pp 31–37.
[6] Attachment to Annexure ‘D’ of Amended Application Appeal Against Decision of Arbitrator (Application to Appeal).
The appellant made a lump sum compensation claim on 2 February 2018, in respect of 16 per cent WPI, based on a report of Dr Khan, a consultant surgeon, dated 24 January 2018.[7] The letter of claim included particulars of a claim for work injury damages, and a claim for weekly compensation. The respondent arranged a further examination with Dr Casikar, who reported on 21 March 2018.[8] Dr Casikar maintained his view that the level of WPI was 10 per cent. The respondent’s solicitors served that report on 6 April 2018. In the letter of service, the respondent’s solicitors said they regarded both parties as “bound” by the MAC certifying 14 per cent, and offered to resolve the lump sum claim on that basis.
[7] ARD, pp 15–23.
[8] Reply, pp 15–20.
The current proceedings were commenced on 11 May 2018. They claimed lump sum compensation in respect of 16 per cent WPI. The injury on 25 February 2013 was relied on. The ARD included a claim in respect of weekly compensation. The Arbitrator’s reasons record that the respondent objected to the matter being referred to an AMS for assessment. This was on the basis that the appellant was bound by the previous MAC, and that the appellant could not bring a second claim in respect of the same injury, due to s 66(1A) of the Workers Compensation Act 1987 (the 1987 Act).[9]
[9] Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCC 178 (Reasons), [10].
The Arbitrator made orders for written submissions, and said the parties agreed that the matter could then be dealt with on the papers.[10] The appellant’s submissions were dated 29 June 2018, and the respondent’s were dated 4 July 2018.
[10] Direction dated 18 June 2018.
THE ARBITRATOR’S REASONS
The Arbitrator set out the relevant provisions of the Workers Compensation Acts and the Rules. She summarised the submissions. The appellant referred to passages from Avni v Visy Industrial Plastics Pty Ltd,[11] referring to the fact a worker can recommence a claim after discontinuing it, and that a dispute is determined by the issue of a Certificate of Determination. A MAC is only binding in the proceedings in which it is issued,[12] and there is no estoppel in circumstances capable of change.[13] The appellant referred to Woolworths Ltd v Stafford,[14] as authority that a worker can amend a claim to change the level of impairment claimed.[15]
[11] [2016] NSWWCCPD 46 (Avni).
[12] Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 (Livaja).
[13] Railcorp NSW v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 231.
[14] [2015] NSWWCCPD 36; 16 DDCR 291 (Stafford).
[15] Reasons, [20]–[28].
The Arbitrator referred to the respondent’s submissions. Clause 11 of Sch 8 of the Workers Compensation Regulation 2016 (the Regulation) did not assist the appellant, as his initial lump sum claim post-dated 19 June 2012. Section 66(1A) otherwise prohibits more than one claim for permanent impairment resulting from the injury. A claim means a valid claim, a broad range of conduct may amount to the making of a claim: Tan v National Australia Bank Ltd.[16] The case law does not suggest that a claim has only been made if it is finally determined, Tan and Stafford are both consistent with this.[17]
[16] [2008] NSWCA 198; 6 DDCR 363 (Tan).
[17] Reasons, [29]–[33].
The respondent submitted that the contrary construction, that a worker could make multiple claims in respect of the same injury, before a final Certificate of Determination issued, should be rejected. The prohibition against more than one claim after 19 June 2012 is substantive law, approved by the High Court in ADCO Constructions Pty Ltd v Goudappel.[18] Based on Avni, at [74], following discontinuance a worker may recommence a claim, but not commence a fresh claim. The MAC dated 29 June 2016 is the only MAC that can be used in relation to the injury: s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[19]
[18] [2014] HCA 18; 254 CLR 1; 308 ALR 213; 13 DDCR 90 (Goudappel).
[19] Reasons, [35]–[40].
The Arbitrator said that s 66(1A) of the 1987 Act does not necessarily prevent a worker recommencing where no Certificate of Determination has been issued. The “more problematic question” was the application of s 322A. That section was clear, the appellant “simply cannot obtain a further MAC”. Clause 11 of Sch 8 could not assist the appellant, whose initial claim for lump sum compensation post-dated 19 June 2012, so the clause could not apply.[20]
[20] Reasons, [43]–[45].
The Arbitrator referred to s 329 of the 1998 Act, and whether reconsideration of the MAC could be sought. She said that this could only be done by the Registrar as an alternative to appeal, or by the Commission. She noted the decision of Roche DP in Milosavljevic v Medina Property Services Pty Ltd,[21] that the power should not be used in an unrestrained or unlimited way.[22]
[21] [2008] NSWWCCPD 56 (Milosavljevic).
[22] Reasons, [46].
The Arbitrator accepted that the claim made by the appellant had not been “finally determined”. She accepted the respondent’s submission that a ‘claim’ does not necessarily refer to a claim that is finally determined, but rather “a claim that has been made in accordance with the requirements of ss 260 and 261 of the 1998 Act, as construed in Tan and Stafford”. She said she did not accept that the legislation permitted a worker who had made a claim, and discontinued after a MAC was issued, to “make a new claim and obtain a new MAC”. She concluded that the appellant was “not entitled to bring this claim” and she dismissed the proceedings.[23]
[23] Reasons, [52]–[57].
ON THE PAPERS
Section 354(6) of 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.”
The appellant submits the appeal involves “important matters of policy consideration and legal principle regarding the discretion to be exercised in referring a worker back to an AMS for further assessment”. He submits the matter should not be dealt with on the papers. The respondent submits the matter can be dealt with on the papers.
The appellant does not specify the oral submissions he proposes to make, and why these cannot be adequately dealt with in writing. The parties have had opportunity to make such submissions as they wish, in writing, both before the Arbitrator and on this appeal. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
LEAVE TO APPEAL AN INTERLOCUTORY DECISION?
Section 352(3A) 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.”
The appellant submits the appeal may be viewed as being from an interlocutory order, as “the determination did not finally determine the parties’ rights”.[24] The respondent agrees that the appeal is interlocutory, and states that it “does not oppose leave being granted”.[25] I accept that the orders appealed did not “finally dispose of the rights of the parties”,[26] and that leave is required. The statutory test is whether “determining the appeal is necessary or desirable for the proper and effective determination of the dispute”. Deputy President Roche, in Collingridge v IAMA Agribusiness Pty Ltd, described this as requiring “a consideration of the nature of the dispute and the orders sought on appeal”.[27]
[24] Appellant’s submissions, [2.6].
[25] Respondent’s submissions, [2.6].
[26] Licul v Corney [1976] HCA 6; 180 CLR 213, per Gibbs J, [11].
[27] [2011] NSWWCCPD 31; 10 DDCR 174, [17].
The dispute relates to whether the appellant, in the circumstances, is entitled to bring the current claim for lump sum compensation, and whether he is entitled to have the issue of his permanent impairment again referred for assessment by an AMS. Without such an assessment, the only such entitlement available is based on 14 per cent WPI, consistent with the existing MAC dated 29 June 2016. It is necessary that leave be granted, if this dispute is to be resolved. It is appropriate to grant leave pursuant to s 352(3A).
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Arbitrator erred in law in failing to exercise her statutory powers to determine the proceedings. (Ground No 1)
(b) The Arbitrator erred in law in failing to give adequate reasons why she dismissed the proceedings. (Ground No 2)
FRESH OR ADDITIONAL EVIDENCE
The appellant seeks leave to rely on evidence additional to that which was before the Arbitrator. This is set out in Annexure ‘D’ to the Application to Appeal, and consists of:
(a) the letter from the appellant’s then solicitors dated 17 December 2015, addressed to the respondent’s insurer, enclosing Dr Bodel’s report dated 26 October 2015 and making the claim in respect of 13 per cent WPI (see [2] above). It is described in the Annexure as “Section 281 Notice”.
(b) Election to Discontinue Proceedings in matter number 1870/16, lodged by the appellant’s solicitors on 1 July 2016. It is described in the Annexure as “Form 14B”.
The appellant’s submissions state that the above documents were not put into evidence before the Arbitrator. The letter of claim is stated to have been “given as evidence in the original 2016 proceedings but not in subsequent proceedings and it may have some relevance in the appeal”. The submission in Annexure ‘D’ relating to the Election to Discontinue Proceedings does not make sense. The inclusion of the document in the Annexure suggests the appellant seeks to rely on it. The appellant submits that “the evidence has been available for all parties and it will not unfairly prejudice the [r]espondent’s case”. The respondent states that it “does not object to the fresh evidence”.
The admission of such evidence is subject to s 352(6) of the 1998 Act, which provides:
“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.”
Clearly the evidence was available to be used at the time of the arbitration hearing, the appellant does not submit otherwise. The first limb of the test cannot be met. The second limb requires that “failure to grant leave would cause substantial injustice”. In CHEP Australia Ltd v Strickland, Barrett JA (Macfarlan JA agreeing) said:
“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.” [28]
[28] [2013] NSWCA 351; 12 DDCR 501 (Strickland), [31].
It has been held that documents may be admitted under the second limb of s 352(6), where they “assist with clarifying the factual background to the prior claims for permanent impairment compensation”.[29] In the circumstances of that matter, it was considered that this would assist in construing cl 11 of the 2016 Regulation. Given the uncontroversial nature of the documents, their potential utility in clarifying the factual background of the prior claim, and the respondent’s consent to their use, I grant leave for their admission pursuant to s 352(6) of the 1998 Act. Much of the information in them is established by other material in any event.
[29] Avni, [30].
LEGISLATION
Section 66 of the 1987 Act relevantly provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Section 293 of the 1998 Act provides:
“293 Medical assessment
(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(2) If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(3) The Registrar may not refer for assessment:
(a)a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b)a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
Section 322A of the 1998 Act provides:
“322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment).”
Section 329 of the 1998 Act provides:
“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.”
Section 354(7A) of the 1998 Act provides:
“(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)for any other ground of dismissal specified in the Rules.”
Clause 11 of Sch 8 to the Regulation provides:
“11 Lump sum compensation: further claims
(1) A further lump sum compensation claim may be made in respect of an existing impairment.
(2) Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4) For the purposes of subclauses (1) and (2):
(a)a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b)no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i)that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii)in respect of which no compensation has been paid, and
(c)section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.
(5) The following provisions are to be read subject to this clause:
(a)section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b)section 322A of the 1998 Act,
(c)clauses 10 and 19 of this Schedule.
(6) In this clause:
existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”
Rule 15.7 of the Workers Compensation Commission Rules 2011 provides:
“15.7 Discontinuance
(1) An applicant may discontinue any proceedings, or any part of any proceedings, as against any or all of the other parties to the proceedings, at any time.
(2) The applicant and any other party to any proceedings may agree to the discontinuance of the proceedings (or any part of the proceedings) as against that other party at any time.
(3) A discontinuance referred to in subrule (1) or (2) takes effect when a notice of the discontinuance, stating the limits (if any) of the discontinuance, is lodged and served on all parties to the proceedings who are not parties to the discontinuance.
(4) A party against whom proceedings are discontinued and who has not agreed to the discontinuance may, within 7 days after the discontinuance takes effect, lodge and serve an application to the Commission for an order for payment of the party’s costs of the proceedings incurred before the discontinuance, subject to the applicability of section 341 of the 1998 Act as in force before 1 October 2012.”
GROUND NO 1
The Arbitrator erred in law in failing to exercise her statutory powers to determine the proceedings.
