Weate v Racing NSW - [2020] NSWWCCPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Weate v Racing NSW [2020] NSWWCCPD 40
APPELLANT:	Geoffrey Wayne Weate
RESPONDENT:	Racing NSW
INSURER:	Racing NSW
FILE NUMBER:	A1-4244/19
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	11 December 2019
DATE OF APPEAL DECISION:	24 June 2020
SUBJECT MATTER OF DECISION:	The requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Grady, solicitor
Everingham Solomons Solicitors
Respondent:
Mr P Macken, solicitor
Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1. The appeal cannot be brought as it does not satisfy the requirements of s 352(3) of the 1998 Act. Additionally, it cannot be brought as it is an appeal against an interlocutory decision and leave is not granted pursuant to s 352(3A) of the 1998 Act. 2. The appeal is dismissed.

INTRODUCTION AND BACKGROUND

Geoffrey Wayne Weate (the appellant) was a jockey for about 37 years. It is uncontroversial that Racing NSW (the respondent) is to be regarded as his employer. In his long career as a jockey, the appellant was involved in multiple incidents when he suffered injury to various parts of his body. The appellant last worked as a jockey on 15 January 2008, when he suffered injury to his right shoulder together with a number of fractured ribs, in a fall from a horse in a barrier trial. Thereafter he was not cleared to resume racing. He has since undertaken some part-time cleaning work.[1]
[1] Appellant’s statement 20/12/2018, [3]–[22], Application for Assessment by an Approved Medical Specialist (Application). (The pages of this document are not numbered.)
The appellant pursued a claim for lump sum compensation in earlier proceedings (No. 4934/2009). Permanent losses of use and permanent impairments resulting from 16 injuries, ranging from 30 July 1982 to 15 January 2008, were assessed by Dr Bodel, an Approved Medical Specialist (AMS) in a Medical Assessment Certificate (MAC) dated 17 November 2009. In respect of the frank injury on 15 January 2008 (which is the injury pleaded in the current proceedings) Dr Bodel assessed 11 per cent whole person impairment, reduced to 7 per cent after a deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[2] The appellant was paid weekly compensation benefits until 26 December 2017, which then ceased as the appellant had received 260 weeks of weekly benefits since 1 October 2012.[3]
[2] Application.
[3] Application.
The appellant was under the care of Dr Sharp, an orthopaedic surgeon. On 19 April 2018 Dr Sharp sought approval from Racing NSW to cover the cost of surgery involving stabilisation of the right shoulder. Ultimately proceedings were commenced by the appellant seeking orders for payment of the cost of this surgery (No. 349/19). On 11 April 2019 consent orders were issued discontinuing those proceedings and noting the following agreement between the parties:
“Without prejudice and without admission of liability, pursuant to s 41A and s 50(2) of the Workplace Injury Management and Workers Compensation Act 1998, the respondent agrees to pay the costs of and incidental to right shoulder surgery proposed by nominated treating specialist Dr Robert Sharp.”[4]
[4] Application.
Dr Sharp carried out the proposed surgery on 22 May 2019. The doctor reported to the appellant’s solicitors on 1 July 2019 when he said that the appellant had not reached “maximum medical improvement”. The appellant’s solicitors wrote to Racing NSW on 17 July 2019 enclosing a copy of that report. The letter said that the respondent “ought treat this as a claim for resumption of weekly payments and reconsideration by the insurer in relation to resumption of such weekly payments based on the worker having not reached maximum medical improvement”[5] (underlining in original). The respondent’s solicitors wrote to those acting for the appellant on 23 August 2019. The respondent’s solicitor said there was “no dispute that maximum medical improvement is not ascertainable as at the date of Dr Sharp’s report dated 1 July 2019”. The letter said “as there is no dispute concerning this issue there is no requirement for any referral to the Workers Compensation Commission”.[6]
[5] Application.
[6] Response. (The pages of this document are not numbered.)
The current proceedings were commenced by the appellant on 20 August 2019. The relief sought is “Assessment as to whether the degree of permanent impairment is fully ascertainable”. The matter was listed for an arbitration hearing on 19 November 2019. Mr S Hickey appeared for the appellant and Mr Saul appeared for the respondent. There were no applications to take oral evidence. Counsel addressed and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 11 December 2019, accompanied by 12 pages of reasons.[7] The Certificate provided:
“1. The [appellant] has not made a claim for compensation such as to give the Commission jurisdiction to refer the matter to an Approved Medical Specialist for assessment as to whether the degree of permanent impairment is fully ascertainable because maximum medical improvement has not been reached.
2. The Application for Assessment by an Approved Medical Specialist is dismissed.”
[7] Weate v Racing NSW [2019] NSWWCC 397 (reasons).

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.”
The appellant submits the appeal can be dealt with on the papers. The respondent submits the appeal requires an oral hearing as it raises “complex and somewhat novel issues”, including an “issue as to the threshold requirement for an [a]ppeal”. The respondent does not identify what further submissions, if any, it seeks to make orally and why these have not been made in writing. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submission by the appellant 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.

THRESHOLD MATTERS

There is no dispute that the appeal was brought within 28 days of the decision appealed against, in compliance with s 352(4) of the 1998 Act. The respondent raises two threshold matters. The first is that the provisions regarding quantum in s 352(3) of the 1998 Act are not met. The second is that the decision appealed against is interlocutory, and the appeal cannot be brought other than with leave pursuant to s 352(3A) of the 1998 Act.[8]
[8] Respondent’s submissions, [2], [6].

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[9] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[10] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[11]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[12]
[9] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[10] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[11] [1996] HCA 140; 140 ALR 227.
[12] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[13] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[14]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[15]
[13] [2017] NSWWCCPD 5, [67].
[14] [2001] FCA 1833, [28].
[15] Raulston, [20].
In Northern NSW Local Health Network v Heggie[16] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[17]
[16] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[17] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[18] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[19]
[18] [2020] NSWCA 54 (Hill).
[19] Hill, [20].

LEGISLATION

The definitions of ‘claim’ and ‘compensation’ in s 4 of the 1998 Act read:
“claim means a claim for compensation or work injury damages that a person has made or is entitled to make.”
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
The definitions of a ‘worker with high needs’ and a ‘worker with highest needs’ in s 32A(1) of the Workers Compensation Act 1987 (the 1987 Act) provide:
“worker with high needs means a worker whose injury has resulted in permanent impairment and—
(a)     the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or
(b)     an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note. Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%,
and includes a worker with highest needs.”
“worker with highest needs means a worker whose injury has resulted in permanent impairment and—
(a)     the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b)     an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note. Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
Section 39 of the 1987 Act provides:
“39    Cessation of weekly payments after 5 years
(1)     Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2)     This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3)     For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
Section 319 of the 1998 Act provides:
“319 Definitions
In this Act—
approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist.
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a)     the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)     the worker’s fitness for employment,
(c)     the degree of permanent impairment of the worker as a result of an injury,
(d)     whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)     the nature and extent of loss of hearing suffered by a worker,
(f)      whether impairment is permanent,
(g)     whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 321(1) of the 1998 Act provides:
“321 Referral of medical dispute for assessment
(1) A medical dispute (other than a dispute concerning permanent impairment of an injured worker) 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.”
Clause 28C of Sch 8 of the Workers Compensation Regulation 2016 (the Regulations) provides:
“28C 5 year limit on weekly payments
Section 39 of the 1987 Act (as substituted by the 2012 amending Act) does not apply to an injured worker if the worker’s injury has resulted in permanent impairment and—
(a) an assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
(b) the insurer is satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed).”

THE ARBITRATOR’S REASONS

The Arbitrator set out the background to the claim,[20] essentially what is set out at [1] to [5] above. He referred to the respondent’s Response to the appellant’s Application, in which it stated that no claim had been made on the respondent.[21] The Arbitrator described the issues in dispute:
(a)    Has a claim for compensation of any kind been made such as to give the Commission jurisdiction in the matter?
(b)    Is there a valid claim to be sent to the AMS in response to the Application?
(c)    Does the [1998] Act allow for the claim to be referred to an AMS based on the applicant not having reached maximum medical improvement?[22]
[20] Reasons, [1]–[15].
[21] Reasons, [16].
[22] Reasons, [18].
The Arbitrator summarised the parties’ submissions. The appellant submitted that s 39 and the definitions in s 32A (relating to a worker with high or highest needs) were to be read together. The respondent conceded that as at 1 July 2019, maximum medical improvement was not ascertainable. The definitions applied if an assessment of permanent impairment was pending and had not been made because an AMS had declined to do so on the basis that maximum medical improvement had not been reached and the degree of permanent impairment was not fully ascertainable. The appellant submitted it was incumbent on one of the parties to refer the question to an AMS, as an AMS must determine that question. In the current case Dr Bodel, an AMS, had previously determined the appellant suffered seven per cent whole person impairment, therefore the worker was one whose injury had resulted in permanent impairment. The level of permanent impairment remained outstanding until an assessment of permanent impairment was made. The appellant submitted that, as a model litigant, it was incumbent on the respondent to invoke the requirements of s 32A. The appellant submitted there was a dispute within the meaning of s 319(g) regarding whether the degree of permanent impairment was fully ascertainable. Section 321(1) permitted either party to refer a dispute for assessment.[23]
[23] Reasons, [25]–[32].
The appellant submitted that his solicitors’ letter dated 17 July 2019 was a letter of claim, that he was a worker of high or highest needs and thus entitled to recommencement of weekly payments. The respondent should itself have referred the matter for assessment. The appellant submitted that, until assessed, he should be compensated on the basis he was a worker with highest needs. The appellant submitted it was not the intention of the legislation to discriminate against workers with high or highest needs while they are waiting to attain maximum medical improvement.[24]
[24] Reasons, [33]–[38].
The Arbitrator summarised the respondent’s submissions. It submitted that s 32A is a definition section, it does not create an entitlement to compensation. Section 39 does not refer to ‘maximum medical improvement’. Its purpose is to limit the period during which weekly compensation is payable, unless a worker is one with high needs (over 20 per cent) in accordance with the definition in s 32A(1). The respondent submitted the reference to an assessment being ‘pending’ in the relevant definitions was to a situation where a referral had been made, and an AMS had declined to assess permanent impairment as ‘maximum medical improvement’ had not been reached.[25]
[25] Reasons, [41]–[44].

The respondent submitted there must be a ‘medical dispute’ in respect of a claim for compensation (which involves monetary compensation) before a matter could be referred for assessment. The respondent submitted there was no dispute to be referred to an AMS, as it had conceded that maximum medical improvement had not been reached. If a claim was made, and an AMS then declined to make an assessment on the basis maximum medical improvement was not reached, the definitions in s 32A(1) would then became relevant. The claim was not brought under s 39, the purpose of that provision was to end the entitlement to weekly compensation, subject to the exclusion in the section. The respondent distinguished an arbitral decision that had been raised of Clarke v State of New South Wales (Greystanes Disability Services),[26] on its facts.[27]
[26] [2019] NSWWCC 11 (Clarke).
[27] Reasons, [45]–[49].
The respondent drew a distinction between ss 38 and 59A of the 1987 Act, which refer to a worker with high needs, and s 39, which does not.[28] The respondent submits s 319 of the 1998 Act requires a ‘medical dispute’ (which it denies exists), and that the dispute is on or in connection with a claim (which it denies exists). The respondent submitted that, on the appellant’s argument, almost every worker could, immediately after surgery, obtain evidence that maximum medical improvement was not reached, get an AMS to make a finding to the same effect, and be assessed as a worker with high or highest needs.[29]
[28] Reasons, [51].
[29] Reasons, [49]–[52].
The Arbitrator initially dealt with whether there was a claim for compensation. He referred to the definition of a ‘claim’ in s 4 of the 1998 Act, noting that ‘compensation’ meant “any monetary benefit” under the workers compensation legislation. He noted the appellant’s case that the letter dated 17 July 2019 was a claim for compensation. He referred to the definitions of a worker with high or highest needs in s 32A(1) of the 1987 Act. He set out the provisions of s 39 of the 1987 Act. He noted the appellant’s argument that, as the respondent did not resume weekly payments in response to the letter dated 17 July 2019, there was a ‘medical dispute’ in connection with a claim, regarding whether the degree of permanent impairment was fully ascertainable.[30]
[30] Reasons, [53]–[62].
The Arbitrator noted that the respondent did not dispute that, as at 1 July 2019, the appellant had not reached maximum medical improvement. The Arbitrator said it was open to the appellant, after receiving Dr Sharp’s report dated 1 July 2019, to wait for a time consistent with Dr Sharp considering that maximum medical improvement was reached, obtain an assessment from him, and if appropriate to make a claim for permanent impairment compensation. If that claim was disputed the appellant could have pursued a claim, sought a referral to an AMS, and if an AMS declined to assess permanent impairment on the basis of maximum medical improvement have obtained the benefit of subcl (b) in the definitions of a worker of high or highest needs. This the worker did not do. The Arbitrator referred to the respondent’s submission that the approach adopted by the worker would entitle a worker with the most minor of injuries to obtain weekly compensation to which he or she would not otherwise be entitled. He said this submission had “merit”.[31]
[31] Reasons, [63]–[64].
The Arbitrator said the letter dated 17 July 2019 was not a claim for compensation. It did not fall within the definitions of a ‘claim’ and ‘compensation’. He said the letter was framed in terms of the definitions in s 32A(1) of a worker with high or highest needs, with reference to s 39. Section 39(2) of the 1987 Act exempts from the application of s 39 a worker whose injury results in permanent impairment if the impairment is more than 20 per cent. The appellant did not satisfy the second of these conditions. Section 39 does not refer to a worker with high or highest needs. It does not refer to reaching maximum medical improvement. The purpose of s 39 was to limit the weekly benefits payable, subject to the condition in subs 39(2).[32]
[32] Reasons, [65]–[67].
The Arbitrator said that even if the appellant had been referred to an AMS, who assessed that maximum medical improvement had not been reached, this would not entitle the appellant to weekly compensation – he still would not be a worker whose injury resulted in permanent impairment of more than 20 per cent. The Arbitrator said that s 38A of the 1987 Act made special provision for workers with highest needs. This did not change the fact that s 39(2) needed to be satisfied if weekly payments were to be made outside an aggregate period of 260 weeks. The Arbitrator said that the letter dated 17 July 2019 was not a claim for compensation.[33]
[33] Reasons, [69]–[71].
The Arbitrator additionally said there was not a ‘medical dispute’. Dr Sharp said that maximum medical improvement was not reached as at 1 July 2019. The respondent had no other medical evidence and did not dispute this.[34] The Arbitrator distinguished the arbitral decision of Clarke, raised before him. That case involved a dispute about whether a worker had permanent impairment greater than 20 or 30 percent, which would exempt him from s 39(1). The current matter involved an issue regarding whether the degree of permanent impairment was fully ascertainable.[35] The Arbitrator dismissed the appellant’s application.[36]
[34] Reasons, [72]–[75].
[35] Reasons, [76]–[78].
[36] Reasons, [79].

GROUND OF APPEAL

The appellant raises a single ground of appeal. The way in which the ground is described at [2.8] of the appellant’s submissions does not make sense. Doing as well as I can with what is said at [2.8] and [2.9] of the appellant’s submissions, the ground appears to be:
The Arbitrator made a mixed error of fact and law in finding that the appellant failed to make a claim for compensation and that there was no medical dispute.

PROCEDURAL MATTERS

The amount of compensation at issue on the appeal

It is necessary, at the outset, to deal with what the respondent describes as “Procedural matters” in its submissions. The first of these goes to whether the amount at issue on the appeal satisfies the requirements of s 352(3) of the 1998 Act. That provision provides:
“(3) There is no appeal under this section 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.”

The parties’ submissions

The appellant refers to his letter dated 17 July 2019, which he submits claimed weekly payments from the date of surgery (22 May 2019) to date and continuing. He submits the relevant rate was “the transitional rate being $1,073.20”, so the quantum “substantially exceeds $5,000”.[37] The respondent refers to the Application, which it submits sought only referral to an AMS, and did not seek the payment of any compensation benefits. It submits there was no compensation at issue in the proceedings.[38]
[37] Appellant’s submissions, [2.2].
[38] Respondent’s submissions, [2].

Consideration

In Grimson v Integral Energy[39] Fleming DP dealt with the satisfaction of s 352(3) of the 1998 Act. The Deputy President said:
“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 particularised by the Applicant.”[40] (emphasis in original)
[39] [2003] NSWWCCPD 29 (Grimson).
[40] Grimson, [30].
In NSW Department of Education and Communities v Colefax[41] Keating P, referred to the above passage from Grimson and said:
“22. The appellant’s submission that the issues the subject of this appeal could potentially involve monetary amounts greater than $5,000 because Mrs Colefax has not been able to derive her pre-injury income of approximately $900 per week as an ESL teacher is rejected. The application before the Commission does not involve a dispute as to the worker’s entitlement to weekly compensation and there has been no determination made by the Commission on that issue.
23. In circumstances where there is no monetary award made by the Senior Arbitrator the threshold question is to be determined by reference to the amount of the claim as particularised by the applicant: Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]. For the reasons that I have indicated in this case there was no amount of compensation claimed in the Application, hence there is no amount of compensation ‘at issue’ on the appeal and the thresholds in s 352 of the 1998 Act have not been met.
24. This reasoning has been consistently applied in the Commission in: Sullivan v Illawarra Newspapers Holdings Pty Ltd [2006] NSWWCCPD 135; Hunter Area Health Service v Gilbey [2006] NSWWCCPD 136; Department of Community Services v Hickey [2006] NSWWCCPD 320, and Railcorp v Lam Luu [2010] NSWWCCPD 44.” (emphasis added)
[41] [2012] NSWWCCPD 63.
In Fletchers International Exports Pty Limited v Regan Fleming DP said:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson [v Fletcher International Exports Pty Limited [2002] NSWWCCPD 5]), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSWWCCPD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCCPD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34) do not meet this threshold criterion. 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] NSWWCCPD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson[2003] NSWWCCPD 21)).” [42]
[42] [2004] NSWWCCPD 7 (Regan), [27].
Deputy President Roche, in O’Callaghan v Energy World Corporation Ltd,[43] applied the reasoning in Regan in a Presidential appeal from a refusal by an arbitrator to set aside consent orders for the payment of lump sum compensation. The purpose of the application was to permit a medical appeal pursuant to s 327 of the 1998 Act. The Deputy President said that the worker “has claimed no ‘compensation’ in the present proceedings, and given no notice of any intention to claim ‘compensation’. It follows that no ‘compensation is at issue on appeal’.”
[43] [2016] NSWWCCPD 1.
I applied the above reasoning in Abu-Ali v Martin-Brower Australia Pty Ltd,[44] on an application where a worker sought referral of a matter to an AMS for assessment of permanent impairment resulting from a secondary psychological injury, with a view to being assessed as a worker with high or highest needs. I concluded that the threshold in s 352(3) of the 1998 Act was not satisfied in those circumstances.
[44] [2017] NSWWCCPD 25, [18]–[22].
In Anderson v Secretary, Department of Education[45] Wood DP dealt with an appeal involving an application for referral to an AMS for the purpose of “potential claims pursuant to ss 39 and 60AA of the 1987 Act. No particulars of a weekly payment claim or a s 60AA claim were provided in the Application.” Applying the reasoning in the above decisions, the Deputy President concluded that the threshold in s 352(3) of the 1998 Act was not satisfied.[46]
[45] [2018] NSWWCCPD 32 (Anderson).
[46] Anderson, [79]–[86].
In the current matter the only relief sought in the Application was “[a]ssessment as to whether the degree of permanent impairment is fully ascertainable”. The Application did not seek an award for the payment of any compensation.
The appellant’s submissions argue that a claim for weekly payments was contained in his letter dated 17 July 2019. That letter enclosed a copy of Dr Sharp’s report dated 1 July 2019. That report referred to the surgery on 22 May 2019 and said the appellant had not reached maximum medical improvement. It said the answer to when he would do so was “probably two to three months, although that could be longer”. The letter dated 17 July 2019 is described at [4] above. It requested “reconsideration and commencement of weeklies per force of section 32A of the Workers Compensation Act 1987 definition of injured worker with high and highest needs as in forms [sic] the operation of section 39 of the Workers Compensation Act 1987.”
The letter did not specify the rates or periods during which any weekly compensation was sought. The appellant was last paid weekly compensation as at 26 December 2017, about 18 months prior to the letter. It should be noted that the note to subs (2) of s 39 draws attention to the fact that payments outside the first 260 weeks are “still subject to section 38”. Even if the matter is approached on the basis the letter constituted a claim, which the relief sought in the Application had the capacity to affect, there was no specific claim made on the respondent.
If the appellant’s application succeeded, and the Arbitrator referred the matter to an AMS to assess “whether the degree of permanent impairment is fully ascertainable”, this would not have led to an award for compensation. Subsection (2) of s 39 applies in specific circumstances, where an injured worker’s “degree of permanent impairment resulting from the injury is more than 20%”. The application was not for assessment of the degree of permanent impairment, and the appellant had made no such claim, he not (on the evidence before the Commission) having an assessment of permanent impairment since the earlier MAC dated 17 November 2009.
It follows from the above that the threshold in s 352(3) of the 1998 Act is not satisfied. There is no amount of compensation at issue on the appeal. It follows that the appeal cannot be made as it does not satisfy the requirements of s 352(3) of the 1998 Act.

Interlocutory decision

The above is sufficient to dispose of the appeal. I will deal with the other preliminary issue raised by the respondent, whether the appeal is brought against an interlocutory decision. Section 352(3A) of the 1998 Act provides:
“There is no appeal under this 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.”

The parties’ submissions

The appellant simply submits “[t]here are no interlocutory issues”.[47] The respondent submits the Arbitrator’s decision did not finally determine the rights of the parties. It submits the Application did not seek the payment of any compensation benefits. It remains open to the appellant to submit a permanent impairment claim (if available) and to have it referred to an AMS. The respondent submits “the decision is interlocutory”.[48] The appellant has not put on any further submissions in reply, dealing with this argument by the respondent.
[47] Appellant’s submissions, [7].
[48] Respondent’s submissions, [6].

Consideration

In Licul v Corney Gibbs J said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, 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?”[49]
[49] [1976] HCA 6; 180 CLR 213, 225.
The above passage has been frequently applied in the Commission in matters where s 352(3A) is raised as an issue.[50]
[50] See for example P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87.
The only relief the appellant sought in the Application was referral to an AMS, with a view to obtaining a MAC dealing with whether he had reached maximum medical improvement. Whatever entitlements he has to compensation, which will depend on what the evidence ultimately supports, remain open. The decision under appeal did not finally dispose of the rights of the parties. I accept the respondent’s submission that the decision is an interlocutory one.
It follows that leave would be required for the appeal to be brought. This involves a consideration of whether determining the appeal is “necessary or desirable for the proper and effective determination of the dispute”. In Collingridge v IAMA Agribusiness Pty Ltd Roche DP said this required “a consideration of the nature of the dispute and the orders sought on appeal”.[51]
[51] [2011] NSWWCCPD 31; 10 DDCR 174, [17].
Dr Sharp, on 1 July 2019, said that maximum medical improvement should be reached in two to three months, it could be longer. There is not more recent medical evidence to contradict that view. On the evidence, it is likely that the appellant’s condition has been ready for assessment for some time. If, when assessed, there is an available claim for further permanent impairment compensation, the appellant can pursue it. If his permanent impairment exceeds 20 per cent, he will be entitled to whatever rights flow from that, on the basis of s 39(2) of the 1987 Act, or any other provisions of the legislation relevant to a worker with high (or highest) needs that may have application. I cannot see that a decision from an AMS regarding whether the degree of permanent impairment is fully ascertainable will assist one way or the other. As the Arbitrator correctly observed, if an AMS declined to make an assessment on the basis that the degree of permanent impairment is not fully ascertainable, that would not entitle the [appellant] to weekly benefits pursuant to s 39.[52]
[52] Reasons, [74].
I note that the appellant, in its submissions on the appeal, sought to raise cl 28C of Sch 8 of the Workers Compensation Regulation 2016 (see [19] above). The appellant submits the Arbitrator failed to consider that clause.[53] It is true the Arbitrator failed to deal with cl 28C. The explanation for this is to be found in the submission by the respondent on appeal, that no submissions dealing with that clause were made at the arbitration hearing. The respondent submits that, the matter not having been raised at first instance, the appellant should not be allowed to raise it for the first time on appeal.[54] I have read the transcript and accept that cl 28C was not raised at first instance. I accept that the appellant should not be permitted to raise it on appeal in the circumstances.[55] It follows that even if cl 28C could have been relevant to the issue, it was not a matter that could have been dealt with on this appeal.
[53] Appellant’s submissions, [15].
[54] Respondent’s submissions, [9].
[55] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7], Coulton v Holcombe [1986] HCA 33; 162 CLR 1, [15].
It is not necessary or desirable for the proper and effective determination of the dispute that leave be granted pursuant to s 352(3A) of the 1998 Act. It follows that, even if s 352(3) had been satisfied, the appeal could not be brought in any event, due to the application of s 352(3A).

CONCLUSION

The appeal cannot be brought as it does not satisfy the requirements of s 352(3) of the 1998 Act. Additionally, it cannot be brought as it is an appeal against an interlocutory decision and leave is not granted pursuant to s 352(3A) of the 1998 Act.

DECISION

The appeal is dismissed.

Michael Snell

DEPUTY PRESIDENT

24 June 2020