Tozanis v Ku Children's Services

[2010] NSWWCCPD 51

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Tozanis v KU Children’s Services [2010] NSWWCCPD 51
APPELLANT:		Alice Tozanis
RESPONDENT:		KU Children’s Services
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		A1-9028/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:		5 February 2010
DATE OF APPEAL DECISION:		13 May 2010
SUBJECT MATTER OF DECISION:		Section 352 of the Workplace Injury Management and Workers Compensation Act 1998; interlocutory orders of a preliminary nature
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Stacks/Goudkamp
Respondent:	Edward Michael Lawyers
ORDERS MADE ON APPEAL:		Leave to appeal the Arbitrator’s Determination of 5 February 2010 is refused. Each party is to pay its or her own costs of the appeal.

BACKGROUND

1. The appellant worker, Ms Tozanis, injured her lower back whilst lifting a child in the course of her employment with the respondent employer, KU Children’s Services (‘the respondent’), in the course of her employment on 31 July 2000.

1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 5 November 2009, Ms Tozanis sought lump sum compensation under the Table of Disabilities in respect of a 50 per cent permanent impairment of her back and a 35 per cent permanent loss of efficient use of her left leg at or above the knee, together with compensation for pain and suffering.

1. The respondent’s insurer, Employers Mutual NSW Limited (‘Employers Mutual’), did not dispute that Ms Tozanis injured her back as alleged on 31 July 2000, but disputed that that injury caused a disc protrusion at the L5/S1 level of her lumbar spine.

1. The Commission listed the matter for conciliation and arbitration on 20 January 2010.  The parties were legally represented at the arbitration.  The matter proceeded with lengthy submissions, but neither side called any oral evidence.

1. In a reserved decision delivered on 5 February 2010, the Arbitrator found that the worker’s injury on 31 July 2000 “did not extend to” the disc pathology found to exist at the L5/S1 level of the lumbar spine.  The Commission issued a Certificate of Determination on 5 February 2010 in the following terms:

“The Commission determines:

1.   The matter should be remitted to the Registrar to be referred to an Approved Medical Specialist to assess, pursuant to the Table of Maims, permanent impairment to the Applicant’s lumbar spine and to her left leg at or above the knee arising from the injury which occurred on 31 July 2000.

The AMS should be supplied with all documents submitted into evidence in this arbitration, together with a copy of this Determination.

2.   The Respondent to pay the Applicant’s costs as agreed or assessed.”

1. In an appeal filed on 3 March 2010, Ms Tozanis seeks leave to appeal the Arbitrator’s Determination.

LEAVE TO APPEAL

1. 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’).

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Interlocutory

1. The respondent has submitted that the decision appealed against is a determination of an interlocutory nature, and therefore cannot be the subject of an appeal under section 352. Though the Arbitrator determined the pathology at L5/S1 had not resulted from the injury on 31 July 2000, he nevertheless found that Ms Tozanis suffered a compensable injury on that date, and remitted the question of impairment or loss of efficient use to the Registrar, for referral to an AMS.

1. The respondent relied on Moore v Greater Taree City Council [2009] NSWWCCPD 17 (‘Moore’).  After an exhaustive review of the authorities on this issue, Acting Deputy President Snell concluded, in a case with identical facts to those in the present case, (at [40]):

“The overall thrust of the above decisions is that where an arbitration results in a matter being referred to an AMS for assessment, even accompanied by other orders to which one of the parties may object, such decisions tend to be characterised as ‘interlocutory’.”

1. Without any reference to authority or any attempt to deal with the issue, Ms Tozanis has merely submitted that the decision appealed against is not a preliminary determination of an interlocutory nature.

1. Consistent with the principles discussed in Moore, the Arbitrator’s s determination in the present matter is clearly a preliminary decision of an interlocutory nature.  There was no issue that Ms Tozanis injured her back on 31 July 2000.  The only compensation claimed is lump sum compensation.  An AMS must assess the degree of impairment of her back and loss of efficient use of her left leg at or above the knee under the Table of Disabilities.  That assessment has not yet taken place.  It therefore follows that the Arbitrator’s determination has not finally disposed of the parties’ rights, and it is therefore a preliminary order of an interlocutory nature. 

2. The consequences of an Arbitrator’s orders in circumstances such as the present – where the insurer has conceded injury and the only compensation claimed is lump sum compensation – are fully discussed in Greater Taree City Council v Moore [2010] NSWWCCPD 49.

1. In these circumstances, leave to appeal must be, and is, refused.

Monetary Threshold

1. In view of my finding on interlocutory, it is not necessary to determine the monetary threshold.

DECISION

1. Leave to appeal the Arbitrator’s Determination of 5 February 2010 is refused.

COSTS

1. Each party is to pay its or her own costs of the appeal.

Bill Roche
Deputy President

13 May 2010

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

ASSOCIATE