Appellant’s submissions
The appellant’s submissions discuss the factual background and medical evidence at some length. The appellant refers to the Arbitrator’s reasons at [53] where she said:
“In summary, I do not accept that a proper construction of the legislation as it applies to the circumstances of this particular case entitles an applicant, who has made a claim, and who discontinues after a MAC has issued in relation to the injury on which the claim was made is entitled to make a new claim and obtain a new MAC.”
The appellant submits that he did not make a “new claim”. He submits that in his letter dated 2 February 2018, serving the report of Dr Khan dated 25 January 2018, he “amends the claim in respect to permanent impairment in accordance with the report of Dr Khan”. He submits it “seems uncontroversial that the claim has not been determined until a Certificate of Determination has been issued”. The appellant submits that in those circumstances the appellant was entitled to seek a reconsideration of the MAC in accordance with s 329 of the 1998 Act. The appellant refers to Read v Liverpool City Council[30] and Milosavljevic.[31] The appellant submits that s 329 provides a remedy where the dictates of justice require a further referral, but no grounds of appeal can be made out.[32]
[30] [2007] NSWSC 320 (Read), [27].
[31] Milosavljevic, [58].
[32] Appellant’s submissions, [19]–[23].
The appellant’s submissions discuss the medical evidence. The appellant refers to whether there should have been an allowance in the assessment of WPI for activities of daily living. The appellant refers to the MAC, where Dr Wong recorded a history that the appellant was “able performing his domestic duties such as vacuuming and shopping”, and “able to manage his self-care activities without help”.[33] The AMS assessed the modifier for activities of daily living at 1 per cent.
[33] Reply, p 33.
The appellant refers to the statements by the appellant and his wife, both dated 7 May 2018, relied on in the current proceedings.[34] These refer to restrictions on the appellant’s ability to perform household chores and yard work. The appellant submits there is a “clear inconsistency” between those statements and the history recorded in the MAC. The appellant submits the histories on these matters, recorded by Dr Bodel and Dr Khan, were “more consistent with the statements of the worker and his wife”. The submissions state that an interpreter was present for the examination by the AMS, but “inconsistencies may have arisen due to cultural and language barriers”. The dictates of justice, it is submitted, require re-assessment by Dr Wong.[35]
[34] ARD, pp 1–6.
[35] Appellant’s submissions, [34].
The appellant further submits that the Arbitrator failed to deal with the pleaded claim for weekly benefits and medical expenses. The matter should have been listed for conciliation conference/arbitration hearing, to deal with these matters.
Respondent’s submissions
The respondent submits there is no MAC in the current proceedings capable of reconsideration under s 329 of the 1998 Act. If the appellant is to be understood as requesting reconsideration of the MAC from the earlier proceedings, this would be inconsistent with s 322A of the 1987 Act, and s 66(1A) which restricts workers to a single claim for permanent impairment compensation. The respondent refers to O’Callaghan v Energy World Corporation Ltd.[36] The respondent submits that the appellant did not, before the Arbitrator, make any application for reconsideration of the earlier MAC, under s 329 of the 1998 Act. In those circumstances, the Arbitrator could not have erred in failing to make such an order. The appellant is effectively bound by the MAC dated 29 July 2016.[37]
[36] [2016] NSWWCCPD 1 (O’Callaghan).
[37] Respondent’s submissions, [2.10].
The respondent submits the matters raised by the appellant, regarding the assessment of the modifier for ADL’s in the MAC, should have been the subject of appeal in the earlier proceedings, if they were to be challenged. A similar point is made regarding any difficulties with the interpreter at the examination with the AMS, Dr Wong. There is an apparent error in this part of the respondent’s submissions. The submissions say, in three different contexts, that an “Appeal Against the Decision of the Arbitrator” should have been made in the 2016 proceedings. There was no arbitral decision in those proceedings, which were discontinued shortly after the MAC was issued. The point the respondent apparently seeks to make is that the appellant could and should have appealed against the assessment in the MAC. The respondent also submits there was no deterioration in the appellant’s condition calling for reconsideration of the MAC, and the dictates of justice did not require a reconsideration.[38]
[38] Respondent’s submissions, [2.11].
Consideration
The appellant’s submissions under this ground raise two separate issues. One issue relates to whether, in the circumstances, the appellant has established error on the Arbitrator’s part, in not ordering a reconsideration of the MAC pursuant to s 329 of the 1998 Act. The other raised issue relates to whether, in his letter dated 2 February 2018 serving Dr Khan’s report, the appellant made a second claim for permanent impairment compensation resulting from his injury, which was precluded by s 66(1A) of the 1987 Act. The respondent has arranged its submissions by reference to the orders sought by the appellant (rather than the two nominated grounds). I deal below with the matters raised by the parties’ submissions under the grounds nominated by the appellant. I have sought to attach to those arguments the submissions made by the respondent that relate to them.
The ARD, at “1.1B” on its front page, described the dispute as requiring “referral for medical assessment by an Approved Medical Specialist (section 293 of the 1998 Act)”. The document crossed boxes nominating “Lump sum compensation where degree of permanent impairment in dispute”, and “Threshold for work injury damages where the degree of whole person impairment in dispute”, under this heading. The ARD at “5.6” described the permanent impairment as “Lumbar spine, scarring”, with a percentage of “16%” and a date of injury of “25/02/2013”. At “5.7” a box was crossed stating “The parties request the Registrar to appoint the Approved Medical Specialist”.
The appellant submitted to the Arbitrator that “the dispute regarding the level of whole person impairment in relation to the claim should be remitted to the Registrar for referral to an AMS for assessment”.[39]
[39] Appellant’s arbitral submissions, p 3.
The respondent submitted that s 322A of the 1998 Act was a matter of substantive law, as was the “conclusive correctness of the MAC under s 326(1)(a).” The appellant, before the Arbitrator, did not make an application for referral to the original AMS, for reconsideration of the MAC pursuant to s 329 of the 1998 Act. The respondent’s submissions before the Arbitrator, in those circumstances, did not touch on whether such a course was available or appropriate.
The Arbitrator, in her reasons at [44], said:
“The more problematic question as I see it is the operation of s 322A. A MAC was issued on 29 June 2016, and as I interpret that section, the applicant simply cannot obtain a further MAC.”
A little later in her reasons the Arbitrator, at [46]–[47], touched on s 329 of the 1998 Act, referring to it as “the only relief which the applicant may have had available”. She briefly summarised some principles taken from Milosavljevic. She did not purport to deal with s 329 as a matter in issue between the parties. The parties had not addressed on the topic and no such application was made to her.
Section 322A of the 1998 Act is set out at [27] above. It restricts a worker to one assessment of the degree of permanent impairment. The MAC dated 29 June 2016 certified as to the degree of permanent impairment of the appellant resulting from his injury on 25 February 2013. It did so in respect of the lumbar spine and scarring. This is the same matter that the appellant sought to have referred for assessment in the current proceedings. That application is contrary to s 322A(3) which provides:
“Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.”
The application pursued by the appellant, in the ARD registered in the current proceedings, and in his submissions to the Arbitrator, was for referral to an AMS for assessment, pursuant to s 293 of the 1998 Act (consistent also with s 321 of the 1998 Act). This application was inconsistent with s 322A of the 1998 Act. The Arbitrator, in her reasons at [53], correctly rejected that application.
The appellant, on appeal, argues that “an order under section 329(1)(b) is appropriate in the circumstances of this case”.[40] The respondent submits that no application pursuant to s 329 was made to the Arbitrator, and she accordingly did not err in failing to make such an order. This submission is correct. The ARD and written submissions before the Arbitrator did not raise s 329. Failing to deal with a matter that was not raised does not constitute error: Watson v Qantas Airways Limited,[41] Brambles Industries Limited v Bell.[42] The Arbitrator did not err in failing to make an order pursuant to s 329 in the absence of such an application.
[40] Appellant’s submissions, p 7 at [23].
[41] [2009] NSWCA 322; 75 NSWLR 539; 7 DDCR 113, [13].
[42] [2010] NSWCA 162; 8 DDCR 111, [30].
It follows that the appellant was not entitled, in the circumstances, to be referred to an AMS for an assessment of his permanent impairment. His earlier claim, made on 17 December 2015, was the subject of a MAC dated 29 June 2016, which certified WPI of 14 per cent, and was binding on the parties in respect of that matter (s 326(1) of the 1998 Act). The appellant was not entitled to a referral pursuant to ss 293 or 321 of the 1998 Act, due to the application of s 322A. Assuming, in the appellant’s favour, that referral on a further occasion for assessment pursuant to s 329 continued to be available in the face of s 322A, he was not entitled to such a referral in the current proceedings, as he made no such application.
An application pursuant to s 329 would have been futile in any event. The appellant, in his submissions on s 329 on appeal, refers to Read and Milosavljevic. In Read, Malpass AsJ said:
“26 The intended function of s329 is far from clear. It is a question that was not the subject of full argument. It may be that it affords a remedy which should have been pursued with the Commission by the plaintiff in lieu of the application for leave to appeal.
27 Also, it may be that s 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.”[43]
[43] Read, [26]–[27].
In Milosavljevic Roche DP said of s 329:
“My reference to section 329 being in ‘broad unlimited terms’ [in Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286] was a reference to the fact the section provides no guidance as to how or when it is to be used. That is not to say that the section stands outside the terms of the Workers Compensation Acts. It doesn’t, and it must be read in the context of that legislation. There is nothing to indicate that the legislature intended that section 329 could be used in an unrestrained or unlimited way regardless of the Commission’s previous orders or determinations. The exact scope of section 329 must be determined on a case-by-case basis”.[44] (emphasis added)
[44] Milosavljevic, [58(c)].
In O’Callaghan Roche AP said of s 322A of the 1998 Act:
“Without expressing any concluded view on it, it is difficult to see how the reconsideration power in s 329 can work with s 322A, which appears to be the dominant provision.”[45]
And:
“88. [Section 322A] was introduced as part of a range of measures introduced in the Workers Compensation Legislation Amendment Act 2012 [2012 Amending Act], which were designed to reduce benefits for permanent impairment compensation. It works in concert with s 66(1A) of the 1987 Act, introduced at the same time, which restricts a worker to only one claim under the 1987 Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
89. Consistent with a worker now having the right to make only one claim for permanent impairment compensation, only one assessment may be made of the degree of permanent impairment of an injured worker (s 322A(1)).”[46]
[45] O’Callaghan, [87].
[46] O’Callaghan, [88]–[89].
In a claim that was subject to the 2012 Amending Act, the appellant made a lump sum claim, obtained a binding MAC in his Commission proceedings, and then discontinued the proceedings two days later, before a Certificate of Determination was issued. He did not seek to utilise the medical appeal provisions in s 327 (which lies outside s 322A: s 322A(4)). He subsequently obtained a medicolegal assessment in respect of the same injury, that was 2 per cent higher than that in the MAC, and instituted further proceedings in the Commission, in respect of the same injury, but for the higher percentage. He then seeks, on this appeal, to argue that the matter should be the subject of a further referral for assessment, pursuant to s 329(1)(b).
In his submissions arguing in favour of the further assessment, the appellant points to differences between the various assessors, going to the modifiers for radiculopathy and activities of daily living. He refers to differences in the recorded histories, relevant to activities of daily living, between Dr Wong (the AMS) on 27 May 2016, and statements now relied on, from the appellant and his wife, executed on 7 May 2018. The appellant submits, and there is no evidence to this effect, that although there was an interpreter at the AMS assessment, “inconsistencies may have arisen due to cultural and language barriers”. [47]
[47] Appellant’s submissions, [6]–[34].
The respondent submits that the above issues, regarding the assessment of activities of daily living, any inconsistencies between the histories and the statements, and interpreting at the appointment with Dr Wong (the AMS), should have been the subject of appeal in the 2016 proceedings. The respondent’s submissions refer to the possible appeal that should have been taken in those proceedings as an “Appeal Against the Decision of the Arbitrator”.[48] This is clearly put in error, as there was no decision made by an arbitrator in those proceedings, the only potentially appealable decision was that of the AMS, Dr Wong. In context, the argument the respondent seeks to make in that part of its submissions is that arguments made by the appellant, going to the assessed WPI, should have been addressed by appeal in the 2016 proceedings, against the decision of the AMS. Such an argument has validity, s 329 is a discretionary power. Failure by the appellant to utilise potential appeal rights pursuant to s 327 of the 1998 Act, that were unfettered by s 322A, would be relevant to exercise of the discretionary power. However, there is a more fundamental reason why the discretion should not be exercised in the circumstances.
[48] Respondent’s submissions, [2.11].
The course adopted by the appellant, if it were properly available, potentially has the effect of avoiding the application of s 322A of the 1998 Act. A worker could make a claim, undergo medical assessment by an AMS, obtain a MAC, and if he or she was dissatisfied with the assessed level of permanent impairment, simply discontinue the proceedings before a Certificate of Determination was issued consistent with the binding MAC. If the worker subsequently obtained a higher medicolegal assessment, the worker could simply ‘amend’ the claim, and repeat the process, potentially on more than one occasion.
Deputy President Roche in Milosavljevic said that s 329 had to be read in the context of the Workers Compensation Acts, and should not be used in “an unrestrained or unlimited way” (see [50] above). The ‘context’ of the legislation, given the introduction by the 2012 Amending Act of s 66(1A) of the 1987 Act and s 322A of the 1998 Act, plainly includes consistency with the scheme of those provisions. The application of the discretion in s 329, in the way for which the appellant argues, is inconsistent with the statutory scheme. It follows, for this further reason, that reconsideration of the MAC, pursuant to s 329, would not have been available.
The appellant refers to Livaja, in which Roche DP said that “[a] MAC issued in earlier proceedings does not bind the parties in later proceedings unless the Commission has determined the issues in dispute in the earlier proceedings”.[49] That decision referred to J C Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW.[50] Those decisions predated the insertion of s 322A into the 1998 Act. In O’Callaghan Roche DP said, in my view correctly:
“99. I accept that it is difficult to see how the part of JC Equipment referred to by the Arbitrator can stand in light of s 322A. That provision provides that only one whole person impairment assessment may be made (s 322A(1)) and that the MAC given in connection with that assessment is the only MAC that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment as a result of the injury concerned (s 322A(2)).
100. This applies whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation, or a claim for work injury damages. It follows that the one MAC must be able to be used, and be binding, for purposes other than the purpose for which it was obtained.”
[49] Livaja, [95].
[50] [2008] NSWCA 43; 5 DDCR 403 (JC Equipment).
It follows from the above, that the Arbitrator was correct to conclude that the appellant was not, in the circumstances, entitled to “obtain a new MAC”. This had the effect that “the only medical assessment certificate that [could] be used in connection with the dispute about permanent impairment” was that dated 29 June 2016, which is binding on the parties (s 326(1) of the 1998 Act).
The above is sufficient to determine Ground No 1. The appellant’s claim for permanent impairment compensation is to be determined by reference to the existing MAC dated 29 June 2016, which assessed 14 per cent WPI. It is not, in the circumstances, necessary to further consider whether the letter dated 2 February 2018 constituted a second claim, precluded by s 66(1A) of the 1987 Act, or alternatively was an amendment of the earlier claim, as that term is discussed in Stafford.
The Deputy President in Stafford concluded that a lump sum claim could be amended, in circumstances where the claim, as originally made, was ultimately found to be unavailable as a matter of law, due to the amendments to s 66 of the 1987 Act, introduced in 2012. Proceedings had not, at the time of the amendment, been commenced, and permanent impairment had not been assessed by an AMS. The Deputy President, in an obiter passage of that decision, suggested that amendment may be appropriate “where there is a change in impairment between the date of the initial claim and the date of resolution or determination of that claim”.[51] Nowhere in Stafford does the Deputy President suggest that a claim may be amended, after it has been assessed by an AMS and a MAC issued. His discussion at [73]–[74] of that decision is to the contrary:
“73. Different considerations would apply if a worker made a claim for permanent impairment compensation based on an 11 per cent whole person impairment, but an AMS assessed the impairment at 10 per cent and issued a valid MAC to that effect. In that situation, the claim would fail and there would be an award for the employer. That is because a valid MAC is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury (s 326(1)(a)). Section 66(1A) does not say ‘one claim that results in the payment of permanent impairment compensation’ and it is not open to interpret it in that way.
74. The claimant described in the preceding paragraph will have made ‘one claim’ for permanent impairment compensation and could not bring a second claim. That is because the claim for 11 per cent permanent impairment was a valid claim that, if an AMS had made the same or higher assessment of whole person impairment, would have resulted in the recovery of permanent impairment compensation, assuming there were no liability issues preventing the recovery of compensation. This is consistent with s 322A …”
[51] Stafford, [94].
Section 66(1A) of the 1987 Act and s 322A of the 1998 Act operate in concert, as was observed in O’Callaghan (see the passage quoted at [51] above). It is unnecessary, in the current appeal, to seek to define the limits of when amendment of a permanent impairment claim may be made, without making a further claim that is precluded by s 66(1A) of the 1987 Act.
GROUND NO 2
The Arbitrator erred in law in failing to give adequate reasons why she dismissed the proceedings.
Appellant’s submissions
The appellant submits the grounds on which the Commission can dismiss proceedings are in s 354(7A) of the 1998 Act (set out at [29] above). “No grounds were articulated by the Arbitrator.” It was not suggested the proceedings were frivolous or vexatious, so the only possibility was that they were misconceived or lacking in substance.[52] The appellant submits that the Arbitrator failed to deal with the claim for weekly benefits and medical expenses.[53]
[52] Appellant’s submissions, p 11.
[53] Appellant’s submissions, p 10 at [35].
Respondent’s submissions
The respondent “agrees that the Arbitrator erred in dismissing the proceedings and agrees that the decision … should be revoked insofar as the Arbitrator purported to dismiss the proceedings”. The appellant states that he “is entitled to have his claim finally determined”.[54] The respondent submits the decision should be revoked insofar as the Arbitrator purported to dismiss the proceedings. It should be confirmed insofar as the Arbitrator dismissed the claim for lump sum compensation.
[54] Respondent’s submissions, [2.9].
Consideration
The ARD pleads a claim for weekly compensation from 25 February 2013 to date and continuing.[55] It does not plead a claim for medical expenses, nor is the box on the front page of the ARD crossed to indicate that such a claim is made. An internal document headed ‘Teleconference Outcomes and Appearances’ dated 18 June 2018 indicates that “Weeklies” are “Still in Dispute”.
[55] ARD, Part 4.
There does not appear to be any dispute between the parties, that the proceedings should be remitted to the Arbitrator to determine any remaining issues. At this point no formal orders have been made dealing with the appellant’s entitlement to permanent impairment compensation, consistent with the MAC dated 29 June 2016. I have concluded above that the Arbitrator correctly decided that the appellant was not entitled to have a further referral to an AMS for the assessment of WPI.
CONCLUSION
It is appropriate that the matter be remitted to the Arbitrator, to decide any remaining issues, consistent with these reasons.
DECISION
The Arbitrator’s decision that the appellant was not, in the circumstances, entitled to obtain a new Medical Assessment Certificate is confirmed.
The Arbitrator’s decision dated 26 July 2018 is otherwise revoked.
The matter is remitted to the same Arbitrator, to determine any remaining issues consistent with these reasons.
Michael Snell
Deputy President
3 December 2018
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