Woodbury v Peter Miles & Annie Miles

[2007] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Woodbury v Peter Miles & Annie Miles [2007] NSWWCCPD 58

APPELLANT:  Evan John Woodbury 

RESPONDENT:  Peter Miles & Annie Miles 

INSURER:Employers Mutual Indemnity Workers Compensation (NSW) Limited

FILE NUMBER:  WCC5491-06 (Number 1)

DATE OF REGISTRAR’S DECISION:             21 September 2006

DATE OF APPEAL DECISION:  21 February 2007

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s Assessment of Costs; two separate assessments in the same matter; various Items in Schedule 6 of the Workers Compensation Regulation 2003, and disbursements.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      McCabe Partners Lawyers

Respondent:   Moray & Agnew Solicitors

ORDERS MADE ON APPEAL:  1.        The Delegate’s determination of

$7897.73 is set aside and the sum of $8106.73 substituted in lieu thereof.

2.No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 18 October 2006 Evan John Woodbury (‘the Appellant’) filed an ‘Appeal Against a Cost Determination’ made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 21 September 2006. The Respondent to the appeal is Peter Miles and Annie Miles (‘the Respondent’). On 9 November 2006 the Respondent filed a ‘Notice of Opposition’ to the appeal.

1. The Appellant commenced proceedings in the Commission on 5 December 2003 in matter number 19007-2003 seeking permanent impairment/pain and suffering compensation. On 11 February 2004 the Appellant filed a second application, being matter number 2824-2004 wherein he sought weekly benefits compensation.

1. The matters were heard together when the parties attended a conciliation/arbitration hearing on 17 May 2005. On 16 June 2005 a ‘Certificate of Determination’ was issued with respect to matter numbers “WCC19007-03 and 2824-04.” That Certificate included an order: “That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. On 6 April 2006, the parties having failed to agree on the costs payable, the Appellant’s solicitor filed an ‘Application for Assessment of Costs’ in respect of each Application. The ‘Bill of Costs’ in relation to matter number 19007-03 (the permanent impairment claim) was dated 17 May 2005. The ‘Bill of Costs’ with respect to matter number 2824-04 (the weekly payments claim) was dated 3 April 2006.

1. The Respondent filed submissions in relation to both matters on 5 May 2006.

1. The Registrar delegated the Assessment of Costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 21 September 2006. The determination in matter number 19007-03 was identified by the Delegate as: “Matter number 5491-2006 (1).” The ‘Certificate of Determination’ stated as follows:

“1.Pursuant to the issue of an ‘Amended Certificate of Determination’ on 16 September 2005 the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.

2.The Applicant’s costs of the proceedings are assessed at $7,443.98 inclusive of GST.

3.The Applicant’s costs of the assessment are assessed at $453.75 inclusive of GST.

4.The Respondent is to pay the amount of $7,897.73 inclusive of GST to the Applicant if those costs have not already been paid.”

1. The relevant aspects of the Delegate’s Statement of Reasons for his decision in matter number 5491-2006(1) will be dealt with below. I will separately assess the Appellant’s appeal in relation to matter number 2824-04 being the Delegate’s assessment in matter number 5491-06(2).

ON THE PAPERS REVIEW

1. No submissions have been made by the Appellant on this issue. The Respondent submits that the matter is suitable for a determination ‘on the papers’.

1. I have before me the Commission files in both the substantive matter and the cost dispute together with the parties’ submissions on appeal.

1. Having carefully read this material, I am satisfied that I have sufficient information to proceed ‘on the papers’ in accordance with the provisions of section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and Practice Direction No. 1, and that this is the appropriate course in the circumstances.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The Appellant submits that the Delegate made errors of law in his interpretation of clauses 82 and 84 of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’), and in his assessment of costs by reference to the Compensation Costs Table (‘the Table’) set out in Schedule 6 of the 2003 Regulation.

1. The following Items have been identified as being in dispute,  each of which I will deal with in turn:

Professional Costs

Item No.                Amount Claimed                  Amount Allowed             Difference                 

Item 2.05               $100.00  $Nil  $100.00

Item 2.06               $550.00  $Nil  $550.00

Item 4.07               $200.00  $Nil  $200.00

Item 4.12               $760.00  $380.00  $190.00
  ($570.00 claimed on appeal)

Item 4.10               $1650.00  $687.50  $962.50

Disbursements

Private Investigator’s report  $1465.47

Professional Costs

Item 2.05

1. This is described in column 2 of the Table as “briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee).”

1. The Delegate disallowed this claim stating as follows:

“The principal issue in dispute is the Applicant’s claim for a Private Investigator’s Report.

The Application to Resolve a Dispute was lodged with the Workers Compensation Commission on 1 December 2005 [sic] claiming permanent impairment and pain and suffering only. The ‘Reply’ filed by the Respondent put into issue: -

(a)   The nature and extent of the injury.

(b)   The extent of Whole Person Impairment.

(c) Section 67 entitlement.

The Factual Liability and Summary Report consists of a summary by the Investigator together with a Statement by the Applicant and copies of Medical Reports, Business Name Search and photographs. Many of these documents are not relevant to the issues in dispute and it is unreasonable for an Investigator to be engaged to obtain a Statement from the Applicant.

I am of the view that the Applicant’s Solicitor could have obtained the information which is essentially evidence as to the Applicant’s injury and disability at the time of taking initial instructions and in those circumstances, the claim for Item 4.05[sic] together with the disbursement for the Factual and Liability Summary Report is disallowed. See Berger v Moree Plains Shire Council [2005] NSWWCCPD 152”.

1. On appeal, the Respondent submits that “… The information contained in the factual liability and summary report was not relevant to the issues in dispute and so it was unreasonable for an investigator to be engaged.”

1. The Appellant disagrees and had provided detailed submissions, many of which are not relevant to the issue at hand. The thrust of the Appellant’s submission is that no claim for a factual investigation report and for the briefing of a factual investigator was made in matter number 2824-04 (the weekly payments claim) and, as a consequence, was not the subject of appeal in matter number 5491-2006(2).

1. The Appellant submits that there were real issues in relation to liability, and that a Schedule of Earnings was required for the purposes of determination of the weekly payment dispute.

1. It is clear from the Arbitrator’s Certificate of Determination that the matter was not at all straight forward. The Arbitrator listed the extensive documentary material before him which included “Factual and Liability Summary Report of St George Registration and Investigation Services dated 8.7.03” and an “Applicant’s Schedule of Earnings dated 4.2.03.” The Arbitrator noted that: “This matter has had a long history.” He noted that the Appellant had been before two separate Approved Medical Specialists, one of which was the subject of appeal as a consequence of which a further Medical Assessment Certificate was issued. There was clearly a dispute as to whether the Appellant had injured his right leg in the accident the subject of his claim on 4 January 2002. The Arbitrator noted that “The Applicant and the Respondent agreed that the Applicant injured his thoracic spine in the accident on 4 January 2002.” The Arbitrator’s determination as to any injury to the right leg would have impacted on any claim for benefits pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. The Arbitrator concluded that “In this matter, there is voluminous written material which I have summarised above. I have also summarised the submissions of the Applicant and the Respondent. Those submissions have been recorded.”

1. An Amended Certificate of Determination was issued by the Arbitrator also on 16 September 2005 dealing with the issue of dependency in relation to the claim for weekly benefits.

1. The Appellant’s assertion is correct insofar as no claim was made for Item 2.05 in the ‘Bill of Costs’ dated 3 April 2006 relative to matter number 2824-04.

1. Thus the issue for me to consider is, given all of the circumstances of this claim, whether the claim under Item 2.05 is reasonable.

1. I have considered the factual and liability summary report from St George Registration and Investigation Services Pty Limited (‘St George’) dated 8 July 2003. Briefly, it contains a statement from the Appellant and his wife, copies of medical reports, photographs and a business name search.

1. It is now well established that Item 2.05 does not permit a claim for briefing a factual investigator to obtain witness statements, which includes a statement from the worker (see Berger v Moree Plains Shire Council [2005] NSWWCCPD 152 (‘Berger’).

1. Whilst the Delegate’s summary of the issues in dispute relative to the claim for lump sum compensation was somewhat scant, his summary of the contents of the St George report was accurate, and the material contained therein was not, in my view, particularly relevant to the issues in dispute.

1. In Wilson v PJ & BM Kennedy [2006] NSWWCCPD 345 (‘Wilson’) I allowed the costs claimed in Item 2.05 on the basis that the investigator’s report included not only a business name search but also a Schedule of Earnings, relevant to a claim for weekly payments.

1. I have considered the Memorandum of Fees submitted by St George. No reference is made in that to the preparation of a Schedule of Earnings, nor is reference made to such a document in the Factual and Liability Summary Report.

1. A claim under Item 2.05, if a Schedule of Earnings had indeed been prepared by the Investigator, might properly have been brought in the Appellant’s ‘Bill of Costs’ relative to matter number 2824-04, the weekly payments claim. However, as a I have said, no such work appears to have been undertaken by the Investigator.

1. Accordingly, I am not persuaded that the Appellant has demonstrated any error in the Delegate’s determination in relation to this Item.

1. The Delegate’s disallowance of this claim is confirmed.

Item 2.06

1. This is described in the Table as “requesting a review of the claim from the insurer, prior to referral of the matter to the Commission.”

1. The Appellant claims $550.00 for requesting such a review.

1. The Delegate disallowed this Item stating that:

“The Applicant’s solicitor has made detailed Submissions as to why the Applicant would be entitled to two hours but has failed to provide details of the attendances which constitute the review by either letter or phone or some other means of communication. As no evidence is submitted of any request for review the amount for this Item is disallowed.”

1. In submissions on appeal, the Respondent states:

“The letter dated 17 September 2003 annexed to the Appellant’s submissions does not request a review. Rather, the letter simply notifies the Respondent of the claim for lump sum compensation. In the absence of any evidence of a request for a review, no amount should be allowed.”

1. I have considered the letter dated 17 September 2003 addressed to the Respondent’s insurer. It is quite clearly a letter setting out the details of the Appellant’s claim for lump sum benefits and makes an “offer”. The letter goes on to seek various particulars in relation to time, date and place of injury etc and dates of payments of compensation. It also requests that the insurer provide a copy of any claim for compensation and copies of any medical reports held by the insurer.

1. The insurer replied on 25 September 2003 disputing the claim essentially on the basis that the assessments provided did not comply with the AMA Guide. The letter also confirmed that “… Weekly benefits and reasonably necessary section 60 expenses continue to be paid.”

1. In submissions on appeal, the Appellant states:

“If the request for a review was disallowed, then the Applicant would not have been entitled to commence proceedings. You have to put the Respondent on notice of the Applicant’s claim and serve medical reports in support of the claim and then wait two months until the Applicant is entitled to commence proceedings. If this did not occur, then the Respondent would have objected to the matter proceeding and would have sought the Applicant to discontinue proceedings.”

1. As the Delegate rightly noted, the Appellant’s solicitor made detailed submissions in the ‘Bill of Costs’ dated 17 May 2005 as to the ‘principles’ upon which he claimed entitlement to this Item, but failed to identify any actual activity undertaken. The Appellant’s submissions on appeal do not add anything of substance to this claim other than a statement as to the procedural requirements for a worker to duly make a claim on the employer and/or insurer.

1. Nothing in the Appellant’s submissions demonstrates that a review was sought, particularly in circumstances where there were clear defects in the Appellant’s medical assessments and further, where the insurer clearly indicated that weekly benefits and associated medical expenses were continuing to be paid.

1. In all of the circumstances, I confirm the Delegate’s decision to disallow this claim.

Item 4.07

1. This is described in the Table as “applying to refer a matter to an approved medical specialist including costs associated with agreeing on the approved medical specialist and review of the report by the approved medical specialist.”

1. The Appellant claimed $200.00 in respect of this Item. It was disallowed by the Delegate who stated as follows:

“The Respondent objects to this Item as the referral to the ‘Approved Medical Specialist’ was made at a Teleconference and in accordance with Berger … the claim is disallowed.”

1. In submissions on appeal, the Appellant does not appear to dispute that the referral was made at a Teleconference. The Appellant submits that the Delegate has “not provided adequate reasons and this constitutes an Error of Law …”

1. The Delegate’s determination was in accordance with the decision in Berger, a decision with which the Appellant’s solicitor should be familiar. His reasons were adequate, and I can see no error in his determination to disallow this Item.

Item 4.12

1. This Item is described in the Table as: “Reporting to the client on the outcome of a conference or arbitration ...” The maximum total at the relevant time for this activity was $190.00. As ADP Handley noted in Harvey v JJC Group Pty Limited [2006] NSWWCCPD 329 at [27]:

“... There is an exception to the general principle in relation to the column 4 maximum total in respect of Item 4.12, following Fuentes (Orellana Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWC 16) so that the maximum of $190.00 may be allowed in respect of each conference or conciliation/arbitration.”

1. The Appellant’s solicitor claimed $760.00 for reporting to the Appellant following conferences on 15 April 2004, 5 May 2005 and twice on 17 May 2005.

