Target Australia Pty Ltd v Mansour
[2006] NSWWCCPD 286
•27 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Reported Decision: Target Australia Pty Ltd v Mansour (2006) 6 DDCR 440
CITATION:Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286
APPELLANT: Target Australia Pty Ltd
RESPONDENT: Moussa Mansour
INSURER:Self Insured
FILE NUMBER: WCC17412-04
DATE OF ARBITRATOR’S DECISION: 8 June 2006
DATE OF APPEAL DECISION: 27 October 2006
SUBJECT MATTER OF DECISION: Material to be sent to Medical Appeal Panel; procedural fairness; jurisdiction; section 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leitch Hasson Dent
Respondent: Milicevic
ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s decision dated 8 June 2006 are revoked and the following order made:
“1.The matter is remitted to the Arbitrator for determination of the material to be referred to a fresh Approved Medical Specialist pursuant to section 329(1)(b) and for the matter to then be referred to the Registrar for that referral to be effected.”
Paragraphs 3, 4, 5, and 6 of the Arbitrator’s decision dated 8 June 2006 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs.
BACKGROUND TO THE APPEAL
On 6 July 2006 Target Australia Pty Ltd (‘the Appellant Employer/Target’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 June 2006.
The Respondent to the Appeal is Moussa Mansour (‘the Respondent Worker/Mr Mansour’).
On 29 March 2003 Mr Mansour was working as a customer service assistant for the Appellant Employer when a heavy box fell onto his right shoulder. As he stood up another box fell onto the right side of his neck and right shoulder. These incidents resulted in him sustaining injury to his neck, right shoulder and lower back and caused him to be away from work for about three months. Ultimately he underwent surgery to his right shoulder at the hands of Dr Kuo in July 2003.
Mr Mansour was able to return to work on selected duties in November 2003 and by June 2004 he had returned to his pre injury hours though with a significant lifting restriction. As at October 2005 Mr Mansour remained at work with the Appellant Employer performing selected duties.
On 26 October 2004 an Application to Resolve a Dispute (‘the Application’) was registered with the Commission seeking weekly compensation, medical expenses and lump sum compensation as a result of injuries to Mr Mansour’s right shoulder, right arm, neck and back as a result of the March 2003 incidents and as a result of the nature and conditions of Mr Mansour’s employment from 29 March 2003 to date. In its Reply filed on 16 November 2004 the Appellant Employer attached copy of a surveillance report from Milne & Associates Pty Ltd dated 16 January 2004 (‘the surveillance report’). This document refers to 14 minutes and 25 seconds of video of a person alleged to be Mr Mansour. Very poor quality black and white copies of photos of a person are set out in the report on pages three to seven inclusive. It is impossible to identify the person in those photos. The Reply refers to the surveillance video (‘the video’) as having been “requested but not yet received” and as being information the Appellant Employer intends to use.
The claim proceeded to a teleconference on 14 February 2005 when it could not be resolved. The claims for weekly compensation and medical expenses were eventually withdrawn and the claim for lump sum compensation was referred to an Approved Medical Specialist (‘AMS’) for assessment. The Arbitrator issued the following Direction dated 14 February 2005:
“1.I grant leave to the Applicant to amend the Application to Resolve a Dispute by deleting from Part 3 the following:
‘2. Nature and conditions of employment from 29.3.03 to date.’
2.I dispense with the necessity for the Applicant to file an amended Application to Resolve a Dispute.
3.I extend the time for lodgement of all documents the subject of any application to lodge late documents to the close of business on 14 March 2005.
4.I extend the return date in respect of the following directions to produce to the 28th of February 2005:
·Bankstown Hospital
·Dr Tadros
·Dr Kuo
5.I refer this matter to an AMS.
Note:
I note the Respondent will arrange for copies of the surveillance video to be served and lodged.”
The effect of the above Direction and exactly what issues were discussed at the teleconference of 14 February 2005 has been the subject of debate and will be discussed further below. An Application to Admit Late Documents was filed and served by the Appellant Employer on 1 March 2005 attaching a copy of the video.
The Request for Medical Assessment by Approved Medical Specialist (‘the Request for Medical Assessment ’) contains a space headed “List any documents admitted into proceedings or medical reports pursuant to Regulation 43A, from the Application or Reply, be sent to the AMS”. Certain documents are listed in the space provided. Neither the surveillance report nor the video is included in that list. The Request also has a space to “List any late evidence admitted into proceedings to be sent to AMS”. That space lists several documents but does not list the surveillance report or the video. It also states, “see direction of even date re: late documents”.
The AMS (Dr Bodel) issued a Medical Assessment Certificate (‘MAC’) on 20 July 2005 assessing the Respondent Worker to have a 9% whole person impairment. Both parties appealed the MAC to a Medical Appeal Panel (‘Appeal Panel’). One of the grounds relied upon by Mr Mansour was that the AMS referred to a surveillance report dated 16 January 2004 which, it was argued, should not have been sent to him. In his Appeal Against Decision of Approved Medical Specialist (‘the worker’s medical appeal’) Mr Mansour’s solicitor raised an issue about whether the person in the surveillance report is Mr Mansour or someone else (see Respondent Worker’s submissions attached to his medical appeal, filed on 4 August 2005).
On 29 July 2005 the Appellant Employer filed an Appeal Against Decision of Approved Medical Specialist (‘the employer’s medical appeal’). In support of its appeal the following submission was made:
“2.It is noted that following the teleconference which took place in this matter on 14 February 2005 [the] Arbitrator …issued a ‘Direction’ of the same date and the Commission subsequently issued a ‘Request for Medical Assessment by Approved Medical Specialist’ document which is also dated 14 February 2005. According to these documents, various material was to be forwarded to the AMS including, in particular:
(a)Two reports of Dr Schutz dated 9 December 2004;
(b)Respondent’s surveillance video.”
In response to the employer’s medical appeal the Respondent Worker filed submissions stating, among other things, that:
“4.At the teleconference the Appellant [employer] sought to rely on a surveillance report dated 16 January 2004. The Respondent worker objected to the same as there was no accompanying video. A direction was made that the Appellant file and serve the video by 14 March 2005.
5.There was no intention to have the unsighted video or the surveillance report forwarded to the AMS.
6.The surveillance report is a third party’s interpretation of what is seen on the video tape.
7.…
8.The video had not been admitted into evidence. This issue is yet to be dealt with at the next teleconference or arbitration.
9.Admitting the video at this point in time as evidence to be referred to an AMS would not allow the Respondent worker the opportunity of having his own doctors view and comment on the same. This in turn would delay the proceedings further.
…
17.The surveillance report contains photocopies of photographs which are unclear and which the identity of the subject photographed cannot be determined due to the poor quality of the copy.
18.There is a real issue as to the identify of the person photographed in the surveillance report.
19.The figure in the photograph cannot be identified to be any particular person let alone the applicant.
20.The Respondent worker has filed an Appeal Against the Decision of the Approved Medical Specialist on 3 August 2005 and further relies on the submissions provided in respect of the same which are Annexure ‘A’ hereto.
21.The Medical Assessment Certificate is VOID on the grounds stated above and in Annexure ‘A’ hereto. Those being:
(i)Material was provided to the AMS which had not been admitted to [sic] into evidence. Material which the Respondent worker had not had to [sic] the opportunity to have his own doctors consider.
(ii)There is an issue as to the identity of the person photographed which must be dealt with at Arbitrator hearing.
(iii)…” (emphasis included in original)
It was submitted by the Appellant Employer that the AMS should have taken steps “in accordance with his powers under section 324 to obtain the surveillance video…in the interests of justice and fairness between the parties” (Appellant Employer’s submissions in support of appeal against the MAC, paragraph six). It was submitted that the Appeal Panel should conduct its own examination of the Respondent Worker as well as review the documentary medical evidence and the Appellant Employer’s submissions. Specific attention is drawn to the fact that the findings on examination will need to be compared with the documentary and video evidence.
The Registrar, through her delegate, issued two Decisions on 10 January 2006 in respect of the medical appeals. In respect of the employer’s medical appeal the Registrar dealt with the surveillance report and the video as follows:
“(iii)…I note that both these documents were listed in Part 4 of the Respondent’s Reply to the Application to Resolve a Dispute.
(iv)In the Arbitrator’s referral it is clear from the covering sheet notes that both parties were aware that the Approved Medical Specialist would be automatically sent the Application and the Reply, together with medical reports pursuant to Regulation 43A and other relevant documents admitted into evidence.
(v)I note from the Arbitrator’s Direction dated 14 February 2005 that it was noted that ‘the Respondent will arrange for copies of the surveillance video to be served and lodged’. Therefore, while the Arbitrator did not make specific provision in his referral for the surveillance report and video to be made available to the Approved Medical Specialist this did not, in my view, prevent the documents from being forwarded to the Approved Medical Specialist (see above in (iii) and (iv)).
(vi)Hence, the failure by the Approved Medical Specialist to consider the surveillance video amounts to an assessment made on the basis of incorrect criteria or that the medical assessment certificate contains a demonstrable error.”
By letter dated 19 January 2006 Mr Mansour’s solicitor wrote to the Commission referring to the above Decision by the Registrar and said:
“We refer to the Applicant’s submissions and reiterate there is a real issue as to the identity of the person photographed in the surveillance report and surveillance video.
The Applicant seeks the matter be listed for hearing on this issue prior to the determination of the appeal applications.”
This letter was faxed to the Commission and stamped ‘URGENT’. I do not know if the Commission replied to this letter.
By letter dated 24 January 2006 the solicitor for the Appellant Employer wrote to the Commission stating, among other things, that:
“4.The surveillance video is now before the Commission. A Medical Appeal Panel has been appointed. It is anticipated that one of the two AMS’s on the Medical Appeal Panel will require a further examination of the Applicant. The AMS can then view the videotape and reach his own conclusions as to what, if any, impact the surveillance report and the video have upon the overall assessment of whole person impairment.
5.Referring the matter to a conciliation conference/arbitration hearing at this stage and on the particular issue raised by the Applicant’s solicitor, it is respectfully submitted, would not facilitate an early resolution of the dispute. It would, quite frankly, be a ‘waste of time’.” (emphasis added)
By letter dated 7 February 2006 Mr Mansour’s solicitors again wrote to the Commission saying, among other things, that:
“1.…The Respondent alleges the Applicant has not raised any objection to its evidence.
The Applicant relies upon the submissions provided previously which particularised objections made.
…3.In respect of the surveillance tape, it is submitted that at no time had the Commission admitted the tape into evidence. Therefore, it is submitted the tape must not and cannot be provided to any AMS. Only documents/film which have been admitted into evidence may be provided to an AMS.
4.At the completion of the teleconference held on 14 February 2005, it was the Applicant’s understanding the respondent’s surveillance report would not be provided to an AMS. The photographs contained in the report were not clear as a photocopy had been provided by the respondent. The surveillance tape was served by the Respondent under an Application to Admit Late Documents. As the application had not been dealt with to date, the surveillance tape was therefore not in evidence. There is a real issue as to the identity of the person photographed in the surveillance report as the photographs provided by the Respondent are unclear.
There is a real issue as to the identity of the person filmed in the surveillance tape.
5.The respondent submits it would be ‘a waste of time’ to have this matter referred for hearing on the issue of ‘identity’. However, failing to have this issue determined would result in unnecessary costs and expenses being incurred.
6.The Applicant seeks the matter be listed for hearing on this issue prior to the determination of the appeal applications.” (emphasis added)
It appears that the Commission did not respond to any of the above letters.
The Appeal Panel determined that it was not necessary for the Respondent Worker to undergo a further medical examination and issued a Statement of Reasons for Decision of the Appeal Panel in Relation to a Medical Dispute on 3 March 2006 setting aside the MAC dated 20 July 2005 and issuing a new MAC (‘the second MAC’) pursuant to section 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The second MAC assessed Mr Mansour to have a 6% whole person impairment.
The Appeal Panel’s reasons state at paragraphs 21 and 22:
“21.The Medical Appeal Panel considered the fresh evidence admitted in this matter. It was clear from video evidence that Mr Mansour could achieve abduction and flexion of his right upper extremity to 180 degrees and extend his right upper extremity beyond 40 degrees. Applying the relevant tables (figure 16.40, page 476 and 16.43 page 477), the Medical Appeal Panel decided that a percentage whole person impairment of 1% ought to be attributed to the Applicant’s right upper extremity.
22.For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 20 July 2005 given in this matter should be revoked, and a new Medical Assessment Certificate should be issued. The new Medical Assessment Certificate is attached to this statement of reasons.” (emphasis added)
A further teleconference was held on 27 March 2006 when the parties again outlined their positions. The matter was listed for Arbitration on 19 April 2006. In a reserved decision the Arbitrator made certain orders the effect of which is that the matter has been referred to the Registrar pursuant to section 329(1)(b) for referral to a fresh Appeal Panel without reference to the surveillance report or the video. The Appellant Employer seeks leave to appeal from that decision.
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 1998 Act.
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”.
The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The “. . . amount of compensation at issue on the appeal” is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
It is possible to appeal against an interlocutory decision where no monetary compensation has been awarded (see Mawson v Fletshers International Exports Pty Limited [2002] NSWWCCPD 5) but only where the decision or order has a real capacity to put the award of ‘compensation’ in issue in the appeal. In Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 at [27] it was noted:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCC PD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).” (emphasis added)
In the present case the lump sum compensation claimed in the Application is $21,500 00 under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) and $25,000.00 under section 67 of that Act. On the assessment made in the second MAC the Respondent Worker will be entitled to compensation under section 66 in the sum of $7,500.00 and will not be entitled to any compensation under section 67. Whilst the first MAC was also under the threshold, it is possible that a further MAC will produce a different result. Therefore, having regard to the amount of compensation claimed, I find that the Arbitrator’s decision has the real potential to put at least $5,000.00 “at issue”. As the whole of that amount is at issue the test in section 352(2)(b) is also satisfied.
Time
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.”
The Appellant Employer submits that due to the complexity of the matter, both parties should be given the opportunity to make oral submissions to assist the Presidential Member in determining the issues and the appeal. The Respondent Worker makes no submissions on this point. I do not believe the matters are so complex that it is necessary for an oral hearing to be held.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, 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 8 June 2006, records the Arbitrator’s orders as follows:
“1.The matter be referred pursuant to s329(1)(b) back to the Registrar to be considered by a fresh Medical Appeal Panel.
2.That the material referred to that Panel be restricted to that material that was before the Approved Medical Specialist, with the exception of the surveillance report.
3.On the Applicant’s application the claim for weekly benefits is discontinued and I dispense with the necessity for the Applicant to lodge a Notice of Discontinuance therein.
4.On the Applicant’s application the claim for s60 expenses is discontinued and I dispense with the necessity for the Applicant to lodge a Notice of Discontinuance therein.
5.In relation to the discontinuance of the application for weekly claims and the application for s60 expenses, there will be no order as to costs.
6.I certify that the proceedings involve the determination of substantive legal issues and constitute ‘other proceedings’ pursuant to item 9.01 of Schedule 6 of the Workers Compensation Regulation 2003. I order the Respondent to pay the costs of these proceedings.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)ruling that he and the Commission had jurisdiction to review or overturn the decision of the Registrar’s delegate (‘the Registrar’) handed down on 10 January 2006 (‘jurisdiction’);
(b)ruling that he and the Commission had jurisdiction to review or overturn the decision of the Appeal Panel given on 3 March 2006 (‘jurisdiction’);
(c)ruling that he and the Commission had power to refer the matter to the Registrar for referral to a fresh Appeal Panel under section 329(1)(b) of the 1998 Act (‘section 329’);
(d)misdirecting himself as to the meaning of section 329 of the 1998 Act and the circumstances in which that section can apply (‘section 329’);
(e)finding that the surveillance video relied upon by the Appellant Employer was ‘fresh evidence’ (‘the surveillance video’);
(f)misdirecting himself as to the meaning of the term ‘assessment’ as it appears in section 329 of the 1998 Act (particularly when compared to the meaning of the term ‘review’ as it appears in section 328 of the 1998 Act) (‘section 329’), and
(g)not making a determination in terms of the second MAC in circumstances where he found that that certificate complied with the statutory obligations for the giving of a valid MAC (‘jurisdiction’).
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence on appeal.
SUBMISSIONS AND FINDINGS
Jurisdiction
It is submitted that the Arbitrator has “effectively reviewed and overturned the decision of the Delegate of the Registrar which was handed down in relation to the employer’s AMS appeal on 10 January 2006” and he has no jurisdiction to do so (Appellant Employer’s submissions, page four paragraph three). Further, it is submitted that the Arbitrator has no jurisdiction to overturn the decision of the Appeal Panel.
I do not agree that that is what the Arbitrator has done. The Arbitrator has referred the matter to the Registrar to be referred to a new Appeal Panel. The Appellant Employer’s ground of appeal that the Arbitrator does not have jurisdiction has not been developed in its submissions other than to make the bald assertion noted above. A similar submission was made to the Arbitrator at the Arbitration hearing at page 33 line 58 (and at other places in the transcript) where it was said “you have no jurisdiction to entertain submissions about denial of natural justice at all when it refers to the other side”.
The Appellant Employer’s argument is that the Appeal Panel is not part of the Commission and once a valid MAC has been issued the Commission has no power to do anything other than make an award in terms of the MAC. Whilst I agree that the Appeal Panel is not part of the Commission, I do not agree that the Commission has no jurisdiction once a MAC is issued.
The issuing of a MAC does not equate to the determination of the case (JopaPtyLimited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Jopa’). In Jopa Deputy President Fleming held at [27]:
“27. However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of the matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural fairness, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.” (emphasis added)
At [29] of Jopa it was noted:
“29. The aim of the new process for the assessment of ‘medical disputes’ by AMS’s is to ensure that injured workers receive a fair and independent medical assessment of compensable work injuries, regardless of their ability to amass their own medical evidence in support of a claim. In this way the payment of just and proper compensation is achieved, in accordance with the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’).” (emphasis added)
In my opinion, the above comments and principles are equally applicable to Appeal Panel’s and the certificates they issue.
Section 293 of the 1998 Act makes it clear that the ‘determination of the dispute’ is to be made by the Commission, not by an AMS or an Appeal Panel. That determination can only be made after considering all the evidence relevant to all issues in the case. The Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.” (see section 105 of the 1998 Act) (emphasis added).
Therefore, it is my opinion that the Commission does have jurisdiction to hear and determine the Respondent Worker’s submission that no award should be made in the terms of the second MAC because of an alleged breach of the rules of procedural fairness by the Appeal Panel.
In the present case the Arbitrator held that the Appeal Panel’s certificate was based upon an assumption that a certain factual situation existed when one of the parties had objected, on several occasions, to the basis for that assumption and was not given the opportunity to be heard (Statement of Reasons for Decision (‘Reasons’), paragraph 53). I agree with that conclusion which raises an issue of the application of the rules of procedural fairness in the Commission and before the Appeal Panel.
In Kioa v West (1985) 159 CLR 550 (‘Kioa’) 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.” (emphasis added)
There is no doubt that the Commission has a duty to observe the rules of natural justice (Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15) and to allow a party to be heard and present his or her case.
In In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at 14, [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 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 Kioa Brennan J said at 628-629:
“Nevertheless in the ordinary case where no problem of confidentiality arises
an opportunity should be given to deal with adverse information that is
credible, relevant and significant to the decision to be made. It is not
sufficient for the repository of the power to endeavour to shut information of
that kind out of his mind and to reach a decision without reference to it.
Information of that kind creates a real risk of prejudice, albeit
subconscious, and it is unfair to deny a person whose interests are likely tobe affected by the decision an opportunity to deal with the information.” (emphasis added)
In considering the application of the rules of procedural fairness to the Commission the NSW Court of Appeal held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’) 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.”
The rules of procedural fairness also apply to bodies which do not make decisions directly affecting rights (Koppen v Commissioner for Community Relations (1986) 11 FCR 360; Canterbury Building Society Ltd v Baker [1979] 2 NSWLR 265 at 272-278 per Sheppard J; Murray v Legal Services Commissioner (1999) 46 NSWLR 224).
In light of the above authorities it is appropriate to consider the provisions that govern proceedings before the Commission. They are set out in Chapter 7 of the 1998 Act and in section 354 which provides as follows:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) 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.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
When ‘informing itself’ the Commission is to bear in mind that the evidence must by “logical and probative” and “relevant to the facts in issue and the issues in dispute” (Rule 70 of the Workers Compensation Commission Rules 2003 (‘the Rules’). The test can hardly be any less stringent when it comes to making an award on the basis of an Appeal Panel certificate based, in part, on video that may well be of the wrong person.
A certificate issued by an Appeal Panel is conclusively presumed to be correct as to certain crucial matters (sections 326 and 328(5) of the 1998 Act). As a result it has the real potential to seriously affect the parties’ “interests”, rights and entitlements under the Workers Compensation Acts (the 1987 Act and the 1998 Act). The Arbitrator was correct to note that the Appeal Panel is under no express statutory obligation to comply with the rules of procedural fairness (Reasons, paragraph 55). However, applying the above authorities, it is my view that Appeal Panels have either a common law or an implied statutory obligation to comply with such rules. This view is consistent with the Court of Appeal decision in Campbelltown City Council v Vegan [2006] NSWCA 284 (‘Vegan’) where it was held that the functions of Appeal Panels are “properly characterised as judicial in nature, for the purposes of determining their incidents” (per Basten JA at [117]) and, as a consequence, Appeal Panels have an implied statutory obligation to give reasons. His Honour added at [118]:
“An implied statutory obligation is no doubt informed by requirements of procedural fairness, but more directly depends upon the judicial nature of the function and the specific statutory context, as recognised by Handley JA in Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 739, a case dealing with the obligation of a costs assessor to give reasons. That is not, of course, to deny the significance of general principles of procedural fairness, as a basis underlying the obligation of a judicial officer to give reasons for decisions.”
In my view it follows that Appeal Panels also have an obligation to comply with the broader rules of procedural fairness as discussed above.
In addition, the Commission has a statutory and common law duty to comply with such rules. Any decision by the Commission based on an Appeal Panel certificate which has been based on a clear breach of the rules of procedural fairness would be founded on a fundamental error. Such a decision should not be made if it can properly be avoided. The Commission’s decisions must be based on relevant, logical and probative evidence.
On the issue of procedural fairness before Appeal Panels it is instructive to note the second reading speech of the Minister for Police (NSW Legislative Assembly, Hansard, 19 June 2001, p14,772) where he said:
“Where the medical question in dispute concerns permanent impairment of an injured worker – including hearing loss – the opinion of the approved medical specialist will be conclusive evidence, and cannot be overturned or challenged by an arbitrator in subsequent proceedings. Obviously in some cases mistakes or errors may be made. It is for this reason that the bill provides a right of appeal against a conclusive permanent impairment certificate to a panel consisting of two approved medical specialists, and an arbitrator. The panel will take submissions from the parties and review the original decision, with the possibility of conducting further medical examination. The role of the arbitrator will be limited to ensuring procedural fairness given that most issues arising in appeals will call for the exercise of medical judgment and expertise.
The bill carefully and closely confines the grounds of appeal. Appeals will be allowed where there has been a deterioration in the worker’s condition, additional information has become available – that could not have been obtained before the original hearing – the assessment was made on the basis of incorrect criteria, or the certificate contains a demonstrable error. A demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion. It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied. The bill also includes numerous protections to ensure that the parties are afforded procedural fairness. This includes notification of a proposed referral of a medical question, and requirements for detailed reasons to be given in support of certificates.” (emphasis added)
In my opinion the above quote makes it clear beyond doubt that the legislature intended that the rules of procedural fairness would apply in matters before Appeal Panels. In this case the rules of procedural fairness were not applied and that is an error that goes to the validity of the certificate issued by the Appeal Panel. In Jopa the Commission held that a certificate issued by an AMS was void because it did not properly certify the matters required to be certified in section 325 of the 1998 Act. In the present case it is not open to me to make such a finding because the Arbitrator has held that the Appeal Panel has strictly complied with section 325 (Reasons, paragraph 55).
Whilst in Vegan it was held that Appeal Panels have an implied statutory obligation to give reasons the Court of Appeal stopped short of deciding that they have to ‘certify’ under section 325, as an AMS is required to do.
Nevertheless, the Commission is not bound to enter an award or make a determination in the terms of an Appeal Panel certificate if to do so would, as it would in this case, result in a determination based on fundamental error. The fundamental error is that the Respondent Worker was denied procedural fairness in that, notwithstanding the consistent protests by his solicitor that he was not the person in the video and her repeated request for a hearing on that issue, the Appeal Panel proceeded to a reassessment without examining Mr Mansour to check for itself if he was the person in the video. The Respondent Worker was entitled to be heard on the issue of whether he was the person in the video. For whatever reason, he was denied that opportunity and a certificate was issued by the Appeal Panel which has the potential to seriously affect his “interests”.
The Respondent Worker submitted to the Arbitrator that the certificate issued by the Appeal Panel should be declared a nullity. The only authority cited as giving the Commission power to make such an order is Jopa. As I have said, that case was decided on grounds not strictly relevant in the present case. Therefore, the question remains as to whether the Commission has the power in the circumstances of the present case to declare the certificate a nullity. It is true that a decision made in breach of the rules of natural justice is void but, until it is so declared by a competent body or court, it may have some effect, or existence, in law (Calvin v Carr [1979] 1 NSWLR 1 at 8). The Commission is not a court (Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282) and only has the powers vested in it in the Workers Compensation Acts and Rules referred to earlier. I am not aware of any authority that suggests the Commission has the power to declare an otherwise valid MAC issued by an Appeal Panel to be void because of a breach of the rules of procedural fairness. However, the Commission does have specific statutory powers to refer matters for ‘further medical assessment’ under section 329 of the 1998 Act. It is this power the Arbitrator used to make the orders that are now challenged on appeal.
Section 329
The Arbitrator decided that the appropriate course was for a further Appeal Panel to be held pursuant to section 329. The Appellant Employer challenges that decision on the ground that section 329 has no application to this matter.
Section 329 provides:
“329 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(2) A certificate as to a matter referred again for further assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.”
The Appellant Employer’s argument is that the section talks about matters for further medical ‘assessment’ and that term means ‘medical assessment’ by an AMS. The word ‘assessment/s’ is referred to in sections 320(3), 321, 322, 324, and 329. Those sections provide:
“320 Appointment of approved medical specialists
(1) …
(1A) …
(2) …
(3) The President is to ensure that, as far as reasonably practicable, arrangements are in place to facilitate the taking place of assessments under this Part in the regional areas of the State.
321 Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.” (emphasis added)
“324 Powers of approved medical specialist on assessment
(1) The approved medical specialist assessing a medical dispute may:
(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and
(b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and
(c) require the worker to submit himself or herself for examination by the approved medical specialist.
(2) If a worker refuses to submit himself or herself for examination by the approved medical specialist if required to do so, or in any way obstructs the examination:
(a) the worker’s right to recover compensation with respect to the injury, or
(b) the worker’s right to weekly payments,
is suspended until the examination has taken place.
(3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute.
325Medical assessment certificate
(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:
(a) set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist’s assessment with respect to those matters, and
(c) set out the approved medical specialist’s reasons for that assessment, and
(d) set out the facts on which that assessment is based.
(3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.
(4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.” (emphasis added)
It is then submitted that section 328 provides that an appeal to an Appeal Panel is by way of a ‘review’ of the original medical assessment and a review is a different concept, both legally and factually, to an ‘assessment’. Section 328 provides:
“328 Procedure on appeal
(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.
(2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.
(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.”
It is then said that when section 329 speaks of a referral of a matter for further medical assessment the referral can only relate to an assessment by an AMS to whom the Applicant was originally referred. I agree that when section 329 speaks of a “matter referred for assessment under this Part may be referred again on one or more further occasions for assessment” it is a reference to a referral to an AMS for an assessment. On this issue the Arbitrator was in error in seeking to have the matter referred to a further Appeal Panel. The Appeal Panel process is designed to deal with ‘reviews’ from AMS certificates, not with referrals. However, there is nothing in the section to suggest or imply that the further referral must be to the original AMS.
It is also submitted that once a matter has been determined by an Appeal panel, section 329 does not enable the Commission to refer the Respondent Worker for a further medical assessment of any kind. If an Applicant is dissatisfied with the review conducted by the Appeal Panel, it is submitted that the only avenue of redress is in the Supreme Court and there is no further right of review or appeal and no right to a further medical assessment through the Commission’s processes.
It is argued that if the Respondent Worker wished to rely on section 329 in the present case he could have made an application to the Commission under that section as an alternative to pursuing an appeal to the Appeal Panel. I accept that a further assessment under section 329 is an avenue that the Registrar may pursue if an appeal against an AMS is on the basis of the grounds set out in subsections (3)(a) and (b) of section 327, but I do not agree that that is the only work for section 329 to do. Such a conclusion ignores the fact that the operation of section 329 is not restricted to the circumstances set out in section 327(6), but is in broad unlimited terms without any need for preconditions to be satisfied before it can be used by the Commission, or a court.
In considering the application of section 329 the Arbitrator had regard to section 33 of the Interpretation Act 1987 which provides:
“33. In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made), shall be preferred to a construction that would not promote that purpose or object.”
He also referred to the objectives of the Commission set out in section 367 of the 1998 Act. Subsection (1)(a) of section 367 includes the objective to “provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts”.
I think it is also appropriate to keep in mind the comments of Justice Mahoney in Switzerland Insurance Workers’ Compensation (NSW) Ltd v Burley, Court of Appeal, No. 40408, 5 December 1996, unreported, at 18:
“Procedure in the Compensation Court is, in general, flexible and free from basic rigidities. This is as it should be: the Court is a specialist Court whose function is to deal with a large number of claims as expeditiously as may be. Its decisions are, in my opinion, to be given according to the law but with a regard to justice and merits appropriate to the nature of the social remedy which the legislation provides. Subject to observance of the specific statutory requirements, it should, in my opinion, exercise its jurisdiction in a beneficial manner and without undue emphasis upon technicalities.”
In my opinion the above passage is just as relevant to proceedings in the Commission as it was to proceedings in the former Compensation Court of NSW. Many of the sentiments expressed by his Honour have now found their way into the provisions of the 1998 Act.
Whilst the Arbitrator accepted that proceedings before an AMS (or an Appeal Panel) are separate from and independent of the Commission, he held that the passing of section 329 ensures that, where procedural fairness has not been accorded to a party by the Appeal Panel, the Commission may correct that lapse when the matter returns to it for determination (Reasons, paragraph 70). I agree with that assessment of the Commission’s power and the power under section 329 which is unrestricted in its terms. I am persuaded by the general objectives of the legislation which require the provision of a “fair…system for the resolution of disputes” and by the terms of section 354(3) which requires that the Commission is to “act according to equity, good conscience and the substantial merits of the case”. Whilst the Appeal Panel is not part of the Commission, it could hardly be said that the Commission was acting “in good conscience” and according to the “substantial merits of the case” if it entered an award on the basis of an Appeal Panel certificate which itself may have been based on irrelevant, prejudicial and inadmissible material. Therefore, subject to the matter being referred to an AMS rather than another Appeal Panel and subject to other matters dealt with below, I agree with the Arbitrator’s general reasons and conclusions.
In respect of the Appellant Employer’s argument that the Respondent Worker’s only recourse is to seek relief in the Supreme Court, I agree with the Arbitrator’s opinion that it is difficult to imagine that the legislature intended injured workers who have been denied procedural fairness to have to bring separate proceedings in the Supreme Court with the consequential delays and potential cost penalties that such an application would involve when an efficient and cost effective remedy is available in the Commission. Forcing a worker to take proceedings in the Supreme Court to obtain relief that is available in the Commission is neither consistent with the objectives of the Workers Compensation Acts nor with common sense.
I believe that the conclusion I have reached is consistent with the decision of the Court of Appeal in Vegan where Justice Basten said at [100]:
“Nor does the express reference to s 326, as having application to a certificate given by the Appeal Panel, demonstrate a clear intention to exclude the operation of other provisions. For example, it is doubtful that it is intended to exclude the operation of s 329, which permits referral for further assessment by the Registrar or a court or the Commission.”
The Surveillance Video
No submissions have been made on this ground on appeal. I assume that the point sought to be made is that the Arbitrator was in error in finding that the video was not fresh evidence (Reasons, paragraph 54). This finding was not essential to the Arbitrator’s ultimate conclusion that the Respondent Worker had been denied procedural fairness and is of no consequence to the final outcome of either the Arbitration or the appeal. Therefore, it is not necessary for me to rule on this point.
OTHER MATERS
The Arbitrator has ordered that the material to be referred to the fresh Medical Appeal Panel (now to be an AMS) is to exclude the surveillance report and the video. The fundamental question in this matter is: who is the person in the video? That question has not been resolved. During the Arbitration hearing the Arbitrator said that it was not for him to determine the identity of the person in the video (transcript, page 43 line 20). I do not agree. The issue of what material should be referred to an AMS is a matter for agreement between the parties or, in the absence of agreement, for determination by the Arbitrator allocated to hear the case. I disagree that all material attached to the Application and the Reply should automatically be sent to the AMS. If through an administrative error someone was to inadvertently attach totally irrelevant but highly prejudicial material to an Application or a Reply (for example, a damning surveillance report from the wrong file of a different worker with the same surname), it goes without saying that such material should not be sent to the AMS. Only relevant and admissible material should be forwarded to an AMS.
If the person in the video is in fact Mr Mansour, the exclusion of the surveillance report and video from the material to go to the AMS will work the same kind of injustice against the Appellant Employer as the Respondent Worker complains has been done to him. That should not be allowed. The Arbitrator has the power to determine the documents to be sent to the AMS and, if there is a dispute as to the relevance of the surveillance report and video because of an issue about identity, the power to determine that dispute.
No doubt further evidence will need to be called to deal with this issue. Evidence from the person who is said to be in the video will be essential and should be admitted even though it was excluded at the Arbitration hearing on 19 April 2006. The Arbitrator’s reason for excluding the additional statements sought to be tendered by the Respondent Worker at the Arbitration hearing is now no longer valid. Those statements and, if necessary, other relevant evidence should be admitted, at the discretion of the Arbitrator, in order for the Arbitrator to determine the identity of the person in the video. Once that determination is made the Arbitrator will then be in a position to determine and rule on what material is to be forwarded to the further AMS.
Section 329 does not dictate that a further assessment must be conducted by the AMS who conducted the earlier assessment. If the parties are unable to agree on an AMS, he or she is to be selected by the Registrar.
DECISION
Paragraphs one and two of the Arbitrator’s decision dated 8 June 2006 are revoked and the following order made:
“1.The matter is remitted to the Arbitrator for determination of the material to be referred to a fresh Approved Medical Specialist pursuant to section 329(1)(b) and for the matter to then be referred to the Registrar for that referral to be effected.”
Paragraphs 3, 4, 5, and 6 of the Arbitrator’s decision dated 8 June 2006 are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
27 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
12
16
0