Woolworths Limited v Carol Cooper
[2004] NSWWCCPD 58
•23 August 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Woolworths Limited v Carol Cooper [2004] NSW WCC PD 58
APPELLANT: Woolworths Limited
RESPONDENT: Carol Cooper
INSURER:Woolworths Limited
FILE NUMBER: WCC1867-2004
DATE OF ARBITRATOR’S DECISION: 15 June 2004
DATE OF APPEAL DECISION: 23 August 2004
SUBJECT MATTER OF DECISION: Leave to File Late Reply; Medical Evidence and referral to an Approved Medical Specialist.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Moray & Agnew, Solicitors
Respondent: No appearance on the Appeal
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator to refuse to admit the Reply filed by Woolworths Limited on 5 March 2004, is confirmed.
2. The report of Dr Isbister is to be given to the Registrar to be included in the material provided to the Approved Medical Specialist who is to assess Ms Cooper.
THE APPEAL
On 30 June 2004 Woolworths Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 June 2004.
The Respondent to the Appeal is Carol Cooper (‘the Respondent Worker’). The Respondent Worker has filed no Reply to the appeal.
The Appellant submits that the appeal should be determined on the papers.
The appeal concerns the following orders made by the Arbitrator:
“1.The application to reconsider the ruling of 7 May 2004 rejecting the Reply as out of time is dismissed.
2.No order for the report of Dr Isbister dated 9 September 2003 to be forwarded to the AMS [Approved Medical Specialist].”
The issues in dispute are:
· did the Arbitrator err in refusing to admit the late Reply to the original application? and,
· in refusing to order that the report of Dr Isbister be referred to the Approved Medical Specialist by the Commission?
The appeal was referred to me for review on 17 August 2004. Consideration of this matter has been expedited because the Worker is scheduled to be assessed by an Approved Medical Specialist on 31 August 2004.
LEAVE
Leave to appeal is granted on the basis that I am satisfied:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the Wokplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act), and
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
THE ARBITRATORS DECISION AND REASONS
The Arbitrator gave written reasons for decision. At the teleconference held on 7 May 2004 the Arbitrator rejected the Appellant Employer’s application to admit the Reply, which was filed two weeks late and therefore not in accordance with the Workers Compensation Commission Rules 2003 (‘the Rules’). The decision of 15 June 2004 was a reconsideration, and affirmation, of the decision to refuse to admit the Reply. The Arbitrator considered the Appellant Employer’s submissions as to why the late Reply should be filed and found that, in summary:
· The delay in this case, whilst only 14 days, “must be viewed in context. The delay is of a period that is almost twice the period allowed in the rules and must be viewed as a significant delay in the context of the Commission’s processes”.
· The late filing of the Reply did not result in prejudice to the Worker.
· No explanation was given for why the Appellant Employer’s legal representative was not instructed in relation to the matter until 27 February 2004, some six days after the Reply was due to be filed. “The Respondent is a self insurer and does not have the problems that often occur due to difficulties communicating with its client and should have had little difficulty filing a Reply. There is no suggestion that there were difficulties identifying the claim or preparing a reply that ultimately involved little more than the attachment of a medical report”.
· In the absence of an explanation for the failure to comply with the rules there is no justification for waiving compliance with them.
The Appellant Employer asked the Arbitrator to refer the medical report of Dr Isbister to the Approved Medical Specialist. The Arbitrator found that the decision in Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7 applied, and that “the Commission had no power to restrict the disclosure of information, including medical reports to an Approved Medical Specialist”. However, the Arbitrator declined to give any directions for the filing of the report of Dr Isbister that would facilitate the forwarding of the report to the Approved Medical Specialist by the Commission, stating in his reasons that:
“In this case the report has been rejected by the Commission as being filed out of time. It does not form part of the material before the Commission. In the circumstances the Commission has no obligation to assist a party to avoid the consequences of its own failure to comply with the rules. If it did so the other party would have good grounds for complaint. If the AMS wishes to see Dr Isbister’s report it is a matter for the AMS.”
SUBMISSIONS
The Appellant Employer submits that: the filing of the late Reply did not affect the timely resolution of the matter between the parties, the worker had suffered no prejudice because of the delay, and the delay of 14 days was minor “given the fallible world in which disputes arise”. The Appellant Employer submits the non-acceptance of the reply will “critically prejudice the Respondent [Appellant Employer]”. The Appellant Employer further submits that “the failure of the Arbitrator, to accept the late reply was done as a punitive measure to the Respondent Worker as a result of its application that the s.66 issue be referred to an Approved Medical Specialist”.
The Appellant Employer submits that the Arbitrator’s refusal to facilitate the referral of Dr Isbister’s report to the Approved Medical Specialist is “inconsistent with and contrary to the objectives of the Commission and would hinder the speedy resolution of the dispute”. In addition the [Appellant Employer] submits that “this statement and reasoning is inconsistent with the mandate of the Workers Compensation Commission which requires procedural and substantive fairness to both the applicant and the respondent”.
The Respondent Worker has not filed any submissions in reply to the appeal.
DISCUSSION AND FINDINGS
Filing of Late Reply
An Arbitrator’s decision should not be disturbed unless, on review, it is found to be affected by an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). The error must be such that, but for it, a different decision would have been made (Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
President’s Practice Direction No. 9 concerns the filing of late documents in the Commission, including evidence and a late Reply. It provides as follows:
“Applications to admit late documents will be resolved by the Arbitrator in accordance with section 355(1) of the Act.
The Arbitrator will generally deal with the application to admit late documents at the teleconference, held in accordance with the Registrar’s Guideline for The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission.
In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
·the submissions of the parties, including, if any, oral or written objections to the grant of leave,
·the effect, if any, on the timely resolution of the dispute,
·the extent of the prejudice to the other parties, if any, that would result from granting leave,
·the requirements of the Act and the Rules, and
·the objectives of the Commission.”
These matters have been discussed in ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21 and a number of other Presidential decisions. The Arbitrator’s reasons would have benefited by reference to the Practice Direction and to relevant decided cases in the Commission.
The Appellant Employer has not identified any error in the Arbitrator’s determination of whether or not to grant leave for the filing of the late Reply. The submissions made by the Appellant Employer on appeal repeat those made to the Arbitrator at first instance.
In deciding whether or not to waive compliance with the Rules and allow the filing of a late Reply, the Arbitrator must exercise his discretion. In this matter the Arbitrator has expressly considered the factors that are relevant to the exercise of that discretion. Whether or not I would have made the same decision is not the issue. On the facts of this case the decision to refuse to allow the late Reply is, in the context of the operation of the Commission and the requirements of the Rules, not so unreasonable or unfair that it demonstrates that the Arbitrator has exercised his discretion unlawfully. There is evidence before me to support the claim that the Arbitrator refused to allow the Reply as a “punitive measure” in relation to the conduct of the Appellant Employer.
Referral of Medical Report to the Approved Medical Specialist
There is no dispute between the Appellant Employer and the Arbitrator as to the application of the decision in Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7. As a result, there is agreement that the Commission has no power to restrict the disclosure of information from the parties to an Approved Medical Specialist. Unless or until a regulation is made to give the Commission such a power, there remains, in each case, a potential dichotomy between medical reports that may be filed and accepted into Commission proceedings and the disclosure of medical reports to an Approved Medical Specialist. However, it cannot have been intended that this situation undermine the fairness of the statutory process for the determination of ‘medical disputes’ under the ‘New Claims Procedure’ of Part 7 of Chapter 7 of the 1998 Act.
I agree with the Appellant Employer’s submissions on this issue. The refusal to facilitate the referral of a medical report, by the Registrar to an Approved Medical Specialist, which that Approved Medical Specialist is entitled to consider, does not accord with the Commission’s statutory objectives of providing a fair, timely and cost effective dispute resolution service.
Section 321 of the 1998 Act provides that the Registrar may refer a medical dispute for assessment by an Approved Medical Specialist.
Section 331 of the 1998 Act provides that medical assessments by an Approved Medical Specialist are “subject to relevant provisions of the WorkCover Authority Medical Assessment Guidelines [‘the Guidelines’] relating to the procedures for the referral of matter for assessment”. Guideline 13 states that the Registrar is to provide the Approved Medical Specialist with:
· “a copy of any minute of order or referral indicating the nature of the medical dispute; and
· all information and documentation on which the parties propose to rely lodged with the Commission in accordance with the Workers Compensation Commission Rules 2003.”
While the Guidelines do not expressly direct that the Registrar provide the Approved Medical Specialist with medical reports that are not otherwise admitted in the proceedings, it is clearly the intention that the Registrar is the conduit through which documentation that the parties wish to put before an Approved Medical Specialist must pass. There are many common sense reasons why this must be the case, not least because the parties have filed their dispute in the Commission, and it is the Registrar of the Commission who both refers the matter to the Approved Medical Specialist and issues the Medical Assessment Certificate he or she prepares. It is unreasonable and unworkable to adopt a system whereby those medical reports that are admitted are referred by the Registrar with the ‘order or referral’ while those medical reports that the parties seek to put before the Approved Medical Specialist, but which are not accepted in evidence in the proceedings, are left to be sent directly to the Approved Medical Specialist by the parties. Clearly an Approved Medical Specialist cannot call for a report which he or she does not know exists.
There are also important matters of legal principle that flow from the Registrar’s role in the referral of a medical dispute to an Approved Medical Specialist. Procedural fairness demands that a party know the case against them and have an opportunity to meet it. Without the discipline of filing all documents that the parties seek to put before the Approved Medical Specialist in the Commission, and serving a copy of these documents on the other side of the dispute, there is the potential to breach procedural fairness. A party may be unaware of the information relied upon by the Approved Medical Specialist in making his or her assessment. I note in this matter that a copy of Dr Isbister’s report has been served on the Worker.
In my view the intention of the legislation and the Guidelines is that all information that is to be considered by an Approved Medical Specialist is to be referred to him or her by the Registrar.
I note that the Minister has foreshadowed his intention to make a Regulation to give effect to section 294A(1)(b), namely, in relation to disclosure of medical reports to an Approved Medical Specialist. The Regulation may resolve the issues that arose in this case.
DECISION
The decision of the Arbitrator to refuse to admit the Reply filed by Woolworths Limited on 5 March 2004, is confirmed.
The report of Dr Isbister is to be given to the Registrar to be included in the material provided to the Approved Medical Specialist who is to assess Ms Cooper.
Dr Gabriel Fleming
Deputy President
23 August 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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