Smith v NSW Police Force
[2013] NSWWCCPD 61
•12 November 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Smith v NSW Police Force [2013] NSWWCCPD 61 | ||
| APPELLANT: | Kateryna Smith | ||
| RESPONDENT: | NSW Police Force | ||
| INSURER: | Employers Mutual NSW Ltd | ||
| FILE NUMBER: | A1-12055/12 | ||
| ARBITRATOR: | Mr R Parsons | ||
| DATE OF ARBITRATOR’S DECISION: | 2 August 2013 | ||
| DATE OF APPEAL DECISION: | 12 November 2013 | ||
| SUBJECT MATTER OF DECISION: | Appeal against decision of Registrar acting as an Arbitrator; circumstances in which a Medical Assessment Certificate can be revoked on appeal to a Presidential member; misconceived appeal; s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Kim Smith & Associates | |
| Respondent: | Hicksons | ||
| ORDERS MADE ON APPEAL: | 1. The appeal is dismissed under s 354 (7A)(b) of the 1998 Act 2. No order as to costs. | ||
INTRODUCTION
This matter concerns a purported appeal from a decision of the Acting Registrar, acting as an Arbitrator, in respect of a Certificate of Determination wherein orders were made in accordance with a valid Medical Assessment Certificate, in circumstances where the only issues in dispute concern whether the worker’s permanent impairment was fully ascertainable and the degree of permanent impairment in respect of an accepted injury.
BACKGROUND
The appellant Kateryna Smith (Ms Smith) was employed by the respondent the NSW Police Force as a senior constable.
Ms Smith alleges that as a result of repeated exposure to traumatic incidents in the course of her employment, she suffered a psychiatric or physiological disorder.
On 9 May 2012, through her solicitors Kim Smith and Associates, Ms Smith made a claim for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). She claimed $28,600 in respect of 19 per cent whole person impairment. The letter of claim did not identify her alleged injury, however it is reasonable to infer that the claim related to the condition of “chronic Post-Traumatic Stress Disorder in association with Major Depressive Disorder” as that was the diagnosis made by Dr S Smith in a report of 14 February 2012, upon which she relied. Ms Smith claimed the maximum sum of $50,000 under s 67 for pain and suffering.
On 19 July 2012, the Police Force’s insurer, Employers Mutual NSW Limited (Employers Mutual) denied liability for the claim alleging that Ms Smith had not suffered a permanent impairment or disability as a result of the alleged injury.
On 25 September 2012 Ms Smith’s solicitors lodged an Application to Resolve a Dispute on her behalf in the Commission. She claimed the lump sum compensation in accordance with the demand referred to at [4] due to “Repeated exposure to traumatic incidence [sic] serving as a NSW Police Officer”.
On 30 October 2012, Hicksons lawyers filed a Reply to the Application. Under Pt 3 of the Application – “Matters in Dispute” the Police Force submitted that the dispute was appropriate for referral to an Approved Medical Specialist (AMS) “for a determination as to whether the applicant has reached maximum medical improvement, and if so, an assessment of whole person impairment”.
On 7 November 2012, Ms Smith was referred to an AMS, Dr Lana Kossoff, for assessment. The assessment took place on 17 January 2013.
On 31 January 2013, Dr Kossoff published a Medical Assessment Certificate certifying that Ms Smith’s impairment was fully ascertainable and certified that she suffered seven per cent whole person impairment.
On 13 March 2012, Ms Smith’s solicitors lodged an ‘Application to Appeal Against Decision of Approved Medical Specialist’. The grounds of the Appeal were:
(a) the availability of additional relevant medical information (being a report of Dr Smith dated 6 March 2013);
(b) the assessment was made on the basis of incorrect criteria, and
(c) the Medical Assessment Certificate contains a demonstrable error.
On 3 June 2013, Ms Eleanor Lynch, Acting as the Registrars Delegate, issued a decision pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Ms Lynch was not satisfied that any of the grounds for appeal, as specified in s 327(3) had been made out. However, in accordance with the provisions of s 329(1A) of the 1998 Act, Ms Lynch determined that the matters should be referred by the Registrar to the AMS for reconsideration.
On 12 June 2013, the Registrar’s delegate issued a ‘Request of Reconsideration of Medical Certificate’ requesting that Dr Kossoff reconsider her determination in light of the issues raised in the decision of 3 June 2013.
On 24 June 2013, Dr Kossoff reconsidered the Medical Assessment Certificate issued on 31 January 2013. Dr Kossoff took into account the additional submissions that had been made by the parties, the Registrar’s decision to refer the matter for reconsideration and a report of Dr Dragutinovich of 16 November 2012, the latter having been admitted into evidence in response to one of a number of Applications to Admit Late Documents.
Dr Kossoff concluded that no reconsideration of her previous opinion was necessary and confirmed the Medical Assessment Certificate of 31 January 2013 without amendment.
On 2 August 2013, Mr R Parsons, Acting Registrar and Arbitrator, issued a Certificate of Determination in the following terms:
“1. The applicant suffers 7% permanent impairment resulting from psychological injury deemed to have happened on 12 June 2011.
2. The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 12 June 2011.
3. No order is made as to costs.
Brief statement of reasons
1. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
2. The applicant did not reach the threshold for lump sum compensation, as required by section 65A(3) of the Workers Compensation Act 1987.”
Ms Smith appeals the Certificate of Determination issued on 2 August 2013.
THRESHOLD MATTERS
There is no dispute that the threshold requirements as to quantum and time as found in ss 352(3) and (4) have been met.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“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 Police Force submitted that the appeal could proceed ‘on the papers’ without the need for an oral hearing. Ms Smith’s solicitors submitted that the appeal should “proceed to the appeal panel” which in view of the relief sought, I infer is a reference to a Medical Appeal Panel to “assist in explaining how Dr Kossof has erred”. This submission underscores the worker’s solicitor’s fundamental misunderstanding of the nature of an appeal under s 352 of the 1998 Act.
However, 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 RELIEF SOUGHT
Ms Smith seeks the following relief:
(a) that pursuant to s 352(7) of the 1998 Act, the determination dated 2 August 2013 be quashed and a decision made in its place that the applicant has reached maximum medical improvement;
(b) the matter be referred to a Medical Appeal Panel for a consideration of the question of ‘whole person impairment’, and
(c) new evidence be placed before the Appeal Panel being:
(i)the report of Dr Smith of 6 March 2013;
(ii)clinical notes of Dr Dragutinovich of various dates;
(iii)medical report of Dr Dragutinovich of 11 April 2013, and
(iv)statement of claimant dated 1 March 2013.
ISSUES ON APPEAL
The issues in dispute in the appeal are:
(a) whether any proper grounds for appeal under s 352 have been demonstrated in respect of the decision appealed against, namely, the decision of Mr R Parsons of 2 August 2013;
(b) whether any error of fact, law or discretion has been identified as required by s 352(5) of the 1998 Act, and
(c) whether the Commission has jurisdiction to provide the relief sought.
CONSIDERATION
This appeal is misconceived and the Certificate of Determination issued by the Acting Registrar on 2 August 2013 must be confirmed for the following reasons:
There is no dispute that the only issue for the Commission concerned whether the degree of any impairment claimed by Ms Smith was fully ascertainable, and if so, the extent of any such impairment resulting from the alleged injury.
There is no issue that the Registrar properly referred those matters to an Approved Medical Specialist for assessment under Pt 7 of Ch 7 of the 1998 Act.
Section 326 of the 1998 Act provides:
“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Therefore, once the MAC was issued, subject to the appeal provisions in s 327, it is conclusively presumed to be correct in finding that the degree of permanent impairment was fully ascertainable (s 326(1)(e)) and that Ms Smith’s whole person impairment was 7 per cent (s 326(1)(a)).
Section 327 of the 1998 Act provides for an appeal to a medical appeal panel against a MAC on limited grounds. Ms Smith filed an appeal under that section relying on the following grounds:
(a) the availability of additional relevant information (s 327(3)(b));
(b) the assessment was made on the basis of incorrect criteria (s 327(3)(c)), and
(c) the Medical Assessment Certificate contained a demonstrable error (s327(3)(d)).
However, s 327(4) provides:
“An appeal is 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.”
The Registrar, through her delegate, was not satisfied that at least one of the grounds for appeal specified in subsection (3) was made out and therefore decided, subject to a request for reconsideration, that the appeal was not to proceed. There is no provision for a party to appeal against that decision to a Presidential member (Morris v University of NSW [2008] NSWWCCPD 31 at [26] (Morris)).
The submissions made in support of the appeal against the decision of the Arbitrator failed to identify the factual, legal or discretionary error by the Arbitrator as required by s 352, under which this appeal has been brought. The submissions are focused on the alleged error made by the AMS and are substantially the same as the submissions advanced in support of the appeal lodged against the MAC under s 327.
As Deputy President Roche concluded in Morris, where the challenge is to the AMS’s assessment made on the basis of incorrect criteria and demonstrable error (and in this case additional information) the aggrieved party is entitled to appeal under s 327. Ms Smith has unsuccessfully pursued that course.
A Presidential member has no power to set aside a valid MAC. Given that a valid MAC is conclusively presumed to be correct, in this case as to the matters referred to at [27] of this decision and given that there are no liability issues in the present matter, the Registrar made no error of fact, law or discretion in making the orders in the Certificate of Determination dated 2 August 2013. For these reasons the appeal is misconceived and should never have been lodged.
ORDERS MADE ON APPEAL
The appeal is misconceived and is dismissed under s 354(7A)(b) of the 1998 Act.
COSTS
On the basis that the appeal was without merit and should not have been lodged, the Police Force seeks an order for costs against the worker Ms Smith under s 342(2)(e) of the 1998 Act. Section 342 was repealed by cl 11 of Sch 11 of the Workers Compensation Legislation Amendment Act 2012 (the amending Act). However by virtue of Sch 8 cl 8 of the Workers Compensation Regulation 2010, as this claim was made before 1 October 2012 and the proceedings in the Commission were commenced before 31 March 2013, Div 3 of Pt 8 of the 1998 Act, which includes s 342, continues to apply.
Before its repeal, s 342 of the 1998 Act provided:
“(1) If the Commission is satisfied that any party’s costs on a claim have been unreasonably incurred, the Commission is to order that those costs are not to be paid by any other party to the claim.
(2) Costs incurred by a party to a claim are considered to have been unreasonably incurred for the purposes of this section only if they were incurred by the party:
(a)…
(e) in connection with any issue raised in relation to a claim in respect of which there were, when the issue was raised, no grounds for a reasonable belief that the issue would be determined in favour of the party by whom it was raised.”
Section 342 is directed to the avoidance of a costs order (in favour of an applicant worker) that would otherwise include the costs unreasonably incurred. It does not provide a power for the Commission to order costs in favour of the Police Force in the circumstances of this appeal.
An order for costs (against a worker) can be made under s 341(4) of the 1998 Act (now repealed) in circumstances where a claim was frivolous or vexatious, fraudulent or made without proper justification. Section 341(4) continues to have force in this case by reason of the savings and transitional provisions found in Sch 12 cl 21 of the amending Act, although the Police Force did not rely on it.
Whether a claim is frivolous or vexatious, fraudulent or made without proper justification is determined at the time the claim was commenced (Duffy v John Fairfax & Sons Pty Ltd NSWCC No 11861/96 unreported). At the time Ms Smith made her claim for lump sum compensation it was supported by medical evidence from Dr S Smith. Therefore, the claim does not fall within s 341(4)
The issue here is the patent misconception by Ms Smith’s solicitor that an appeal was available under s 352, when plainly it was not.
For these reasons there will be no order as to costs.
Judge Keating
President
12 November 2013
I, CYNTHIA BENITEZ, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE