Uniting Care NSW.ACT t/as Uniting Care Caroona v Thomas
[2004] NSWWCCPD 63
•16 September 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Uniting Care NSW.ACT t/as Uniting Care Caroona v Thomas
[2004] NSWWCCPD 63
APPELLANT: Uniting Care NSW.ACT t/as Uniting Care Caroona
RESPONDENT: Rhonda Anne Thomas
INSURER:Uniting Care NSW.ACT
FILE NUMBER: WCC7081-03
DATE OF ARBITRATOR’S DECISION: 22 August 2003
DATE OF APPEAL DECISION: 16 September 2004
SUBJECT MATTER OF DECISION: Leave to appeal out of time; Assessment by Approved Medical Specialist; Section 352 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Rankin & Nathan Solicitors
Respondent: Somerville Laundry Lomax Solicitors
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator, dated 22 August 2003, is refused.
THE APPEAL
On 17 February 2004 Uniting Care NSW.ACT t/as Uniting Care Caroona (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 22 August 2003. The Appellant Employer is self-insured.
The Respondent to the Appeal is Rhonda Anne Thomas (‘the Respondent Worker/Ms Thomas’).
The appeal relates to an arbitral award in favour of Ms Thomas for “weekly compensation from 16 February, 2003 at the rate of $380.68 per week” to date and continuing.
The Appellant Employer appeals against 100% of the award and submits that the Arbitrator “should have made a finding that the Applicant was fit to return to pre-injury duties on 21 November 2002”.
The Respondent Worker submits that the appeal is out of time and leave should not be granted.
The appeal was not filed within 28 days of the decision appealed against (section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)). Therefore the first issue to be determined is whether leave to appeal should be granted.
The appeal was referred to me for review on 23 August 2004.
I am satisfied that I have sufficient information to proceed ‘on the papers’, in accordance with section 354(6) of the 1998 Act without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
RELEVANT FACTS
Ms Thomas lodged two ‘Application to Resolve a Dispute’ forms in the Commission. On 19 February 2003 she filed an application in relation to a disputed claim for payment of weekly compensation and related medical expenses (WCC7081-03).
The second ‘Application to Resolve a Dispute’ was filed on 14 May 2003 and claimed lump sum compensation for permanent impairment and pain and suffering (WCC9859-03).
Both matters were referred to the same Arbitrator, who held a telephone conference in both matters on 27 June 2003. Ms Thomas’ legal representative failed to attend this conference.
At that telephone conference the Arbitrator indicated to the legal representative of the Employer, who was present, that she intended to proceed to determine certain issues on the papers and to refer the ‘medical dispute’ in relation to the assessment of permanent impairment, to an Approved Medical Specialist. The Arbitrator also directed, at the Appellant’s request, that both matters “be joined and dealt with in the same proceedings as file number WCC7081-2003” (Arbitrator’s Direction of 27 June 2004).
On 22 August 2003 the Arbitrator issued her decision, with written reasons, in relation to the weekly compensation and medical expenses claim (WCC7081-03). The Arbitrator found in favour of Ms Thomas.
Ms Thomas was referred to Dr John Ashwell, Approved Medical Specialist, who examined her on 30 October 2003 in relation to her claim number WCC9859-03. On 16 December 2003 the Registrar issued a Medical Assessment Certificate prepared by Dr Ashwell. This certified to 0% permanent impairment of any part of the body that was claimed.
On 14 January 2003 the Worker filed an ‘Appeal Against Decision of Approved Medical Specialist’ in relation to Dr Ashwell’s assessment, to a Medical Appeal Panel. On 7 June 2004 the Registrar determined that the appeal should not proceed because she was not satisfied that at least one of the grounds of appeal existed.
The Appellant Employer filed the present appeal, against the decision of 22 August 2003, on 17 February 2004. On 13 April 2004 the Registrar wrote to the Appellant Employer advising that the application was incomplete and allowed until 20 April 2004 for the defects to be remedied, namely: the failure to provide a copy of the transcript or to file submissions addressing why the appeal should be accepted out of time.
On 17 May 2004, having had no response from the Appellant Employer, the Registrar rejected the ‘Application to Appeal Against Decision of Arbitrator’ and advised the Appellant Employer of her decision.
On 3 June 2004 the Appellant Employer replied to the Registrar’s letters of 13 April and 17 May 2004. The Appellant Employer correctly pointed out that no transcript was provided because the Arbitrator determined the matter on the papers. The Appellant Employer submitted that ‘due to administrative error’ two pages of submissions going to the application for leave to appeal and new evidence, had been omitted from the original application. The Appellant then sought to re-lodge the appeal.
SUBMISSIONS ON LEAVE
The Appellant Employer has submitted that leave should be granted because:
· There are clear inconsistencies between the findings of Dr Ashwell, Approved Medical Specialist, and the findings of the Arbitrator.
· The Appellant Employer was not aware of these inconsistencies until the Medical Assessment Certificate was issued on 16 December 2003 and was therefore not in a position to appeal.
· “Failure to allow the report of Dr Ashwell into evidence would cause a substantial injustice to the Respondent’s [Appellant Employer’s] case”.
The Appellant Employer makes further submissions on the substantive issues, which are not canvassed here.
The Respondent Worker has made only very brief submissions stating that the appeal should not be entertained because it was rejected on 7 June 2004.
DISCUSSION AND FINDINGS
The Rules do not set out the factors to be considered in the exercise of the discretion to extend time for the filing of an appeal against the decision of an Arbitrator. Ultimately the discretion must be exercised to ensure that ‘justice between the parties’ is achieved (Gallo v Dawson (1990) 93 ALR 479; Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd (in Liq) (formerly SACS Group Pty Ltd (1993) 113 ALR 637).
As I stated in Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22,
“The courts have frequently considered this issue. Guidance as to the factors that a court or Tribunal should have regard to when exercising the discretion to extend time is found in the leading case of Gallo v Dawson (1990) 93 ALR 479. In that case Justice McHugh considered an application to extend time for the filing of a Notice of Appeal in the High Court and set out the following guiding principles:
‘. . . The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: 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 judgement” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.’”
I have taken the matters referred to by Justice McHugh into account in the particular circumstances of this case.
Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes (section 367 of the 1998 Act). The Appellant Employer’s conduct of these proceedings has not met these objectives. The Appellant Employer initially filed a defective appeal, some six months after the Arbitrator’s decision. I note the Appellant Employer’s submission, that the Medical Assessment Certificate issued on 16 December 2003, informed its decision to appeal. However, a further two months passed before the appeal was filed on 17 February 2004. There is no explanation for this delay. The Appellant Employer then did not reply to the Registrar in order to prosecute the appeal until 3 June 2004, ignoring correspondence from her dated 13 April 2004 and 17 May 2004.
I have considered the Appellant Employer’s prospects of success on the appeal and am not satisfied that they are such that leave should be granted. The Arbitrator, in coming to a decision on the Worker’s incapacity, is entitled to rely upon the medical evidence that he or she considers to be probative. This is not a matter for a binding determination by an Approved Medical Specialist. The comments of Dr Ashwell are not binding on this issue.
The Appellant Employer had the opportunity to file an appeal against the decision within 28 days of when it was issued, on 22 August 2003. It did not do so, nor did it file an appeal in a timely manner when the Medical Assessment Certificate was issued.
In my view the injustice to the Respondent Worker, in granting leave to appeal some twelve months after the Arbitrator’s decision, far outweighs any disadvantage suffered by the Appellant Employer. In the context of the assessment of permanent impairment by an Approved Medical Specialist and the Arbitrator correctly exercising her jurisdiction to determine the other matters in dispute, I am not satisfied that the Orders as they stand cause the Appellant Employer a substantial injustice.
Leave to appeal should therefore be refused.
DECISION
Leave to appeal the decision of the Arbitrator dated 22 August 2003 is refused.
Dr Gabriel Fleming
Deputy President
16 September 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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