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, Robert Morris v Bourke Shire Council (2007) NSWWCCPD162 (24 July 2007) the respondent, represented by TurksLegal, Robert Morris v Bourke Shire Council

successfully argued that a decision by an Arbitrator referring a Medical Assessment Certifi cate 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 fi ndings 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 Certifi cate back to the AMS pursuant to Section 329 of the WIM Act 1998

of the Application to Resolve a Dispute. However, prior to the AMS reconsidering the Medical Assessment Certifi cate, the applicant

lodged an Appeal.

The basis of the Appeal was essentially that the applicant believed that the AMS Medical Assessment Certifi cate represented an

increase and therefore the Arbitrator should not have sought clarifi cation 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 aWIM Act relates to appeals against aWIM Act “decision of the Commission constituted by Arbitrator”. Section 352(8) of the “decision of the Commission constituted by Arbitrator”. Section 352(8) of the “decision of the Commission constituted by Arbitrator”. WIM

Act 1998, as amended, excludes from the defi nition 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 Workers Compensation Act 1987 indicates that the amendments to Section 352 apply in respect of a Workers Compensation Act 1987

claim for workers compensation made before the commencement of the amendments. The amendments commenced on 1 November

2006.

Interlocutory Decisions in the Workers Compensation Commissionby Craig Bell | August 2007

1 TURKSLEGAL TURKALERT

Area of Expertise | Workers Compensation

“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 benefi ts received by the applicant and identifi ed in Part 1 Related Claims”

TURKSLEGAL

Thus if the above amendments applied, the issue for DP Roche to decide was whether or not the decision by the Arbitrator to seek

clarifi cation 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

TurksLegal argued that the case of Hawkins represented the principle that there was a clear distinction between fi nal order and

interlocutory order and that the distinction was based on whether or not the Arbitrator’s order fi nally 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 fi nality to any parties’ rights as there were further steps to be taken after that direction.

2. If the AMS provided a view which was consistent with the respondent’s interpretation of the Medical Assessment Certifi cate

(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 fi nality 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.

2 TURKALERT

“it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a fi nal decision on

a matter that fi nally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that

fi nally determined the parties’ rights)…”.

For more information, please contact:

Craig Bell

PartnerT: 02 8257 5737craig.bell@turkslegal.com.au

This TurkAler t i s current at i ts date of publ icat ion. Whi le ever y care has been tak en in the preparat ion of this TurkAler t i t does not const i tute legal advice and should not be re l ied upon for this purpose. Speci f ic legal advice should be sought on par t icular matters . TurksLegal does not accept responsibi l i t y for any errors in or omiss ions f rom this TurkAler t . This TurkAler t i s copyr ight and no par t may be reproduced in any form without the permiss ion of TurksLegal . For any enquir ies, p lease contac t the author of th is TurkAler t .

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