Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 | Case summary

An Arbitrator made findings by consent that 2 falls at work "continued to contribute to any impairment" suffered by the worker and referred for medical assessment under s 321 of the Workplace Injury Management and Workers' Compensation Act 1998 the degree of permanent impairment of the worker as a result of the injuries and whether any proportion of that was due to any previous injury or pre-existing condition. The approved medical specialist disregarded the finding by the Arbitrator that the falls at work continued to contribute to the worker's impairment. An appeal by the worker to an Appeal Panel failed and the assessment of the approved medical specialist was confirmed. The worker sought certiorari to quash the Appeal Panel's certificate for error of law on the face of its reasons which revealed that the Panel had disregarded the Arbitrator's findings. The Associate Judge dismissed the application. On appeal HELD: (1) The Appeal Panel had not erred in law; (2) The Arbitrator had no jurisdiction to determine the medical disputes that had been referred and his findings without jurisdiction could not bind the Appeal Panel or even be persuasive. ORDERS

MONDAY 18 AUGUST 2008 RAGAA HAROUN v RAIL CORPORATION NEW SOUTH WALES & ORS Judgment 1 MCCOLL JA: I agree with Handley AJA. 2 HANDLEY AJA: This is an application for an extension of time to appeal or seek leave to appeal from the decision of Harrison As J. Her Honour had dismissed a worker's claim to judicially review the assessment of an Appeal Panel made under s 328 of the Workplace Injury Management and Workers' Compensation Act 1998 (the 1998 Act). 3 The worker was injured when she fell on 24 June and 14 July 2005 in the course of her employment. The first fall involved her knees, back and neck, the second her forearm, right wrist and right knee. 4 On 22 October 2006 the worker's claim for lump sum compensation came before an Arbitrator in the Workers' Compensation Commission. He made a number of findings by consent and, under s 321 of the 1998 Act, referred for assessment by an approved medical specialist (AMS) the following questions: (a) The degree of permanent impairment of the worker as a result of the injuries; (b) Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion. 5 It was common ground that the matters the Arbitrator referred to an AMS were medical disputes with s 319 of the 1998 Act. 6 The consent findings of the Arbitrator included a brief reference to each of the accidents and concluded: "The effects of those injuries continue to contribute to any impairment suffered by the applicant" 7 The AMS, Dr Schutz, examined the worker on 25 October 2006 and issued his medical assessment certificate on 22 November. He issued a Medical Assessment Certificate (MAC) in which he assessed the worker's whole person impairment (WPI) from her right and left lower extremities at 2% and 4% respectively, but applied s 323 and found that these were the result of a previous injury or pre-existing condition. 8 He assessed her WPI from her right upper extremity as the result of her fall on 14 July 2005 at 1% but found that this fall had not caused any additional impairment to her right lower extremity. In the result the worker's compensable WPI was assessed at 1%. 9 The worker appealed on grounds (c) and (d) in s 327(3), namely the use of incorrect criteria, and demonstrable error. The Registrar was satisfied that at least one of the grounds of appeal had been made out and, under s 327(4), referred the appeal to an Appeal Panel. 10 The decision of the Panel on 22 May 2007 confirmed the MAC of the AMS for the reasons it then gave. This is the decision that the worker seeks to have quashed on judicial review to secure a rehearing of her appeal by another Panel. 11 The Panel noted (par 23) that the AMS had found, contrary to the Arbitrator's finding, that there was no evidence of an injury to the worker's right or left lower extremities as a result of her fall on 24 June. They said (par 24) that it was the Arbitrator's function to determine whether there had been an injury as claimed, and that the task of the AMS was to determine whether that injury gave rise to any permanent impairment. 12 The Panel also held (par 24) that the AMS's comments about the fall on 24 June "were inconsistent with the referral and the Arbitrator's findings as to injury". 13 However they then held (par 25) that the Arbitrator had purported to make findings about permanent impairment and continued: "It is clearly the function of the AMS to assess the degree of permanent impairment resulting from an injury. It is not for the Arbitrator to make such a finding." 14 They said in pars 26 and 27: "Although Dr Schutz made comments regarding injury that offended his statutory function and were inconsistent with the Arbitrator's findings the Panel agrees with his ultimate finding … On the basis of the findings on examination and all of the other relevant material, in particular the radiological investigations, the Panel agrees with Dr Schutz's assessments and the reasons given for them …" 15 Mr Gibb SC, who appeared for the worker, relied on the error of the AMS identified by the Panel in para 24 of its reasons, and submitted that their reasons in para 25 disclosed an error of law on the face of the record: Supreme Court Act s 69(4). He submitted that the consent finding of the Arbitrator was a relevant matter which the Panel were bound to take into consideration, but they had rejected it as utterly irrelevant. 16 In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion. The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers' Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel. 17 Section 65(1) and (3) of the 1987 Act provides that in the event of a dispute the degree of permanent impairment that results from an injury is to be assessed in accordance with Part 7 of the 1998 Act. This includes ss 321, 323, 326, 327 and 328. 18 Section 326(1) provides that a MAC "is conclusively presumed to be correct … in any proceedings before a Court or the Commission" as to (a) "the degree of permanent impairment of the worker as a result of an injury" and (b) "whether any proportion of permanent impairment is due to any previous injury or pre-existing condition." This section also applies to a MAC issued by a Panel: s 328(5). 19 The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise. 20 If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but "may refer it for assessment" by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244. 21 Since the Arbitrator had no jurisdiction to decide the medical dispute he, referred had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive. 22 Section 350(1) of the 1998 Act provides that "Except as otherwise provided by this Act" a decision of the Commission [which includes an Arbitrator] "is final and binding on the parties and is not subject to … review". This section did not make the consent findings of the Arbitrator binding on the parties because the Act otherwise provides. A MAC which is conclusively presumed to be correct under s 326(1) trumps any inconsistent findings by an Arbitrator and such findings are neither final nor binding on the parties. 23 The decision of Harrison As J that an error of law had not been established was correct. The worker's summons in this Court should be dismissed with costs. 24 MCDOUGALL J: I agree with Handley AJA.

Haroun v Rail Corporation New South Wales & Ors

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