Sutherland Shire Council v Webb
[2007] NSWWCCPD 238
•4 December 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sutherland Shire Council v Webb [2007] NSWWCCPD 238
APPELLANT: Sutherland Shire Council
RESPONDENT: John Patrick Webb
INSURER:Self-insured
FILE NUMBER: WCC12823-06
DATE OF ARBITRATOR’S DECISION: 16 February 2007
DATE OF APPEAL DECISION: 4 December 2007
SUBJECT MATTER OF DECISION: Leave to appeal; section 352 of the Workplace Injury Management and Workers Compensation Act 1998; section 60 of the Workers Compensation Act 1987; error as to cause of injury
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers
REPRESENTATION: Appellant: Vardanega Roberts
Respondent: White Barnes
ORDERS MADE ON APPEAL: Leave to appeal is refused
The Appellant Employer is to pay the Respondent Worker’s costs of this appeal
BACKGROUND
Mr John Webb, the Respondent Worker, commenced employment with the Appellant Employer, Sutherland Shire Council, (‘the Council’) as a plant/diesel mechanic on 8 November 1968. The Council is self insured.
Mr Webb states that his duties with the Council involved heavy, physical labouring work including bending, twisting and lifting as well as climbing in and out of plant and equipment. This activity allegedly placed a constant strain on his knees. Mr Webb states that he had an onset of pain in his knees in about March 2003 at which time he consulted with his general practitioner, Dr Lucre. He was referred to a Dr Rowden who performed an arthroscope on 21 June 2003.
Mr Webb commenced proceedings in relation to other injuries, in the Compensation Court of New South Wales (matter no. 9079 of 2002), which settled. The following ‘Short Minutes of Orders’ were entered on 17 July 2003:
“…
2.That the Respondent pay the Applicant as lump sum compensation under section 66 –
(1) $10,000 in respect of 25% permanent impairment of the Applicant’s neck
(2) $3,750 in respect of 5% loss of use of the Applicant’s left arm at or above the elbow.
3.That the Respondent pay the Applicant, as lump sum compensation under section 67, $8,250 in respect of pain and suffering.
…..”
On 27 April 2005 a ‘Certificate of Determination’ was issued by the Commission in a related matter, WCC7671-04, in which the following orders were issued:
“1.Application amended to include a claim for hearing aids pursuant to section 60 of the Workers Compensation Act, 1987.
2.Award for the Applicant in respect of bilateral hearing aids up to a maximum sum of $3,200 upon production of accounts or receipts.
3.Award for the Applicant in the sum of $1,737.50 in respect of further hearing loss (1.37%).
4.The requirement to file a Notice of Discontinuance in respect of all Respondents [sic] under Rule 74 is dispensed with.
5. Respondent pay the Applicant’s costs as agreed or assessed.
The following is not a determination of the Commission, however, I note that the parties have agreed the following:
The parties will file an agreement under section 66A of the 1987 Act by 15 February 2005.”
On 16 August 2005 Mr Webb provided the Council with an initial notification of his alleged injury on 14 March 2003 to his left knee. By letter dated 17 August 2005 the Council advised Mr Webb that it would not authorise provisional compensation payments because the “injury was notified after two months”.
On 14 September 2005 Mr Webb provided the Council with a WorkCover Compensation Claim Form, claiming the date of injury to his left leg to be 14 March 2003 that had occurred due to “climbing up and over trucks and machines over a long period of time”.
Mr Webb provided the Council with a WorkCover medical certificate, issued by Dr Lucre, on 21 September 2005, placing him on restricted duties from that date until 21 October 2005. The ‘date of injury’ was entered on the certificate as 14 March 2005 [sic] and that the injury occurred as a result of “Twisted L knee climbing under large vehicles”.
On 19 October 2005 the Council denied liability in relation to Mr Webb’s claim for the following reasons:
“Your left knee condition is not related to your employment (or alternatively your employment is not a substantial contributing factor). Our opinion is based on medical evidence received from Dr Anthony Smith following your assessment on 13 October 2005. Dr Smith has advised that your condition is constitutional. We advise that you may request a copy of Dr Smith’s report.
Your claim relates to an alleged injury that occurred on 14 March 2003. The above Act [Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)] requires a claim for compensation to be made within six months after the alleged injury or accident happened. This injury was not reported to Council or any claim made until the initial notification received 16 August 2005.”
Early in November 2005 Mr Webb’s employment with the Council was terminated.
