Woods v L & R Heritage Roof Restoration Pty Ltd - [2012] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:		Woods v L & R Heritage Roof Restoration Pty Ltd [2012] NSWWCCPD 12
APPLICANT:		Allan Woods
RESPONDENT:		L & R Heritage Roof Restoration Pty Ltd
INSURER:		Cambridge Integrated Services Pty Ltd t/as Xchanging
INTERVENER:		WorkCover Authority of New South Wales
FILE NUMBER:		7335/11
DATE OF HEARING:		27 February 2012
DATE OF DECISION:		12 March 2012
QUESTION OF LAW:		Whether a commutation agreement approved by the Compensation Court of NSW is liable to be challenged, appealed against, reviewed, quashed or called into question by the Workers Compensation Commission
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		Oral
REPRESENTATION:		Applicant:	Mr R Goodridge, instructed by Firths the Compensation Lawyers
Respondent:	Mr P Stockley, instructed by Goldbergs Lawyers
Intervener:	Mr R Stanton, instructed by the WorkerCover Authority of NSW
ORDERS MADE:		1. Leave to refer a question of law under s 351 of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. I make no order as to costs.

BACKGROUND TO THE REFERRAL OF THE QUESTION

The applicant, Allan Woods, was employed as a restoration labourer with the respondent, L & R Heritage Roof Restoration Pty Ltd (the employer).
On 18 March 1999, while in the course of his employment with the employer, Mr Woods fell from the roof of a two-storey residence. He suffered a blow to the head and numerous fractures of his thoracic spine.
On 31 March 1999, Mr Woods alleged he injured his left hand in the course of his employment with the respondent, while sawing a roof batten.
Approximately 18 months after the accident, the worker began to develop paranoid delusions and began undergoing psychiatric treatment.
On 14 August 2001, Mr Woods filed an Application for Determination in the Compensation Court of New South Wales, seeking orders for the payment of weekly compensation from 18 March 1999 and continuing. Mr Woods relied on the injuries sustained on 18 and 31 March 1999. The employer disputed the claim.
On 27 March 2002, the dispute came before Truss CCJ in the former Compensation Court of NSW (matter number 30409 of 2000). Mr Woods accepted an offer to commute his entitlements to workers compensation for a lump sum of $68,172 in addition to hospital and medical expenses of up to $11,828 “on production of accounts and/or receipts”. Short minutes of order to that effect were signed by counsel for both parties. The commutation application was refused by Truss CCJ on the basis that she was not satisfied that the sum involved was a proper sum in the circumstances. A subsequent application (also on 27 March 2002) for commutation in the amount of $80,000 was approved.
On 24 August 2011, Mr Woods filed an application in the Commission seeking a reconsideration of the commutation agreement approved in the Compensation Court on 27 March 2002. The application is made pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Mr Woods alleged that, at the time of the commutation application before Truss CCJ, “the court was not aware of [sic] informed of the applicant’s psychiatric condition”.
On 14 September 2011, the employer filed a Reply to the application, putting in issue, among other things, the Commission’s jurisdiction to reconsider the approval of the commutation application by Compensation Court in matter number 30409 of 2000.
On 6 October 2011, Senior Arbitrator Moore conducted a telephone conference between the parties. The Senior Arbitrator identified the Commission’s jurisdiction to reconsider the decision of Truss CCJ as a preliminary issue for determination. The Senior Arbitrator issued a determination on 6 October 2011 which purported to refer a question of law to me for consideration. The referral of the question in that form did not comply with the requirements of Pt 16 of the Workers Compensation Commission Rules 2011. In the circumstances, I issued a direction on 11 October 2011 in the following terms:
“1.The applicant is to file and serve on the respondent and the WorkCover Authority of New South Wales an Application for Leave to Refer a Question of Law (Form 13) on or before 25 October 2011. The application must include or have attached full details of the question of law and reasons for seeking its referral, including the reasons why it is alleged the question involves a novel or complex question of law as referred to in s 351(3) of the 1998 Act. In this respect, the parties’ attention is directed to the decision of Deputy President Byron in Rapley v Briggs t/as Gordon Briggs Drilling [2007] NSWWCCPD 234, (Rapley No 2) wherein the Deputy President determined that this Commission does not have power to reconsider a decision of the former Compensation Court.
2.The applicant is to file a Certificate of Service on or before 1 November 2011.
3.The respondent is directed to lodge any opposition to the application, including full details of the reasons for the opposition, on each party to the dispute (including the WorkCover Authority of New South Wales) on or before 8 November 2011.
4.The respondent is to file a Certificate of Service on or before 15 November 2011.
5.If the WorkCover Authority seeks to intervene in these proceedings under s 106 of the 1998 Act, it is to file in the Commission and serve on each party to the dispute submissions on the question of law on or before 22 November 2011.”
In response to the direction, both parties have filed written submissions. On 22 November 2011, the WorkCover Authority filed submissions on the question of law, pursuant to s 106 of the 1998 Act, which confers on WorkCover a right to intervene in proceedings before the Commission.
After considering the parties’ written submissions, and after canvassing the issues with the parties during a telephone conference on 12 January 2012, I caused the matter to be listed for hearing on 27 February 2012. Both parties and WorkCover were represented at the hearing and made supplementary oral submissions.

THE QUESTION OF LAW

The question of law referred for determination by the President is:
“Whether or not the commutation agreement approved by the Compensation Court of NSW on 27 March 2002 is liable to be challenged, appealed against, reviewed, quashed or called into question by the Workers Compensation Commission.”

LEAVE

Before granting leave to refer the question, I must be satisfied that the question meets the requirements of s 351(3) of the 1998 Act, which provides:
“(3)The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.”

LEGISLATION

Section 350 of the 1998 Act provides:
“350Decisions of Commission
(1)     Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2)     A decision of or proceeding before the Commission is not:
(a)     to be vitiated because of any informality or want of form, or
(b)liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3)     The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

DISCUSSION

In the direction of 11 October 2011, I directed the parties’ attention to the decision of Deputy President Byron in Rapley No 2, because the issues decided in that matter bear directly on the question of law referred for consideration by this referral, yet the effect of that decision had apparently not been considered by the parties or the Arbitrator prior to the referral of the question of law.
It is instructive to understand the background to Mr Rapley’s proceedings both in the former Compensation Court of NSW and in this Commission. Mr Rapley alleged an injury to his right shoulder on 26 January 1998 while hauling equipment from a drilling site. Mr Rapley commenced proceedings in the Compensation Court of NSW (No 35996 of 1999) in which he claimed weekly compensation at the rate of $500 per week from 26 January 1998 and continuing, and lump sum benefits in respect of alleged permanent impairment of the neck and right arm.
On 15 June 2000, Campbell CJ made orders awarding Mr Rapley weekly compensation for various closed periods between 1 February 1998 and 18 May 1998. Based on the medical evidence and the worker’s exaggerated presentation, his Honour was not satisfied that the worker was incapacitated beyond 29 June 1998, and he rejected the worker’s claim for continuing weekly compensation beyond that date. The worker’s claims for lump sum compensation in respect of alleged permanent impairment of the neck and right arm were also rejected on the basis that the worker failed to prove any permanent impairment.
On 24 February 2003, Mr Rapley lodged an Application to Resolve a Dispute in the Commission (WCC 7163 of 2000). He again claimed weekly benefits and lump sum compensation in respect of the neck and right arm.
On 23 October 2003, an Arbitrator made an extempore decision in these terms:
“The Commission does not have the jurisdiction to hear the application as the applicant’s claim has already been the subject of a decision of the Compensation Court. Therefore I order that the Application be struck out.”
On 24 December 2003, Mr Rapley sought leave to appeal the decision of the Arbitrator. In Rapley v Briggs t/as Gordon Briggs Drilling [2004] NSWWCCPD 35 (Rapley No 1), Acting President Fleming (as she then was), refusing leave, said at [19]:
“The Compensation Court Repeal Act 2002 (section 7) and the Compensation Court Repeal (Transitional) Regulation 2003 provide for the transfer of jurisdiction from the Compensation Court to the Commission in certain circumstances. However, there is no legislative provision that allows a Commission Arbitrator to ‘reconsider’ a decision of the Compensation Court.”
A further Application to Resolve a Dispute was filed in the Commission on 5 April 2007 (WCC 2379 of 2007). Mr Rapley again sought weekly benefits and lump sum compensation in respect to the right upper arm. In the alternative, he sought a reconsideration of the decision of Campbell CJ of 15 June 2000 pursuant to s 350 of the 1998 Act. The Arbitrator to whom the dispute was referred rejected the claim and entered an award for the respondent.
The decision in Rapley No 2 concerns Mr Rapley’s appeal from the decision of the Arbitrator issued on 25 June 2007. In so far as the appeal concerned the Arbitrator’s refusal to reconsider the decision of Campbell CJ, after citing the extracts from Rapley No 1, to which I have already referred, Deputy President Byron noted at [36]:
“In view of the decision of Acting President Dr Gabriel Fleming, the Compensation Repeal Act 2002 and the Compensation Court Appeal (Transitional) Regulation 2003 do not provide any power for this Commission to reconsider Justice Campbell’s decision. I am not then taken to any legislation or authority to the contrary.”
The Deputy President added at [37]:
“No power resides in an Arbitrator of the Commission to reconsider a decision of the former Compensation Court, and I find accordingly.”
In Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141(Samuel), the worker had consented to an award for the respondent following a finding by an Approved Medical Specialist that his hernia condition was not work-related. However, following surgery for the condition, the worker obtained further evidence, partially based on the operative findings, which established that the condition was work-related. The worker sought reconsideration of the consent award. The employer relied upon a decision of Acting Deputy President Lansdowne in Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSWWCCPD 43(Quarmby). Rejecting the employer’s submission, Acting Deputy President Roche said:
“It is true that section 350 was discussed in Quarmby but held not to apply to the facts in that case. There the earlier award was an award of the Compensation Court of NSW. Section 350(3) only empowers the Commission to reconsider prior decisions made by the Commission, not prior decisions of the Compensation Court ...”
His Honour Justice Sheahan, former President of the Commission, said in Dimmock v State of New South Wales [2004] NSWWCCPD 64 (Dimmock):
“15. In the new dispute resolution regime applying in this State, it is incumbent upon the Commission’s Arbitrators, who deal with a wide range of disputes, to determine in all cases any questions of jurisdiction, to make findings of fact, to interpret relevant statutory provisions (not just those of the NSW Workers Compensation legislation), to determine the applicability of such provisions to the facts so found, and then, in appropriate instances, to apply them.
16. The Question of Law procedure envisaged by section 351 is not designed for the determination of matters such as whether a particular Applicant in a particular set of circumstances can successfully argue that the Commission has jurisdiction to deal with a claim for compensation, or that a particular piece of legislation might apply to the facts of the case.
17. The fact that the determination of such issues in particular cases may be regarded as difficult or ‘complex’, or indeed may be ‘novel’ to particular decision-makers, is not sufficient to attract the provisions of section 351. They fall for determination by the Arbitrator assigned the particular case, and cannot be ‘abdicated’ to the President pursuant to section 351.
18. Once all the Arbitrator’s functions are carried out, and a determination made by him or her of entitlements under the NSW Workers Compensation legislation, the aggrieved party to the proceedings may avail itself of the legislation’s appeal provisions as appropriate.”
The jurisdiction of the Commission to reconsider decisions of the former Compensation Court of NSW has been considered in three decisions of this Commission at Presidential level, in Rapley No 1, Rapley No 2 and Samuel. In each instance, it has consistently been held that the Commission has no power to reconsider a decision of the former Compensation Court of NSW. Neither the Respondent nor the Workcover Authority submits that any of those decisions are wrong in point of law.
The applicant seeks to distinguish Rapley No 2 by arguing that the Commission is vested with jurisdiction by reason of the application of the transitional provisions of the 1987 Act. That is a matter which should be ventilated and determined by the Arbitrator, for the reasons discussed by Justice Sheahan in Dimmock.
During the course of oral argument, the applicant sought to argue for the first time that, notwithstanding the determination of the commutation sum by Judge Truss in the Compensation Court in March 2002, no effective commutation of the worker’s rights occurred at that time. This, the applicant submitted, was because the worker is unable to prove that payment of the proceeds of the commutation were received by the worker prior to 31 March 2002, at which time the Compensation Court ceased to have jurisdiction. I did not permit that argument to be developed, as it was not relevant to the question of law before me.
However, the applicant has made it plain that, upon resumption of the matter before the Arbitrator, he will seek to persuade the Arbitrator that not all of the elements required to effectuate a valid commutation of the worker’s rights were in place, and that there was in fact no effective commutation of the worker’s rights. Only if the applicant fails on that issue will the question of the Commission’s jurisdiction come into focus.
This is an unsatisfactory state of affairs, as the application giving rise to the referral of the question of law is a reconsideration application under s 350 of the 1998 Act of the commutation decision of her Honour Judge Truss.
It follows that, if the applicant’s primary submission is accepted, it would render any decision on the referral of the question of law otiose.
In all the circumstances, I am not satisfied that that the question referred for determination involves a “novel or complex question of law”. Pursuant to s 351(3), leave is refused.

ORDERS

Leave to refer a question of law under s 351 of the Workplace Injury Management and Workers Compensation Act 1998 is refused.

COSTS

I make no order as to costs.

Judge Keating

President
12 March 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE