Snapes Australia Pty Ltd v Tuliakiono
[2022] NSWPICPD 44
•15 November 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Snapes Australia Pty Ltd v Tuliakiono [2022] NSWPICPD 44 |
APPELLANT: | Snapes Australia Pty Ltd |
RESPONDENT: | Kelepi Tuliakiono |
INSURER: | GIO General Ltd |
FILE NUMBER: | A1-W3792/21 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 15 November 2022 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal an interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. |
CATCHWORDS: | WORKERS COMPENSATION – leave to appeal an interlocutory decision – s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – remittal of matter to the President for referral to a Medical Assessor to assess whole person impairment in circumstances where it is in contention as to whether the threshold whole person impairment is met – assessment by assessor and relevant accreditation under the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Ms S Warren, counsel | |
| Hall & Wilcox Lawyers | |
| Respondent: | |
| Mr V Jurisich, counsel | |
| Pasifika Legal | |
DECISION UNDER APPEAL | |
MEMBER: | Mr P Young |
DATE OF Member’s DECISION: | 9 December 2021 |
INTRODUCTION
This is an appeal from a Certificate of Determination of a Member issued on 9 December 2021.
The original Certificate of Determination was amended pursuant to an application for reconsideration on 22 February 2022.
The appeal concerns whether the Member was correct to remit the matter to the President for referral to a Medical Assessor for assessment of whole person impairment (WPI) in relation to an injury to the left upper extremity (left shoulder) where the highest assessment prepared in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Fourth Edition – reissued 1 March 2021 was not greater than the 10% threshold provided in s 66(1) of the Workers Compensation Act 1987 (the 1987 Act).
BACKGROUND
Mr Tuliakiono, the respondent to this appeal, alleged injury on 26 October 2015 whilst using a pallet jack to move a broken pallet full of goods weighing 580kg. The injury resulted in impairment of the left shoulder, left knee and back.
In the present proceedings he claimed a 20% WPI, and an amount of $48,490 for compensation pursuant to s 66 of the 1987 Act. The WPI was based on an assessment provided by Dr Bodel, who calculated permanent impairment by reference to each of the left upper extremity, the left lower extremity and the lumbar spine.
In prior proceedings numbered 825/19 involving the same parties, Consent Orders were filed. The Orders included the following:
“…
2. Award in favour of the respondent in respect of the alleged injury to the lumbar spine.
3. Award in favour of the respondent in respect of the alleged injury to the left knee.
…
5. Leave to discontinue s 66 claim in respect of the left upper extremity.”
The proceedings before the Member concerned the employer’s (the present appellant’s) argument that the previous Consent Orders estopped the worker from claiming under s 66 for the alleged impairment of the left lower extremity and the lumbar spine.
The Member determined the estoppel issue in favour of the appellant, concluding that:
“where there are consent awards in favour of a party on the issue of injury, those awards give rise to an estoppel preventing the affected party from re-litigating that finding. That being the case, there will be an award in favour of the [appellant] in respect of those alleged injuries. There will be an award in favour of the [respondent] in respect of injury to the [respondent’s] left upper extremity and a remit to the President for referral to a Medical Assessor for assessment of whole person impairment.”[1]
[1] Tuliakiono v Snapes Australia Pty Ltd [2021] NSWPIC 509, [37].
The appeal concerns itself with the direction that the matter be remitted to the President for referral to a Medical Assessor for assessment of the left upper extremity.
PROCEDURAL HISTORY
The procedural history is relevant to establish the orders the subject of the appeal.
The proceedings were commenced by an Application to Resolve a Dispute (ARD) signed 16August 2021.
The appellant filed a Reply to the ARD signed 7 September 2021.
The matter came on for hearing before the Member on 15 October 2021.
The Member issued a Certificate of Determination with reasons on 9 December 2021. The Certificate of Determination was in the following terms:
“The Commission determines:
1. Award in favour of the [appellant] by reason of estoppel in respect of alleged injuries to the [respondent’s] lumbar spine and left knee.
2. Award in favour of the [respondent] pursuant to section 66 of the Workers Compensation Act 1987 in respect of injury to the [respondent’s] left upper extremity which occurred on 26 October 2015.
3. The matter is remitted to the President for referral to a Medical Assessor (Orthopaedic Surgeon) to determine the extent of the [respondent’s] whole person impairment, if any, which results from injury to the [respondent’s] left upper extremity (left shoulder) which occurred on 26 October 2015.
4. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments and a copy of the attachments to the [appellant’s] Application to Admit Late Documents.”
By letter dated 17 December 2021, the appellant employer applied for reconsideration of the award.
On 5 January 2022, the appellant lodged this Application – Appeal Against Decision of Member. On 10 January 2022, a delegate of the President issued a Direction, noting that on 17 December 2022, the appellant has lodged a request that the Member reconsider the Certificate of Determination dated 9 December 2021. As the reconsideration application included matters also raised in the appeal, the delegate stayed the appeal proceedings pending determination of the reconsideration application.
On 22 February 2022, the Member caused an Amended Certificate of Determination: Reconsideration to issue. That Certificate amended order 2 so that it read as follows:
“2. Finding that the [respondent] suffered injury to his left upper extremity (left shoulder) in the course of his employment with the [appellant] on 26 October 2015.”
This amendment following reconsideration was necessary, so the Member said, for the following reason:
“20. On review of order number two, I take the view on reflection that the use of the expression ‘award’ is probably inappropriate until such time as the [respondent] is medically assessed. The [respondent] has not (yet, if at all) established a Medical Assessor’s 10% whole person impairment and is not entitled to an award unless and until he does so. After a Medical Assessment Certificate is issued, it would then be appropriate in my view to either enter or not enter an award for the [respondent] in respect of whole person impairment resulting from injury to his left upper extremity.”[2]
[2] Amended Certificate of Determination: Reconsideration, [20].
In a Direction dated 1 March 2022, following the determination of the reconsideration application, a delegate of the President dissolved the stay of the appeal made on 10 January 2022. The delegate made further directions setting a timetable for the appeal proceedings. Amongst other Directions made, the delegate of the President directed that by 15 March 2022:
“the appellant is to file and serve any supplementary submissions it wishes to make. This includes submissions in respect of the transcript and the events since the issuing of the Certificate of Determination dated 9 December 2021, including whether the amendment made to that Certificate of Determination (following reconsideration) affects the Grounds of Appeal lodged on 5 January 2022.” (emphasis added)
On 15 March 2022, the appellant lodged supplementary submissions in accordance with this Direction.
The supplementary submissions restated the previous submission that the Member “had no cause to make a finding or award in relation to the left shoulder” because the left shoulder injury was not in dispute.
In addition the appellant submitted the report of Dr Dave dated 1 July 2021 should be removed from the ARD because:
(a) It was not in accordance with Clause 7.3 of the Workers Compensation Guidelines Requirements for Insurers Workers Employers and Stakeholders dated 1 March 2021.
(b) Furthermore, the appellant submitted the Member was wrong (“unfounded and misguided”) as to his view (at [16] of the reasons) of Clause 1.40 of the Guidelines to the Evaluation of Permanent Impairment.
(c) Dr Dave was not a SIRA trained assessor, he was not qualified to assess whole person impairment.
The gravamen of the supplementary and primary submission by the appellant was that once Dr Dave’s report was removed, the only evidence before the Commission Member was the report of Dr Bodel which, so far as the left upper extremity was concerned, provided an assessment of 8% WPI. From this the submission was:
“The [Commission] Member does not have power to refer a matter to [a Medical Assessor] where the degree of impairment is under the 11% WPI threshold required in Section 66 of the Workers Compensation Act 1987 ...”[3]
[3] Supplementary submissions, [16], [19].
The submissions and other documents did not explicitly address the issue identified in bold above (paragraph [19]) and it is not entirely clear that it is the Amended Certificate of Determination: Reconsideration that is the subject of the appeal. However, ss 57(4) and (5) of the Personal Injury Commission Act 2020 (the 2020 Act) provide that the replacement Certificate prevails over any previous certificate. I proceed accordingly.
STATEMENT OF REASONS
The Statement of Reasons dated 9 December 2021 disposed of the claimed estoppels in relation to the left lower extremity and the lumbar spine.
The Member referred the left upper extremity, which was not the subject of any previous finding, to the President for referral to a Medical Assessor for assessment of the whole person impairment attributable to that part of the body.
The appeal challenges that referral. There is no ground of appeal challenging the absence of reasons for the referral.
In the Statement of Reasons responding to the application for reconsideration, the Member firstly noted that the appellant’s solicitor had inadvertently referred to the previous reconsideration power in s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) but that the Commission had power under s 57 of the 2020 Act to reconsider its decision of 9December 2021. No challenge is made to this finding.
The Member secondly addressed the employer’s submissions that Dr Dave, treating orthopaedic surgeon, was not a SIRA accredited permanent impairment assessor and therefore his report could not be relied upon to claim s 66 compensation. The employer’s submissions as recorded by the Member were:
“The first is because section 66 provides there can be no award under that section unless the degree of impairment resulting from the injury is greater than 10% whole person impairment, then:
‘Accordingly, the claimant is not entitled to prosecute a claim for section 66 compensation unless there is evidence that this threshold is satisfied.’
It is remarkable that section 66 is expressed ‘no award for section 66 compensation’ whereas the [appellant’s] assertion is that the [respondent] is ‘not entitled to prosecute a claim’. To my mind, these are different propositions, the first compelling the final outcome of a proceeding (no award) and the second the steps necessary to pursue an outcome (not entitled to prosecute). To my mind, section 66 is not, as submitted by the [appellant], preventing the [respondent] from prosecuting a claim.”[4]
[4] Amended Certificate of Determination: Reconsideration, [13].
The Member concluded:
“To my mind, sections 66, 65 and 322, Part 7 Chapter 7 of the 1998 Act and the Guidelines all address requirements and procedures in the context of the final determination by a Medical Assessor of the [respondent’s] degree of whole person impairment. None of the sections apply to constrain or outlaw examination and report by non-SIRA approved medical examiners. It follows that the [appellant’s] submission that Dr Dave’s report cannot be placed before the determining Medical Assessor and means that there is no valid claim must be rejected.”[5]
[5] Amended Certificate of Determination: Reconsideration, [18].
ON THE PAPERS
The parties are content for the appeal to be dealt with on the papers.
Section 52(3) of 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.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied that this is an appropriate matter to proceed “on the papers” without holding any conference or formal hearing.
NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
The jurisdiction provided in subsection 352(5) of the 1998 Act is:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
THRESHOLD MATTERS
The appeal was lodged on 5 January 2022. No monetary award was made but the claim was for an award of $48,490 in respect of a 20% WPI for injuries incurred on 26 October 2015.
The respondent accepts that the procedural requirements of s 352 of the 1998 Act have been met. I agree.
INTERLOCUTORY
Section 352(3A) of the 1998 Act provides:
“(3A) 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 that the Member’s decision was a final decision on the basis that had the Member’s decision favoured the appellant, the worker’s claim for s 66 compensation would have been concluded.
The respondent has made no submissions with respect to whether the appeal is against an interlocutory decision.
In P & O Ports Ltd v Hawkins[6] Roche DP considered the distinction between final and interlocutory orders. The Deputy President referred to the passage from Gibbs J (as his Honour then was) in Licul v Corney:[7] “Does the judgment or order, as made, finally dispose of the rights of the parties?”
[6] [2007] NSWWCCPD 87; 6 DDCR 12.
[7] [1976] HCA 6; 180 CLR 213, 225.
In Bagtrans Pty Limited v Simunic[8] an order referring the worker to an Approved Medical Specialist for assessment of the thoracic spine was held to be interlocutory. Although this decision was concerned with the then s 352(8), which at the time precluded leave being granted to appeal when the award, order, determination, ruling or direction was of an interlocutory nature prescribed by the regulations, the conclusion in my view, while not binding authority, is persuasive.
[8] [2007] NSWWCCPD 212, [27].
The Member’s decision to refer the matter to the President for referral to a Medical Assessor was interlocutory because the respondent’s right to an award under s 66 was not determined but depended on the findings of the Medical Assessor and the steps to be taken thereafter. Had the Member declined to refer the worker to a Medical Assessor for assessment of the WPI the decision would have been “final” in the relevant sense because that determination would have precluded the respondent from receiving an award for compensation pursuant to s 66. In my view, the Member’s decision was interlocutory and not a final determination of the parties’ rights with the consequence that the appellant requires leave pursuant to s 352(3A).
The appellant submits that leave should be granted because:
“17. … the Member has erred in law in his determination by making an award for section 66 compensation when the worker is not entitled to the compensation pursuant to the proper application of the law. The orders made by the Member in relation to the award of section 66 compensation is at issue on appeal. The determination of the appeal will resolve the dispute.
18. The Appellant submits that the issue in dispute involves obvious error and to allow the decision to stand would mean that the worker would be prosecuting a claim for section 66 lump sum compensation despite not satisfying the requirements of section 66(1) of the 1987 Act. This would be contrary to the law. The Appellant submits that the correction of the error deems the appeal necessary.
19. The grant of leave in this matter will avoid additional costs and delay. The referral to a Medical Assessor … is not necessary when the worker has no entitlement to section 66 lump sum compensation. The referral is unnecessary and will result in additional costs and delays in the determination of the dispute between the parties. The grant of leave for the appeal would avoid the unnecessary medical assessment by a Medical Assessor.”
For the reasons that follow I decline to grant leave.
I have not made any determination of the substantive matters raised by the submissions in support of the appeal. I refrain from any discussion of the submissions or the evidence so as to avoid inadvertent influence on any future determinations in the disposition of the proceedings. It is important that I not by this decision foreclose arguments that might subsequently be made at a later point in time. My decision against a grant of leave does not prevent either party from appealing the matter including the decision to refer the respondent to a Medical Assessor at some future time.
Having said so much I do not regard the Member’s decision as being plainly erroneous in law. I reject the appellant’s submissions at [17] and [18] recorded above at paragraph [43].
I have read the submissions advanced by the appellant in support of the primary application that was the subject of the Certificate of Determination dated 9December 2021. The appellant did not make any submissions with respect to the left upper extremity.
Indeed, the appellant made the following written submission:
“22. By virtue of the above the [appellant] contends that the [respondent] is estopped from raising the issue of injury to the lumbar spine and left knee in the present proceedings.
23. Should the learned Member determine that the [respondent’s] claim is not estopped, the [appellant] does not oppose the matter being referred to the President for remittance [sic] to a Medical Assessor in respect of the pleaded injuries.”[9]
[9] Appellant’s submissions before the Member dated 29 October 2021, [22]–[23].
The pleaded injury included an injury to the left upper extremity. The submissions confined themselves to the left knee and the lumbar spine. That was inevitable given that the earlier consent order in respect of the left upper extremity was that there should be a discontinuance of the claim with respect to that part of the body.
The worker in his submissions of 15 November 2021 noted that the Consent Orders were limited to the back and left knee.[10]
[10] Respondent’s submissions before the Member dated 15 November 2021, [12].
It is not until the application for reconsideration that the argument now advanced by the appellant on appeal is squarely raised.
The submission having been made in the reconsideration application was at that time before the Member and is relied upon in the appeal submissions. Had I reached a different conclusion with respect to the grant of leave I would have directed the parties to provide additional submissions as to whether the appellant should be permitted to raise the argument on appeal in circumstances where it was not squarely raised initially. It is unnecessary for me to determine this issue in view of the conclusion that I have reached with respect to the granting of leave.
The appellant’s submission at [19] recorded at paragraph [43] above is premised on the proposition that the respondent has no entitlement under s 66 for the reasons the appellant advances. On that premise the proceedings would be shortened and costs saved. But as the premise is not accepted by the respondent the grant of leave would not necessarily shorten the matter or save costs because a determination of the proposition may be adverse to the appellant. In that event the worker would need to be referred to a Medical Assessor for assessment.
In my view a grant of leave is neither necessary nor desirable for the proper and effective determination of the dispute, being the dispute as to the worker’s entitlement to whole person impairment compensation.
Furthermore it is in my view much more likely that the assessment of WPI by a Medical Assessor will resolve the parties’ dispute.
If the Medical Assessor assesses WPI as not greater than 10%, the worker will have failed. If the assessment is greater than 10%, the appellant is not precluded by this determination from appealing the referral and advancing the submissions now made in support of the appeal.
For these reasons I decline to grant leave to appeal.
CONCLUSION
In my view, the appeal requires leave. I am not persuaded that leave ought be granted.
DECISION
Leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act is refused.
Geoffrey Parker SC
Acting Deputy President
15 November 2022
0
4
0