Ausgrid (formerly Energy Australia Pty Ltd) v Butler

Judgment 1ALLSOP P: This is an application for leave to appeal against a decision of a Deputy President of the Workers Compensation Commission in point of law under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "WIM Act"). Leave is required because the amount of compensation in dispute is under $20,000: see s 353(4)(c). 2Mr Butler worked for the applicant for 38 years, retiring in 2004. On 30 June 1995, a formal award pursuant to consent orders was made in the former Workers Compensation Court including an award in Mr Butler's favour for $14,478.85 in respect of 15% permanent loss of use of his left leg at or above the knee under s 66 of the Workers Compensation Act 1987 (NSW),(the "1987 Act") and $10,000 under s 67 of the 1987 Act. 3The injuries to the leg particularised were said to have occurred in 1981 and 1992. There was another injury in 1997 affecting the wrist but that plays no part in these proceedings. In 2008, four years after ceasing employment, Mr Butler made a claim for further loss of use of his left leg. The claim was accompanied by a medical report assessing a 35% impairment to the left leg at or above the knee. The applicant rejected the claim but did not serve Mr Butler with a notice under s 74 of the WIM Act. That section provides as follows in subsections (1) and (2): "(1) If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant. (2) The notice must contain the following: (a) a statement of the reason the insurer disputes liability and of the issues relevant to the decision, (a1) a statement to the effect that the worker can request a review of the claim by the insurer, (b) unless paragraph (c) applies, a statement to the effect that the worker can refer the dispute for determination by the Commission, (c) if the insurer has referred or proposes to refer the dispute for determination by the Commission, a statement to that effect specifying the date of referral or proposed referral, (c1) a statement to the effect that the matters that may be referred to the Commission are limited to matters notified in the notice, or in a notice after a further review or in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review, (d) a statement to the effect that the worker can also seek advice or assistance from the worker's trade union organisation or from a lawyer, (e) such other information as the regulations may prescribe or, subject to the regulations, as the Authority may from time to time approve and notify to insurers and self-insurers." 4Then began a disputation history that the Deputy President and the arbitrator described in terms which I will not repeat. It is relevant to outline that litigation history briefly. It is to be recalled that from the parameters of the further claim it could not have been seen to be worth any more than about $20,000 to $30,000, at the most. A teleconference with an arbitrator was held on 21 May 2009, which failed to resolve the dispute. Some agreement was reached at that meeting about the terms of the claim and the application. The matter was referred to an approved medical specialist, Dr Bye, on 15 June 2009. The date of injury was said to be 30 June 1995 as a deemed date from the earlier award. Dr Bye issued a medical assessment certificate on 16 July 2009 certifying 30% permanent loss of efficient use of the left leg. 5The applicant appealed to a medical assessment panel under s 327 of the WIM Act. In October 2009 the panel made certain corrections but in substance found no error in Dr Bye's conclusions. The applicant sought judicial review in the Supreme Court against the medical assessment panel's decision under s 69 of the Supreme Court Act 1970 (NSW). This application was successful. Acting Justice Barr set aside the decision because of failure by the panel to afford procedural fairness to the applicant. 6Meanwhile, an arbitrator had continued to deal with the matter on the basis of the validity of the panel's certificate. After the Supreme Court decision, the arbitrator's decision was set aside. That decision was for almost $14,500 for a sum under s 66 of the 1987 Act and $16,360 for a sum under s 67. 7Another medical assessment panel was constituted in November 2010. It confirmed Dr Bye's view, but it too denied the applicant an opportunity to put submissions. When confronted with Barr AJ's decision, the panel rescinded its decision. A third medical assessment panel was constituted and an oral hearing was conducted in March 2011. In April 2011 this panel confirmed Dr Bye's certificate. The matter then came before the arbitrator from whom the appeal to the Deputy President was taken. After a hearing the arbitrator made orders recorded in an amended certificate as follows: "The Commission determines: