Sydney South West Area Health Service v Avery
[2007] NSWWCCPD 213
•22 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213
APPELLANT: Sydney South West Area Health Service
RESPONDENT: Pamela Avery
INSURER:Employers Mutual NSW Limited
FILE NUMBER: WCC1112-07
DATE OF ARBITRATOR’S DECISION: 18 May 2007
DATE OF APPEAL DECISION: 22 October 2007
SUBJECT MATTER OF DECISION: Natural justice; alleged denial of opportunity to make submissions; application of Mitchell v Central West Area Health Service (1997) 14 NSWCA 526; power to make a ‘general order’ for section 60 expenses
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: TurksLegal
Respondent: Slater & Gordon
ORDERS MADE ON APPEAL: The Arbitrator’s determination of 18 May 2007 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Pamela Avery (‘the Respondent Worker/Mrs Avery’) started work with the Central Sydney Area Health Service, now known as Sydney South West Area Health Service (‘the Appellant Employer’), as a human resources manager at Canterbury Hospital in about June 1996. On 29 September 1999 she injured her right shoulder lifting a box of paper from the top of a filing cabinet. A claim for compensation was submitted and liability accepted. She continued at work though with significant pain. Because of difficulties driving and with her duties, she was transferred to Concord Hospital until February 2000 when she was transferred to Rozelle Hospital performing administrative duties.
On 3 May 2000 she underwent surgery on her right shoulder for a tear of the rotator cuff mechanism and was off work for about five months. On her return to work she gradually increased her hours until she was working four days per week.
On 18 June 2001 she was transferred to Concord Hospital as a senior human resources officer where she remains having been made permanent on 29 August 2002. She was certified fit to work and returned to work for 7.6 hours per day for four days per week; Monday, Tuesday, Thursday and Friday. As a result, she suffered a loss of one day’s income per week and she was paid that amount plus medical expenses until liability was declined from 2 January 2006 pursuant to notice dated 21 November 2005 (see Arbitrator’s Statement of Reasons for Decision (‘Reasons’) at paragraphs five and six).
Shortly after her shoulder surgery she noticed pain and stiffness in her neck. In or about September 2002 she was seconded to Royal Prince Alfred Hospital (‘RPA’). While driving to RPA in or about September/November 2002 she noticed an increase in her neck pain.
By an Application to Resolve a Dispute (‘the Application’) registered in the Workers Compensation Commission (‘the Commission’) on 21 February 2007 Mrs Avery sought weekly compensation from 2 January 2006 to date and continuing in the sum of $239.33 per week, plus “$11.25 gross per week for attendance on physiotherapy once per four weeks”. The Application also claimed an unspecified amount for “continuing medical treatment” under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) and lump sum compensation in respect of a 16% permanent impairment of the neck and 25% permanent loss of efficient use of the right arm at or above the elbow.
The Appellant Employer filed a Reply on 14 March 2007.
The matter was listed for conciliation and arbitration on 23 April 2007. A solicitor, Mr Foster, represented Mrs Avery and counsel, Mr Newton, represented the Appellant Employer. Mrs Avery gave oral evidence and was cross-examined. In a reserved decision delivered on 18 May 2007 the Arbitrator found in favour of Mrs Avery on all issues including the contentious issue of whether her neck pain was causally related to the injury to her right shoulder on 29 September 1999.
The Appellant Employer seeks leave to appeal that decision. The issue on appeal is whether the Appellant Employer was denied procedural fairness because it was not given an opportunity to make submissions and whether the Arbitrator erred in his application of sections 40 and 60 of the 1987 Act.
LEAVE TO APPEAL
Monetary Threshold
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’).
There is no issue that the thresholds in section 352(2) are satisfied.
Time
For the reasons set out in Dennis v NSW Fire Brigade [2007] NSWWCCPD 165, the appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 May 2007, records the Arbitrator’s orders as follows:
“1.The Applicant did sustain an injury to the neck as a consequence of the work related injury which occurred on 28 September 1999 and work was a substantial contributing factor to that injury.
2. The Respondent to pay the Applicant the sum of $228.14 per week by way of weekly compensation from 2 January 2006 to date and continuing pursuant to Section 40.
3. The Respondent to pay the Applicant’s reasonable and necessarily incurred Section 60 expenses upon production of accounts and/or receipts.
4. The Applicant to be referred to an AMS for a determination of permanent impairment relative to both [the] neck and right arm at or above the elbow.
5.The Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to afford the parties natural justice by failing to invite either oral or written submissions from either party during the course of the arbitration (‘natural justice’);
(b)failing to determine the claim for weekly compensation in accordance with the protocols established in Mitchell v Central West Area Health Service (1997) 14 NSWCA 526 (‘Mitchell’) (‘section 40 calculations’);
(c)failing to make any proper determination in respect of the claim for section 60 of the 1987 Act (‘section 60 expenses’), and
(d)exceeding his power in purporting to make an order that the Appellant Employer pay Mrs Avery’s section 60 expenses (‘section 60 expenses’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The 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 powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311). When dealing with an alleged denial of the requirements of natural justice (procedural fairness), all that an appellant needs to show is that the denial deprived him or her of the possibility of a successful outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141 (‘Stead’)).
I intend to apply the above principles in the matter before me.
FRESH EVIDENCE
Neither side has sought to rely on fresh evidence on appeal.
SUBMISSIONS AND FINDINGS
Natural Justice
The Appellant Employer submits through its solicitor, Ms Riordan (who did not appear at the conciliation and arbitration), that the Arbitrator failed to afford the parties natural justice in that he failed to invite the parties to make either oral or written submissions. At paragraph 24 of his Reasons, the Arbitrator said:
“Both parties made oral submissions and as indicated the Applicant was subjected to questioning by both the Applicant’s representative and in particular the Respondent’s representative.”
It is argued that this statement by the Arbitrator was “at best erroneous and at worst misleading, as upon completion of the employer’s cross-examination of the worker, the Arbitrator did not invite the parties to either make oral submissions or to submit written submissions for his consideration” (Appellant Employer’s submissions, 21 June 2007 paragraph 2.7.2). It is also submitted (paragraph 2.7.4) that the Appellant Employer “seeks an explanation for this mistaken and/or misleading assertion”.
The transcript reveals that Mrs Avery’s evidence concluded at T19.18 and the following exchange then occurred:
“ARBITRATOR: Okay. All right. Mrs Avery, what we’ll do is I’ll stop these proceedings in just a moment, but, in essence, I’m now required to give a decision, which I will do in the next fortnight. That will turn up at the Commission and you’ll be informed shortly after that. Okay?
APPLICANT: Yes.
ARBITRATOR: Now, there are, or there is still the issue of the section 66 ‑ that is, your claim for incapacity flowing from. Because there’s an issue in relation to the neck as well, we’ll have to delay referral of that. I take it, gentlemen, that in the event – I’ll take the two scenarios ‑ in the event of there being no finding vis‑à‑vis the neck as far as this incident is concerned, then, clearly, the referral will be restricted to the right shoulder.
MR NEWTON: That’s correct.
ARBITRATOR: Conversely, you would agree that if I find the neck is there related that I would make the appropriate direction. Be it the subject of an appeal, then that would be the situation at that point in time.
MR NEWTON: That’s correct.
ARBITRATOR: Okay. In terms of the section 60s, again just remind me, there ‑‑
MR NEWTON: I think it goes with the flow, but ‑‑
ARBITRATOR: Yeah.
MR NEWTON: ‑‑ you would order that --
ARBITRATOR: Yes.
MR NEWTON: -- if you find against Dr Hitchens that there is a continuity of ongoing problems in relation to the right shoulder and on the basis of the medical evidence that’s available that section 60s relative to physiotherapy are both reasonable and appropriate, you would make that order. That is conceded should you so find against me on the primary issue.
ARBITRATOR: Yes. Thank you. All right. Nothing else?
MR FOSTER: No.
ARBITRATOR: Okay, gentlemen. Thank you. I’ll just stop these proceedings.
DECISION RESERVED” (emphasis added)
Mrs Avery submits, through her solicitor, Mr Foster (who conducted the conciliation and arbitration on her behalf) that the proceedings commenced before the Arbitrator at 2.00pm on 23 April 2007 and that the Arbitrator indicated that he had a prior commitment at 4.00pm and the hearing would have to finish at that time. Negotiations took place in an unsuccessful attempt to settle the claim. Those negotiations delayed the start of the arbitration stage of the proceedings until, it is submitted, 3.30pm. It is not disputed that the Arbitrator did indicate that he had a prior commitment but exactly what he said and at what time he said it is not recorded on the transcript and is not the subject of agreement between the parties or of an application to rely on fresh evidence. I do not know what time the proceedings concluded but I note that in the Appellant Employer’s submissions filed on 5 October 2007 it is submitted that Mrs Avery was excused as a witness shortly prior to 4.30pm. In the absence of any evidence on this issue I make no finding as to when the arbitration started and concluded.
