Smith v Walgett Shire Council
[2009] NSWWCCPD 45
•22 April 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Smith v Walgett Shire Council [2009] NSWWCCPD 45 | |||||
| APPELLANT: | Matthew James Smith | |||||
| RESPONDENT: | Walgett Shire Council | |||||
| INSURER: | StateCover Mutual Limited | |||||
| FILE NUMBER: | A2-7045/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 17 November 2008 | |||||
| DATE OF APPEAL DECISION: | 22 April 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998; interlocutory order | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| REPRESENTATION: | Appellant: | McCabe Partners Lawyers | ||||
| Respondent: | Bartier Perry | |||||
| ORDERS MADE ON APPEAL: | 1. Leave to appeal the Arbitrator’s determination of 17 November 2008 is refused. | |||||
| 2. There is no order as to the costs of this appeal | ||||||
BACKGROUND TO THE APPEAL
On 22 December 2008 Matthew James Smith (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 November 2008.
The Respondent to the Appeal is Walgett Shire Council (‘the Respondent’).
The Appellant who is 33 years of age, commenced employment with the Respondent in early 2005 as a semi skilled labourer working fulltime. There is no dispute between the parties that the Appellant has received injury to his lower back on three separate occasions in the course of his employment. Those injuries occurred on 17 September 2006, 15 December 2006 and 22 January 2007. It seems that the Appellant had a short absence from work following the first injury after which symptoms experienced in his back and right leg settled. The second injury received by the Appellant was reported on the day of its occurrence however symptoms experienced in his lower back and buttocks on that occasion resolved and he was able to resume work the following day. The third injury was sustained whilst driving a tractor over rough terrain at which time the Appellant felt intense pain in his lower back with pins and needles radiating to the right leg. The Appellant has not worked since the occurrence of that injury and has been in receipt of weekly compensation benefits to date. The Appellant was referred to Dr Peter Bentivoglio, neurosurgeon, and underwent surgical treatment being discectomy on 4 April 2007.
A claim in respect of lump sum compensation pursuant to section 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) was lodged with the Employer and its insurer on the Appellant’s behalf by his solicitor on 22 May 2008. Included among the documents forwarded in support of that claim were medical reports from Dr Bentivoglio. Agreement with respect to that claim could not be reached between the parties and accordingly an Application to Resolve a Dispute (‘ARD’) was filed with the Commission on behalf of the Appellant on 8 September 2008. At Part 4 of the ARD the under mentioned “injury description” appeared:
“Injury to the back with pain radiating down right and left legs and effected sexual relationship with de facto wife. The Applicant also suffers reduced enjoyment of daily living with depression and reduced ability to engage in daily activities.”
On 13 November 2008 a telephone conference was appointed and conducted by an Arbitrator at which conference it was recorded that the parties had come to “ an agreed resolution of the issues in dispute”. Following that agreement a document headed “Certificate of Determination – Consent Orders” was issued by the Arbitrator pursuant to rule 15.9(1) of the Workers Compensation Commission Rules 2006 (‘the Rules’). That document records:
“In this matter a TELEPHONE CONFERENCE was held where the parties were assisted by me to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows:
1.The Respondent does not dispute that on 17/09/06, 15/12/06 and 22/01/07 the Applicant sustained injury to his Lumbar Spine in the course of his employment with the Respondent, and that the Applicant’s employment with the Respondent was a substantial contributing factor to such injury.
2.The matter is remitted to the Registrar for referral to an Approved Medical Specialist.
3. The Approved Medical Specialist shall be requested to provide an assessment of the degree of whole person impairment that results from the injury sustained by the Applicant to his Lumbar Spine on 17/09/06, 15/12/06 and 22/01/07.
4. Respondent to pay Applicant’s costs as agreed or assessed.”
A Referral for Assessment was arranged by the Registrar and an appointment was made to have the Appellant examined for the purposes of assessment by an Approved Medical Specialist (AMS) Dr Avtar Sachdev on 4 December 2008. The Registrar’s referral was made on 17 November 2008 in the following form:
“1. medical dispute referred for assessment (s319 1998 Act)
� the degree of permanent impairment of the worker as a result of an injury (s319(c))
� whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
� whether impairment is permanent (s319(f))
� whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injuries: 17 September 2006
15 December 2006
22 January 2007Body part/s referred: lumbar spine
Method of assessment: whole person impairment
1. brief
The brief provided to the Approved Medical Specialist includes :
1. the Application and documents listed at Part 6.1 of Application
2. the Reply and documents listed at Part 6.1 of Reply
3. the Application to Admit late Documents lodged on 12 November 2008
A copy of the Certificate of Determination issued by the Arbitrator is attached.
2.arrangements
The parties request the Registrar to choose the AMS (s321(1)):
Dr Avtar Sachdev – Bondi Junction”
The day following the teleconference, that is 14 November 2008, correspondence was forwarded by the Appellant’s solicitors to the Commission. That correspondence referred to the agreement reached between the parties at the teleconference and included submissions concerning which documents should be “referred” to the Approved Medical Specialist. The correspondence proceeded to make reference to a decision of the Commission being Barrow v Greater Western Area Health Service (GIO) [2008] NSWWCCPD 32. Following the recitation of an extract from that decision the correspondence concluded:
“Therefore, it is submitted that the applicant suffered an accepted three frank injuries which caused permanent impairment and resulting in whole person impairment and as a result of the accepted back injury, the applicant has suffered an injury to his sexual organs resulting in whole person impairment.”
It is apparent from documents that are before the Commission that efforts were made by the Registrar to convene a teleconference with a view to clarifying those matters raised in correspondence by the Appellant’s solicitors, including matters alluded to and asserted in later correspondence dated 26 November 2008. The first of such teleconferences failed by reason of the late attendance by the Appellant’s solicitor. That occurred on 3 December 2008 and in all the circumstances the appointment for Dr Sachdev’s assessment was cancelled.
A further teleconference was arranged by the Registrar for 15 December 2008. On that date the Appellant’s solicitor failed to attend and a member of his staff advised the Commission that an appeal had been lodged with the Commission and that it was the Appellant’s application that the teleconference be vacated. I note in passing that an application seeking leave to appeal had been filed with the Registry on 11 December 2008 however same had been rejected by reason of non compliance with procedural requirements.
ISSUES IN DISPUTE
Written submissions accompany the Appellant’s application concerning this appeal. The following appears at page 2 of those submissions:
“(E) Issues in Dispute
7. The issues in dispute in this appeal are whether Arbitrator…. and the Manager Dispute Services as delegate of the Registrar, Mr Dennis Cayas erred in referring the applicant to an assessment of the lumbar spine only.”
It may be seen that the Appellant has attempted to adopt the procedure provided by section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) as a means to challenge the procedure adopted by an officer of the Commission with respect to the referral for medical assessment. I make the observation at the outset that such an approach to the appeal process prescribed by that section is misconceived. In the circumstances, particularly having regard to matters addressed below, I do not consider it appropriate to examine the matters of complaint raised by the Appellant concerning the terms of reference to the AMS, Dr Sachdev.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Respondent, in its submissions accompanying its Notice of Opposition to the appeal argues that the monetary threshold prescribed by section 352(2) has not been met.
The Respondent correctly states that there “has been no award of compensation made to the appellant in these proceedings…”. However the matter for determination is whether the amount at issue in the proceedings meets the relevant threshold. The amount claimed by way of lump sums as appears in the ARD clearly establishes that the amount at issue exceeds the monetary threshold prescribed, namely “at least $5,000.00”. The threshold prescribed by section 352(2)(b) being “… at least 20% of the amount awarded in the decision appealed against” is of no relevance given that no amount of compensation has yet been awarded (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Section 352(4) provides:
“(4)An appeal can only be made within 28 days after the making of the decision appealed against.”
It is stated in the course of written submissions put on behalf of the Respondent that, “The Respondent concedes that the appeal was filed within the time prescribed by section 352(4)...”.
It is clear that the first application concerning this appeal was lodged within time, however that application was rejected by the Registry. It was following that rejection that the present application was lodged on behalf of the Appellant and, as above noted, that was registered on 22 December 2008, a date outside the time prescribed by the Act. The Appellant has filed submissions seeking an extension of time to bring the appeal.
It is not intended to address that application seeking an extension of time in which to bring the appeal given the circumstance that the appeal, brought pursuant to section 352(1) of the 1998 Act, is in respect of a decision which is of an interlocutory nature within the meaning of section 352(8). That subsection provides:
“(8)In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
Clause 200B of the Workers Compensation Regulation 2003, as amended, provides that for the purposes of section 352(8) “…all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.” The decision, comprising Consent Orders, concerns only those matters remitted to the Registrar for referral to an Approved Medical Specialist. In Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35 (‘Filippou’), a matter in which Roche DP was dealing with facts analogous to the present it was stated (at [26]):
“26. The application to extend time is misconceived because the Consent Orders did not finally determine any rights. An order determining the nature of the question or questions to be referred to an AMS does not finally determine the parties’ rights and liabilities and is clearly interlocutory (see Arquero v DJ & T Denning Pty Limited t/as Capital Coast Steel [2007] NSWWCCPD 126; Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 and YKK Australia Pty Ltd v Skoric [2008] NSWWCCPD 44). Therefore it was not possible to appeal those orders until the matter was finally determined by the 19 December 2008 Certificate of Determination.”
I respectfully agree with the conclusion reached by the Commission in Filippou and with the reasoning expressed in those matters cited by Roche DP. It follows that the Appellant’s application seeking an extension of time in which to bring this appeal is, in the circumstances, misconceived.
Having concluded that the subject decision is “interlocutory” no appeal lies in respect of same and leave to pursue the appeal should be refused.
It should be noted that the application brought on behalf of the Appellant is nothing more than a purported challenge to orders made by the Commission by consent of the parties. That fact alone demonstrates, in the absence of any argument that the orders do not truly reflect the agreement reached between the parties, that the appeal was without merit. The apparent object of bringing this application for leave to appeal was to seek to widen those matters to be addressed by the AMS when determining the extent of whole person impairment resulting from the subject injuries. It was the Appellant’s objective to have the matter of loss of sexual function considered in addition to assessment of impairment of the lumbar spine.
It is not appropriate to examine the state of the evidence in detail concerning the Appellant’s suggested loss of sexual function however it may be observed that there was no evidentiary material relied upon by the Appellant before the Commission which had been provided by a medical specialist who is “listed as a trained assessor of permanent impairment on the WorkCover website” as addressed by the WorkCover Guides for the Evaluation of Permanent Impairment paragraph (‘Guides’) 1.27 at page 7 (formerly paragraph 1.26 at page 6 of Guides operative from 1 November 2006) . Nor was there evidence before the Commission which addressed those matters which appear at paragraph 7.12 at page 43 (formerly paragraph 7.12 at page 34 of Guides operative from 1 November 2006) which states:
“7.12Loss of sexual function related to spinal injury should only be assessed as an impairment where there is other objective evidence of spinal cord, cauda equine or bilateral nerve root dysfunction. The ratings described in Table 13-21 on p 342 of AMA5 are used in this instance. There is no additional impairment rating system for loss of sexual function in the absence of objective clinical findings.”
Any claim the Appellant may seek to make alleging whole person impairment resulting from the loss of sexual function related to his spinal injury requires evidence of the character addressed in the Guides from an assessor qualified in accordance with the Guides (Section 322(1) of the 1998 Act). As above noted, no such evidence was before the Commission and accordingly the referral for assessment made by the Registrar set forth in [6] above conforms with the agreement reached between the parties as embodied in the Consent Orders as well as the state of the evidence presently before the Commission.
On 18 March 2009 the Appellant lodged with the Registry an Application to Admit Late Documents. The document annexed to that Application was a medical report of Dr Michael Nashed, General Practitioner, dated 31 January 2009. There is no evidence that Dr Nashed is a trained assessor of personal impairment in terms of the Guides.
The report of Dr Nashed records a history of “sexual impairment” suffered by the Appellant since the subject injuries. That report does not address those matters found in the Guides as set forth in [25] above.
The evidence of Dr Nashed does not advance any argument concerning the challenge to the Arbitrator’s decision and I conclude that leave to adduce that evidence on this appeal should be refused.
For the reasons as above stated, leave to bring this appeal is refused.
DECISION
Leave to appeal the Arbitrator’s determination of 17 November 2008 is refused
COSTS
There is no order as to the costs of this appeal.
Kevin O’Grady
Deputy President
22 April 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT/ OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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