Beaty v Workcover/Nrma Workers Compensation

4 The worker suffered compensable disabilities in July 1999, May 2000 and July 2000 in the course of her employment with ALH Group Ltd ("ALH"). Her claims for compensation were accepted. Her incapacity for work was partial, and she continued to work on modified duties.

5 The worker says that she was told by her case manager at NRMA Workers Compensation (SA) Ltd ("NRMA"), Ms Karen Saunders, that any time she took a day off work as a result of her compensable disabilities she was required to lodge a fresh claim for compensation.

6 In March 2003 the worker underwent a nuclear scan in the course of the medical investigation of her condition. She alleges that this process aggravated her condition and that as a consequence she was unable to attend work for one day on Monday 3 March 2003.

7 The worker says, in her affidavit sworn on 23 July 2003, that on 19 March 2003 she lodged a claim for compensation with her supervising manager at work, ie a notice of work related injury, claim for compensation and prescribed medical certificate. She says that when she handed over these documents she asked her supervising manager to complete the employer's section and then send on all of the documents to the insurance company. She says her supervising manager told her that she would do this.

8 The worker says that after a couple of weeks she had not heard from the insurance company and so again spoke with her supervising manager. She says that she was reassured that the relevant papers had been forwarded to the insurance company.

9 The worker says that she spoke to her supervising manager in like vein "a few weeks later and on several more occasions" to be assured on each occasion by the supervising manager that the relevant documents had been forwarded to the insurance company.

10 The worker says that in May 2003 she contacted her solicitor, who hitherto she had avoided in order to keep her legal costs down, and requested that they do something to expedite things. Her affidavit records that she "did not want my solicitors to incur any further costs by writing or telephoning the relevant parties to inquire as to whether all the procedural matters had been attended to". Her affidavit does not indicate whether she conveyed that thought to her solicitor. I have some difficulty in accepting that the worker would have wanted anything other than that the problem be sorted out as quickly and inexpensively as possible.

11 On 22 May 2003 the worker's solicitor lodged at the Tribunal an Application for Expedited Decision. It is not suggested that the solicitor made any attempt to contact the worker's case manager or anyone else at the claims agent before she took this action.

12 The worker's Application for Expedited Decision was listed before a Conciliation and Arbitration Officer on 6 June 2003.

13 On 3 June 2003 the claims agent sent a facsimile to the Conciliation and Arbitration Officer advising him that it had no record of having received the worker's claim for compensation and indicating that it was "unable to determine the claim for compensation attached to the Application for Expedited Decision as it is not supported by a certificate in the prescribed form pursuant to s 52(1)(c)".

14 On 4 June 2003 the Conciliation and Arbitration Officer forwarded this facsimile to the worker's solicitor and asked that she advise, by 5.00 pm 5 June 2003, whether she agreed with the contents of the claims agent's facsimile.

15 On 5 June 2003 the worker's solicitor responded by facsimile to the Conciliation and Arbitration Officer in these terms:-

We advise the worker's claim for compensation with a supporting workers compensation medical certificate was given to the employer by the worker. The worker has spoken to her employer who confirms that the claim for compensation dated 19 March 2003 was forwarded to the compensating authority with the prescribed medical certificate.

We have instructions to proceed with our client's application."

16 The Tribunal file indicates that a hearing was conducted by the Conciliation and Arbitration Officer on 6 June 2003 and that both parties had legal representation. Little else is apparent from the file record of this hearing. However, an affidavit of Ms Cotsaris, the solicitor who appeared for the worker on that occasion, is before me and it attests to the fact that on 6 June 2003 the Conciliation and Arbitration Officer made the following orders:-

(a) There was no jurisdiction to make orders because the Application for Expedited Decision was not issued correctly because it failed to include a Prescribed Medical Certificate;

(b) No order as to costs for the Application for Expedited Decision;

(c) That a copy of the Prescribed Medical Certificate be sent to the Workers Compensation Tribunal and the Conciliation and Arbitration Officer would forward it on the compensating authority ordering that a determination be made within a specified time.

17 A letter/facsimile on file from the worker's solicitor to the Conciliation and Arbitration Officer dated 10 June 2003 tends to suggest that orders were in fact either made or foreshadowed by the Conciliation and Arbitration Officer on 6 June. Some of the difficulties that have arisen in this matter highlight the need for any and all orders and directions made by Conciliation and Arbitration Officers to be recorded on the Tribunal file. In the matter at hand, there is no record of anything for the hearing on 6 June 2003. Under the heading "Next Action" there is likewise nothing at all.

18 Seemingly in compliance with the Conciliation and Arbitration Officer's orders of 6 June, the worker's solicitor under cover of a letter/facsimile dated 10 June 2003 forwarded to the Conciliation and Arbitration Officer a copy of the prescribed medical certificate that the worker had allegedly provided to her employer on 19 March 2003:-

"We refer to our attendance at the Worker's Compensation Tribunal on 6 June 2003 for the above Application for Expedited Decision.

We enclose a copy of the Prescribed Medical Certificate that our client provided to her employer with her Notice of Work Related injury for the purposes of it being forwarded to the Compensating Authority.

We request that you list our clients Application for Expedited Decision for us to call witnesses, in particular the worker and the employer. We also wish to cross-examine the claims officer.

If you are not prepared to list our clients matter and you proceed to make the orders indicated at the Conference then we request that you provide written reasons for your decision.

If you have any queries or concerns in relation to any of the above please do not hesitate to contact the writer."

19 Ms Cotsaris' affidavit attests the fact that on 10 June 2003 she rang the Conciliation and Arbitration Officer to inform him that the wrong medical certificate had been forwarded and to say that she would now provide the correct certificate. She says that on 11 June 2003 the correct prescribed medical certificate was left at the reception counter marked for the attention of the Conciliation and Arbitration Officer.

20 Both prescribed medical certificates are on the Tribunal file. On 16 June 2003 the Conciliation and Arbitration Officer issued the following orders and advised the parties that "no further action will be taken on this application and the file is now closed":-

Upon lodgement of an application for expedited determination, having heard submissions of the parties, and for the reasons set out below, I make the following decision.

I am not convinced to the requisite degree that, contrary to the submissions advanced on behalf of the applicant, the claim forms and P.M.C. were lodged with the applicant's employer. I say this as it appears all documentation relating to every other claim made by the applicant, was in fact lodged with the compensating authority direct, by the applicant's solicitors.

I was also invited to call the applicant, the employer and the claims officer, to give evidence. This I am not prepared to do.

On the above grounds, I find the time frame for lodging the within application had not commenced in accordance with s97 (3) of the Act. As such the Tribunal has never had jurisdiction with respect to this matter.

21 On 19 June 2003 the worker's solicitors filed a Request for Judicial Determination seeking the following relief:-

"1 The decision of the Conciliation and Arbitration Officer dated 16 June 2003 be set aside;

2 The worker's Application for Expedited Decision be listed for hearing;

3 The worker be awarded costs of both the Application for Expedited Decision and the costs of and incidental to the within application."

22 Following consultation with the Registrar and the parties, it was agreed that this Request for Judicial Determination would be treated as an Application for Directions.

23 When the matter was first called on before me on 4 July 2003 I suggested that the worker's solicitors immediately forward to the claims agent the relevant prescribed medical certificate and that the claims agent promptly determine the claim.

24 On 4 July 2003 the worker's solicitor acted on this recommendation. I understand that on 9 July 2003 the worker was interviewed by an investigator on behalf of the claims agent. I am uninformed as to whether the claim has as yet been determined.

25 On 1 August 2003 I heard argument from the parties' solicitors. Two major issues emerged:-

1 Does the Tribunal have jurisdiction to review the Conciliation and Arbitration Officer's orders?

2 Did the Conciliation and Arbitration Officer have jurisdiction to deal with the Application for Expedited Decision if s 97(3) of the Act meant that this application was not properly before him?

26 Mr Luke, for the compensating authority, submitted that the Tribunal had no jurisdiction to interfere with the Conciliation and Arbitration Officer's decision of 16 June 2003 and that s 88H of the Act did not apply to decisions of a Conciliation and Arbitration Officer made under s 97. He cited a decision of the Tribunal in Elekwachi v WorkCover Corporation/FAI Workers Compensation (SA) Ltd [1997] SAWCT 18.

27 Noting that s 97(3) of the Act provided that "An application for expedited determination of a matter cannot be made until at least 14 days after the date the matter was placed before the decision-maker whose decision is required", Mr Luke further submitted that there was no evidence before the Tribunal to show that the matter had been placed before the decision-maker for at least 14 days before the Application for Expedited Decision was lodged at the Tribunal on 22 May 2003. Indeed, such evidence as there was, indicated that the claims agent had received the worker's claim for compensation only as an attachment to her Application for Expedited Decision, and the prescribed medical certificate later again on 4 July 2003. The worker's failure to comply with s 97(3), Mr Luke submitted, meant that the Conciliation and Arbitration Officer did not have jurisdiction to deal with the worker's application.

28 S 88H of the Act provides:-

88H. (1) The Tribunal may amend or set aside a judgment or order of the Tribunal-

(c) if the interests of justice require that the judgment or order be amended or set aside.

(2) The power under subsection (1) may only be exercised by the President or a presidential member or conciliation and arbitration officer to whom the President has delegated the power."

29 What constitutes an `order' of the Tribunal is not defined, but there is in my view no indication or reason to give this term a restricted definition. The term itself indicates something broader than a judgment and Parliament has not qualified either word to indicate that it intended the Tribunal's power to be limited to final judgments or final orders.

30 Significantly, the Conciliation and Arbitration Officer's decision of 16 June 2003 is specifically headed "ORDER(S)". Ms Cotsaris' affidavit attests to the Conciliation and Arbitration Officer speaking in terms of `orders' on 6 June 2003. I am satisfied that the Conciliation and Arbitration Officer's decision of 16 June 2003 constituted orders of the Tribunal within the terms of s 88H(1).

31 The Conciliation and Arbitration Officer's orders cannot be regarded as a decision of the compensating authority within s 97B(3) of the Act because it was not a decision that decided a claim. What the Conciliation and Arbitration Officer did decide was that he did not have jurisdiction to decide the claim.

32 Mr Luke submitted that only decisions of the Tribunal that decided a claim pursuant to s 97B(1)(b) were reviewable decisions and that those decisions were to be treated as decisions of the relevant compensating authority: s 97B(3). S 88H of the Act could have no application, he submitted, to any other decisions or orders made pursuant to s 97 because Pt 6B comprised a special and exclusive jurisdiction and made specific provision for when a decision was reviewable.

33 Mr Luke cited in support of his argument a decision of Deputy President Judge Gilchrist in Elekwachi v WorkCover Corporation/FAI Workers Compensation (SA) Ltd [1997] SAWCT 18. In that matter Deputy President Judge Gilchrist was called on to consider whether he, sitting as a Presidential Member of the Tribunal, could entertain an application by a worker seeking review and correction of a decision by a Conciliation and Arbitration Officer on an Application for Expedited Decision that the worker had issued. The Conciliation and Arbitration Officer had advised the parties, following the compensating authority's rejection of the worker's claim, that she would not be exercising any further jurisdiction in the matter in light of the compensating authority's determination of the claim. It was the worker's contention that the compensating authority's determination of his claim should be ignored as the determination was made outside of the time frame that had been allowed by the Conciliation and Arbitration Officer (although I note that this fact itself was disputed and left undetermined by Deputy President Judge Gilchrist).

34 The learned Deputy President considered the means by which he might arguably have had the power to provide the worker with the relief that he sought, but concluded (1) that there was no general power enabling him to regulate the conduct of Conciliation and Arbitration Officers in the manner sought, and (2) that there was no right of appeal from decisions of Conciliation and Arbitration Officers. Because he did not have the power to provide the worker with the relief sought, the learned Deputy President dismissed the worker's application.

35 S 88H of the Act seems not to have featured in this decision.

36 The power given to the Tribunal by s 88H to amend or set aside judgments or orders of the Tribunal when the interests of justice require that to be done is expressed very widely and without limitation. Consistent with Parliament's directive to the Tribunal in s 85 to "act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms", I see no reason to limit the generality of the words used in s 88H(1)(c). The occasions when this power will be exercised will be limited, for the public interest requires that litigation should not proceed interminably, but the words used in s 88H(1)(c) indicate that Parliament intended that the Tribunal be empowered to intervene where it is in the interests of justice to do that.

37 I am of the view that s 88H(1)(c) does apply and that the Tribunal does have jurisdiction to review the orders made by the Conciliation and Arbitration Officer on 16 June 2003.

38 On the evidence before me the factual assumption upon which the Conciliation and Arbitration Officer's conclusion of no jurisdiction was based was wrong. The affidavits of the worker and the solicitor Ms Cotsaris undermine that assumption, namely, that the worker's claim for compensation and supporting medical certificate were not lodged with the employer. As the matter stands, the worker is entitled to feel aggrieved that this fact, obviously considered to be of fundamental importance by the Conciliation and Arbitration Officer, was presumed against her without her being given a proper opportunity to put forward her account of events.

39 Why the Conciliation and Arbitration Officer was not prepared to hear from the worker, the employer and/or the claims officer is not apparent. Much time and expense may have been saved had he done so.

40 Whilst the Conciliation and Arbitration Officer's orders were founded on what now appears to be an erroneous assumption, his conclusion of no jurisdiction might nevertheless be justified on the basis of non-compliance with s 97(3). S 97(3) provides:-

"(3) An application for expedited determination of a matter cannot be made until at least 14 days after the day the matter was placed before the decision-maker whose decision is required."

41 I am satisfied on the materials before me that the worker's claim had not been placed before the decision-maker, ie the claims agent, before the Application for Expedited Decision was lodged by the worker's solicitors on 22 May 2003. The question is whether this is fatal to the attraction of the special jurisdiction provided for in Pt 6B.

42 If one accepts the worker's account as per her affidavit, as I do for present purposes, both the claim form and supporting medical certificate had been served on her employer long before, on 19 March 2003. Moreover, she was thereafter repeatedly assured by her employer that her claim documents had been passed on to the insurance company. S 52(5) requires that an employer forward to the Corporation relevant claim documents "within five business days after receipt of a claim", and provides a penalty of $1000 for breach of this requirement.

43 Mr Warren, for the worker, submitted that the worker, and by inference the worker's solicitor, was in these circumstances entitled to presume that the claims agent had, at least by 22 May 2003, received the claim documents. I do not accept that.

44 On the evidence before me I find that the employer was on 19 March 2003 served with the worker's claim and supporting medical certificate. I find that the worker was subsequently reassured by her employer that the documents had been forwarded to the claims agent. I find that neither the worker nor the worker's solicitor attempted to contact the claims agent before 22 May 2003 to inquire about the claim, or to inquire as to whether the claim documents had been received. Why this was not done is curious, as is the worker's account of repeatedly going to her employer to be told the same thing, ie that the documents had been passed on. On the strength of what the employer was saying to the worker, one might think that the next approach would have been to the worker's case manager to ask why the claim had not been determined.

45 Whilst on the evidence before me the employer appears to have been remiss and in breach of its obligation under the Act to promptly pass on the claim documents, I do not think that either the worker or her solicitor is without fault in the development of this unfortunate situation. The worker's delay of some two months before "doing something to expedite the process" was essentially of her own choosing. Had she contacted her case manager instead of pursuing her employer and getting the same answer, it is likely that the problem would have been resolved. As for the worker's solicitor, it is apparent from her facsimile to the Conciliation and Arbitration Officer on 5 June 2003 that she regarded the worker's lodgement of the documents with her employer as sufficient to enable the Application for Expedited Decision to proceed. Had she contacted the claims agent before issuing these proceedings the facts that the claims agent had not as yet received the claim documents and that there had in fact been no delay on its part in determining the claim would have become apparent. The worker's solicitor is experienced in these matters and was, or should have been, aware of the basic requirement of s 97(3). The issuing of the Application for Expedited Decision necessarily involved an assertion that the claims agent had unduly delayed in the determination of the claim. On the evidence before me, that was an unfounded assertion. A phone call would likely have established this.

46 In all the circumstances I am of the view that the basic pre-condition for the making of an Application for Expedited Determination as set out in s 97(3) was not fulfilled. It is my view that the special jurisdiction under part 6B of the Act was not properly invoked by the Application issued on 22 May 2003.

47 I would accordingly amend the order of the Conciliation and Arbitration Officer of 16 June 2003, but only to substitute the reasoning given for his finding of no jurisdiction with a finding that s 97(3) had not been complied with. The Conciliation and Arbitration Officer's determination of no order as to costs is appropriate and is affirmed.

48 I will hear from the parties as to the cost orders to be made in relation to my hearing of this matter. To minimise unnecessary expense, I direct that written submissions on costs be exchanged and filed within 21 days of the handing down of this decision.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.