Mrs Avery also argues that at the beginning of the conciliation phase of the proceedings Mr Newton and Mr Foster indicated to the Arbitrator the areas of contention between the parties. It is further submitted that while the parties were waiting for Mr Newton to obtain instructions, “the issues in respect of the matter were able to be ventilated with the Arbitrator prior to the hearing commencing” (Respondent Worker’s submissions filed 12 October 2007, paragraph one). The Appellant Employer submits that no “ventilations” occurred during the arbitration stage of the proceedings and that any “ventilations” occurred during the conciliation stage and such comments during the conciliation stage are not supposed to be considered by the Arbitrator. It is correct that statements made during the conciliation stage of the proceedings are not evidence, but they are most relevant to the identification and clarification of the issues (see The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission April 2007, page 9).
In light of the Appellant Employer’s submissions and the content of the transcript, I issued the following Direction to the parties on 24 September 2007:
“1. The Appellant Employer submits that the Arbitrator did not give it the opportunity to make submissions and that this amounts to an error of law. The transcript reveals that brief submissions were made (T19-20) and that counsel for the Appellant Employer made no response when the Arbitrator said “Nothing else?” at T20.11. In light of the evidence in the transcript the Appellant Employer is directed to indicate if it still alleges that it was denied the opportunity to make submissions and, if so, on what basis.
2. The Appellant Employer’s submissions are to be filed and served on or before 4.30pm on Monday 8 October 2007 and the Respondent Worker’s submissions in response are to be filed and served on or before 4.30pm on Monday 22 October 2007.”
The Appellant Employer filed submissions in response to this Direction on 5 and 15 October 2007. It argues that when the Arbitrator said “I’ll stop these proceedings in just a moment” (T19.22), it was clearly his intention to “terminate the proceedings at that stage” and he “forgot…that he had not invited either party’s legal representatives to address him on the evidence, the law and/or the findings and/or determinations that he should make” (Appellant Employer’s submissions 5 October 2007, page two). I do not accept this submission. As the transcript clearly demonstrates, the Arbitrator did not “terminate the proceedings” at that stage but proceeded to engage with counsel about the issues in the case.
It is argued that the discussions from T19.30 to T20 were only brief discussions regarding administrative matters. I do not agree. The Arbitrator noted, “there’s an issue in relation to the neck” (T19.33). Next, he sought assistance in relation to the claim for section 60 expenses (T19.50) and counsel made submissions on that issue. The Arbitrator then said, according to the transcript, “Nothing else?”. I have listened to the audio recording of the evidence and in my opinion the Arbitrator in fact said, “anything else?”. I do not believe anything turns on this error in the transcript and I have not invited further submissions on this issue. Whichever words were spoken, the Arbitrator clearly invited both parties to make further submissions on any issue they thought relevant. They chose not to do so. Only then did the Arbitrator “stop the proceedings” (T20.15). The Arbitrator did not terminate the proceedings without giving the parties the opportunity to make submissions. Whilst those submissions may have been abbreviated, they were not prematurely or unfairly terminated.
The Appellant Employer submits that the Arbitrator’s comment “nothing else?” was made in the context of his very brief discussion of procedural matters and did not, in this context, evidence an invitation to either party to address him on matters of evidence or law. I do not agree. The Arbitrator’s question, “nothing else?” (or, “anything else?”) was an invitation to the parties to deal with any other matters. The submissions then refer to a long telephone conversation Ms Riordan had with her counsel about the arbitration in which he recounted a conversation he had with Mr Foster at the conclusion of the proceedings. I have not had regard to that conversation in reaching my decision. The content of that conversation is of limited, if any, relevance to the issues before me. In addition, no application has been filed seeking to rely on ‘fresh evidence’ on appeal. The conversation has no probative value and seeks to introduce double hearsay via a person who was not at the hearing. Attempting to introduce such evidence in this way on appeal is inappropriate.
The principles of natural justice and procedural fairness as they apply to tribunals have been discussed in many cases. In Kioa v West (1985) 159 CLR 550 Mason J (as he then was) said at [31]:
“31. The law has now developed to a point where it may be accepted that there
is a common law duty to act fairly, in the sense of according procedural
fairness, in the making of administrative decisions which affect rights,
interests and legitimate expectations, subject only to the clear manifestationof a contrary statutory intention.”
In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 (‘Lam’) the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at [37]):
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Muin v Refugee Tribunal [2002] HCA 30 (‘Muin’) Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
In considering the application of the rules of natural justice to the Commission the NSW Court of Appeal held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [20] that:
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
The judgment by Gibbs CJ in National Companies and Securities Commission vNews Corporation Limited (1984) 156 CLR 296 at 312 is also instructive:
“In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: ‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’ The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.” (emphasis added)
Proceedings in the Commission are less formal than in a court. The Commission is required to conduct its matters with “as little formality and technicality as the proper consideration of the matter permits” (section 354(1) of the 1998 Act). Arbitrators are, however, required to comply with the rules of natural justice and procedural fairness (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [91]).
In the present matter, fairness in all the circumstances required that each party be given a reasonable opportunity to be heard (per Kirby J in Allesch v Maunz (2000) 203 CLR 172 at 185). The Arbitrator gave them that opportunity when he raised issues at T19 to T20 and when he said, “Nothing else?” (or, “anything else?”). Neither party took up that invitation. If there were concern that the time allocated for the hearing was running short (for whatever reason), it would have been a simple matter for either side to seek to provide written submissions, if that was considered necessary. That was not done. Counsel for the Appellant Employer said nothing. Having regard to the informal nature of proceedings in the Commission and the overall circumstances of the case, I am firmly of the view that the Arbitrator did not preclude the Appellant Employer from making further submissions and did not deny it procedural fairness.
The Appellant Employer submits that the Arbitrator was not entitled to have regard to any informal discussions or “ventilations” during the conciliation stage. That is not entirely correct (see the discussion at [103] to [105] inclusive in Edmonds about an Arbitrator’s obligations during the conciliation and arbitration process). The discussions during the conciliation stage will often be helpful in narrowing the issues in dispute and thus enable the arbitration stage to proceed more expeditiously than it might otherwise have done. Whether that happened in the present case is unclear, but in any event is not determinative as the Arbitrator did invite further submissions before concluding the proceedings and did give the parties the opportunity to present their cases.
The Appellant Employer relies on the decisions of Escobar v Spindaleri (1986) 7 NSWLR 51 (‘Escobar’) and Stead. In my view, neither authority provides any support for its position. In Escobar, the trial judge invited counsel for the worker to call further evidence at the conclusion of the case. Counsel declined to do so. When the judge warned counsel that the claim might be dismissed counsel said “you can do what you like”. The judge then immediately responded, “I dismiss your application”. On appeal, the Court of Appeal held that a denial of natural justice may arise when the court proceeds to a decision without affording counsel the opportunity to address the court. The question in Escobar was whether counsel had been precluded from addressing the court, or, had waived his right to address. By majority, the Court held that counsel had not waived his right to be heard and that:
“The proper course for his Honour to have followed was to have invited the address of counsel. The failure to do so and the peremptory dismissal of the claim invalidated the award which followed.” (per Kirby P at 57) (emphasis added)
In the present matter the Arbitrator heard submissions from counsel for the Appellant Employer and then enquired if there was anything else on which the parties wished to make submissions. Mr Foster replied “No” and counsel for the Appellant Employer was silent. If counsel wanted to make further submissions, he was free to do so. If it was thought that further time was required for his client’s position to be properly put, he was free to seek to make written submissions or to seek an adjournment. Neither of these steps was taken.
In Stead, the trial judge, during final addresses, stopped counsel for the plaintiff addressing further on his client’s credit, but in his reserved judgment found against the plaintiff on that issue. The High Court ordered a new trial because there had been a denial of natural justice affecting the entitlement of a party to make submissions on an issue of fact. In the present case the Arbitrator did not stop counsel addressing but enquired if there were any further matters.
I reject the Appellant Employer’s claim that it was denied natural justice or procedural fairness.
Section 40 Calculations
The Appellant Employer argues that the Arbitrator failed to determine the section 40 claim in accordance with “the protocols demanded by the decision in Mitchell” (Appellant Employer’s submissions 21 June 2007, paragraph 2.7.18).
The Appellant Employer refers to the following statement by the Arbitrator at paragraph 30 of his Reasons:
“I am therefore satisfied without applying the strict criteria provided for under Section 40 as identified in the steps provided for in ‘Mitchell -v- Central West Health Service 1997 14 NSWCCR’ that the Applicant is currently suffering a wage loss as identified in evidence as being $228.14.”
However, the Arbitrator also said, in the same paragraph, he was satisfied that Mrs Avery was performing work to the best of her ability and that taking a day off per week enabled her to “at least perform four (4) full days and indeed it would appear under questioning somewhat more than is required, possibly to her detriment”. Therefore, the Arbitrator’s conclusion is well supported by the evidence. If the Arbitrator was in error in not setting out the five steps in Mitchell, that failure has not affected the outcome of the case. Once he accepted that Mrs Avery’s neck pain had resulted from the injury on 28 September 1999 and he accepted that she was performing work to the best of her ability it followed that she was entitled to an award in the sum of $228.14 per week.
That is so because it was agreed that probable earnings but for injury (step 1 in Mitchell) were $1,140.68 per week (T2.1). Her actual earnings were agreed at $912.54 per week (T2.7) (step 2 in Mitchell). Actual earnings are prima facie evidence of a worker’s ability to earn under section 40(2)(b) of the 1987 Act unless the worker is deliberately taking lower paid work or deliberately avoiding work (Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1946) 46 SR (NSW) 20). That was not the case in the present matter. The difference between $1,140.68 and $912.54 is $228.14 per week (step 3 in Mitchell). Given the factual finding that working four days per week was “possibly to her detriment” (Reasons, paragraph 30), there is no basis for the figure of $228.14 per week to be reduced in the exercise of the discretion under section 40(1) of the 1987 Act. Thus Mrs Avery’s entitlement is $228.14 per week, the amount the Arbitrator awarded. If I were to re-determine the matter that is the award I would enter.
I reject this ground of appeal. If the Arbitrator was in error in not setting out each of the Mitchell steps, that error has not affected the outcome of the case and I would reach the same conclusion.
Section 60 Expenses
The Arbitrator ordered the Appellant Employer to pay Mrs Avery’s “reasonable and necessarily incurred section 60 expenses upon production of accounts and/or receipts”. The Appellant Employer challenges this order on the ground that it is “tantamount to a ‘general order’” and the Commission lacks jurisdiction to make such an order. Therefore, so it is argued, the order is ultra vires and void. No authorities are cited in support of this submission.
It is also submitted that the Arbitrator’s Reasons make no finding as to which medical or related treatment is reasonable and necessary as a consequence of the injury suffered on 28 September 1999 and the Arbitrator has failed to determine the issues he was required to determine under section 60 of the 1987 Act. It is argued that the Arbitrator’s failure to properly determine the claim for medical expenses may be explained by the fact that he failed to hear submissions from the parties before making his determination.
It is correct that the Arbitrator did not make a specific finding as to whether the claimed section 60 expenses were reasonably necessary within the terms of that section and that his finding was in effect a ‘general order’. There were two reasons for that. First, Mrs Avery did not make a claim for the payment of specific medical accounts. The Application sought “continuing medical treatment” (Application to Resolve a Dispute, Part 5.3). The claim was for “some physiotherapy expenses” (T2.22) and an account from Dr Sonnabend (T2.17). None of these expenses were itemised or quantified at the arbitration. Second, counsel for the Appellant Employer said at T2.57:
“Quite obviously, given the fact that the injury to the right shoulder is not in dispute and what flows from that is presumably that physiotherapy to the right shoulder from time to time, I think I would be at some exercise of doubting credibility for me to argue that that wouldn’t be appropriate.”
At T20.3-9 counsel seemed to say that if the Arbitrator found against him “on the primary issue” then liability for the medical expenses was conceded. In these circumstances it is not surprising that the Arbitrator made the order he made.
The Appellant Employer’s first point about the Commission’s jurisdiction to make a general order for the payment of section 60 expenses is incorrect. This issue was considered in Widdup v Hamilton [2006] NSWWCCPD 258 (‘Widdup’) where the President, Justice Sheahan, held that the Commission does not have the power to make a declaratory order regarding liability for the payment of a medical expense not yet incurred. However, his Honour went on to say at [19]:
“In determining the above disputes [on injury; causation and the need for medical treatment] it is accepted practice in the Commission that, after making the requisite findings of worker, injury, incapacity and/or permanent impairment and making the appropriate orders that result from those findings, it also makes an order for the payment of reasonably necessary medical expenses incurred and properly verified together with a ‘general order’ under section 60. This practice was expressly noted by Egan J in Brespro Pty Limited v Garry John Keenahan NSWCC 11155 of 1991, 12 May 1992 (‘Brespro’), unreported.”
In Olympic Fencing (NSW) Pty Limited v Crossley [2007] NSWWCCPD 121 Acting Deputy President Snell concluded that Widdup is not authority for the proposition that the making of a ‘general order’ for the payment of section 60 expenses exceeds the Commission’s jurisdiction. I agree with that view. Therefore, it was open for the Arbitrator to make the order he made. It was no more than a ‘general order’ and, as such, it is of limited efficacy. However, the Arbitrator having found in favour of Mrs Avery on the “primary issue” of causation and having regard to the appropriate and reasonable concessions made by the Appellant Employer’s counsel, it is difficult to imagine that liability for Mrs Avery’s physiotherapy accounts and the account for Dr Sonnabend will not now be paid without the need for a further application.
DECISION
The Arbitrator’s determination of 18 May 2007 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
22 October 2007
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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