REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
REPORTED DECISION:Widdup v Hamilton (2006) 5 DDCR 85
CITATION:Widdup v Hamilton [2006] NSWWCCPD 258
APPLICANT: Wayne Anthony Widdup
RESPONDENT: Roy Hamilton
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC6781-05
DATE OF DECISION: 4 October 2006
SUBJECT MATTER OF QUESTION: Novel and complex; power to make a ‘declaration of liability’; section 60 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: President Justice Sheahan
HEARING:On the papers
REPRESENTATION: Applicant: Robb & Associates
Respondent: Sparke Helmore Solicitors
Intervener:WorkCover of NSW
ORDERS MADE: The answer to the question posed in this matter is “No, the Workers Compensation Commission does not have the power or jurisdiction to make a ‘declaration of liability’ in respect of proposed hospital and medical treatment pursuant to section 60 of the Workers Compensation Act1987”.
I order the Respondent to pay the Applicant’s costs of the referral of the Question of Law, and WorkCover NSW to pay its own costs.
BACKGROUND
On 19 August 2005 the Workers Compensation Commission (‘the Commission’) received a referral of an ‘Application for Leave to refer a Question of Law to the President’ (‘the Application’) from an arbitrator, on her own motion. The Question posed is:
“ Where liability is not in issue, does an Arbitrator have power to [make] a declaratory finding or determination that proposed specific medical treatment by a particular specialist for a compensable injury suffered by the Applicant, is reasonably necessary treatment within the meaning of section 60 of the Workers Compensation Act1987? ”
This question has arisen in the proceedings commenced by the Applicant, Mr Widdup who is claiming medical expenses for a three level discogram, pursuant to section 60 of the Workers Compensation Act1987 (‘the 1987 Act’), as a result of injury to his back, sustained on 23 February 2004, whilst shearing sheep during the course of his employment with the Respondent, Mr Hamilton.
ON THE PAPERS
The Applicant lodged submissions on the Question of Law on 6 September 2005, and the Respondent on 26 October 2005.
Pursuant to section 106 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), the WorkCover Authority of NSW (‘WorkCover’) has exercised its right to be heard, and lodged submissions on 26 September 2005.
The Arbitrator also prepared written statement of reasons for the referral dated 10 October 2005.
Having regard to section 354(6) of the 1998 Act, I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine the Question of Law, without holding a conference or formal hearing and that this is the appropriate course in the circumstances.
“NOVEL OR COMPLEX” THRESHOLD
Pursuant to section 351(3) of the 1998 Act, leave to refer a question of law is only to be granted if the question involves “a novel or complex question of law”. This is a threshold test that must be met before leave can be granted.
The Arbitrator in her…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Widdup v Hamilton [2006] NSWWCCPD 258
Case
[2006] NSWWCCPD 258
Decision Date
CaseChat Overview and Summary
In the case of Widdup v Hamilton, the applicant, Widdup, sought to determine whether the Workers Compensation Commission possessed the authority to issue a declaration of liability regarding forthcoming hospital and medical treatment under section 60 of the Workers Compensation Act 1987. The dispute arose from the applicant's work-related injury and his desire to secure a legal determination on his entitlement to future medical expenses. The question was referred to the Supreme Court of New South Wales for resolution.
The central legal issue before the court was whether the Workers Compensation Commission could make a declaration of liability for proposed medical treatment as requested by the applicant. This involved interpreting the statutory framework and determining the scope of the Commission's powers under section 60 of the Act. Specifically, the court had to examine whether the statutory language allowed for such declarations and if the Commission's jurisdiction extended to prospective treatment.
The court found that the Workers Compensation Commission lacked the power to make a declaration of liability concerning future hospital and medical treatment. The court's interpretation of the relevant statutory provisions indicated that the Commission's authority under section 60 was limited to addressing existing claims for compensation. The court concluded that the statutory language did not extend to prospective treatment, thereby precluding the Commission from making such declarations. Consequently, the court answered the referred question in the negative, affirming that the Commission did not have the requisite power or jurisdiction to make a declaration of liability for proposed treatment under section 60 of the Act.
As a result of the court's determination, the answer to the question posed by the applicant was that the Workers Compensation Commission did not have the power or jurisdiction to make a declaration of liability in respect of proposed hospital and medical treatment. Additionally, the court ordered that the respondent, Hamilton, pay the applicant's costs of the referral of the Question of Law, and WorkCover NSW was directed to bear its own costs.
Orders
Orders of the court
The answer to the question posed in this matter is “No, the Workers Compensation Commission does not have the power or jurisdiction to make a ‘declaration of liability’ in respect of proposed hospital and medical treatment pursuant to section 60 of the Workers Compensation Act 1987”.
I order the Respondent to pay the Applicant’s costs of the referral of the Question of Law, and WorkCover NSW to pay its own costs.