Telecommunications Infrastructure Pty Ltd v Keepa
[2006] NSWWCCPD 266
•10 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Telecommunications Infrastructure Pty Ltd v Keepa [2006] NSWWCCPD 266
APPELLANT: Telecommunications Infrastructure Pty Ltd
RESPONDENT: Jeremy Keepa
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC1027-06
DATE OF ARBITRATOR’S DECISION: 11 April 2006
DATE OF APPEAL DECISION: 10 October 2006
SUBJECT MATTER OF DECISION: Extension of time to appeal; admission of late evidence
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore
Respondent: Gerard Malouf & Partners
ORDERS MADE ON APPEAL: 1. Time to appeal is extended until 4 August 2006.
2. The Arbitrator’s decision dated 11 April 2006 is revoked and the following order made:
“The Respondent is granted leave to rely on the documents attached to the Application to Admit Late Documents dated 20 March 2006.”
3. The matter is remitted to a different Arbitrator for determination of all outstanding issues that are within the Arbitrator’s jurisdiction.
4. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
1.On 4 August 2006 Telecommunications Infrastructure Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 April 2006.
2.The Respondent to the Appeal is Jeremy Keepa (‘the Respondent Worker/Mr Keepa’).
3.Mr Keepa was born on 5 May 1971. On 29 May 2003 he was working for the Appellant Employer as a rigger. On that day he was dismantling a tower when it collapsed causing him to fall approximately 20 metres to the ground. As a result of his fall he sustained extensive injuries, including but not limited to the following: a left eye socket blow out fracture, a left haemothorax, multiple rib fractures, a T1 fracture, a fracture of the left radius and ulna, a traumatic brain injury, extensive lacerations, and injury to his legs. He was conveyed to hospital where he was admitted into intensive care for several weeks. Ultimately, he made a partial recovery from his life threatening injuries and returned to work on light duties in September 2003. He continued those duties until he resigned on or about 27 July 2005.
4.Mr Keepa’s claim for compensation was lodged with CGU Workers Commission (NSW) Ltd (‘CGU’) and was accepted. His Application to Resolve a Dispute (‘the Application’) was registered with the Commission on 24 January 2006. In it he sought weekly compensation from September 2003 to date and continuing. He also claimed lump sum compensation in three amounts: $50,000.00 in respect of 29% whole person impairment as a result of his orthopaedic injuries, $6,250.00 in respect of whole person impairment resulting from his head injury, and $35,000.00 in respect of pain and suffering. The claim for weekly compensation is now, apparently, a claim for a closed period only though I do not know precise particulars of the claim.
5.The Application was served on CGU by letter dated 31 January 2006 addressed to CGU at its Newcastle office. It is not known when this letter was received though the certificate of service was only received by the Commission on 3 February 2006. It is reasonable to conclude that CGU would not have received the Application until 3 February 2006. The Respondent Worker’s statement was not served until 3 April 2006.
6.The Commission served notice on the parties on 1 March 2006 that a teleconference would be held on 4 April 2006.
7.On 20 March 2006 the Appellant Employer filed an Application to Admit Late Documents. The late document sought to be admitted was the Appellant Employer’s Reply to which was attached several medical and other reports. To comply with the Commission’s timetable, the Application should have been served on or before 31 January 2006 and the Reply should have been served on or before 14 February 2006.
8.At the teleconference on 4 April 2006 the Arbitrator refused leave to the Appellant Employer to rely on the Reply, or any of the documents attached to it, and referred the matter to three Approved Medical Specialists (‘AMSs’) for assessment of Mr Keepa’s whole person impairment.
9.The appropriate medical examinations were held and assessments provided by the three AMSs. A combined Medical Assessment Certificate (‘MAC’) was issued on 3 July 2006 assessing Mr Keepa to have a 46% whole person impairment as a result of his work injuries. On or about 31 July 2006 the Appellant Employer lodged an appeal against the MAC. The papers in respect of that appeal are not before me.
10.The Appellant Employer now seeks leave to appeal from the Arbitrator’s decision refusing it leave to rely on its Reply and the documents attached to it.
PRELIMINARY MATTERS
11.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.”
12.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
13.The ‘Certificate of Determination’, dated 11 April 2006, records the Arbitrator’s orders as follows:
“1.The Application to Admit Late Documents bearing date 20 March 2006 is refused.”
ISSUES IN DISPUTE
14.The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)refusing the Appellant Employer leave to rely on its Reply;
(b)not considering the issue of prejudice to the parties;
(c)failing to exercise his discretion to allow the Appellant Employer’s Reply into evidence;
(d)not allowing the Respondent Worker to make submissions on whether he objected to the Reply being admitted into evidence;
(e)failing to have regard to the matters set out in Practice Direction No 9; and
(f)failing to comply with his obligations in Rule 71 of the Workers Compensation Commission Rules 2003 (‘the Rules’).
15.There is also an issue as to whether time to appeal should be extended until 4 August 2006, the date on which the appeal was filed.
LEAVE TO APPEAL
Monetary Threshold
16.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’).
17.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.”
18.In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 it was held at [27] that:
“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] NSWWCCPD 21)).”
19.In the present case the Arbitrator’s decision has the real capacity to put the amount of compensation claimed in issue as the Appellant Employer has been denied the opportunity to present any of its evidence to any of the three AMS’s. Therefore, I find that, having regard to the quantum of compensation claimed in the Application, the quantum of compensation “at issue” on appeal is well in excess of $5,000.00. No award has been made, but having regard to the assessment of 46% whole person impairment in the combined MAC and, having regard to the assessments made by the Appellant Employer’s doctors, I believe that at least 20% of the amount claimed is at issue.
20.The requirements of section 352(2) are therefore satisfied.
Time
21.The appeal was not lodged until 4 August 2006 and is well outside the 28 day period allowed in section 352(4) of the 1998 Act.
22.An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) provides:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
23.The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
Submissions – Extension of Time
24.The Appellant Employer submits:
(a)in the Arbitrator’s ‘Statement of Reasons – Extempore Orders’ (‘Reasons’) it was indicated that the Arbitrator was prepared to reconsider the Appellant Employer’s application after the AMS certificates were issued;
(b)the full extent of the prejudice suffered by the Arbitrator’s decision did not become apparent until the Appellant Employer received the combined MAC which assessed the Respondent Worker to have a 46% whole person impairment; and
(c)the result is contrary to public interest and these exceptional circumstances justify the extension of time.
25.The Respondent Worker submits:
(a)time to appeal expired on 9 May 2006;
(b)there has been a gross delay in filing the appeal which prejudices the Respondent Worker;
(c)to allow the appeal, after the combined MAC has issued, would result in the matter being handled in an inefficient manner;
(d)it is unclear how the issuing of the combined MAC could ‘highlight’ any prejudice suffered by the Appellant Employer;
(e)the Respondent Worker has suffered serious injuries which have been assessed by the AMSs and he should be awarded his just entitlements; and
(f)the prejudice, if any, said to be suffered by the Appellant Employer as a result of the combined MAC will be dealt with by the Medical Appeal Panel.
Finding – Extension of Time
26.The purpose of allowing an extension of time in which to appeal is to enable the Commission to do justice between the parties. I am satisfied that strict compliance with the time limits in the present case will work a demonstrable and substantial injustice to the Appellant Employer because it will be deprived of the opportunity of placing its medical case before the Medical Appeal Panel. That evidence was clearly not available to the Appellant Employer to use at the AMS examinations because the Arbitrator refused to allow the Reply into evidence and therefore refused to allow the reports attached to the Reply to be forwarded to the AMSs. As indicated later in this Determination, it is my view that this has wrongly deprived the Appellant Employer from presenting any of its relevant evidence to the AMSs. If time to appeal is not extended that error will be perpetuated before the Medical Appeal Panel. In circumstances where the MAC is conclusively presumed to be correct on certain critical aspects, that has the potential to result in a substantial injustice. That should not be allowed if it can reasonably be avoided.
27.On the issue of prejudice to the Respondent Worker if time to appeal is extended, it is my view that Mr Keepa will be in no worse position than he would have been in if the Reply had been admitted into evidence by the Arbitrator at the teleconference on 4 April 2006. He raised no prejudice at that time. Whilst he argues prejudice on the issue of extending time to appeal, no actual prejudice has been identified. No award or orders have yet been made in the matter and his rights have not yet been determined in respect of the Medical Appeal Panel. Those rights are protected in that he will have the opportunity to make such submissions as are considered appropriate in that appeal.
28.I agree that the filing of the appeal after the combined MAC was issued has been an extremely inefficient way to handle the appeal. If the Appellant Employer was aggrieved by the Arbitrator’s decision it should have appealed immediately. It is inappropriate to await the outcome of the next stage of the proceedings and then decide to seek leave to appeal. However, I believe that this ‘inefficiency’ can be partly remedied with a costs order in the appeal and does not outweigh the substantial injustice that will occur if leave to appeal is refused.
29.The Appellant Employer’s argument that the full extent of the prejudice resulting from the Arbitrator’s decision did not become apparent until the combined MAC was received is, on its own, an unsatisfactory and unpersuasive argument. Time to appeal runs from the date of the Certificate of Determination. A party that claims an Arbitrator has made an error of fact, law or discretion must act promptly to challenge that decision by way of an appeal under section 352. A party who sits on his or her hands to ‘see how things turn out’ may well find that leave to appeal is refused. Whilst in the circumstances of the present case I am prepared, with a good deal of reluctance, to extend the time to appeal, that order is made to avoid a substantial injustice that will result in the event that the Arbitrator’s decision is allowed to stand.
30.I accept that the Appellant Employer was also influenced by the Arbitrator’s statement that the question of admission of the Reply could be reconsidered at a later time. That fact, together with the surprising percentage certified in the combined MAC, resulted in the delay in filing the appeal. Those factors combined are sufficient to persuade me that there is an explanation for the delay in filing the appeal and that, in the exceptional circumstances of this case, it is appropriate to extend the time to appeal.
31.The merit of the appeal is also a factor I have taken into account in reaching my decision. In my opinion the appeal has good prospects of success and that is an important factor in my decision to extend time to appeal.
32.Time to appeal is extended until 4 August 2006 and leave to appeal is granted.
ARBITRATOR’S REASONS
33.The Arbitrator noted that the Commission’s timetable required that the Appellant Employer’s Reply be filed on or before 14 February 2006 and that is was not filed until an Application to Admit Late Documents was filed on 20 March 2006. In support of that application the following written submissions were filed with the Application to Admit Late Documents:
“1.The Respondent relies upon Rule 40(3) and 47(3) which provides that the Commission may, for the avoidance of injustice, allow a Respondent to introduce evidence that the Respondent would otherwise be prevented from introducing because of the operation of Sub-Rule (2).
2.In addition, pursuant to Rule 40(3) and 47(3), a failure to allow the Respondent to submit this Reply and Directions outside the time prescribed by Rule 39(1) would result in an injustice and serious prejudice to the Respondent.
3.The failure to admit the Reply and Directions into evidence would be inconsistent with the objectives of the Worker Compensation Commission as set out in Section 367 of the Workplace Injury Management and Workers Compensation Act [1998].
4.The failure to admit the Reply and Directions into evidence would be inconsistent with section 354 of the Workplace Injury Management and Workers Compensation Act [1998] in that the proceedings before the Commission are to be conducted with as little formality and technicality as proper consideration of the matter permits.
5.The Respondent’s solicitor received the file after the last date for filing a reply in accordance with the timetable. A Reply was filed as soon as possible. There would be significant prejudice if the directions and reply are not filed.
6.The admission of the Reply and Directions into evidence would not in any way prejudice the Applicant, nor would it affect or delay the outcome of the proceedings currently on foot.”
34.In considering whether to allow the late documents into evidence the Arbitrator stated at page two of his Reasons that he was required to consider:
· “The conduct of the parties seeking leave, in particular whether there is an acceptable explanation for the delay, although this factor is not a precondition to the grant of extension of time.
· Whether or not the refusal to admit the Reply will cause substantial prejudice or injustice to the parties seeking leave.
· The prejudice, if any, that would result to the other party in admitting the Reply although the mere absence of prejudice is not necessarily sufficient to grant an extension of time.
· Whether or not the delay in filing the Reply was attributable to the legal representative and not the party personally, although this does not necessarily entitle the party seeking leave to an extension of time.
· The nature of the proceedings including the nature of the relevant statutory scheme and the objectives of the legislation; and
· General considerations of fairness and justice between the parties.”
35.Having set out the above principles the Arbitrator then stated that his task was to:
“…balance the interests between the parties and the public interest in the fair and efficient resolution of disputes by the Commission, in accordance with its statutory objectives. See ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21, paragraphs 18-21. See also Kurragong Holdings v Carrette [2004] NSWWCCPD 8. See also Practice Direction No 9.”
36.The Arbitrator then set out Rule 40(2)(a) which requires in Rule 40(2)(a)(iii) that where a Respondent seeks to rely on late documents it must state the reason why the evidence was not available at the time of service of the Reply. The only reason given to the Arbitrator was that the Appellant Employer’s solicitor did not receive the file until after the time for filing the Reply had already passed. No explanation for the delay was offered by CGU or the Appellant Employer itself. On appeal it is submitted that the Respondent Worker’s initial Application was served late and on CGU’s Newcastle office when the claim was being handled by the Sydney office. Whether this point was made before the Arbitrator is unclear as there is no transcript of what was said at the teleconference on 4 April 2006.
37.The Arbitrator enquired as to the possibility of the case settling and was told that the Respondent Worker wished to have his entitlements assessed by an AMS. Reference was then made by the Arbitrator to the “object of the AMS procedure” and he noted that there is no legislative requirement that expert’s reports from both sides be submitted to the AMS, though conventionally that is what happens. The Arbitrator was not persuaded that “the AMS would be prejudiced by having available to him an expert report from one side only, given the special function an AMS is required to perform” (emphasis added). He noted that the “WorkCover Guidelines” (the WorkCover Medical Assessment Guidelines (‘the Guidelines’)) have no requirement that material be supplied to the AMS before a MAC may be issued.
38.The Arbitrator had ‘particular’ regard to the fact that CGU is an insurer that exists “for the purpose of the administration of the Worker Compensation Scheme in NSW” and:
“If such an entity is permitted to disregard the timetable without any proper explanation as required by the Rules, then the administration of the resolution of disputes by the Commission in a timely manner would be entirely frustrated. In my view it is not sufficient for insurers to pay lip service to their obligations under the Act and to fail to give any explanation as to a delay of this magnitude.” (Reasons, page three)
39.The Arbitrator added that the question of prejudice needed to be considered in respect of the other aspects of the claim, namely, the claim for weekly compensation and section 60 expenses. In the event that the Appellant Employer gave a proper explanation for the delay at the post MAC teleconference, the Arbitrator indicated that he would “reconsider the question at that stage”.
SUBMISSIONS
40.The Appellant Employer submits:
(a)the letter serving the Application was addressed to CGU’s Newcastle office and was dated 31 January 2006. Rule 22(2)(b) provides that service by post is taken to have been effected on the fourth day after the day of sending by pre paid post. Therefore, it is submitted that, as the Application was required to be served by 31 January 2006, service was not effected until some time after that date though the exact date is not stated;
(b)the Respondent Worker’s solicitor was aware that the claim was being handled by CGU’s Pyrmont office and the Application was served on the Newcastle office;
(c)the Arbitrator refused to allow the Respondent Worker’s solicitor to make any submissions at the teleconference on 4 April 2006 as to whether she objected to the Appellant Employer relying on the Reply;
(d)the Arbitrator failed to consider the matters set out on Practice Direction No 9 which provides:
“In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
• the submissions of the parties, including, if any, oral or written objections to the grant of leave,
• the effect, if any, on the timely resolution of the dispute,
• the extent of the prejudice to the other parties, if any, that would result from granting leave,
• the requirements of the Act and the Rules, and
• the objectives of the Commission.”
(e)by denying the Respondent Worker the opportunity to be heard the Arbitrator failed to consider the submissions of the parties as required by Practice Direction No 9;
(f) as the matter was to be referred to several AMSs in any event, there would have been no delay in the proceedings if the Reply had been admitted into evidence;
(g)the Arbitrator did not consider the issue of prejudice to the parties;
(h)the Arbitrator failed to comply with his obligations under Rule 71 which provides:
“71Measures to assist parties
The Commission is to take such measures as are reasonably practicable to:
(a) assist the parties to any proceedings to understand the nature of the proceedings and the legal implications of any assertion made in any documents or otherwise in the proceedings, and
(b) explain to the parties any aspect of the procedure or any decision or ruling made by the Commission in relation to the proceedings, and
(c) ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and
(d) ensure that the parties have the opportunity to explore settlement in the proceedings.”
(i)the fact that the Respondent Worker was not willing to engage in negotiations appears to have been taken as another reason by the Arbitrator for not allowing the Reply into evidence;
(j)under section 354(3) of the 1998 Act the Commission is required to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form”. Refusing to allow the Reply into evidence does not contribute to an objective outcome and amounted to an evaluation of form over substance;
(k)the Reply was served on the Respondent Worker’s solicitor’s DX by letter dated 20 March 2006 and the teleconference took place on 4 April 2006 thereby giving the Respondent Worker ample time to consider the material and raise any objection it wished;
(l)no objection was raised by the Respondent Worker to the Reply or the documents attached to it;
(m)the Appellant Employer relies on ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21 (‘Ferguson’) where it was held that an Arbitrator should take into account all factors relevant to the exercise of the discretion to allow late documents into evidence and that a consideration of only one factor was insufficient;
(n)the evidence before the Commission was inadequate and the Appellant Employer’s position was significantly prejudiced by the Arbitrator’s refusal to allow the Reply to be filed;
(o)the end result is contrary to the objectives of the legislation which govern the operation of the Commission.
41.The Respondent Worker opposes the appeal, and submits:
(a)the Application was served on CGU at its Newcastle office through its Newcastle DX box;
(b)letters forwarded by CGU to Mr Keepa in 2003 and in 2005 were sent from CGU’s Newcastle office;
(c)the original letter particularising Mr Keepa’s claim for lump sum compensation was forwarded to CGU in Newcastle on 11 August 2004 with subsequent letters being sent to the same address on 7 October 2004 and 26 September 2005, therefore, the Respondent Worker was entitled to serve CGU at its Newcastle office;
(d)in the alternative, the claim, which has been in existence since the middle of 2003, could have been sent by CGU to the appropriate branch office; and
(e)at the teleconference the Respondent Worker did not object or consent to the tendering of the late Reply, he did not wish to be heard that issue.
DISCUSSION AND FINDINGS
42.An application to file a document out of time requires an Arbitrator to exercise his discretion. In considering the circumstances in which an Arbitrator’s discretion has miscarried the Commission held in Rohloff v Diacut Pty Limited (in Liquidation) [2005] NSWWCCPD 17 at [26]:
“It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, Re National Roads and Motorists’ Association Ltd [2003] FCAFC 206 at [21] to [21]).”
43.The Arbitrator made a passing reference to Ferguson. In that case the Arbitrator’s decision to refuse to allow the employer to file a late Reply was overturned on appeal. After setting out the principles listed at [28] above, Deputy President Fleming said at [21] that what is required is:
“…a balancing of interests as between the parties, and the public interest in the fair and efficient resolution of disputes by the Commission, in accordance with its statutory objectives.”
44.In Ferguson, as in the present case, the insurer failed to offer an adequate explanation for its delay in filing the Reply (see Ferguson at [22]). Nevertheless the Deputy President held at [26]:
“If, as in this case, the Respondent Insurer is prevented from putting any evidence or submissions before the Arbitrator on these matters, then it follows that the Respondent will be prevented from discharging this onus and unable to properly argue its position in relation to the dispute. This is not a prejudice that can be remedied by other means, such as an order for costs.”
45.Whilst in the present case the Arbitrator seems to have left open the possibility that he would reconsider “the question” of the late Reply at a later date, I note that at the teleconference on 3 August 2006 that the weekly compensation claim is now a closed period. I do not know the status of the claim for hospital and medical expenses under section 60 of the 1987 Act. The main area of dispute between the parties is in respect of the very substantial claim for lump sum compensation. The evidence attached to the Reply is directly relevant to that part of the claim and the Appellant Employer was entitled to have that information placed before the AMSs for their consideration in forming their conclusions.
46.In my opinion the Arbitrator failed to consider relevant matters in the exercise of his discretion in that he failed to ask if the Respondent Worker had any objection to the filing of the late Reply and he failed to properly consider the prejudice to the Appellant Employer if the Reply was excluded. No question of prejudice was raised by the Respondent Worker before the Arbitrator. It is impossible to see how the Respondent Worker could have been prejudiced had the Reply been admitted on 4 April 2006.
47.The Arbitrator took into account an irrelevant consideration, namely, the question of prejudice to the AMS if he or she only had medical reports from one side. The AMS is not a party to the proceedings and no question of prejudice to the AMS arises. However, in circumstances where a MAC is conclusively presumed to be correct in several crucial respects (section 326, 1998 Act) it is of vital importance that the parties be given the opportunity to present their evidence to the AMS. Preventing one side from doing so in the absence of any good reason is a fundamental denial of procedural fairness.
48.Contrary to the Arbitrator’s assertion, the Guidelines do deal with the material to be forwarded to the AMS. Paragraph 13 of the Guidelines states that when a matter is referred to an AMS the Registrar is to provide the AMS with “all information and documentation on which the parties propose to rely lodged with the Commission in accordance with the Workers Compensation Commission Rules 2003”. Clearly, the author of the Guidelines considered it was important that such information be placed before the AMS. I agree with that view.
49.The Arbitrator’s reference to the “administration of the resolution of disputes by the Commission in a timely manner” being “frustrated” if an insurer is allowed to disregard the Commission’s timetable fails to appreciate that there are several other factors to be taken into account in deciding whether to admit a late Reply. Whilst the Arbitrator listed some of those factors (see [28] above) he failed to consider the most important factor, namely, the question of fairness and justice between the parties. He also failed to consider the provisions of section 354(3) which require the Commission to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form”.
50.The Arbitrator referred to the statutory objectives of the Commission. Those objectives are set out in section 367 of the 1998 Act and provide:
“367 Objectives of Commission
(1)The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f) to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2)In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.”
51.The objective of providing a timely service must be balanced with the objective of providing a “fair” system. Ultimately, the Commission must seek to do justice between the parties. There is nothing fair or just about excluding all of the evidence of one side of the record in circumstances where there is no prejudice to the other party, no objection from that party and no delay would have been occasioned by allowing the evidence to be tendered.
52.The Reply was filed five weeks outside the Commission’s timetable but was still filed and served two weeks before the teleconference. Some explanation for the delay in filing the Reply was offered, though it would have been preferable, and this appeal may have been avoided, if a more detailed explanation had been provided to the Arbitrator.
53.It follows that in my opinion the exercise of the Arbitrator’s discretion has miscarried and the Appellant Employer should have been allowed to tender and rely on its Reply filed on 20 March 2006 in the proceedings before the Arbitrator and before the AMSs. The Appellant Employer should also be allowed to rely on its Reply as fresh evidence in the Medical Appeal Panel as it is evidence that was clearly, because of the Arbitrator’s decision, not available to it to use before the AMSs.
54.I note that further Applications to Admit Late Documents were filed in this matter on 30 March and 4 May 2006. There has been no ruling by the Arbitrator in respect of these applications and, therefore, my decision is restricted to the application filed on 20 March 2006. No application has been made to rely on fresh evidence on appeal. However, consistent with the reasons in this decision, I can see no reason why those documents would not be admitted into evidence and relied on before the Medical Appeal Panel as fresh evidence.
DECISION
55.Time to appeal is extended until 4 August 2006.
56.The Arbitrator’s decision dated 11 April 2006 is revoked and the following order made:
“The Respondent is granted leave to rely on the documents attached to the Application to Admit Late Documents dated 20 March 2006.”
57.The matter is remitted to a different Arbitrator for determination of all outstanding issues that are within the Arbitrator’s jurisdiction.
COSTS
58.The fact that the appeal has been lodged out of time has resulted in inefficiencies that could have been avoided had CGU taken a more diligent approach to the conduct of this matter. In these circumstances the appropriate costs order is that the Appellant Employer pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
10 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.
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