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Interlocutory Decisions in the Workers Compensation Commission by Craig Bell | August 2007 Area of Expertise | Workers Compensation

Summary The Workers Compensation Commission has rejected an Appeal by an applicant worker against an interlocutory decision by an Arbitrator. In Robert Morris v Bourke Shire Council (2007) NSWWCCPD162 (24 July 2007) the respondent, represented by TurksLegal, successfully argued that a decision by an Arbitrator referring a Medical Assessment Certificate back to an Approved Medical Specialist, was an interlocutory decision. Accordingly, under the recent amendments to the appeal provisions in the Workplace Injury Management & Workers Compensation Act 1998 (WIM Act 1998), the Deputy President of the Commission (DP Roche) found that he did not have jurisdiction to deal with the Appeal.

Facts The applicant worker lodged proceedings in the Workers Compensation Commission in 2006 seeking compensation for additional impairments of the left arm, right arm and neck (the worker had received a previous lump settlement in 2003). An AMS who was appointed to deal with the claim provided assessments, however, the AMS did not make it clear whether the assessments were an increase of the previous settlement or whether the assessments represented his findings of impairment as a result of the injury. Clearly, if the assessments represented an increase, the increase would severely impact on the quantum of compensation to be awarded to the worker. Arbitrator Theobold referred the Medical Assessment Certificate back to the AMS pursuant to Section 329 of the WIM Act 1998 “for a determination as to whether or not he brought to account within the MAC issued on 6 February 2007 the earlier determination of impairment, the determination for lump sum benefits received by the applicant and identified in Part 1 Related Claims” of the Application to Resolve a Dispute. However, prior to the AMS reconsidering the Medical Assessment Certificate, the applicant lodged an Appeal. The basis of the Appeal was essentially that the applicant believed that the AMS Medical Assessment Certificate represented an increase and therefore the Arbitrator should not have sought clarification from the AMS. DP Roche sought submissions from both parties regarding the amendment to the Appeal provisions which excludes interlocutory decisions.

Relevant Legislation Section 352 of the WIM Act relates to appeals against a “decision of the Commission constituted by Arbitrator”. Section 352(8) of the WIM Act 1998, as amended, excludes from the definition of decision any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations. Clause 200B of the Workers Compensation Regulation 2003 prescribes for the purposes of Section 352(8), all preliminary or interim orders, determinations, rulings and directions. Schedule 6, Part 18J, Clause 5 of the Workers Compensation Act 1987 indicates that the amendments to Section 352 apply in respect of a claim for workers compensation made before the commencement of the amendments. The amendments commenced on 1 November 2006.

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Thus if the above amendments applied, the issue for DP Roche to decide was whether or not the decision by the Arbitrator to seek clarification of the MAC from the AMS, was of an interlocutory nature. If it was a interlocutory decision, pursuant to Section 352, the decision could not be appealed against. On the other hand, if it was not an interlocutory decision, the Deputy President would have jurisdiction to consider the Application for an Appeal.

Decision TurksLegal disputed all aspects of the Appeal including whether or not the decision was of an interlocutory nature. DP Roche dealt solely with the interlocutory issue. TurksLegal referred to the decision of DP Roche in P&O Ports Limited v Hawkins (2007) NSW WCCPD87. In that matter, DP Roche came to the determination that “it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determined the parties’ rights)…”. TurksLegal argued that the case of Hawkins represented the principle that there was a clear distinction between final order and interlocutory order and that the distinction was based on whether or not the Arbitrator’s order finally determined one of the parties’ rights. TurksLegal submitted that the direction made by the Arbitrator to have the AMS clarify his opinion did not dispose of the rights of either party because of the following reasons: 1.

It was still open to the AMS to provide an assessment from which the Arbitrator would then make further determinations. Thus the direction did not represent finality to any parties’ rights as there were further steps to be taken after that direction.

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If the AMS provided a view which was consistent with the respondent’s interpretation of the Medical Assessment Certificate (only a small increase on the previous settlement), the worker would still have been entitled to further compensation.

Deputy President Roche accepted the respondent’s views and found: “The Arbitrator has merely issued a direction seeking to clarify the exact meaning of the MAC and whether the AMS has taken into account Mr Morris’ previous losses before reaching his conclusions. Such a direction has not disposed of the parties’ rights but has merely sought to make sure that when those rights are ultimately determined they are done so on the correct basis”. Having decided that the decision was of an interlocutory nature and therefore not appealable, the Deputy President did not consider any other aspects of the Appeal and refused the Appeal.

Conclusion This decision highlights the distinction between decisions made by Arbitrators during the course of proceedings. All respondents (employers/insurers) should be alert to the distinction between a decision which is of an interlocutory nature and a decision which brings finality to the rights of the parties. If the decision is of an interlocutory nature, neither party can Appeal the decision. If your opponent in any proceedings attempts to Appeal a decision of an Arbitrator, you should be aware of the jurisdictional issues set out above and discuss them with your legal advisers immediately.

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For more information, please contact: Craig Bell Partner T: 02 8257 5737 craig.bell@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Business & Property | Commercial Disputes | Insurance & Financial Services | Workers Compensation | Workplace Relations

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Interlocutory Decisions in the Workers Compensation Commission