Waverley Council v Sheen

[2007] NSWWCCPD 127

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Waverley Council v Sheen [2007] NSWWCCPD 127

APPELLANT:  Waverley Council

RESPONDENT:  Sydney Stewart Sheen

FIRST INSURER:  Allianz Australia Workers Compensation (NSW) Ltd

SECOND INSURER:  StateCover Mutual Ltd

FILE NUMBER:  WCC11503-06

DATE OF ARBITRATOR’S DECISION:          17 November 2006

DATE OF APPEAL DECISION:  31 May 2007

SUBJECT MATTER OF DECISION: Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Bartier Perry

Respondent Worker: White Barnes

Respondent Insurer: Sparke Helmore

ORDERS MADE ON APPEAL:  Leave to appeal is refused.

The Appellant Employer in the interests of StateCover is to pay the Respondent Worker’s costs of the appeal.  Allianz is to pay its own costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 15 December 2006 Waverley Council in the interests of StateCover Mutual Limited (‘StateCover’) (‘the Appellant Employer/Waverley Council’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 November 2006.

1. The Respondent to the Appeal is Sydney Stewart Sheen (‘the Respondent Worker/Mr Sheen’).  Waverly Council’s first insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz/Respondent Insurer’) is also a party to the appeal and has filed a Notice of Opposition partly supporting and partly opposing the decision under appeal.

1. Mr Sheen worked for Waverley Council from 1985 until 7 December 2005 as a garbage collector.  His Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 31 July 2006.  The Application was amended at the arbitration to allege the following injuries:

a)   injury to the left knee on 15 May 1998;

b)   injury to the left knee as a result of the nature and conditions of employment from 15 May 1998 until 7 December 2005, the last day on which Mr Sheen worked for Waverley Council;

c)   injury to left knee by way of aggravation, exacerbation or acceleration of a disease;

d)   injury to the right knee in or about May 2002, and on 5 June 2003, 23 June 2003, in or about December 2003, 10 May 2004 and 25 October 2005;

e)   injury to the right knee as a result of the nature and conditions of employment from 5 June 2003 to 7 December 2005, and

f)   injury to the right knee by way of aggravation, exacerbation or acceleration of a disease.

1. The Application claimed lump sum compensation in respect of 12.5% permanent loss of efficient use of the left leg [at or above the knee] in respect of injuries to the left leg prior to 1 January 2002, 3% whole person impairment in respect of injuries to the left knee after 1 January 2002, and 6% whole person impairment in respect of injuries to the right knee after 1 January 2002. It also claimed weekly compensation under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) from 1 September 2003 to 7 December 2005. The weekly compensation claim was settled with a consent award being entered in Mr Sheen’s favour under section 40. That award is to be satisfied by StateCover. No challenge is made to the consent award.

1. The claims for lump sum compensation could not be settled and proceeded to arbitration.  After hearing from all parties, the Arbitrator made the following determination in a reserved decision delivered on 17 November 2006:

“1.On 15 May 1998 the Applicant suffered a work-related injury to his left knee within the meaning of section 4(a) of the 1987 Act. 

2.In May 2002, on 5 June 2003, on 23 June 2003, in or about December 2003, on 10 May 2004, and on 25 October 2005 the Applicant suffered work-related injuries to his right knee within the meaning of section 4(a) of the 1987 Act. 

3.I refer the degree of permanent impairment of the Applicant’s left knee (left leg at or above the knee) for assessment by an AMS in accordance with the Table of Disabilities with a date of injury of 15 May 1998. 

4.I refer the degree of permanent impairment of the Applicant’s right lower extremity for assessment by an AMS in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with a causative date of injury of 7 December 2005.

5.The Respondent is to pay the Applicant’s costs as agreed or assessed. I certify that this matter comes within clause 4.10, Part 4, Schedule 6 of the Workers Compensation Regulations 2003 in that it involved complex issues which required the matter to go straight to arbitration.  As agreed at the hearing, I grant leave to the parties to apply in respect of the issue of costs as between the two Insurers.”

1. Waverley Council in the interests of StateCover seeks leave to appeal the Arbitrator’s decision in respect of the claim for lump sum compensation.

PRELIMINARY MATTERS

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 the parties 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. 

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)finding that Mr Sheen’s section 66 claims had been duly made in accordance with section 282 of the 1998 Act;

(b)refusing to strike out Mr Sheen’s section 66 claims on the basis that the proceedings in respect of those claims had been commenced in contravention of section 289(3) of the 1998 Act;

(c)determining the question of whether any proportion of Mr Sheen’s permanent impairment was due to a previous injury in circumstances where that question should have been addressed by Mr Sheen’s doctor and determined by an Approved Medical Specialist, not by the Arbitrator;

(d)in making a finding of a single causative date of injury of 7 December 2005 in respect of the right knee in circumstances where she made findings of frank injuries simpliciter in May 2002, 5 June 2003, 23 June 2003, in or about December 2003, 10 May 2004 and on 25 October 2005 and did not make a finding of any nature and conditions injury, and

(e)making finding of a single causative date of injury of 7 December 2005, in respect of six injuries simpliciter to Mr Sheen’s right knee when that finding had no evidentiary or legal basis and arose from a misapplication of the principles in Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 and Pickles v Staples Waste Removals Pty Limited (2000) 20 NSWCCR 729.

LEAVE TO APPEAL

Time

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

Monetary Threshold

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. Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:

“352 Appeal against decision of Commission constituted by Arbitrator

(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.

(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.

(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.

Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.

(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)

1. The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’.  Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.

1. Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”.  The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.  In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:

“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”

1. In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (‘Regan’) it was held at [27] that:

“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”

1. As no compensation has been awarded in this matter the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. Neither the Respondent Worker nor Allianz disputes that the threshold in section 352 (2)(a) is satisfied. As no compensation has yet been awarded it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(a)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCCPD 5).

1. Therefore, the monetary thresholds in section 352(2) are satisfied.

Interlocutory Order

1. In light of the above amendments to section 352(8) and the issues raised in the appeal, I issued the following Direction to the parties on 4 May 2007:

“1.The parties are directed to the provisions of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as amended by Act 113 of 2005, which excludes from the definition of ‘decision’, ‘any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations’.

Under Clause 200B of the Workers Compensation Regulation 2003, as amended, ‘for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed’.

Under Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 the above amendments to section 352 ‘apply in respect of a claim for workers compensation made before the commencement of the amendments’.

2.In light of the above amendments, the parties are directed to make written submissions on the following issues:

·   whether the current appeal is against an order, ruling, determination or direction of an interlocutory nature, and, if so,

·   the basis on which leave to appeal can be granted.

3.The Appellant Employer’s submissions (in the interests of StateCover Mutual Limited and in the interests of Allianz Australia Workers Compensation (NSW) Limited) are to be filed and served on or before Thursday 17 May 2007 and the Respondent Worker’s submissions are to be filed and served on or before Thursday 31 May 2007.

4.The parties’ attention is drawn to the authority of P & O Ports Limited v Hawkins [2007] NSWWCCPD 87.”

1. In response to the above direction the Appellant Employer made further submissions on 17 May 2007.  Those submissions may be summarized as follows:

a)   the Arbitrator’s finding that the Respondent Worker’s claims had been duly made “finally determines the parties’ rights in respect of the section 66 claims asserted in these proceedings” (Appellant Employer’s submissions, paragraph 2.3);

b)   whether the section 66 claims were duly made “leads to a jurisdictional issue as to whether the Commission has jurisdiction to hear or deal with the section 66 claims” (Appellant Employer’s submissions, paragraph 2.4);

c)   whether the Arbitrator erred in determining the question of whether a proportion of permanent impairment was due to a previous injury raises an issue of jurisdiction.  The Arbitrator has usurped one of the functions of the AMS, and

d)   the authority of P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’) can be distinguished because in that case the Arbitrator’s decision did not determine the parties’ rights but merely the date of calculation of the quantum of compensation.  In the present case the Arbitrator found that the Mr Sheen sustained six frank injuries to his right knee and then found “a single causative date of injury of 7 December 2005” which was referred to the AMS for assessment (Appellant Employer’s submissions paragraph 2.7).  By making that finding the Arbitrator has determined the worker’s rights, not merely the date of calculation of the quantum of compensation.

