Aguiar v Registrar to the Workers Compensation Commission of NSW & Ors

LEGISLATION CITED : Workplace Injury Management and Workers Compensation Act 1998, s327(5)

Celina Aguiar (Plaintiff) Registrar to the Workers Compensation Commission of New South Wales (First Defendant) PARTIES : Estee Lauder Pty Limited (Second Defendant) WorkCover Authority of New South Wales (Third Defendant)

Mr T Wardell (Plaintiff) COUNSEL : Mr J W Dodd (Second Defendant) Mr R Beech-Jones (Third Defendant)

Steve Masselos & Co (Plaintiff) I V Knight Crown Solicitor (First and Third Defendant) SOLICITORS : Hunt & Hunt (Second Defendant)

LOWER COURT JURISDICTION : Workers Compensation Commission of New South Wales

LOWER COURT JUDICIAL OFFICER : Registrar of the Workers Compensation Commission of New South Wales

• 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30068 of 2005 Celina Aguiar v Registrar to the Workers Compensation Commission of New South Wales & Ors

JUDGMENT 1 His Honour: The plaintiff was an employee of the second defendant. She made a claim for compensation pursuant to the Workers Compensation Act 1987 (including a claim for lump sum compensation pursuant to s66 of that Act). 2 The plaintiff's claim came before Arbitrator Wynyard. He made the following order on 8 December 2004:- I find that the Applicant was injured as a result of the aggravation, exacerbation, deterioration or acceleration of a disease process and that the deemed date of injury is therefore 7 April 2003. 3 The claim made pursuant to s66 was referred for assessment by an approved medical specialist (Dr Hitchen). 4 The plaintiff was examined by Dr Hitchen on 9 February 2005. On 7 March 2005, he issued his medical assessment certificate of permanent impairment. Dr Hitchen assessed the plaintiff's whole person impairment at zero per cent. 5 The certificate was received by the solicitor for the plaintiff on 9 March 2005. It would seem that the solicitor was then aware that any appeal had to be made within a 28 day period. 6 It was decided to consider the question of an appeal. For this purpose, the opinion of Dr Patrick (a medio legal specialist qualified by the plaintiff) was sought on 11 March 2005. He was given the certificate and asked to advise if there were any errors in the "Application of the NSW WorkCover Guides". A response was required from him no later than 28 March 2005. Despite numerous repeated requests, a report from him was not obtained until 20 April 2005. The obtaining of the report had been delayed by reason of Dr Patrick being away from work and himself undergoing surgery on his heel. Generally speaking, the report took the form of presenting his opinion in respect of the plaintiff's injury. 7 An appeal was lodged on 20 April 2005 (it was accompanied by a statement of grounds of appeal and a copy of the report from Dr Patrick). By that time, it was about two weeks out of time. An extension of time for the lodgement of appeal was sought (see letter dated 20 April 2005) pursuant to s327(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the Act). The subsection is in the following terms:- (5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. 8 The second defendant made submissions in respect of the appeal (including the making of an objection by reason of the appeal being brought out of time). 9 A decision was made by a delegate of the Registrar. It was made on 20 July 2005 and was in the following terms:- Pursuant to s327(5) of the Workplace Injury Management and Workers Compensation Act 1998 , the Registrar is not satisfied that special circumstances justify an increase in the period for an appeal. 10 The reasons given for the decision included the following:- 3. Section 327(5) of the Workplace Injury Management and Workers Compensation Act 1998 provides that if the appeal is on a ground referred to in subsection 3(c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. 4. Annexed to the appeal application were the Appellant's submissions dated 20 April 2005 regarding the special circumstances to justify an increase in the period for an appeal. 5. The Appellant submits that following the issue of the Medical Assessment Certificate Dr Patrick was requested to provide a report advising of any errors in the AMS' application of the WorkCover Guides. However, due to Dr Patrick undergoing recent surgery to his heel, the Appellant did not receive the report until 20 April 2005. The Appellant states that "without the report we were unable to fully advise our client in relation to the prospects of an Appeal". 6. In this matter, the appeal application was lodged two weeks after the last day for which an appeal could be lodged. 7. I am not satisfied that the Appellant's submissions constitute special circumstances to justify an increase in the period for an appeal. I note that the Appellant appears to be seeking to adduce fresh evidence on the appeal without relying on section 327(3)(b) of the 1998 Act. Moreover, I refer to part 'B)' of the Appellant's submissions and note that they do not substantially add anything further to the appeal but essentially serves to reinforce those submissions regarding disease already made in part 'A)'. 8. The AMS was charged with providing an independent assessment of the worker's permanent impairment for various body parts referred for assessment. Hence, it does not appear that the delay arising from obtaining the subsequent report of Dr Patrick dated 20 April 2005, obtained for the purposes of commenting on the medical assessment certificate, amounts to 'special circumstances that justify an increase in the period for an appeal'. 11 On 17 August 2005, the plaintiff filed a summons in this court. The summons seeks, inter alia, the quashing of the decision of the Registrar. 12 The Act does not provide any right of appeal from the decision of the Registrar (or a delegate). It was common ground that this court had jurisdiction to entertain the proceedings pursuant to s69 of the Supreme Court Act 1970. It was common ground that the plaintiff had to demonstrate either jurisdictional error of law or an error of law on the face of the record (which contains the reasons for the ultimate determination). 13 The proceedings were heard on 7 October 2005. At the commencement of the hearing, counsel for the WorkCover Authority of New South Wales moved to be added as a party. There was no objection to it being joined as the third defendant. The purpose of the joinder was to enable it to make submissions on a question of construction of the Act. It was joined on the basis that it would not be seeking costs from any other party but was at risk itself to having an order for costs made against it. 14 The task confronting the court concerned a question of the proper construction of s327(5) of the Act. This task involved a consideration of the meaning intended to be given to the words "special circumstances". 15 In approaching the task, the court is assisted by having regard to, inter alia, the objects of the Act and the context in which the relevant provisions appear. 16 It may be an unproductive exercise to elaborate on the question of the meaning to be attributed to "special circumstances". Cases may fall to be determined having regard to their own particular circumstances. 17 Generally speaking, the dictionary meanings provided for "special" connote, inter alia, "different from what is ordinary or usual" and "extraordinary"; "exceptional". 18 The legislative intention is that an appeal against a medical assessment must be made within 28 days thereafter. There is a prohibition or threshold requirement imposed by the provision in respect of an increase of the period for an appeal. The power (which is implicitly conferred by the provision) cannot be exercised unless the Registrar is satisfied that special circumstances justify an increase in the period. 19 The policy behind the provision seems to be to bring about expeditious disposition and finality. The language of the provision expresses an emphasis on the need for strict compliance with the time limitation for the bringing of such an appeal. An increase can only be granted where there are justifying special circumstances. 20 The circumstances to which regard is usually given for the granting of an extension of time are not intended to be sufficient to satisfy this provision. There must be something over and above that which is usual or ordinary. The requisite circumstances must fall within the category of special. 21 Generally speaking, when regard is being had to an extension of time, circumstances including matters such as the length of the period of default, the explanation for the default, prejudice and the merits of what is sought to be litigated are taken into account. 22 In written submissions, counsel for the plaintiff has submitted the following:- 24. The assertion in the summons of error on the face of the record is not pressed. 25. It is conceded at the outset that the decision was one within the power conferred by s.327(5), that the power involves the exercise of a discretion, that the onus is upon the party seeking an extension of time and that this application does not involve or allow for a review of the merits of the decision under challenge. 23 It was submitted that the delegate fell into jurisdictional error in failing to be satisfied as required by s327(5) of the Act. The special circumstances relied on were said to include the lack of dilatory behaviour on the part of the plaintiff's legal advisers. 24 The written submissions made on behalf of the plaintiff also contained the following:- 34. The delegate took into account, and indeed made the focus of his decision, 'that the appellant appears to be seeking to adduce fresh evidence without relying on s.327(3)(b)'. While this may have been relevant to whether the report of Dr. Patrick dated 20 April, 2005 would ultimately have been received on the appeal (but not determinative), it was irrelevant to the question of whether the appeal should be allowed to proceed out of time. The appeal raised two other of the grounds of appeal prescribed by s.327(3) and, as is clear from s.327(4), the appeal may proceed only if one of the grounds of appeal exists. The delegate therefore took into account an irrelevant consideration. 35. Notwithstanding the reference to some of the following in the delegate's recitation of the history, the delegate failed to take into account, in 'any real sense' or by giving 'proper consideration to' (see discussion by Spigelman CJ in Bruce at 186C), a number of relevant considerations. They are: · the alacrity with which the Plaintiff's solicitor had sought the opinion of Dr. Patrick regarding the contents of the MAC; · the circumstance that, in addition to seeking to lodge Dr. Patrick's report of 20 April, 2005, the Plaintiff's solicitor had expressly advised the Registrar that the purpose of seeking Dr. Patrick's opinion was to 'fully advise our client in relation to the prospects of an appeal', this being the appropriate course of conduct for a prudent solicitor bearing in mind that the task of an AMS is to make a medical assessment; · the circumstances that the delay in receiving Dr. Patrick's report was beyond the control of either the Applicant's solicitor of Dr. Patrick himself; · the circumstances that the appeal was only two weeks late (noting that the delegate apparently saw no injustice to the parties in taking three months to make his decision refusing an extension of time); · the merits of the appeal; · perhaps most importantly, given the overriding principle of doing 'justice between the parties', the fact that no prejudice was claimed by the Second Defendant, nor could it have been because it had an opportunity to make submissions on the substantive appeal and in fact did so and because a licensed insurer administering claims under the legislation could not possibly be prejudiced by a claim passing through the prescribed appeal mechanism two weeks later than would be the case had the appeal been lodged in time; and · the consequences to the Plaintiff of losing the right of appeal granted by parliament, having regard to the fact that the decision of the AMS deprived her of lump sum compensation after an arbitrator had found that her years of work had in fact aggravated, exacerbated, accelerated or deteriorated a disease process and had been a substantial contributing factor to such aggravation and, further, that the finding of the AMS to the effect that any aggravation had ceased exposed her to a risk of losing her weekly payments of compensation and indemnity for her medical expenses. 36. Closely related to, and based largely upon, the matters raised as being relevant matters which the delegate failed to take into account, is the ground of review know as ' Wednesbury unreasonableness', which is recognised as a separate ground for judicial review of administrative action at common law. The test has been variously stated and its limits are not entirely settled. In essence, a decision will be set aside under this ground if the decision was such that no reasonable decision maker could have made it. In Bruce Spigelman CJ. said, after referring to Wednesbury , at 185, that: 'It can be accepted that a complete lack of proportion between the consequences of a decision and the conduct upon which it operates may manifest unreasonableness in that sense' (i.e. the Wednesbury sense). The consequences of depriving the Plaintiff of her right to pursue an appeal is so disproportionate to the conduct of lodging an appeal two weeks late for justifiable and explained reasons that it does manifest the relevant degree of unreasonableness. Moreover, it is no answer to say that a power cannot be exercised unreasonably where the onus is on the applicant because the power to extend time can only arise after the prescribed time for lodging an appeal had expired. Thus, being a pre-condition to the exercise of the power at all, it cannot be said that the fact that the appeal is filed late is relevant to its exercise. 25 It may be that criticism can be made of certain of what was expressed in the reasons (inter alia, it may be said to be erroneous to regard the submissions themselves as constituting "special circumstances" and viewing the report of Dr Patrick as an attempt to rely on fresh evidence). 26 Whether or not there is any error in the expression of the reasoning is in my view not a matter of significance in this case. 27 The first step in the process of increasing the period allowed for bringing an appeal was a consideration by the Registrar (or the delegate in this case) as to being satisfied that there were "special circumstances" which justified such an increase. This aspect of the process did not involve a discretionary exercise. Rather, it involved the removal of the prohibition or the satisfying of a threshold requirement by the forming of an opinion. Once that had been done, the power to increase the period became exercisable. In deciding whether or not to increase the period, regard could be expected to be had to, inter alia, what have been earlier referred to as being usual circumstances. 28 The delegate addressed the task posed by the first step and found against the plaintiff on the question. 29 In my view, the circumstances relied on by the plaintiff could not be regarded as "special" in the requisite sense. I consider that no basis has been shown for disturbing the decision of the delegate. Any error in expression of reasoning process does not assist the plaintiff in this case. 30 There may be debate as to whether or not the seeking of an opinion from Dr Patrick was the appropriate way to approach the problem of whether or not an appeal should be brought. Reference to its contents formed but a small part of the submissions made in support of the appeal. However, these considerations can be put aside. 31 Despite knowing that the appeal had to be brought within 28 days, the plaintiff's legal advisers allowed that period to expire. This would seem to have happened, inter alia, because there had been a failure to first ensure that any medical opinion required by them for the purpose could have been obtained within the 28 day period and the course was taken to await the report rather than bring the appeal within the prescribed period. 32 The summons is dismissed. The plaintiff is to pay the second defendant's costs of the summons. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.