Whitehead v Kassagrove Pty Limited t/as Moorebank Hotel
[2007] NSWWCCPD 154
•12 July 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Whitehead v Kassagrove Pty Limited t/as Moorebank Hotel [2007] NSWWCCPD 154
APPELLANT: Robyn Whitehead
RESPONDENT: Kassagrove Pty Limited t/as Moorebank Hotel
INSURER:GIO Workers Compensation (NSW) Pty Limited
FILE NUMBER: WCC16528-06
DATE OF ARBITRATOR’S DECISION: 12 March 2007
DATE OF APPEAL DECISION: 12 July 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: Bryden’s Law Office
Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
This appeal concerns the determination of the correct ‘deemed date of injury’ under section 15 of the Workers Compensation Act 1987 (‘the 1987 Act’). Robyn Whitehead (‘the Appellant Worker/Ms Whitehead’) started work with Kassagrove Pty Limited t/as Moorebank Hotel (‘the Respondent Employer’) as a bottle shop assistant in 1996 working 6 to 12 hour shifts standing on a cement floor in the cool room.
Whilst at work in June 1999 Ms Whitehead noticed a painful burning sensation in the soles of her feet. She continued working but over time the pain increased resulting in her seeing her general practitioner, Dr Tyssen, in early 2000. He referred her to Dr Giblin, orthopaedic surgeon, who diagnosed her as suffering from bilateral plantar fasciitis due to the nature of her work. He injected her with steroid and local anaesthetic, which did not give her any significant permanent relief. At that time she had about one week off work and returned to her normal duties. Her pain returned and she ceased work on 22 May 2000 and returned on light duties in November 2000. She was first paid weekly compensation in respect of her condition on 22 May 2000.
On 9 March 2001 Ms Whitehead suffered a stroke and has not returned to work since that date.
By letter dated 12 September 2005 Ms Whitehead’s solicitor made a claim for lump sum compensation in respect of 15% permanent loss of efficient use of her left leg below the knee, 10% permanent loss of efficient use of her right leg below the knee and 5% permanent impairment of her back plus compensation for pain and suffering. The matter was not resolved and an Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 19 October 2006 seeking the lump sum compensation particularised in the letter of 12 September 2005.
By its Reply filed on 9 November 2006 the Respondent Employer stated the issues in dispute to be whether Ms Whitehead’s condition was a disease, the determination of the correct ‘deemed date of injury’ and Ms Whitehead’s entitlement to lump sum compensation.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 12 February 2007 when the issue was identified by the Arbitrator to be the determination of the correct ‘deemed date of injury’. The Appellant Worker submitted that the correct date was the date of incapacity, namely, 22 May 2000 (T7.53). The Respondent Employer submitted that the correct date was the date on which the claim for compensation was made, namely, “19 September 2005” (T5.29). The claim for compensation was made by letter dated 12 September 2005, not 19 September 2005.
In a reserved decision delivered on 12 March 2007 the Arbitrator determined the deemed date of injury to be “15 September 2005” [sic, 12 September 2005] (Statement of Reasons for Decision (‘Reasons’) paragraph 23). The Certificate of Determination, dated 12 March 2007, records the Arbitrator’s determination as follows:
“1.That this matter be remitted to the Registrar for referral of the Applicant to an Approved Medical Specialist in accordance with this Determination.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
By an ‘Appeal Against Decision of Arbitrator’ filed in the Commission on 5 April 2007 the Appellant Worker seeks leave to appeal that decision.
PRELIMINARY MATTERS
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.”
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
The issue in dispute in the appeal is whether the Arbitrator erred in determining the deemed date of injury to be “15 September 2005” [sic, 12 September 2005], instead of 22 May 2000.
An additional matter arises as to whether the appeal concerns a matter of an interlocutory nature and, if it is, whether leave to appeal can be granted.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
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)
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.
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.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 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)).”
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. Ms Whitehead’s Application claimed lump sum compensation totalling $33,000.00, as assessed under the Table of Disabilities applicable for injuries before 1 January 2002. If assessed under the WorkCover Guides for injuries after 31 December 2001 the maximum potential lump sum compensation is $10,000.00 in respect of 8% whole person impairment (see report Dr Giblin 15 August 2005) though it is unclear if she has claimed that sum in the alternative to the amounts claimed under the Table of Disabilities. Therefore, the quantum of compensation “at issue” on appeal exceeds the $5,000.00 threshold in section 352(2)(a). 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).
Therefore, the monetary thresholds in section 352(2) are satisfied.
Interlocutory Order
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 1987 Act the above amendments to section 352 “apply in respect of a claim for workers compensation made before the commencement of the amendments.”
The wording of Schedule 6 Part 18J Clause 5 quoted above is in clear and unambiguous language. The relevant amendments to section 352 apply “in respect of a claim for workers compensation made before the commencement of the amendments” (emphasis added). The term ‘claim’ is defined in section 4 of the 1998 Act to mean “a claim for compensation or work injury damages that a person has made or is entitled to make”. In the present matter the Appellant Worker made a claim for compensation on 12 September 2005. Therefore, it is my view that the amendments to section 352 made by the amending Act apply to the present appeal (see P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’).
The distinction between a ‘final’ and ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL an others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. His Honour added at 207:
“Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another.
The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.”
His Honour quoted from Gibbs J (as he then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444 where his Honour said that the established view in Australia was that what 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?”
The issue in Hawkins was identical to the issue in the present matter, namely, whether the deemed date of injury was the date of claim or the date of incapacity. The decision in Hawkins was that the determination made by the Arbitrator was a “preliminary or interim…determination of an interlocutory nature”. Exactly the same considerations apply in the present matter and I have reached the same conclusion. The Arbitrator has merely made a preliminary finding as to the deemed date of injury. That decision has not finally determined the parties’ rights or whether Ms Whitehead is entitled to compensation, as would arguably be the case if a determination had been made on an issue such as ‘injury’, ‘worker’ or ‘substantial contributing factor’. The determination is, in my view, properly characterised as a preliminary ruling of an interlocutory nature. The ruling does not determine the parties’ rights but merely the date of calculation of the quantum of compensation.
As a result the Arbitrator’s determination is not a ‘decision’ under section 352 of the 1998 Act and leave to appeal is refused.
Other Matters
The fact that leave to appeal is refused does not mean that Ms Whitehead is prevented from appealing any Certificate of Determination that may be issued after the final determination is made by the Arbitrator. Such further certificate will not be a preliminary ruling of an interlocutory nature and, if the interlocutory order or determination was 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 Ms Whitehead will be entitled to challenge all steps in the procedure that have resulted in the ultimate determination.
Should Ms Whitehead succeed in a subsequent section 352 appeal (after the final Certificate of Determination is issued) that will result in her having to attend a second Approved Medical Specialist (‘AMS’) for a further examination. If at all possible, that should be avoided as it is contrary to the objectives of the Commission as set out in section 367(1) of the 1998 Act and will result in further delay and unnecessary costs being incurred. In order to avoid the obvious inconvenience and waste of public funds that would result from a second AMS examination, I recommend (if it is the case that Ms Whitehead seeks compensation under the WorkCover Guides in the alternative to her current claim) that the current referral to the AMS be amended to request that the AMS assess Ms Whitehead’s losses under both the Table of Disabilities (deemed date of injury, 22 May 2000) and, in the alternative, under the post 31 December 2001 WorkCover Guides (deemed date of injury, 12 September 2005).
Attached to the Respondent Employer’s Notice of Opposition filed on 23 May 2007 is a letter from Moray and Agnew addressed to the Registrar of the Commission seeking a reconsideration of the Arbitrator’s costs order made on 12 March 2007. So far as I am aware, the Arbitrator has not dealt with that application and the matter should be remitted to him for his consideration.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
12 July 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.
ASSOCIATE
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