1. The Respondent Worker submits:

a)   with respect to grounds one and two of the appeal, the Arbitrator’s decision has an effect only upon the question of whether or not, in the context of the current claim, there was a procedural deficiency “in the duly making of the claim” (Respondent Worker’s submissions, paragraph 2.2).  The determination of this issue was not determinative of any rights but merely determined the question of whether or not at that point in time the worker would be permitted to enforce his potential lump sum entitlements;

b)   with respect to ground three of the appeal, the determination is not final and determinative in relation to the parties’ substantive rights and liabilities, and

c)   with respect to grounds four and five, the authority of Hawkins is analogous to the circumstances of the present matter in establishing that determinations by Arbitrators in relation to dates of injury are properly categorised as interlocutory and are not determinative of substantive rights.

1. The test of whether a court’s order, determination or ruling is ‘interlocutory’ “…depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?” (per Gibbs J (as his Honour then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444). In Hawkins I considered the application of this authority in the context of the workers compensation legislation that governs the Commission.  I noted at [37 (j) and (k)]:

   “j) in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase “preliminary or interim orders…of an interlocutory nature” to matters that are genuinely preliminary, provisional or interim in nature, and

   k) given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”

1. In the present matter, if the Appellant Employer’s arguments in respect of grounds of appeal one and two are upheld, the result would be that Mr Sheen has not complied with section 282 and, as a result of section 289(5), the Commission “may not hear or otherwise deal with any dispute”.  However, Mr Sheen would not be barred from bringing a further claim arising out of the same injuries currently alleged in his Application.  Therefore, the determination, even if it was in the Appellant Employer’s favour, would not “finally dispose of the rights of the parties” as it would not act as a bar to the recovery of compensation in subsequent proceedings.  Those rights and entitlements have not been finally determined.  I therefore, reject the Appellant Employer’s argument that Arbitrator’s rulings in respect of whether Mr Sheen provided proper notice under section 282 are not rulings of an interlocutory nature.  In my opinion they clearly were interlocutory rulings.

1. In respect of the third ground of appeal, I do not accept that the Arbitrator’s rulings on this issue have finally disposed of the parties’ rights.  The Appellant Employer’s medical evidence will be placed before the AMS.  It may or may not be appropriate for further submissions to be made after the AMS issues the Medical Assessment Certificate.  However, as the Arbitrator’s orders currently stand, they are interlocutory in nature and cannot be appealed at this stage.

1. In respect of grounds of appeal three and four, the Arbitrator determined the date of injury in respect of the right knee to be 7 December 2005.  In that regard her finding was analogous, but not identical, to the finding made by the Arbitrator in Hawkins.  In the present matter the Arbitrator decided that the “date for the assessment of the cumulative effect of all injuries to the right knee should be the date of the last causative injury, agreed to be 7 December 2005” (Statement of Reasons for Decision (‘Reasons’) paragraph 46) (emphasis added).  As in Hawkins, that finding does not determine any rights.  It merely sets a reference date by which Mr Sheen’s rights are to be assessed and determined. 

1. In all the circumstances the orders and rulings the Appellant Employer seeks leave to appeal are preliminary orders and rulings of an interlocutory nature and therefore are not ‘decisions’ within the meaning of section 352(8) and leave to appeal is refused.

Other Matters

1. The fact that leave to appeal is refused does not mean the Appellant Employer is prevented from appealing any Certificate of Determination that may be issued after the MAC is issued.  Such further certificate will not be a preliminary ruling of an interlocutory nature and, if the interlocutory orders or rulings made by the Arbitrator were a “step in the procedure leading up to final judgment” (Crowley v Glissan (1905) 2 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal the Commission’s ultimate Certificate of Determination will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Bunning v Cross (1978) 141 CLR 54 at 82, Ramton v Cassin (1995) 38 NSWLR 88 and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543 at 549). In that event the Appellant Employer will be entitled to challenge all steps in the procedure leading up to the final orders.

1. It is not appropriate to make any further observation or comment about the matters to be referred to the AMS.

DECISION

1. Leave to appeal is refused.

COSTS

1. The Appellant Employer in the interests of StateCover is to pay the Respondent Worker’s costs of the appeal.  Allianz is to pay its own costs of the appeal.

Bill Roche

Deputy President  

31 May 2007

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

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