Vogel v Eagle Landscapes Pty Ltd

[2005] NSWWCCPD 10

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY THE REGISTRAR

CITATION:Vogel v Eagle Landscapes Pty Ltd [2005] NSW WCC PD 10

APPELLANT:  Peter Boris Vogel

RESPONDENT:  Eagle Landscapes Pty Ltd

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC7758-2003

DATE OF ARBITRATOR’S DECISION:          19 March 2004

DATE OF APPEAL DECISION:  21 February 2005

SUBJECT MATTER OF DECISION:                Failure of Commission to determine nature of injury and nature and conditions of employment before referral to an Approved Medical Specialist; error of Commission in making an award while matters in dispute remain unresolved; failure to give reasons for decision; failure to use best endeavours to bring the parties to a settlement.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers.

REPRESENTATION:  Appellant:      Higgins & Higgins Lawyers

Respondent:   In House Legal QBE Workers Compensation (NSW) Limited

ORDERS MADE ON APPEAL: The decision of the Registrar acting as an Arbitrator, dated 19 March 2004, is revoked. The matter is remitted to an Arbitrator to be appointed by the Registrar, for determination afresh, including using his or her best endeavours to effect a settlement, as required by section 355(1) of the Workplace Injury Management and Workers Compensation Act 1998, in accordance with these reasons.

No order is made as to the costs of the appeal.

THE APPEAL

1. Peter Boris Vogel, the Appellant Worker in this appeal, was employed by Five Dock Nurseries and Landscapes until June 1980, when he set up his own company, Eagle Landscapes Pty Ltd.  In about 1990 he began to experience pain in the low back and both knees, particularly when he was working with sleepers to build retaining walls, and when he was using a bobcat.  He says that he gradually became worse in 2000, but continued doing about 75% of his work, while putting up with the pain.  On 4 May 2001 he was walking on uneven ground while going to pick up the bobcat.  He fell to the ground and when he got up his right knee was sore and swollen.  He says that he was unable to stand and could not walk properly.  He drove home and his wife then drove him to a local medical centre for treatment.  Arrangements were made for him to undergo a CT scan, which was carried out, in due course.  Subsequently, he was told by his doctor that he was unfit for work.  He has been in receipt of workers compensation payments since then.

1. On 12 March 2003 Mr. Vogel lodged an ‘Application to Resolve a Dispute’, in the Workers Compensation Commission, seeking a lump sum payment of $55,437.50 for permanent impairment and pain and suffering. 

1. The Respondent Employer in the dispute before the Arbitrator and in this appeal, is Mr. Vogel’s company, Eagle Landscapes Pty Ltd, and the Insurer is QBE Workers Compensation (NSW) Limited.

1. The Respondent Employer lodged a ‘Reply to the Application to Resolve a Dispute’ out of time, which was returned by the Registrar on 15 April 2003, with advice that an application should be made in accordance with Practice Direction No. 9, to have the document admitted outside of the time prescribed for filing it, supported by written reasons.  There is no Reply or evidence of any response from the Respondent Employer, on the Commission file.

1. On 27 June 2003 the Registrar sent a ‘Notice of Request for Referral to Approved Medical Specialist’, to Mr. Vogel’s solicitor, who then nominated Dr. R. McEwin as the Approved Medical Specialist (AMS).  A medical examination of Mr. Vogel was arranged for 1 October 2003 with Dr. William Lennon of Drs. Evans McEwin Pty Ltd.  A ‘Medical Assessment Certificate of Permanent Impairment’ (the MAC) was issued following this examination and forwarded to Mr. Vogel’s solicitor under cover of a letter from the Registrar, dated 16 February 2004, and headed “Outcome of Referral to Approved Medical Specialist”.

1. On 19 March 2004 the Registrar issued a Certificate of Determination, pursuant to sections 294 and 371(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in the following terms:

“In accordance with the medical assessment certificate issued under section 325 of the Workplace Injury Management and Workers Compensation Act 1998, the Commission determines:

1.That the Respondent pays the Applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987:

(1)$4320.00 in respect of 7.2% permanent impairment of the back

(2)$3000.00 in respect of 4% permanent loss of efficient use of the left leg at or above the knee

(3)$1350.00 in respect of 1.8% permanent loss of efficient use of the right leg at or above the knee

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

1. An ‘Appeal Against Decision of Approved Medical Specialist’ was lodged in the Commission on 8 April 2004 and was rejected on 13 April 2004, because it was lodged out of time.  However, the Appellant Worker has now indicated to the Registrar that he wishes to proceed pursuant to section 327(6) of the 1998 Act, which provides:   

“(6)If the appeal is on a ground referred to in subsection 3 (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment.”

According to a note on the file, it would appear that the matter is pending, awaiting the outcome of this appeal.

1. An ‘Appeal Against Decision of [an] Arbitrator’ was lodged in the Commission by Mr. Vogel on 20 April 2004 on the following grounds:

“1.The Commission erred in failing to determine whether the Applicant’s injuries are the result of a frank injury, the nature and conditions of employment or disease prior [sic] referral to an Approved Medical Specialist.

2.The Commission erred in making an Award on the views of the Approved Medical Specialist when matters between the parties remained unresolved.”

1. On 20 September 2004 Deputy President Fleming granted leave to appeal the decision dated 19 March 2004.

1. Neither the Respondent Employer nor the Insurer has made submissions in this matter.

1. The Appellant Worker consents to the appeal being determined on the papers but “believes that the Commission may obtain more benefit from oral submissions in person.”  However, I am satisfied pursuant to section 354(6) of the 1998 Act, that I have sufficient information to determine the appeal on the papers without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

FRESH EVIDENCE

1. The Appellant Worker has submitted fresh evidence to the Commission in the form of a report from “Dr. Ellis an Approved Medical Specialist dated and served 13 April 2004. This report was obtained to specifically address the new matters raised, of the views of Dr. Lennon. It could not be obtained before Dr Lennon had expressed his views…”. The report was obtained and submitted some three weeks after the issue of the Certificate of Determination of the Registrar, dated 19 March 2004. It is this report that is the “additional information” under section 327(3)(b) of the 1998 Act, and to which the proposal to proceed pursuant to sections 327(6) and 329 of that Act, relates. However, the fresh evidence is not relevant to, or necessary, in the appeal before me, given the specific grounds upon which this appeal is founded. No decision made by the Registrar under section 327(6) of the 1998 Act is the subject of this appeal. There is no suggestion that there has been a breach of section 325 (1) or (2) of the 1998 Act. The outstanding issue as to the MAC, according to the Commission file, is restricted to the “availability of additional relevant information” as provided in section 327(3)(b) of the 1998 Act. Whatever the decision of an AMS, there is no appeal to a Presidential Member. In the circumstances, Dr. Ellis’ report is not admitted as fresh evidence in this appeal before me.

SUBMISSIONS

1. The Appellant Worker submits, “… that there has been a clear and substantial miscarriage of justice on the viewpoint of the applicants [sic] and respondents [sic] evidence.”   It is further submitted that the issue of liability, and the nature of the injury as to whether it was a frank injury, a nature and conditions claim, or disease, should have been determined before being referred to the AMS.  Alternatively, he submits that a telephone conference could have been arranged after the MAC was issued by the AMS (Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580), in order to resolve the outstanding issues in dispute. He submits in relation to the second alternative, that the conciliation/arbitration process should have followed to determine the “meaning of the Approved Medical Specialist which was unclear on the medical evidence and facts of the case” and “whether the matter could be resolved.”

1. As stated at paragraph 10 above, the Respondent has made no submissions in this matter.

DISCUSSION AND FINDINGS

1. According to the ‘Application to Resolve a Dispute’ lodged in the Commission on 12 March 2003, the date of injury is shown as “4 May 2001 and nature and conditions of employment.”  It is also stated in that document that offers had been exchanged between the parties.  The Application is endorsed with the comment, “File note 9 December, 2002, phone conversation $45,000, insurer no increase.”  A copy of that file note is attached to the Application.  In Section 3 of this Application, it is stated that the total amount in dispute is $55,437.50.  The box indicating that liability has been denied is not ticked, and there is no other indication in the Commission file that liability for the injury is or has been, an issue. 

1. Under cover of a letter dated 18 July 2002, the Appellant Worker made a claim on the Respondent Employer for injuries sustained on 4 May 2001 “and due to the nature and conditions of his employment during the course of his employment with you.” The quantum of the claim, pursuant to sections 66 and 67 of the 1987 Act, as distinct from any other claim that may have been made, has been the issue in this particular dispute between the parties.

1. Clearly, the amount of the order for compensation made by the Registrar, based on the assessment contained in the MAC, is somewhat less than offers conveyed in negotiations between the parties.

Whether Commission erred in failing to determine issues prior to referral to AMS

1. While it is usual, and preferable for obvious reasons, that certain issues should be determined prior to referral to an AMS, the Appellant Worker raised no objections to the matter being referred to the AMS without this course being adopted.  Full consultation occurred and the Appellant Worker co-operated in bringing about the examination and assessment.  While the course now suggested by the Appellant Worker may have been preferable to him with the benefit of hindsight, there is no evidence before me that it was ever raised or requested.  In the circumstances, it is unreasonable to raise it now, and I find that the Commission made no error in this regard.  This ground of appeal is not made out.   

Whether the Commission erred in making an award when relevant issues remained unresolved

1. The Appellant Worker submits that there are issues in relation to the “meaning of the Approved Medical Specialist which was unclear on the medical evidence and the facts of the case” and “whether the matter could be resolved”. 

1. As already stated, the issue in dispute in this matter is quantum.  However, there must be a lawful basis for an award to be made.  Jurisdiction cannot be conferred by consent or acquiescence.  The Registrar, in making the determination in this matter, was exercising the powers of an Arbitrator (see sections 371 and 375 of the 1998 Act.  See also Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50 for discussion of the functions of the Registrar).

1. An Arbitrator has a statutory obligation to provide adequate reasons for decision (section 294(2) of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003 (the Rules); Absolon v NSW TAFE [1999] NSWCA 311; Fox v Percy (2003) 214 CLR 118). Failure to give adequate reasons is an error of law and may be a ground to set aside the decision. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). Reasons are a necessary incident to a judicial decision to provide a sufficient explanation as to why an order is made (Williams v Boambee Bay Time Share Resort Pty Limited & Anor [2004] NSWCA 59, per Stein at [33]). In the instant case, the Registrar gave no reasons for her determination, in contravention of her statutory obligation to do so. While she made her calculations and orders relying on the contents of the MAC, there are no reasons given as to the basis for the determination of the dispute, or any indication that she had taken into account and made findings in relation to, all or any outstanding relevant issues in dispute, such as those indicated by the Appellant Worker. She may well have done so, but in the absence of a brief Statement of Reasons for Decision, there is no evidence of it. In the circumstances I find that the absence of reasons for the decision demonstrates a failure to exercise the statutory duty to fairly and lawfully determine the matter (YG & GG v Minister for Community Services [2002] NSWCA 247 (26 July 2002); Absolon v NSW TAFE [1999] NSWCA 311), and is an error of law.

1. Section 355(1) of the 1998 Act requires the Commission constituted by an Arbitrator not to make an award or otherwise determine a dispute without first using his or her best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.

1. It is difficult to apprehend the practical application of this requirement in relation to the statutory regime for payment of lump sum compensation pursuant to sections 66 and 67 of the 1987 Act. However, the Commission is obliged to provide the parties with the opportunity to settle their dispute by agreement at all stages of the proceedings. The Appellant Worker argues that this could have and should have been done following the receipt by the Commission of the MAC and before a determination was made. Notwithstanding any perception that settlement is unlikely, given the history of the negotiations between the parties, or that in certain circumstances the requirement is somewhat “technical”, it does not diminish the statutory obligation of the Commission to afford that opportunity. The Commission fell into error in not meeting its statutory obligation in this regard.

1. Having regard to the failure of the Registrar acting as an Arbitrator, to provide reasons for the decision and the failure to comply with the requirements of section 355(1) of the 1998 Act by attempting settlement before determining the dispute, it is appropriate to revoke the decision of the Arbitrator pursuant to section 352(7) of the 1998 Act, and to remit the matter to an Arbitrator for determination afresh.

DECISION

1. The decision of the Registrar acting as an Arbitrator, dated 19 March 2004, is revoked. The matter is remitted to an Arbitrator, to be appointed by the Registrar, for determination afresh, including using his or her best endeavours to effect a settlement as required by section 355(1) of the 1998 Act, in accordance with these reasons.

COSTS

1. There is no contradictor in this appeal.  Moreover, while the Appellant Worker has been successful, I am mindful of the fact that he offered no objections and co-operated fully in the arrangements for the examination by the AMS.  It was open to him then to request that the matter be allocated to an Arbitrator before the referral to the AMS was made.  He raised the objection only when the outcome of the examination was known.  In the whole of the circumstances, I consider that it would be unreasonable to make an order for costs of the appeal against the Respondent Employer.  Accordingly, in the exercise of my discretion pursuant to section 341(1) of the 1998 Act, I make no order as to the costs of this appeal.

Gary Byron

Deputy President  

21 February 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE