University of New South Wales v Kurup

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	University of New South Wales v Kurup [2014] NSWWCCPD 19
APPELLANT:	University of New South Wales
RESPONDENT:	Savita Kurup
INSURER:	University of NSW – Workers Compensation Risk Management
FILE NUMBER:	A1-3225/12
ARBITRATOR:	Mr M Snell
DATE OF ARBITRATOR’S DECISION:	12 November 2013
DATE OF APPEAL DECISION:	9 April 2014
SUBJECT MATTER OF DECISION:	Late notification of issues in dispute; s 74 of the Workplace Injury Management and Workers Compensation Act 1998; application for leave to dispute previously unnotified matters; whether leave required; exercise of discretion under s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; whether Senior Arbitrator considered prejudice to the employer if leave refused; interlocutory decisions; leave to appeal
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Law Partners
ORDERS MADE ON APPEAL:	1. The orders made in the Certificate of Determination dated 12 November 2013 are confirmed. 2. The appellant is to pay the respondent’s costs of the appeal as agreed or assessed.

INTRODUCTION

This matter concerns an appeal from the decision of a Senior Arbitrator refusing leave to allow the appellant, the University of New South Wales (UNSW), to raise previously unnotified matters pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

BACKGROUND

UNSW employed the respondent, Savita Kurup, as a research associate and manager in its Faculty of Medicine.
On or about 29 June 2011, Ms Kurup was assisting a colleague to install a water purification system used in a research program. In the course of doing so, she lifted the water purifier from the floor containing part of the system. She alleged that as a result of the lifting incident she suffered an injury to her lower back.
Ms Kurup was incapacitated until 5 August 2012, during which time she submitted to various investigations including a CT scan and an MRI of her lumbar spine. As there is no claim for weekly payments, I infer Ms Kurup was paid weekly compensation during this period of incapacity.
On 13 September 2011, Ms Kurup was referred by her general practitioner, Dr Mundell, to a neurosurgeon, Dr Coughlan, who saw her several times in September 2011.
On 1 March 2012, Ms Kurup was assessed by a neurosurgeon, Dr Davies, at the request of UNSW. He prepared a report dated 5 March 2012. Dr Davies essentially supported Ms Kurup’s claim taking a history that Ms Kurup was aware of some pain in her lower back and right thigh as she carried the water purifier to the bench. However, he felt she “catastrophises” and was not coping with her pain and these issues resulted in her feeling an increased level of pain and should be addressed by a course of behavioural therapy. Dr Davies was not asked to assess Ms Kurup’s whole person impairment.
On the 16 March 2012, Ms Kurup’s solicitors made a claim on her behalf for lump sum compensation pursuant to s 66 the Workers Compensation Act 1987 (the 1987 Act). She claimed $10,106.52 in respect of a seven per cent whole person impairment relating to her lumbar spine, based on an assessment by Dr Peter Conrad in his report dated 2 March 2012.
On 26 March 2012, UNSW wrote to Ms Kurup’s solicitor rejecting the claim on the basis that Ms Kurup’s condition had not reached “maximum medical improvement”. The decision was based on documents obtained from Drs Mundell and Davies. UNSW recommended that the matter be referred to the Commission for referral to an Approved Medical Specialist (AMS) to determine that issue. It did not dispute that Ms Kurup had injured her back in the subject incident or that her employment was a significant contributing factor to that injury.
On 2 April 2012, Ms Kurup lodged an Application to Resolve a Dispute in the Commission. She maintained her claim for lump sum compensation as outlined above (at [7]).

On 18 April 2012, Mr Macken, solicitor for UNSW, filed a reply on the appellant’s behalf. The Reply provides, in Part 3 of the application, for the matters in dispute to be identified. That part of the form was completed in the following manner:
“Part 3 – Matters in Dispute

0 Confirmed as per dispute notice(s) attached to the Application

SYes

SNo

0 Confirmed as per exchange of offers attached to the Application

0Yes

SNo

0 Failure to determine

0Yes

SNo

Where failure to determine leave is sought to include the following:”

As can be seen from the above, when asked to confirm if the matters in dispute were in accordance with the notice attached to the application (in other words the letter of 26 March 2012) Mr Macken completed both the “yes” and the “no” boxes. He added no other detail to explain why both boxes had been marked or to provide any further elucidation of the issues in dispute. This was an unhelpful and unsatisfactory way in which to complete the Reply.
Pursuant to s 321 of the 1998 Act, a medical dispute, such as the dispute in the letter of 26 March 2012, may be referred for assessment under Ch 7 Pt 7 of the 1998 Act either by the Commission or the Registrar upon notice to the parties. The Registrar may not refer a medical dispute concerning permanent impairment where liability is in issue and has not been determined by the Commission (s 321(4)).
On 19 April 2012, in accordance with s 321 and the Commission’s usual practice, a Commission dispute management coordinator emailed the solicitors for both parties advising that the matter would be referred to an AMS, Dr Mellick, for assessment. The issues referred for assessment were:
·        the degree of permanent impairment of the worker as a result of an injury (s 319(c));
·        whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d));
·        whether impairment is permanent (s 319(f)), and
·        whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319(g)).
The parties were advised that any objection to the referral, as framed, should be lodged and served within seven days. No objection was received from either party and the referral proceeded.
It may be assumed that, by the conduct of UNSW up to 26 April 2012, liability for Ms Kurup’s injury was not in issue.
On 17 August 2012, the Commission issued a Medical Assessment Certificate (MAC) in accordance with Dr Mellick’s assessment, certifying that Ms Kurup suffered seven per cent whole person impairment as a result of the injuries sustained on 29 June 2011. The assessment comprised of five per cent whole person impairment related to the lumbar spine under DRE II to which the doctor added two per cent adjustment for activities of daily living.
On 10 September 2012, UNSW lodged an Application to Appeal Against the Decision of the AMS under s 327 of the 1998 Act. It alleged the MAC was made on the basis of incorrect criteria and contained demonstrable errors including:
·     the AMS’s findings were based on subjective complaints not verified by any objectively identifiable evidence. In particular the AMS found no evidence of muscle wasting, no impairment of power, no altered sensation and no paravertebral muscle spasm. These findings were only consistent with Ms Kurup coming within DRE Lumbar Category I under AMA 5^th edition. The failure to so classify the injury constituted a demonstrable error;
·     failure to have regard to the notes of Ms Kurup’s general practitioner Dr Mundell which showed complaint of “several months lower back pain” on 4 July 2011 and complaints of lower back problems on 30 May 2011, that is, prior to the alleged injury on 29 June 2011, and
·     there was no deduction under s 323 of the 1998 Act, for any pre-existing abnormality, notwithstanding the references to prior back problems and age related changes in the spine.
On 8 October 2012, Ms Kurup was assessed and a report was prepared by Dr Edwards, an independent medico-legal consultant retained by UNSW. Dr Edwards obtained a history that Ms Kurup was unaware of any problems at the time of the lifting incident on 29 June 2011 and it was not until later that evening at home, that she first experienced back pain. The history is at odds with that taken by Drs Conrad, Mellick and Davies who each recorded a consistent history of immediate back and to some extent leg pain at the time of the incident. Dr Edwards opined that there was evidence of exaggeration or fabrication and he was not convinced that the injury on 29 June 2011 was a substantial contributing factor to the injury described.
On 11 October 2012, the UNSW’s solicitors wrote to Ms Kurup’s solicitors stating:
“Further to our previous correspondence and to the claim you have made for the payment of compensation benefits on behalf of your client, we can advise that liability for the payment of compensation benefits is declined and notice is given in this regard in accordance with s.74 of the Workplace Injury Management & Workers Compensation Act, 1998.
The documents submitted by you in support of this claim consists of the report of Dr Conrad dated 2 March, 2012 and the reasons that liability is declined are as follows:-
1.   Your client has not sustained an injury;
2.   Your client’s medical condition is not causally connected to injury;
3.   Employment is not a substantial contributing factor to injury;
4.   Your client is not impairment [sic] as alleged or at all and, in the alternative, any impairment does not result from injury;
The issues relevant to this dispute are those identified above and the sections of the Legislation on which our client relies in declining liability are s.4, 9, 9A & 66 of the Workers Compensation Act, 1987 and s.74 s.323 of the Workplace Injury Management & Workers Compensation Act, 1998.
The documents relevant to this dispute and which form the basis for the decision to decline liability are firstly all of those documents filed and served with the Reply in the proceedings before the Commission in matter no. WCC3225/2012 and in addition the report of Dr Edwards dated 8 October 2012 (x2), copies of which are enclosed.” (emphasis included in original)
On 15 October 2012, UNSW filed an Application to Admit Late Documents, seeking to rely on Dr Edwards’s report of 8 October 2012.
On 20 November 2012, Ms Dong, a delegate of the Registrar, refused the appeal. She determined that none of the grounds in s 327(3) had been made out. UNSW sought to rely on the report of Dr Edwards of 8 October 2012 (under s 327(3)(b) of the 1998 Act) on the basis that the report was not available at the time the Reply was filed and it submitted it was in the interests of justice that it be admitted. The delegate refused, finding that the report was not additional relevant information for the purpose of s 327(3)(b) for a number of reasons. (It should be noted that, on the face of it, the attempt to rely on the report of Dr Edwards, in addition to the report from Dr Davies was in breach of cl 49 of the Workers Compensation Regulation 2010, which restricts to one the number of forensic medical reports that may be admitted.)
The delegate stated that the report was that of an independent medical examiner that was obtained six months after the application was filed and four months after the matter was referred to an AMS. There was no justification as to why the report of Dr Edwards could not reasonably have been obtained by UNSW before the medical assessment. Dr Edwards’s report was merely another medical opinion obtained subsequent to the MAC and was not directed to the question of alleged error in the MAC.
However, the delegate found that the reasons given for the finding that there was no deductible proportion for previous injury or pre-existing abnormality or condition under s 323 of the 1998 Act, were inadequate. The delegate determined that the matter should be returned to Dr Mellick for reconsideration of the deductible proportion under s 323 and for the doctor to provide adequate reasons to support his conclusions.
On the 12 December 2012, the Commission issued a further MAC following Dr Mellick’s reconsideration of the matter. Dr Mellick did not alter his assessment and confirmed Ms Kurup’s whole person impairment at seven per cent.
On 8 January 2013, UNSW lodged an Application to Appeal Against a Medical Assessment (s 327) against the MAC issued by Dr Mellick on 12 December 2012. This appeal proceeded to an appeal panel on the grounds that the MAC was made on the basis of incorrect criteria and contained demonstrable errors.
An Appeal Panel constituted by Arbitrator McManamey and two AMSs, Drs Bodel and Burke, was convened. On 11 April 2013 the panel issued its determination and a Statement of Reasons.
The panel dealt with UNSW’s complaint that Dr Mellick’s reconsideration failed to have regard to Dr Edwards’ report dated 8 October 2012, which had been the subject of an Application to Admit Late Documents on 12 October 2012. The delegate, when referring the matter for reconsideration, found that the report of Dr Edwards was not additional relevant information for the purposes of s 327(3)(b). The panel agreed with the reasons given by the delegate. It also found that the report of Dr Edwards was not fresh evidence but was merely another medical opinion. The panel further determined that, even if s 327(3)(b) could be satisfied, the report of Dr Edwards would not lead to a different result.
Ultimately, the panel concluded that the clinical notes of Ms Kurup’s treating doctor, Dr Mundell, were consistent with her having suffered degenerative changes, which were symptomatic prior to the injury sustained at work on 29 June 2011. On that basis, the panel was satisfied that it was a matter to which s 323(2) of the 1998 Act applied and accordingly applied a deduction of one tenth resulting in a compensable impairment of six per cent. However, it was also clear from Dr Mundell’s notes that the first complaints of pain radiating into the right leg occurred following the work injury.
On 18 March 2013, that is, after the second attempt to appeal under s 327, UNSW purported to issue a notice under s 74 of the 1998 Act. The notice stated that the matters in dispute concerned whether Ms Kurup was entitled to claim any compensation. The reasons for the dispute were: repetition
“•      You have not sustained any injury;
·        If you do suffer from any medical condition (which is denied) it is not causally connected to any injury;
·        Your employment is not a substantial contributing factor to your injury;
·        You have had no incapacity to work arising from the injury;
·        Any medical treatment required is not reasonably necessary as a result of the injury.
This decision was made by the Director of Risk Management, Paul Bransdon.
We rely in particular on the report of Dr Kim Edwards dated 8 October 2012 which states that you have not sustained injury, that your employment is not a substantial contributing factor to the injury and any condition you suffer from is not causally connected to the injury…
Signed Paul Bransdon
Director Risk Management”
On 11 April 2013 the parties were provided with a copy of the Medical Appeal Panel’s decision of the same date and were advised that unless there were any further outstanding issues, a Certificate of Determination would be issued in accordance with the panel’s findings.
On 17 April 2013, Mr Macken wrote to the Commission foreshadowing proceedings by way of an administrative review in the Supreme Court in respect of the Medical Appeal Panel’s decision, alleging it contained a number of errors (no such proceedings were filed). Mr Macken said:
“We also note that as primary liability remains in dispute in this matter (and in this regard we referred to the s 74 notice issued) we are instructed to refrain from commencement of Supreme Court action until the primary liability dispute has been determined.
Would you please arrange for this matter to be listed for a Telephone Conference so that the issue regarding liability can be determined….”
In accordance with that request the matter was listed for hearing before Senior Arbitrator Snell on 11 November 2013. That matter proceeded before the Senior Arbitrator on the basis that two matters were in issue. First, whether the respondent required leave pursuant to s 289A of the 1998 Act to raise the issues referred to in the s 74 notice of 18 March 2013, as matters not previously notified in the dispute. Secondly, if leave was required, whether such leave should be granted in the circumstances.
In an extempore decision delivered on 11 November 2013, the Senior Arbitrator, applying the principles in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus), determined that UNSW required leave to raise a liability dispute. Further, the Senior Arbitrator determined that on the facts of this case, the interests of justice favoured a conclusion that UNSW’s application should be refused.

PRELIMINARY ISSUES

There is no dispute that the threshold requirements as to quantum and time as found in the provisions of sub-ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

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.”
UNSW initially submitted that the appeal should not be determined ‘on the papers’ and should be determined by an oral hearing before a Presidential member. It gave no reasons in support of that submission. UNSW reserved the right to make further submissions upon receipt of the transcript.
Following receipt of the transcript UNSW lodged further submissions but said nothing further in support of an oral hearing. Ms Kurup is content for the appeal to be determined ‘on the papers’.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, 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.

INTERLOCUTORY DECISION

Section 352(3A) of the 1998 Act provides that there is no appeal under that section against an interlocutory decision except with the leave of the Commission. The Commission “is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”.
Notwithstanding UNSW’s submission to the contrary, the Senior Arbitrator’s decision was interlocutory, because it did not finally determined the parties’ rights (Licul v Corney[1976] HCA 6; 50 ALJR 439 at 443–444). The Senior Arbitrator’s decision merely determined the issues upon which the dispute would be determined. Therefore, the appellant requires leave to appeal.
If the appeal is successful final orders should not be made as foreshadowed by the Registrar and the matter would be referred back to another Senior Arbitrator to determine the liability issues. If the appeal is unsuccessful that would put an end to the liability issues and final orders can be entered.
Therefore, it seems to me that it is desirable for the proper and effective determination of the dispute that the matters raised on appeal should be dealt with at this time.
For these reasons I grant leave to appeal.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 12 November 2013 records the Senior Arbitrator’s orders as follows:
“1. There is a finding that the respondent requires leave pursuant to section 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to raise the matters contained in section 74 notices dated 11 October 2012 and 18 March 2013 (the section 74 notices).
2. Leave to dispute the matters raised in the section 74 notices, pursuant to section 289A(4) of the 1998 Act, is refused.
3. The matter is remitted to the Registrar, for entry of an award consistent with the Medical Assessment Certificate of the Medical Appeal Panel dated 10 April 2013.
4. It is recommended that the costs of both parties be subject to an uplift of 15 per cent on account of complexity, having regard to the legal and factual issues going to section 289A of the 1998 Act.”

THE EVIDENCE

The relevant entry from Dr Mundell’s notes is dated 4 July 2011. It states:
“says several months lower back pain
aggravated by lifting something heavy in lab Wed evening
increasing pain Thurs and unable to work Friday
now has pain into right buttock and down outside of right leg since Frid (nil previously)…”
A CT scan on 12 July 2011 performed by Dr Fraser concluded that Ms Kurup suffered from a “shallow central disc prolapse at L5/S1”.
An MRI of the lumbar spine was performed by Dr Masters on 13 September 2011, relevantly the findings were stated as follows:
“At L4/5 there is a disc bulge and some very early posterior degenerative change, but no central stenosis. There is a super-imposed right foraminal annular tear, but no compression of the existing right L4 nerve root.
At L5/S1 there is some early facet joint arthropathy, but no disc protrusion, central stenosis, or nerve root compressive lesion…”
Dr Coughlan is Ms Kurup’s treating neurosurgeon. Dr Coughlan reported to Dr Mundell (Ms Kurup’s treating general practitioner) on 26 September 2011. Dr Coughlan obtained the following history:
“…she injured her back whilst in the course of her duties at work and has had significant ongoing back pain. She also complains of quite marked pain in the right buttock and down the right leg. Her injury occurred on 28^th July 2011 [sic] at work whilst lifting heavy equipment.”
Dr Coughlan stated that an MRI scan showed an annular tear at L4/5 with some degree of disruption of the posterior annulus with bulging. Ms Kurup was treated with Norspan patches which had given her some relief. Physiotherapy had not really helped and Dr Coughlan suggested that consideration be given to a CT guided epidural injection into the L4/5 interspace.
On 28 September 2011, an assistant to Dr Coughlan, in his absence, and in response to a specific request from UNSW stated:
“it would appear that the right foraminal annular tear is a result of the injury on 28 July 2011. It would therefore appear that the need for ongoing medical treatment is related to that aggravation. Annular tears are notoriously slow to heal and as Ms Kurup is having ongoing discomfort, Dr Coughlan recommended a CT Guided Epidural Injection in hope that this may elevate some of her discomfort.
As noted in his letter 26 September 2011 there is no role for surgery and if Ms Kurup remains symptomatic, referral to a pain specialist would be warranted…”
On 1 March 2012, Dr Davies, neurosurgeon, assessed Ms Kurup for UNSW. He obtained the following history of injury:
“…Ms Kurup therefore lifted the purifier out of the box. She is not sure of the weight but thought it might have weighed 10-15 kgs. She said her legs started wobbling as she did this but did not want to drop it because it was expensive. She carried it to the bench and she was aware of some pain in the lower back and right thigh. She did not think much of it at the time and resumed work and completed her duties for the day. She then travelled home by public transport. By the time she got home she said she had a lot of pain in her back and right buttock…” (emphasis added)
Dr Conrad is an independent medical examiner to whom Ms Kurup was referred by her solicitors. He prepared a report, dated 2 March 2012, following his examination of Ms Kurup on 1 March 2012. He obtained a detailed history of the incident that occurred on 29 June 2011 lifting the water purification system. He said:
“She advised that the system was part metal and part plastic and weighed 10kgs to 15kgs in weight. She says she and her colleague were lifting the box from the floor on to a work bench and that the other person was not able to help much with the lifting as she had had previous back surgery and most of the lift was done by Ms Kurup. As she lifted the heavy box, she started ‘wobbling’, but she could not drop the box as it was too expensive and she completed the lift onto the bench and then she felt severe pain in her back.” (emphasis added)
Dr Conrad noted that after the accident Ms Kurup continued working for one day as she was in the midst of a busy project, but after that day she ceased work and was off work for nearly one month. She then resumed light duties with no lifting, working 20 hours per week. She gradually increased her hours to full time work, but does no lifting. He recorded her current symptoms and details of his physical examination and the findings of the MRI and CT scans. (Although there is no direct evidence, I assume that UNSW paid compensation for this period of time off work, and for Ms Kurup’s medical treatment).
Dr Conrad concluded that Ms Kurup was involved in a clear cut work accident on 29 June 2011. As a result she sustained discal injuries at L4/5 and L5/S1 and has on-going back pain and some non-verifiable radiculopathy in the right upper leg. He noted that Ms Kurup had a CT guided cortisone injection in the lumbar spine and she may need further injections. He also considered that she may also require further physiotherapy and pain management.
Dr Conrad stated that Ms Kurup is well motivated and continued working at the University in a research capacity, but does not lift anything more than 2 kilograms in weight. He stated that she should be able to stand or sit at will and should not do an excessive amount of standing, walking, going up or down stairs, squatting, bending or lifting. He noted that she was struggling with her housework and he recommended that she be provided with six hours of home care assistance per week. Dr Conrad felt that Ms Kurup’s prognosis was guarded. He stated that in his view her condition had reached maximum medical improvement and her whole person impairment could be assessed at that time. He assessed her whole person impairment at seven per cent. He stated that there was no evidence of pre-existing degenerative disease or previous accidents and therefore the seven per cent whole person impairment related directly to the accident on 29 June 2011, which in his view was a substantial contributing factor to the whole person impairment [sic, injury].

The AMS Dr Mellick obtained the following history when he examined Ms Kurup on 1 August 2012:
“When Ms Kurup was lifting the water purifier she said that her right leg started wobbling and she felt strange from the waist down on the right side, with some especial discomfort in the right buttock. There was no associated numbness or tingling. This occurred at about 5.30 in the afternoon. She went home as usual by bus and train but was later troubled by ‘excruciating’ pain in the lower back.”
Dr Edwards is an independent medical assessor. He was retained by UNSW’s solicitors. He prepared a report dated 8 October 2012, following his examination of Ms Kurup that day. Dr Edwards obtained the following history of the incident on 29 June 2011:
“On 29 June 2011(she thinks a Thursday), Ms Kurup was lifting equipment which had been delivered to the laboratory. She said it was heavy. She tried to lift it and “my legs started wobbling so I knew something was wrong”. She said she did not lift the equipment.
This happened near the end of the day and she went home as usual about 15 minutes later.
She said that at home she became aware of back pain, and lay down. She took three or four Nurofen.
She returned the following day. She said by the afternoon she had to leave because of low back pain...” (emphasis in the original)
Dr Edwards recorded the details of her current symptoms and his examination findings. He took into account the investigations including the lumbar CT and MRI scans referred to above. Dr Edwards stated:
“on examination today, there is evidence of exaggeration or fabrication as illustrated by her ability to sit erect on the couch with her legs extended, without complaining of pain, despite the marked limitation of forward flexion on straight leg raising.”
Dr Edwards said Ms Kurup presented in a theatrical manner, and he did not believe her disability was as great as she attempted to indicate. He said that Ms Kurup was not aware of any problem at the time of the accident and it was not until when she was at home later that evening she had back pain. He was not convinced that her employment on 29 June 2011 was a substantial contributing factor to the injury described.
Dr Edwards assessed Ms Kurup’s whole person impairment at nil. He stated that because he felt that there was evidence of exaggeration or fabrication and he did not believe that an accurate assessment could be obtained under those circumstances. That said, because he found that there were no significant clinical findings, no observed muscle guarding or spasm, no demonstrable neurologic impairment, no demonstrable alteration in structural integrity and no other indication of impairment related to the illness, that he assessed her as falling into DRE Lumbar Category I, under AMA 5.

The legislation

The relevant provisions of the 1998 Act are as follows:
“74   Insurers to give notice and reasons when liability disputed
(1)    If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.
(2)    The notice must contain the following:
(a)  a concise and readily understandable statement of the reason the insurer disputes liability and of the issues relevant to the decision (indicating, in the case of a claim for compensation, any provision of the workers compensation legislation on which the insurer relies to dispute liability),
(b)  such other information as the regulations may prescribe.
(3)    The regulations may make provision for the form of and for other information to be included in or to accompany a notice under this section. The regulations may require an insurer to give a copy of a notice under this section to the claimant’s employer.
(4)    The regulations may create offences in connection with any failure to comply with this section.
Note. A dispute as to liability to commence weekly payments within the requisite period after a claim for compensation is made must be notified in accordance with this section (see section 93 and the offence arising under section 94).
(5)    Notice is not required to be given under this section with respect to a dispute if notice has been given under section 54 of the 1987 Act with respect to the dispute and that notice contained the statements and information that a notice under this section is required to contain.
(6)    This section does not apply to a dispute based on a work capacity decision of an insurer under Division 2 of Part 3 of the 1987 Act.”
“289A   Further restrictions as to when a dispute can be referred to Commission
(1)    A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)    A matter is taken to have been previously notified as disputed if:
(a)  it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)  it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)    The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)    Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
“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.
(3)    The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4)    The Registrar may not refer for assessment under this Part:
(a)a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b)  a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”

THE SENIOR ARBITRATOR’S REASONS

It is common ground that Ms Kurup instituted proceedings in the Commission following the rejection of her claim on the basis that her condition had not reached maximum medical improvement.
The effect of s 321(4) is that if liability issues such as “injury” or the application of s 9A, are in issue, the appropriate course is to have those issues dealt with by an Arbitrator prior to the referral to an AMS for the a permanent impairment assessment.
The Senior Arbitrator found that it followed that the position adopted by UNSW was consistent with there being no outstanding liability issues at the time of the referral to the AMS.
Section 74 of the 1998 Act requires that an insurer disputing liability “in respect of a claim or any aspect of a claim, must give notice of the dispute to the claimant”. If UNSW sought to rely on issues such as “injury” or substantial contributing factor, notice of such matters should have been included in the dispute notice dated 26 March 2012, and it was not.
The Senior Arbitrator held that it followed from the above that, UNSW required leave pursuant to s 289A(4) of the 1998 Act, to raise matters not raised in the initial dispute notice.
The application of the discretion contained in s 289(4) was considered in Mateus. The Senior Arbitrator held that Mateus represented an appropriate description of the matters which ought to be considered in applications such as the one before him. The Senior Arbitrator rejected the submission that Mateus had been wrongly decided.
The Senior Arbitrator then considered the discretionary matters referred to in Mateus. He concluded:
·        the degree of difficulty and complexity is not insubstantial. The prime evidentiary matters UNSW would seek to agitate related to the implications of the notes of Ms Kurup’s general practitioner and also the opinion of Dr Edwards. That may necessitate Ms Kurup obtaining further medical evidence to deal with the question of “injury” and matters which flowed from it. That would inevitably involve some difficulty or complexity (T8.28-9.10);
·        the Senior Arbitrator was satisfied that UNSW promptly notified of the previously unnotified matters upon receipt of the report from Dr Edwards dated 8 October 2012 (T9.18);
·        the Senior Arbitrator noted that UNSW had access to the materials from Ms Kurup’s general practitioner for some considerable time. The material was in part attached to the Reply lodged on 18 April 2012. Whilst it is true that UNSW acted promptly following receipt of Dr Edwards’s report, to the extent that they depended upon the records of the general practitioner, those issues could have been raised at an earlier point (T9.21–9.29);
·        Mrs Kurup would have been prejudiced in that there would have been a need to prepare further evidence dealing with the “injury issue”. There had already been considerable delay occasioned by the way in which UNSW had conducted these proceedings. If leave were granted it would have inevitably resulted in even further delay which would constitute prejudice (T9.31–10.7);
·        the delay in raising the additional issues was unreasonable having regard to the procedural history of the matter (T10.20);
·        the dispute was referred to an AMS on the basis that all parties, including UNSW, initially accepted that there were no liability issues relevant beyond that which could properly be characterised as a medical dispute (T10.25);
·        the Senior Arbitrator considered the merit and substance of the issues sought to be raised. He noted that Dr Edwards is the only medical practitioner in the evidence before him who concluded that the incident of 29 June 2011 was not a substantial contributing factor to the injury described;
·        he noted that Dr Edwards’s history was inconsistent with the history obtained by Drs Davies, Conrad and Mellick. On balance, whilst Dr Edwards’s views gave some support to argue the liability the issues, the merit and substance of the issue did not support the contention that leave should be granted (T11.4–13.18);
·        doctors Davies, Conrad and Dr Mellick obtained histories of the immediate onset of pain following the lifting incident on 29 June 2011. The Senior Arbitrator found that the histories recorded were consistent with the proposition that Ms Kurup was conscious of back and, to some extent, leg symptoms around the time of the incident. They expressed no doubt that the incident they took as part of the history constituted “injury” for relevant purposes (T11.28–13.8), and
·        the Senior Arbitrator considered the general conduct of the parties during the proceedings, including UNSW’s invitation to commence proceedings so that the matter of whether the condition had reached maximum medical improvement could be dealt with by an AMS. UNSW raised no objection to the matter proceeding to assessment by an AMS on that single issue (T13.27).
Given the history of the matter, the raising of issues, such as injury and the application of s 9A, at the time they were raised was unreasonable.
The Senior Arbitrator concluded that the weight to be afforded to Dr Edwards’s views would likely be the subject of some attack having regard to the extent to which his history diverged from the histories recorded by other medical practitioners. The Senior Arbitrator found that whilst Dr Edwards’s views constitute the basis of disputing whether injury was suffered, and whether s 9A was satisfied, the merit and substance of the issue does not support the contention that leave should be granted for the issue to be raised.
The Senior Arbitrator noted that UNSW had disputed the original AMS’s findings, even before Dr Edwards had examined Ms Kurup. The application to appeal the AMS was lodged on 10 September 2012. Dr Edwards did not examine Ms Kurup until 8 October 2012.
For these reasons the Senior Arbitrator concluded that the interest of justice favoured the conclusion that UNSW’s application should be refused.

ISSUES IN DISPUTE

UNSW allege that the Senior Arbitrator erred in:
(a) determining that a dispute notice had not been issued and that leave was required in accordance with s 289A of the 1998 Act;
(b) failing to have any regard to prejudice to the appellant employer (as opposed to the respondent worker) in considering whether to grant leave under s 289A(4) of the 1998 Act, and
(c) failing to grant leave to the appellant employer in accordance with s 289A(4) of the 1998 Act.

SUBMISSIONS, DISCUSSION AND FINDINGS

Was leave required to raise previously unnotified matters?

Mr Macken submits that a dispute had been validly created which satisfied the requirements of s 289(3)(a) of the 1998 Act. In those circumstances the Commission was able to hear or otherwise deal with any dispute in accordance with s 289A(3). He submitted:
“That subsection allows the Commission to hear or otherwise deal with any matter subsequently arising out of such dispute so that, even though the initial dispute related to ‘maximum medical improvement’, the Commission was able to deal with the subsequently identified disputes of injury, causation, etc.”

For these reasons Mr Macken submitted that it was not necessary for the Senior Arbitrator to have recourse to the discretion conferred under s 289A(4).
The appellant’s essential argument is that, in accordance with the terms of s 289A(3) of the 1998 Act, because there was already a dispute in existence, that is, the initial dispute in relation to “maximum medical improvement”, that gave the Commission jurisdiction to deal not only with that dispute but also matters “subsequently arising out of such a dispute” whenever they are raised without the need to seek leave to do so.
The submission is fundamentally wrong and I reject it. It completely ignores s 289A(4) which clearly states that any dispute relating to previously unnotifed matters may only be heard and dealt with by the Commission if it is of the opinion that it is in the interests of justice to do so. The issues of whether Ms Kurup had received an injury and if so whether her employment was a substantial contributing factor to that injury were previously unnotified matters. To raise them UNSW required leave under s 289A(4).
Section 74 requires that if an insurer disputes liability in respect of a claim, or any aspect of a claim, the insurer must give notice of the dispute to the claimant. The dispute notified by the insurer which triggered the application to the Commission concerned only one matter and that was whether or not the worker’s impairment had reached maximum medical improvement such that it could be assessed for the purposes of quantifying her entitlement to compensation under s 66.
As was stated by Handley AJA in Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139 (at [16]):
“The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers Compensation Act 1987 (NSW) (the 1987 Act) is to have the factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel.”
Had UNSW raised a factual or legal issue, that is, a liability issue, that issue should have been dealt with by the Senior Arbitrator before referral to an AMS. That did not happen for the obvious reason that no liability dispute was raised.
It is nonsense to suggest, as Mr Macken has, that an insurer is free to raise any issues at any time in the proceedings. Such an approach completely circumvents the requirements to apply for leave under s 289A to raise previously unnotified matters as disputed matters. I accept Ms Kurup’s submission that if Mr Macken’s submission were correct, s 289A(4) would be otiose because an employer/insurer could effectively grant itself leave to raise previously unnotified matters by merely issuing (at any time) a further s 74 notice, raising any issue it wished, after the proceedings have commenced. That is contrary to the clear terms of the legislation.
For these reasons, the Senior Arbitrator was correct to find that UNSW required leave to raise the previously unnotified matters referred to in the s 74 notice of 18 March 2013, as matters in dispute.

Failing to have regard to prejudice to the appellant employer, UNSW

Mr Macken submitted that if the matters identified in the s 74 notice dated 18 March 2013 are characterised as “previously unnotified matters”, then consideration as to whether those matters are dealt with by the Commission requires determining whether it is “in the interests of justice to do so”. Mr Macken argued that this requires a balancing of the interests of the parties and the balancing of any prejudice to both the worker and the employer.
Mr Macken submitted that the Senior Arbitrator gave no consideration to the issue of prejudice to the employer in declining leave to allow the unnotified matters to be argued. He said that the meaning of “in the interests of justice” should be construed broadly (Herron v Attorney-General (NSW) (1987) 8 NSWLR 601 at 613) and further that it requires a consideration of the interests of both parties to the proceedings (BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 and Maxwell v R [1996] HCA 46; 184 CLR 501).
As to the prospective prejudice to the parties, Mr Macken submitted the only prejudice identified to the worker was that of delay. The prejudice to UNSW by refusing to allow the unnotified matters to be dealt with is not temporal, but is timeless and irreparable in that those matters could never be argued. A proper balancing of the respective interests of the parties would result in a consideration of the interests of justice being served by allowing the appellant employer to have the Commission determine the unnotifed matters. I do not accept that submission.
Whether the granting of leave was in the interests of justice was clearly ventilated before the Senior Arbitrator (at T12.40 of the first transcript of 11 November 2013) (the submissions transcript). Mr Macken identified the prejudice to his client stating (at T12.40 of the submissions transcript):
“And it would be unjust to put it as simply as I put for [UNSW] to be excluded from arguing issues of injury causation and substantial contributing factor, rolling them up generically, in circumstances where it's a live issue, where it determines the - whether or not compensation is payable and where, to exclude the opportunity to argue it, would remove them from any chance of ever being able to argue it.”
The alleged irreparable prejudice to UNSW was repeated at T16.32 of the submissions transcript.
In determining whether it was “in the interests of justice” to allow UNSW’s application, the Senior Arbitrator considered the matters relevant to the exercise of the discretion referred to in Mateus at [38] and [48].
Before the Senior Arbitrator, Mr Macken argued that Mateus was wrongly decided. The Senior Arbitrator rejected that submission and I note that it has not been submitted on appeal that Mateus was wrongly decided.
I reject the submission that the Senior Arbitrator failed to have regard to the potential prejudice to UNSW if Mr Macken’s application was refused. The Senior Arbitrator referred in detail to the “merit and substance” of the issues sought to be raised. Those issues were only relevant to prejudice to UNSW. He concluded that contrary to Dr Edwards’s opinion, Drs Davies, Conrad and Mellick each obtained histories of immediate onset of pain following the lifting incident on 29 June 2011. The histories recorded were consistent with the proposition that Ms Kurup was conscious of back and, to some extent leg symptoms around the time of the incident. They expressed no doubt that the incident reported to them constituted an “injury” within the meaning of s 4 of the 1987 Act.
Dr Edwards referred to evidence of exaggeration or fabrication. As the Senior Arbitrator correctly concluded that is not a primary liability issue that goes to whether the injury was sustained or the requirements of s 9A of the 1987 Act were satisfied. Such issues are regularly dealt with by AMS’s in reaching their assessments of impairment. The Senior Arbitrator was also correct to observe that Dr Edwards opinion that Ms Kurup’s disability was not as great as she maintained is not inconsistent with the presence of some form of disability.
The Senior Arbitrator considered Dr Edwards’s opinion, which he accepted afforded a basis for disputing whether the alleged injury was in fact suffered, or at least whether the substantial contributing factor requirements of s 9A were satisfied, but concluded, having regard to the weight of evidence to the contrary, the merit and substance of the issues sought to be raised did not support the contention that leave should be granted for the issues to be raised. This conclusion was consistent with the evidence and disclosed no error.
The Senior Arbitrator’s conclusion that Dr Edwards’s opinion would be likely to be the subject of some attack having regard to the history he obtained being at odds with the histories obtained by Drs Davies, Conrad and Mellick, was an appropriate observation and one the Senior Arbitrator was entitled to take into account in the exercise of his discretion.
Thus the Senior Arbitrator properly considered the potential prejudice to the UNSW, by weighing the merit and substance of the issues sought to be raised together with the history of the matter, the complexity of the issues and the potential need for additional evidence to address them. The Senior Arbitrator also considered the conduct of the parties and the protracted procedural history of the matter and the timing of the application in reaching his ultimate conclusion. These were relevant matters for the Senior Arbitrator to consider.
Weighing these matters, and the lack of potential prejudice to UNSW if the application was refused, because of the lack of persuasive evidence that Ms Kurup had not sustained injury in the circumstances she alleged, the Senior Arbitrator’s conclusion disclosed no error and is one with which I agree.
For these reasons I reject the submission that the Senior Arbitrator erred by failing to have regard to the prejudice to UNSW when considering whether to grant leave under s 289A(4) of the 1998 Act.

Did the Senior Arbitrator err in failing to grant leave to UNSW under s 289A(4) of the 1998 Act?

Mr Macken’s submission on this issue is really a repetition of his earlier submissions. He submitted that a proper weighing of the interests of justice would have resulted in the discretion being exercised in favour of UNSW.
An appeal under s 352 of the 1998 Act is characterised by the identification and correction of error. Mr Macken’s submissions do not allege error. The submission is effectively seeking a re- exercise of the Senior Arbitrator’s discretion in refusing leave to allow the previously unnotified matters to be argued. In the absence of error, this is not permitted in a s 352 appeal.
However, for the sake of completeness I would add the following observations. Whether it was in the interests of justice to allow UNSW to dispute previously unnotified matters required the exercise of a discretion. Whether the Senior Arbitrator has erred in the exercise of the discretion calls for consideration of the principles in House v The King [1936] HCA 40; 55 CLR 499 (House v The King).
In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (Micallef), Heydon JA (Sheller JA and Studdert AJA agreeing), referring the principles discussed in House v The King, stated (at [45]) that any attack on decisions of this character must fail unless it can be demonstrated that the decision-maker:
(a) made an error of legal principle;
(b) made a material error of fact;
(c) took into account some irrelevant matter;
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
By refusing to allow UNSW to dispute injury and substantial contributing factor, the Senior Arbitrator did not make any of the errors identified in Micallef. Contrary to Mr Macken’s submissions, as indicated above, the Senior Arbitrator properly considered the potential prejudice to UNSW by considering the merit and substance of the issues sought to be raised and the evidence in support of those issues.
The only evidence in support of the granting of leave was a belated history obtained by Dr Edwards which suggested that Ms Kurup was not immediately aware of back or leg pain at the time of the incident on 29 June 2011, although he accepts that she did experience back pain later that evening. For the reasons stated by the Senior Arbitrator that history is inconsistent with the histories obtained by Drs Conrad and Mellick. It is also inconsistent with the history obtained by the first consultant retained by UNSW Dr Davies who also reported a history of immediate pain in the back and right thigh. I would also add that it is inconsistent with the history obtained by Ms Kurup’s treating neurosurgeon Dr Coughlan, who also took a history of injury whilst lifting heavy equipment.
It is also significant that Dr Edwards recorded a history that Ms Kurup told him that her legs started wobbling and she knew something was wrong at the time of the lifting incident. That history was consistent with the histories obtained by Drs Conrad, Mellick and Davies and does not support the contention that Ms Kurup was not injured as is now sought to be alleged.
The Senior Arbitrator’s determination that the merit and substance of the issues sought to be raised did not support the granting of leave was open on the evidence and disclosed no error. I firmly agree with it.
The Senior Arbitrator exercised his discretion in accordance with binding authority, namely Mateus. He properly weighed the factors for and against the granting of the leave and concluded, on balance, that the interests of justice were not served by granting leave. The approach and conclusions reached by the Senior Arbitrator do not demonstrate error. Accordingly this ground of appeal fails.

Other matters

As a result of the findings of the Medical Appeal Panel, the compensation payable to the worker is $8,662.50. This matter has involved a determination by an AMS, a reconsideration by an AMS, a Medical Appeal Panel, a hearing by a Senior Arbitrator and an appeal to a Presidential member. The conduct of the dispute is seriously disproportionate to the amount of compensation in issue and in my view cannot be justified.

DECISION

The orders made in the Certificate of Determination dated 12 November 2013 are confirmed.

COSTS

The appellant is to pay the respondent’s costs of the appeal as agreed or assessed.

Judge Keating
President

9 April 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2014] NSWWCCPD 19

9 April 2014

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Interlocutory Orders

Costs

0 Confirmed as per dispute notice(s) attached to the Application	SYes	SNo
0 Confirmed as per exchange of offers attached to the Application	0Yes	SNo
0 Failure to determine	0Yes	SNo