On 23 February 2006 Mr Webb wrote to the Council claiming section 66 lump sum compensation in the sum of $3,750 in respect of 3% permanent whole person impairment and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 15 August 2006 Mr Webb lodged an ‘Application to Resolve a Dispute’ in the Commission claiming injury to his left and right legs and knees, and his neck due to the nature and conditions of his employment, including prolonged heavy use of a sledgehammer, prior to 16 August 2005. Mr Webb claimed weekly compensation from 19 October 2005 to date, the amount of $3,750 lump sum for 3% permanent impairment referred to, and expenses in the amount of $2,571.00 under section 60 of the 1987 Act.
In its Reply dated 5 September 2006, the Council disputed the claim on the basis that the whole person impairment asserted by Mr Webb did not result from injury arising out of or in the course of his employment with the Council, and that any alleged loss and/or impairment was due wholly to a pre-existing condition.
On 6 February 2007 an arbitration hearing was held at the conclusion of which, the Arbitrator delivered an ex tempore decision. The claim for weekly payments of compensation was to be (and has since been) discontinued by agreement, on the basis noted on the record, being “…the claim for [weekly] payments is to be discontinued and settled between the parties.” The details of this agreement as to discontinuance are set out at lines 40 to 55, page 1 of the transcript of the proceedings before the Arbitrator. In any event, the hearing and determination that followed referred wholly to the disputed claim between the parties for payment of expenses under section 60 of the 1987 Act, agreed at that point, to be in the sum of $4,782.20. The Arbitrator subsequently issued a ‘Certificate of Determination’ on 16 February 2007 in the terms set out below, at paragraph 31. It is noted, at page 21 of the transcript of proceedings, that in making his determination, the Arbitrator did not specify the actual amount of $4,782.20, following a request from Counsel for the Council. No amount is specified in the Arbitrator’s ‘Certificate of Determination’ dated 16 February 2007. Counsel indicated to the Arbitrator, “It’s not necessary.”
On 23 August 2007 the Council sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the Arbitrator’s decision of 16 February 2007.
THRESHOLD ISSUES
Leave to appeal
Section 352(1) of the 1998 Act provides:
“A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
Time within which an appeal must be made – section 352(4) of the 1998 Act
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Section 352(4) states that an appeal can only be made within 28 days after the making of the decision appealed against. The Council’s appeal was lodged on 23 August 2007, approximately six months after the Arbitrator’s decision, and well outside of the time prescribed in section 352(4) and Rule 16.2(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’). Extension of time in which to bring a Presidential appeal in the Commission is governed by sub rules 16.2 (11) and (12) of the Rules, which provide:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(12) A party who seeks an extension of time as referred to in sub rule (11) must:
(a)as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b)lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The Council, in its appeal application, makes the following submissions in support of the granting of the extension of time:
·no appeal could be lodged by the Council during the time between the Arbitrator’s decision dated 6 February 2007 and the time allowed to appeal, which expired on 5 March 2007, because the “quantum of the award was $2,571.60, being the sum appearing in the worker’s application to resolve a dispute. For that reason, an appeal was prohibited by sec. 352 of the 1998 Act.”;
·well after the expiry of time to appeal Mr Webb requested approval for surgery for which the estimated cost was $9,120;
·“At this time, it might not be said that the amount at issue in any appeal exceeded $5,000 on the principal established by authority reviewed and applied in Widdup v Hamilton [2006] NSWWCCPD 258, that the Workers Compensation Commission cannot make orders with effect in the future.”;
·notwithstanding this constraint, Mr Webb’s solicitor has continued to assert that liability for payments of at least $9,000 result directly from the award of the Commission (dated 16 February 2007), thus the amount in issue in the appeal has now become the sum asserted by the Council in addition to the amount outstanding at the time of the award;
·the award of the Arbitrator is flawed, “as the Arbitrator’s reasoning discloses that the only basis for the worker’s entitlement was a frank injury sustained on or about 23 March 2003 when the worker is said to have twisted his knee under machinery”;
·the Council has complied with the Rules by giving notice pursuant to rule 16(12) of its intention to seek extension of time for leave to appeal, this notice being given within three (3) weeks of the demand for acceptance of additional liability, and “in advance of the assertion of the applicant’s solicitor that determinations made by Arbitrator Minus bind the parties.”;
·“that were the worker [sic] to lose its right to seek leave to appeal in these exceptional circumstances, that loss would work demonstrable and substantial injustice within the meaning of Part 16 Rule 2(11).”;
·the injustice would arise from the Council being prohibited by law (section 352 of the 1998 Act) from bringing any appeal while the amount at issue was less than $5,000;
·“if the employer were denied leave to appeal, the party enjoying the benefit of the decision, in this case the worker, will endeavour, perhaps successfully, to use a decision to bind another party, in this case the employer”, and
·“it is reasonable to regard a decision as binding upon parties after litigation when the party against whom the decision is made waives his right to appeal the decision. But when the right to appeal is barred because the sum is a small one, it is clearly an injustice to allow the party benefiting from the decision to force the other party to pay a much greater sum.”
In Mr Webb’s ‘Notice of Opposition to an Appeal Against Decision of Arbitrator’ filed 3 October 2007, he submits, as to the late filing of the appeal, as follows:
·the objectives of the Commission are set out in section 367 of the 1998 Act and include the objective at sub-paragraph (c) to “provide a timely service ensuring the Worker’s entitlements are paid promptly.” It is submitted that it is contrary to the objectives of the Commission that there has been such an excessive period between the initial determination by the Arbitrator and the ultimate lodgement of an appeal, and leave to appeal should not be granted, because this would be prejudicial to Mr Webb, and
·the Council was on notice of the potential scope of Mr Webb’s claim for expenses under section 60 of the 1987 Act, by reference to materials attached in a letter served upon his solicitor’s under cover of correspondence dated 8 September 2006. A copy of this correspondence was also provided to the Commission by letter on the same day. It is submitted that the Council was thereby aware of the potential of Mr Webb’s future medical expenses to be in excess of $5,000.
A perusal of the Commission’s file reveals that Mr Webb filed documents in the Commission on 8 September 2006 and also served a copy of the same documents on the Council’s solicitors on the same date. The documents consisted of a letter from Mr Webb’s solicitors enclosing correspondence from Southern Sports and Physiotherapy and Calvary Health Care Sydney-Hurstville Community, “indicating potential costs of the Applicant’s proposed operative treatment. We give notice to you that we will be seeking to amend the medical expenses claimed to also take into account these anticipated costs. Please advise if you have any objection to this course.” An estimate of patient expenses attached by Calvary Health Care Sydney-Hurstville Community Limited, dated 24 July 2006, indicated total costs of $9,120.00.
I must also consider whether leave to appeal may be granted, having regard to section 352(2) of the 1998 Act. There is no conflict between sections 352(2) and 352(4) of the 1998 Act as each imposes a different requirement. Rule 16.2 (11) and (12) must be read with section 352(4). The requirements of each of subsections (2) and (4) must be satisfied before the appeal may proceed to a substantive determination.
Leave to appeal - monetary threshold requirements under section 352(2) of the 1998 Act
The threshold requirements imposed by section 352(2) must be met, before leave to appeal may be granted. Section 352 (2) provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
In its submissions on this threshold issue, the Council pursues again much of what it raised in relation to its reasons for not making the appeal within the prescribed time limit and its application for an extension of time to do so.
The Council submits in its submissions on appeal, ‘Annexure B’, paragraph 2, that, “Because the applicant had withdrawn his claim for weekly benefits, and weekly benefits form no part of Arbitrator Minus’ award, at the date of the award the limit of the employer’s liability was $2,571.60.” Council further states at paragraph 3 that it is for this reason that no appeal was brought at that time. It goes on to say, at paragraph 6, that, “The only money that the award obliges the employer to pay to the worker is $2,571.60.”
Council submits the following at paragraphs 7, 8 and 9 of ‘Annexure B’:
“7. However, the amount of compensation at issue on the appeal is a considerably greater sum. This is because the worker’s solicitor has, by letter of 26 June 2007, asserted that the award obliges the employer to pay sums well in excess of $10,000, being the cost of surgery to the worker’s left knee.
8. The employer has given the worker notice pursuant to Part 16.2(12) of the Workers Compensation Commission Rules 2006, and has denied that it has liability for the proposed surgery.
9. It is this matter that has lifted the amount at issue between the parties well above the threshold provided by Section 352(2) WIM.”
Submissions and relevant information regarding Mr Webb’s response to the Council’s submissions in this regard are summarised at [18] – [19], above.
Determination on the papers – section 354(6) of the 1998 Act
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.”
Neither party has offered any objections to this matter being determined ‘on the papers’.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and there being no objections 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. This includes the consideration and determination of the issue of leave to appeal, which in turn includes, in this case, the application to extend the time in which the appeal may be made.
These threshold/preliminary issues must be determined before the substantive issues on appeal may be determined.
DECISION UNDER REVIEW
The Arbitrator concluded the hearing on 6 February 2007.
The ‘Certificate of Determination’ dated 16 February 2007 records the Arbitrator’s determination as follows:
“1.I find that the Worker sustained injury to his left knee as a result of the nature and conditions of his employment.
2.I find that the treatment to the Worker’s left knee as ordered by Dr Rowdan and subsequently, were reasonable and necessary expenses, which resulted from the work injury.
3.There is an award for the Applicant, in relation to the Applicant’s claim for reasonable medical expenses incurred to date, pursuant to s.60 of the Workers Compensation Act 1987.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
DISCUSSION AND FINDINGS ON THRESHOLD ISSUES
Section 352(5) of the 1998 Act provides:
“An appeal under this section is to be by way of review of the decision appealed against.”
A review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The Presidential member therefore, has a specific and limited role in the review of a decision of an Arbitrator.
The Council asserts in its submissions on appeal that the amount of medical expenses involved in the Arbitrator’s decision is $2,571.60. However, it was agreed at the arbitral hearing on 6 February 2007 that the amount in dispute was, at that date, the sum of $4,782.20. However, Counsel for the Council requested the Arbitrator not to specify that amount in the award made in favour of Mr Webb, on the basis that it was not necessary to do so. The Arbitrator obliged. Nevertheless, it is clear that this was the amount agreed by the parties to have been incurred to that date, and the amount that was the subject of the Arbitrator’s award.
In awarding medical expenses pursuant to section 60 of the 1987 Act, the Arbitrator specifically stated, “There is an award for the Applicant, in relation to the Applicant’s claim for reasonable medical expenses incurred to date pursuant to s.60 of the Workers Compensation Act 1987.” (Emphasis added).
The Arbitrator had no power to make a declaration of liability in respect of proposed hospital and/or medical treatment pursuant to that section. Accordingly, the Arbitrator’s award specifically ordered payment of medical costs “incurred to date”, and not beyond. As section 60 is an indemnity provision, no order of payment can be made under that section until the cost has been incurred. Once payment of an amount has been ordered in an award, the payment can be enforced (Widdup v Hamilton [2006] NSWWWCCPD 258 (‘Widdup’)). A declaration of future liability for an amount does not constitute a cost payable under section 60 the 1987 (Widdup).
The principal document referred to by Council, in support of its submission that the amount in issue in the appeal has now become the sum asserted by the Council in addition to the amount of the award, is referred to in [17] – [19], above. The additional costs that Council submits should be added to the amount awarded by the Arbitrator are described as “potential costs of the Applicant’s proposed operative treatment.” These words were used in a notice to Mr Webb proposing the total amount of medical expenses that would be incurred and claimed, and that these would “take into account these anticipated costs.” The estimate of the future patient expenses from Calvary Health Care Sydney-Hurstville Community, in which this information was provided, was dated 24 July 2006, and indicated that the total of the estimate was $9,120.00. The Arbitrator did not take this written estimate of future medical costs into account. It seems that further future medical costs may have been identified since then, but were also not taken into account.
It is the Arbitrator’s decision of 16 February 2007 that is the subject of this appeal. For the purposes of seeking leave to appeal, a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act (Rule 16.2 (2)).
The medical costs referred to by the Council are proposed and future costs. They are in fact described and acknowledged in those or similar terms in the relevant documentation. Notwithstanding that they relate to Mr Webb’s proposed medical treatment, they are not costs incurred. There is no provision of which I am aware that enables such potential costs to be added automatically, to the amount awarded by the Arbitrator. They are not enforceable by Mr Webb as they are not included in the Arbitrator’s award in this matter, nor can they be added to the amount of the award made by the Arbitrator, in order to meet the monetary threshold in this appeal. The fact that the potential or proposed costs are of the same or similar nature as the costs already incurred and awarded, is in my view, irrelevant, having regard to the decision in Widdup. However, I note that President Justice Sheahan, as he then was, observed at [49]:
“It is, therefore, regrettable that the Commission is not empowered to make declarations of future liability pursuant to section 60, and consideration should be given to legislative reform in this regard to avoid such hardship.”
However, as the law stands, the Arbitrator could not and did not make an award for medical expenses that had not been incurred. It is open to Mr Webb, should he choose to do so, to pursue the additional medical costs once they have been incurred. Given what has been submitted as to the substantive issues on appeal in this matter, he may be faced with opposition from the Council to any further claim or claims that he may make pursuant to section 60 of the 1987 Act.
In any event, it is clear that the Arbitrator’s award specifically relates to medical costs “incurred to date”, that is, 16 February 2007, and not beyond.
In the circumstances, the monetary threshold requirements of section 352(2) (a) and (b) have not been met. I find accordingly.
Having regard to this finding, leave to appeal may not be granted.
In the circumstances, it is neither useful nor necessary to deal with the application to extend time for making the appeal. Moreover, it follows that I may not proceed to a determination of the substantive issues on appeal this matter.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is ordered to pay the Respondent Worker’s costs of this appeal.
Gary Byron
Deputy President
4 December 2007
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.
ASSOCIATE
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