State Transit Authority of New South Wales v Peter Dodd
[2004] NSWWCCPD 67
•27 September 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Transit Authority of New South Wales v Peter Dodd [2004] NSWWCCPD 67
APPELLANT: State Transit Authority of New South Wales
RESPONDENT: Peter Dodd
INSURER:State Transit Authority of New South Wales
FILE NUMBER: WCC6119-04
DATE OF ARBITRATOR’S DECISION: 27 July 2004
DATE OF APPEAL DECISION: 27 September 2004
SUBJECT MATTER OF DECISION: Whether the Arbitrator erred in referring the Applicant to an Approved Medical Specialist
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers.
REPRESENTATION: Appellant: Sparke Helmore Solicitors
Respondent: McClellands Lawyers
ORDERS MADE ON APPEAL: Leave to appeal is refused.
The Appellant is ordered to pay the costs of the appeal.
THE APPEAL
On 13 August 2004 the State Transit Authority of New South Wales (the Appellant Employer) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (the Commission) against a decision of an Arbitrator, dated 27 July 2004.
The Respondent to the Appeal is Peter Dodd (the Respondent Worker).
The dispute before the Arbitrator relates to a claim by Mr Dodd for medical, hospital and related benefits in connection with a hernia that he said that he sustained, arising out of or in the course of his employment as a bus driver with the Appellant Employer.
The appeal has now been referred to me for review.
ISSUES IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in deciding to refer this matter for assessment by an Approved Medical Specialist (AMS).
The Appellant Employer points out that there is no claim for permanent impairment involved in this dispute.
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 matter 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.
JURISDICTION TO DETERMINE THE APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the relevant provisions of section 352 of the 1998 Act are met.
I am satisfied that the appeal was filed within 28 days of the decision appealed against, as required by section 352(4) of the 1998 Act.
The Appellant Employer objects to the referral to the AMS on the grounds that:
· The opinion of an AMS is not binding on the issue of causation pursuant to section 326 of the 1998 Act;
· The referral is inconsistent with the objectives of the Commission as set out in section 367(1)(b) of the 1998 Act to which the members of the Commission must have regard in the exercise of their functions, and to which the Arbitrator did not have regard, and
· The referral to an AMS for assessment on the particular issue of causation is inconsistent with the objectives of the Commission.
The Respondent Worker submits that the Arbitrator has a discretion to refer the matter to an AMS if she believes that the evidence of the AMS would be of assistance in deciding the matter and/or assisting in early resolution of the dispute once the results of the assessment are obtained, notwithstanding that the opinion of the AMS is not binding. It is disputed that the referral to the AMS contravenes the objectives of the Commission.
The Appellant Employer submits that the amount of compensation in dispute is potentially $7,500 and this satisfies section 352(2)(a). In the alternative, it is submitted that although the decision itself does not award an amount of compensation, the referral to the AMS on the issue of causation “has real capacity to put the amount of compensation determined by reference to the claim in issue” (Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7), (Regan). It is further submitted that section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Ltd [2002] NSW WCC PD 5), (Mawson) and that the decision appealed falls within the definition in section 352(8) of that Act.
The Respondent Worker submits that neither section 352(2)(a) nor 352(2)(b) of the 1998 is satisfied.
It is possible, as the Appellant Employer correctly submits, to appeal an interlocutory decision involving no award (Mawson). What is more problematic in the instant matter is whether the amount of compensation at issue in this appeal is at least $5,000. The Arbitrator noted at the teleconference that there is clear agreement on the medical evidence as to the need for Mr Dodd to undergo “very expensive surgery”, notwithstanding that the issue of causation is strongly disputed. In light of this agreement and on an inspection of the documents before the Arbitrator, it is reasonable to conclude that an amount of at least $5,000 is in dispute between the parties. (An amount in dispute as a whole may be different from an amount of compensation at issue on appeal within the meaning of section 352(2) of the 1998 Act).
The circumstances in Regan are somewhat different to those in the instant matter. In Regan the Arbitrator’s decision concerned the actual admission of medical evidence and the consequent referral of the medical dispute to an AMS. The determination in that matter was binding on the parties, subject to appeal to a Medical Appeal Panel. In those circumstances the Deputy President accepted that the evidence that was before the AMS was likely to be of critical importance to the determination of the medical issues. The Deputy President found the decision clearly had the potential to put the amount of compensation claimed by the Appellant in issue. In the instance case, the decision of the AMS is not binding and cannot be said categorically, to have the same potential.
While the referral to the AMS in the instant case may be said to be more than a purely routine procedural issue, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5), it does
not have in my view, a real capacity to put the actual amount of compensation, determined by reference to the decision or the claim, in issue in the appeal (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3).
The Commission is not a court (Orellana-Fuentes v Standard Knitting Mill Pty Limited [2003] NSW CA 146 (20 June 2003)) and its powers are prescribed by the 1998 Act. Section 352(2) of that Act must be interpreted in its statutory context. While there is an onus on the Commission to have regard to the statutory objectives of the Commission, it was not the intention of the Legislature that each and every decision made by an Arbitrator in the course of proceedings should be amenable to appeal. Section 354(2) of the 1998 Act provides that the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
I agree with the Respondent Worker that the Arbitrator acted in aid of the objectives of the Commission, set out in section 367 of the 1998 Act. In that regard I note her comment that although the AMS opinion will not be binding, it is her view that the opinion is warranted in order to assist the parties to settle or for her to arbitrate. In my view, she was entitled to inform herself (and the parties) in this way.
There is nothing before me to conclude that the referral to the AMS has put in issue the amount of the claim, yet to be quantified, and there is no evidence of injustice to the Appellant Employer.
In the circumstances, I find that the Arbitrator had regard to the objectives of the Commission when making the referral to an AMS; that the decision did not have a real capacity to put the amount of compensation claimed in issue in the appeal, and consequently, that there is in fact, no amount of compensation at issue on appeal in this matter, as required by section 352(2) of the 1998 Act.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is ordered to pay the costs of the appeal.
Gary Byron
Deputy President
27 September 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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