1. The Delegate allowed for two reports, once following the “first conference”, and once following the “conciliation/arbitration”. The Delegate disallowed a claim following the “second conference” stating that: “The Applicant is only entitled to claim the maximum for this Item to report on all Teleconferences. (See Orella-Fuentes v Standard Knitting Mills Pty Limited [2003] NSWCA 146)”.

1. On appeal, the Appellant claims $190.00 in respect of reporting on 5 May 2005 and twice on 17 May 2005, a total of $570.00. I have examined the ‘Bill of Costs’ and note that only four claims were made under this Item. The Delegate allowed two such that only ‘two reports’ remain in dispute.

1. This Item is recoverable after both a conference and arbitration, but not in respect of the conciliation conference and arbitration held on the same day. (See McManus v Gosford City Council [2004] NSWWCCPD 61.) Thus the only Item that appears to be in dispute is reporting following a teleconference on 26 April 2005 where the Appellant’s solicitor maintains he reported to his client on 5 May 2005. There seems to be no dispute between the parties that a teleconference was held on 26 April 2005 but as the Delegate noted, there was a dispute as to the amount of time involved at that conference. In these circumstances, I consider that it is appropriate that the Appellant’s solicitor be allowed this Item for reporting to his client on 5 May 2005. The claim for reporting twice on 17 May 2005 is disallowed.

1. Accordingly, I would allow a further $190.00 pursuant to this Item.

Item 4.01

1. This Item is described in the Table as: “Attending and participating in a conference with an Arbitrator where the Arbitrator determines that the matter is complex and the matter proceeds directly to arbitration.” The maximum allowable is $1500.00.

1. The Appellant’s solicitor claimed $1650.00 (inclusive of GST) in respect of this Item. The Delegate allowed $687.50 stating as follows:

“The aggregation of the maximum time for the Teleconferences and the Conciliation/Arbitration being 1 ¼ hours entitles the Applicant to a maximum of 2 ¾ hours. As there are no submissions by the Respondent I allow 2 ¾ hours for the conciliation/arbitration.

1. In submissions on appeal, the Appellant’s solicitor states that the matter was certified as being complex, and was listed for hearing in Sydney. The Appellant’s solicitor states:

“… If a country solicitor has to travel a substantial distance to attend a conciliation/arbitration in Sydney, therefore the Applicant is entitled to the full costs under Item 4.10 of $1650.00. The Applicant’s solicitor spent 8 hours in travelling and then attending the hearing.”

1. Allowances for travel for the purposes of attending proceedings before the Commission are made in Item 10.02. Time spent travelling is not claimable under Item 4.10. The Appellant claims that the Arbitration was listed for two and a half hours. The Delegate allowed two and three quarter hours. I can see no error in the Delegate’s determination in this regard, and his allowance under this Item is confirmed.

Disbursements

1. The Appellant claimed the sum of $1465.47 for the St George Investigation Report. This disbursement was disallowed by the Delegate, and his reasons therefore have been discussed to some extent under Item 2.05.

1. The Appellant submits that the St George Report was both reasonable in amount and reasonably incurred.

1. Fees for investigator’s reports are not regulated by Part 19 of the 2003 Regulation in accordance with clause 82 of that Regulation. Clauses 105 and 106 of that Regulation apply a test of whether the disbursement was reasonably incurred or was reasonable in amount.

1. As I said earlier, I have examined the St George Report in some detail together with the memorandum of fees. In my view, the activities undertaken by the investigator were, as the Delegate noted, not relevant to the issues in dispute. As the Delegate pointed out, “… The Applicant’s solicitor could have obtained the information which is essentially evidence as the Applicant’s injury and disability at the time of taking initial instructions …”

1. I concur with the Delegate’s views in this particular case, and his disallowance of this disbursement is confirmed.

SUMMARY

1. The Delegate’s determination is amended in accordance with my reasons stated above. The only additional Item allowed is a further $190.00 pursuant to Item 4.12.

1. The Delegate’s determination should be increased by $209.00 (inclusive of GST).

DECISION

1. The Delegate’s determination of $7897.73 inclusive of GST is set aside and the sum of $8106.73 inclusive of GST substituted in lieu thereof.

COSTS

1. The Appellant’s solicitor has been largely unsuccessful in this appeal. In these circumstances, I make no order as to costs of the appeal.

Deborah Moore

Acting Deputy President

21 February 2006

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

ASSOCIATE