Toll Pty Limited v Petiquin & Anor

[2009] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Toll Pty Limited v Petiquin & Anor [2009] NSWWCCPD 22
APPELLANT:		Toll Pty Limited
FIRST RESPONDENT:		Robert Petiquin
SECOND RESPONDENT:		Toll Stevedoring Pty Limited
INSURER:	Appellant:		Self insurer
Second Respondent:		CGU; and Bluescope Steel Limited (self insurer)
FILE NUMBER:		A-7841/07
DATE OF ARBITRATOR’S DECISION:		4 April 2008
DATE OF APPEAL DECISION:		2 March 2009
SUBJECT MATTER OF DECISION:		Section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 – medical assessment certificate results in award less than sum in section 352(2)(a).
PRESIDENTIAL MEMBER:		Acting Deputy President Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:		Leigh Virtue & Associates
First Respondent: Second Respondent:		W.G. McNally Jones Staff Sparke Helmore and Moray & Agnew
ORDERS MADE ON APPEAL:		Leave to appeal is refused. Toll Pty Limited is to pay the costs of the other parties to the appeal.

BACKGROUND TO THE APPEAL

1. On 2 May 2008 Toll Pty Limited (‘Toll’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 April 2008.

1. The Respondents to the Appeal are Robert Petiquin (‘the worker’) and Toll Stevedoring Pty Limited (‘Toll Stevedoring’). Toll Stevedoring has two insurance interests, each separately represented.

1. The worker pleaded injury to both hands, including bilateral carpal tunnel syndrome, resulting from the nature and conditions of his employment from 1 January 1998 to 19 June 2003. He was employed by Toll Stevedoring for relevant periods up to 30 June 2002, and Toll thereafter. The Application to Resolve a Dispute (‘the Application’) claimed lump sums relating to 12% whole person impairment, and associated pain and suffering, pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. The matter proceeded to arbitration hearing on 23 January 2008 and 7 March 2008. All of the parties were legally represented.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 4 April 2008 records the Arbitrator’s orders. It is unnecessary for current purposes to fully set out those orders. There was a finding of injury occurring in the employ of both employers, consisting of the aggravation of a disease (bilateral carpal tunnel syndrome) within the meaning of section 16 of the 1987 Act. The arbitrator found a deemed date of injury of 21 November 2006. The finding was such that any compensation payable pursuant to the award would be payable by Toll, due to the operation of section 16. There were awards in favour of the insurance interests other than Toll. The matter was remitted to the Registrar, for referral to an approved medical specialist (‘AMS’) to assess whole person impairment (‘WPI’) resulting from injury to the upper extremities. The orders included costs orders, but did not actually award any compensation to the worker.

SUBSEQUENT DEVELOPMENTS

1. Consistent with the arbitrator’s orders, the worker was examined by an AMS, Dr Mills, who issued a medical assessment certificate (‘MAC’) dated 16 June 2008. That MAC certified the worker to suffer from “0%” WPI in respect of each of his upper extremities.

1. This MAC was the subject of appeal by the worker, to a Medical Appeal Panel (‘MAP’), which issued a determination on 17 November 2008. The MAP determined the worker to suffer from 2% WPI in respect of the left upper extremity injury, and 0% in respect of the injury to the right upper extremity. Accordingly the MAP issued a MAC certifying 2% WPI, in respect of the injuries found by the arbitrator.

1. On 10 December 2008 the Registrar issued a Certificate of Determination ordering payment of the sum of $2,500.00 in respect of 2% WPI. The identity of the relevant employer is misdescribed in that certificate, the “Respondent” described is Toll Stevedoring, rather than the entity described in these reasons as ‘Toll’. However it is clear from the date of injury referred to in the certificate that it relates to the injuries as found by the arbitrator, referred to in the earlier Certificate of Determination. The incorrect description of the employer is apparently a slip.

ISSUES IN DISPUTE

1. It is unnecessary to fully set out the grounds raised in this appeal. Broadly, Toll challenges the finding against it on ‘injury’, challenges Toll Stevedoring being allowed to dispute the claim, in the alleged absence of a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and challenges various procedural rulings. This list does not purport to be exhaustive.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)   If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by all parties other than Toll 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.

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. It was also lodged before the worker was examined by an AMS, in compliance with the arbitrator’s orders.

1. Section 352(2) of the 1998 Act provides:

“(2)  The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

(a)  at least $5,000 (or such other amount as may be prescribed by the regulations), and

(b)  at least 20% of the amount awarded in the decision appealed against.”

1. The worker’s solicitors wrote to the Registrar on 30 May 2008 submitting the appeal was filed prematurely, there was no final determination, and the decision dated 4 April 2008 was “a determination of an interlocutory nature”. That letter indicated the worker wished to make an application that the appeal be struck out on this basis. It noted there was no form for this purpose on the Commission’s website, and sought advice about how such an application should be made. The Registrar responded by letter dated 3 June 2008, advising a Certificate of Determination had been issued, and the Application to Appeal had been accepted by the Commission. It noted the worker was required to lodge his Notice of Opposition by 16 June 2008 in compliance with the timetable.

1. The worker then lodged a Notice of Opposition on 16 June 2008. It conceded the amount at issue exceeded $5,000 on the basis the amount claimed in the proceedings exceeded that figure, although continued “If the MAC determines the amount of compensation at issue to be less than $5,000, further submissions will be made on this point.” The Notice of Opposition lodged by Messrs Sparke Helmore (for one of the insurance interests of Toll Stevedoring) submitted there was no final determination until quantum was assessed by an AMS, until then the amount of the claim had not been quantified, and the threshold in section 352(2) had not been reached. Messrs Moray & Agnew (for the other insurance interest of Toll Stevedoring), conceded the figure of $5,000 was met by reference to the amount claimed, “absent a binding medical assessment certificate”.

1. The worker’s solicitors wrote to the Registrar on 1 July 2008, after receipt of the MAC issued on 16 June 2008. They noted the finding of nil impairment that had been made, said they were preparing an appeal against the MAC, and requested no further orders be made in connection with the timetable of the appeal, until the worker’s appeal against the MAC was determined. The solicitors noted “The outcome of that appeal will ultimately determine whether or not the Appeal presently on foot can proceed.”

1. The Registrar wrote to the solicitors for the parties on 11 September 2008, indicating the following:

“The Medical Appeal is likely to be dealt with in the near future.
Having regard to the thresholds in section 352 of the Workplace Injury Management and Workers Compensation Act 1998 it is preferable that the Medical Appeal be dealt with initially. This will clarify the question of whether the thresholds in section 352 are satisfied.”

1. No party expressed any disagreement with the course described in the preceding paragraph. The course was a practical one, in my view, consistent with section 354(3) of the 1998 Act.

1. Following the decision of the MAP dated 17 November 2008, the Registrar wrote to Toll’s solicitors noting the provisions of section 352(2), and inviting Toll to file a Notice of Discontinuance of the appeal. Toll’s solicitors initially responded by letter dated 1 December 2008 that they were seeking their “client’s instructions concerning a review of the Medical Appeal Panel decision as it contains, in our view, Jurisdictional error.” The Registrar forwarded a further letter in substantially identical terms on 18 December 2008, to Toll’s solicitors. They responded on 23 December 2008 that they were instructed to seek review of the MAP decision, either by way of “application to the Supreme Court”, or by way of reconsideration pursuant to section 378 of the 1998 Act.

1. The letter also noted “We would add that the Certificate of Determination issued in this matter would appear to be incorrect.” This is apparently a reference to the misdescription of the employer’s identity, described at [8] above. It was not suggested Toll did not regard itself as bound by the Certificate of Determination, nor did they request its amendment. A Certificate of Determination that contains an obvious error can be the subject of a replacement certificate pursuant to section 294 of the 1998 Act.

1. Solicitors for the various other parties wrote to the Registrar in late December 2008 and early January 2009, requesting orders be made disposing of the appeal, including costs orders in their respective clients’ favour.

1. The Registrar wrote to the solicitors acting for Toll on 6 February 2009 in the following terms:

“The Commission has received no further correspondence from you since your letter dated 23 December 2008.

Unless there is a valid basis for continuing to defer final disposition of this matter, or a Notice of Discontinuance is filed, the appeal will be referred to a Presidential member 14 days from the date of this letter.”

1. There has been no further response from Toll’s solicitor to this most recent item of correspondence from the Registrar, nor does it appear any application has been made pursuant to section 378 of the 1998 Act.

1. The proposition was raised, both in the letter from the worker’s solicitors dated 30 May 2008, and (more obliquely) in the Notice of Opposition lodged by Messrs Sparke Helmore, that the appeal may well be one of an interlocutory nature, in which leave should not be granted due to the operation of section 352(8) of the 1998 Act, and Regulation 200B of the Workers Compensation Regulation 2003. In Moore v Greater Taree City Council [2009] NSWWCCPD 17 I recently reviewed a number of Presidential decisions dealing with these provisions, where the orders appealed against provided for referral to an AMS. Having regard to the decisions discussed in Moore, there may well have been considerable force in the argument that the decision dated 4 April 2008 was interlocutory in nature, such that leave to appeal should not be granted in any event. Ultimately, the parties have not  approached the question of leave in the current appeal on this basis, and I will not do so.

1. A binding MAC was issued on 17 November 2008. This led to the issue of the final Certificate of Determination dated 10 December 2008. The amount of compensation awarded is clearly less than the sum of $5,000 prescribed in section 352(2)(a) of the 1998 Act. In Ozblue Constructions Pty Ltd v Lang[2009] NSWWCCPD 3 Roche DP said:

“The parties rights will not be determined until a valid Medical Assessment Certificate (‘MAC’) is issued and orders are made for the payment of lump sum compensation in a final Certificate of Determination.”

1. Now that such a Certificate has issued, its contents cannot be ignored for the purpose of considering whether the threshold in section 352(2)(a) is met. It is not, and accordingly leave to appeal cannot be granted due to section 352(2) of the 1998 Act.

DECISION

1. Leave to appeal is refused.

COSTS

1. Toll is to pay the costs of the other parties to the appeal.

Michael Snell

Acting Deputy President  

2 March 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE