Issue 12: December 2016

NSW Trustee and Guardian on behalf of Robert Birch v Olympic Aluminium Pty Ltd [2016] NSWWCCPD 54

Dispute about a work capacity decision; jurisdiction of the Commission; s 43(1) and (3) of the 1987 Act; whether Arbitrator erred in declining to award compensation where inconsistent decisions made by insurer

Keating P

10 November 2016

Facts

In November 2002, the worker injured his lumbar spine in the course of his employment with the respondent while pulling lengths of aluminium from a racking system. The employer’s insurer accepted liability for the injury and commenced weekly payments of compensation.

As a result of the amendments introduced by the 2012 amending Act the worker’s claim was to be transitioned to the new benefits scheme in 2013. In October 2013, the insurer wrote to the worker informing him that following an assessment of his work capacity, a decision had been made that he currently had a capacity for work and was entitled to benefits under s 38 of the 1987 Act(the letter). The letter recorded “Current work capacity = 12 per week”. As a result of the transition, the worker was informed that he was entitled to weekly compensation at the rate of $758.80 per week from 17 January 2014. The terms of that notification and the calculations it contained were the subject of controversy. However it was accepted by both parties that the letter constituted a “work capacity decision.”

In June 2014, the insurer issued a notice declining liability for weekly payments beyond August 2014 claiming that the November 2002 incident was a minor aggravation of an underlying degenerative condition; the effects of which had ceased.

The worker lodged an Application to Resolve a Dispute claiming weekly payments of compensation from August 2014. The Arbitrator found in favour of the worker with respect to the liability issues but declined to enter an award in his favour because the work capacity decision precluded him from doing so.

The issues in dispute on appeal were whether the Arbitrator erred:

(a) when he failed to consider that the decision to pay weekly compensation during the s 38 period was itself a work capacity decision and he had no jurisdiction to make a decision inconsistent with that decision;

(b) when he considered that a decision that the worker had a capacity of “12 per week” meant that he had a capacity to earn working 12 hours per week, and

(c) by considering that he could engage in a consideration of s 38 when there was a work capacity decision.

Held: The Arbitrator’s determination was revoked and the Commission declined to make any order pursuant to s 43(3) of the 1987Act.    

The Jurisdictional Issue

1. The appellant submitted that the letter was a decision by the insurer to pay the worker weekly compensation at the rate of $758.80 under s 38 and anything else contained within the letter was not a “decision” but merely information leading to the decision to pay weekly compensation at the set rate ([32]).

2. The respondent submitted that the decision made by the insurer was a decision that the worker had been assessed as having a current work capacity which had been assessed at 12 hours per week. Therefore, the gateway to an award under s 38 could not be satisfied. It followed that the Arbitrator was correct in declining to make an order ([33]).

3. The President considered whether the dispute before him concerned a “dispute about a work capacity decision of an insurer” (s 43(3)), and, if so, whether that excluded the Commission’s jurisdiction to determine the dispute pursuant to s 43 of the 1987 Act. His Honour observed that that phrase a “dispute about a work capacity decision” or the term “dispute” was not defined. He further observed that while dictionaries may be used to assist in determining the meaning of a term contained in legislation, dictionary definitions are not conclusive and the better approach is to consider the words in context (Rushbrook v Alan James Biggs t/as A J Biggs Used Cars [2014] NSWWCCPD 75, Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, XYZ v Commonwealth [2006] HCA 25, Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68, State of New South Wales v Chapman-Davis [2016] NSWCA 237 considered and applied) ([46]–[51]).

4. The President was satisfied that the issue raised on appeal considered a dispute about a work capacity decision. He observed that the letter, which the parties accepted was a work capacity decision, was a confused, confusing and internally inconsistent document. It was open to conclude that the insurer decided that the worker had been assessed as having a work capacity and it was reasonable to infer that that capacity was assessed at 12 hours per week ([52]–[54]).

5. His Honour observed that if the respondent’s submissions were accepted the insurer’s decision was that the worker had a work capacity of 12 hours per week, and that would be insufficient to attract an award of compensation under s 38 and the Arbitrator’s decision would be confirmed. He also observed that if the appellant’s submissions were accepted the only decision is that the worker is entitled to compensation at the rate of $758.80, and the Arbitrator’s decision would be revoked and an award entered in the worker’s favour. Both submissions could not be correct ([56]–[58]).

6. The President found that in order for the Commission to resolve the differences between the arguments presented in respect of the letter, it necessarily involved the resolution of a dispute about a work capacity decision which is beyond the Commission’s jurisdiction by reason of the express exclusion contained in s 43(3). To the extent that the Arbitrator engaged in a resolution of that dispute he erred ([59]).

7. It followed that the Arbitrator’s determination had to be revoked. However, if that conclusion was incorrect the President provided the following alternative findings for not upholding the appeal ([61]-[62]).

The Arbitrator erred when he considered that a decision that the worker had a capacity of 12 per week meant that he had a capacity to earn, working 12 hours per week

8. The appellant submitted that the letter was in two parts. It contained a conclusion that the worker was entitled to weekly payments under the new s 38 in the sum of $758.80. It also contained a conclusion that he had “current work capacity = 12 per week”. The Arbitrator was required, so it was submitted, to interpret the findings “in the light that there was a work capacity decision that the appellant was entitled to compensation. To do otherwise would be to make a decision inconsistent with the work capacity decision” ([64]).

9. The respondent submitted that the only inference available to be drawn from the letter was that the worker had a capacity for work of 12 hours per week. It also submitted that the Commission is not bound to perpetuate an error in the calculation of the worker’s entitlement ([71], [73]).

10. The President observed that the first decision made by the insurer concerned the requirement to transition the worker to the new benefits scheme in 2013, following the amendments to the legislation introduced by the 2012 amending Act ([78]).

11. The finding that the worker has a capacity of “12 per week” could only be consistent with a finding that he had been assessed as being capable of working 12 hours per week. The appellant’s counsel conceded that such a finding was a reasonable conclusion for the Arbitrator to have reached ([81]-[82]).

12. For the President to accept the appellant’s submission it was necessary to draw an inference that the worker had been assessed as having no earning capacity when the effects of his accepted work injury were considered in conjunction with his non-work related medical condition. There was no evidence to support such an inference, and to draw such an inference would be an error of law (Sabanayagam v St George Bank Limited [2016] NSWCA 145 applied) ([87]-[88]).

13. The insurer made no attempt to assess the worker’s ability to earn in suitable employment. There is no reference in the letter to any consideration of the factors relevant to such an assessment, such as the worker’s age, education, work experience or any of the other factors relevant to such an assessment ([89]).

14. It followed that it was open to the Arbitrator to conclude that the insurer’s decision was a decision that the worker retained a physical capacity for work of 12 hours per week ([90]).

The Arbitrator erred when he failed to consider that the decision to pay weekly compensation during the s 38 period was itself a work capacity decision and he had no jurisdiction to make a decision inconsistent with that decision

15. The appellant submitted that to reach a conclusion that the entitlement to weekly compensation under s 38 is anything other than the sum of $758.80 would be inconsistent with the work capacity decision. The Commission cannot go behind the decision to determine for itself whether the terms of s 38 have been met ([96]).

16. The respondent argued that the decision to pay the worker the full entitlement under s 38 was clearly not the basis of his “current work capacity” (s 43(a)). Had the work capacity decision been made on the basis of the worker’s work capacity (12 hours) his entitlement would have been nil. In the event that the letter constituted a work capacity decision, in the alternative, the Arbitrator did not err as s 43(3) does not compel the Commission to make an order; it precludes the making of a decision that is inconsistent with a work capacity decision. The decision to pay the worker $758.80 per week was not a work capacity decision pursuant to s 38 but a decision made for transitional purposes only ([97], [99], [106]).

17. The President observed that the insurer failed to consider the requirements of s 38(3) having failed to recognise that the worker had not returned to work and was not working “not less than 15 hours per week” and was not earning “at least $155 per week”. The insurer also failed to consider the factors relevant to an assessment of the worker’s current work capacity as defined in s 32A of the 1987 Act. Therefore, the President was of the view that the respondent’s submission was correct. The decision, in so far as it quantified the worker’s entitlement, was a decision for a transitional purpose only ([113]).

18. Had the decision been made for a purpose other than transitioning the worker into the new benefits regime, namely, to assess the worker’s entitlements under s 38 generally, the insurer would have been required to turn its attention to the requirements of s 38(3). The worker did not satisfy the requirements of s 38(3), as he had not returned to work for not less than 15 hours per week and was not earning at least $155 per week ([115]).

19. There was no evidence that the insurer turned its attention to any of the matters referred to in the definition of “suitable employment” in s 32A other than to refer to the limitations on the worker’s physical incapacity to work. Although the decision refers to s 38, it was clear that the insurer failed to make any assessment of the worker’s ability to return to work in suitable employment and therefore failed to make any assessment of the worker’s current work capacity. The insurer’s decision was not made in accordance with s 38. It followed that the insurer’s decision did not enliven the power of the Commission to make an award under s 38 (Lee v Bunnings Group Ltd [2013] NSWWCCPD 54). Therefore, the Arbitrator was correct to conclude that he was precluded from making an order in favour of the worker ([118]-[119]).

20. Even if the decision was made pursuant to s 43(f), it did not advance the worker’s case because it would lead to the conclusion that the insurer made two inconsistent decisions. Therefore it would be impossible for the Commission to make an award of compensation that was not inconsistent with the work capacity decision in one respect or another ([120]-[122]).

The Arbitrator erred by considering that he could engage in a consideration of s 38 when there was a work capacity decision

21. No reasoned argument or authority was advanced to support this ground of appeal. The President observed that s 43(3) prohibits the Commission from making a decision inconsistent with a work capacity decision. In addition, there is nothing in that provision that commands or directs the Commission to make an order in the terms of a work capacity decision if there are valid reasons, as in this case, not to do so. To construe the section in the terms submitted by the appellant is to read words into the section that are simply not there ([135]-[137]).

Chris Waller Racing Pty Ltd v Muscutt [2016] NSWWCCPD 57

Operation of s 60(2A) of the 1987 Act, entitlement of worker to recover the cost of medical treatment, namely surgery, when surgery performed without prior notice to insurer and liability to pay compensation benefits generally including s 60 expenses is later accepted by the insurer in respect of the injury giving rise to the need for surgery; meaning and effect of s 60(1) and sub-s (2A) of the 1987 Act and cl 3.2.1.2 of the WorkCover Guidelines for Claiming Compensation Benefits

21 November 2016

ADP King

Facts

Mr Muscutt suffered a back injury in the course of his employment with the appellant on
13 January 2015.

Within the following three weeks, Mr Muscut underwent two spinal surgeries: first on 21 January 2015 and then on 3 February 2015.

Mr Muscutt claimed lump sum compensation, weekly benefits and medical treatment expenses on 17 November 2015.

The appellant’s insurer issued a s 74 notice on 1 June 2015, denying liability on all grounds, including liability for medical treatment expenses of the surgeries.

By the time the matter proceeded to an arbitration hearing, the only issue in dispute was whether the appellant employer was liable to pay for the s 60 expenses in respect of the surgery pursuant to s 60(2A) of the 1987 Act.

Clause 3.2.1.2 of the WorkCover Guidelines for Claiming Compensation Benefits (the Guidelines) provides relevantly “any treatment or service provided to an injured worker where there is a dispute about reasonably necessary treatment or service and the Workers Compensation Commission has found that the treatment or service provided was reasonably necessary” is exempt from the requirement for prior insurer approval.

The Arbitrator found for Mr Muscutt.

The appellant employer appealed, arguing that before the medical expenses for the treatment became recoverable, there had to be prior approval or disapproval from the insurer. The appellant specifically referred to the use of the present tense “is” in the opening words of cl 3.2.1.2 of the Guidelines as to whether the s 74 notice was retrospective.

The issues on appeal were:

(a) whether by application of s 60(2A) and cl 3.2.1.2 of the Guidelines Mr Muscutt was entitled to recover the expense associated with the surgery to his low back, and

(b)    whether the construction of cl 3.2.1.2 is of more moment than the construction of the statutory provisions.

Held: the Arbitrator’s Determination of 12 May 2016 was confirmed.

Discussion

1. The Guidelines applied to the current claim ([47]).

2. The approach involving the “reading in” of words was not appropriate. The purposive approach may require giving a stained interpretation of the actual words in order to effectuate the proper purpose. The task of construction remains the interpretation of the words the legislature enacted; any modified meaning must be consistent with the legislative intention (Taylor v The Owners – Strata Plan No. 11564 [2014] HCA 9 at [39]) ([48]-[49]).

3. It was unnecessary to decide whether the Guidelines were delegated legislation. The Guidelines should still be interpreted with the usual principles of statutory interpretation, regardless whether they are delegated legislation or not ([50]).

4. Constructive disapproval of the treatment was not in issue in the current matter. However, it might be a matter for consideration if the facts were different ([51]).

5. There was ambiguity or doubt about the meaning of cl 3.2.1.1 when it was read in conjunction with the statutory provision. It was appropriate to refer to the Explanatory Note to the Workers Compensation Legislation Amendment Bill 2012 and the second reading speeches in respect of the bill in the Legislative Assembly on 19 June 2012 and Legislative Council on 20 June 2012 ([52]-[54]).

6. To say that if a worker underwent medical treatment which was subsequently found or agreed to result from an employment injury and to be reasonably necessary, the worker might have to fund the treatment on their own because the approval was not given, the result was very curious, difficult to justify or even approaching absurdity. Be it a refusal to approve treatment before the proposed treatment happened, or a denial of liability in respect of treatment after it had happened, there was no difference in principle between the two. There could be no rational grounds for a refusal or a denial of liability in respect of treatment other than the lack of connection between the injury and the proposed treatment or that it was not reasonably necessary by reference to the injury, or both ([56]).

7. The facts of the case were a good example on the lack of accuracy of the appellant’s argument over the need for prior approval or disapproval. It was also a good example of how urgency in respect of treatment can develop beyond the 48 hour period nominated in s 60(2A) ([57]).

8. The appellant’s argument had strength in it. It was necessary to identify the purpose of the statutory provisions and the Guidelines in order to give rational meaning to the words of a statute (Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 at [32] and 747). The proper construction of the text should not read words out of operation or existence ([58]).

9. The use of the present tense “is” is neutral ([59]).

10. The Arbitrator’s interpretation and Mr Muscutt’s contention gave effect to s 60(2A) as affected by the Guidelines. The force of the strange consequences of the appellant’s approach predominated over the substance of the appellant’s approach ([60]).

11. Section 60(2A) gives an insurer the opportunity to try to exercise some influence where it is given reasonable information as to proposed treatment. Where the insurer chooses to challenge the worker’s entitlement to recover the medical expenses, either by way of advance disapproval or outright denial of liability, if the challenge fails, the only sensible outcome is that the expense should be borne by the party to whom s 60(1) points ([61]-[62]).

12. It was incorrect to say that a s 74 notice issued after treatment has taken place creates a retrospective dispute. A dispute in time is not essential. All there need be is a dispute over whether the need for treatment resulted from the injury or whether the treatment was reasonably necessary, or both. The Arbitrator’s decision involved no error ([63]).

13. Lack of prior refusal of approval is not a bar to the recovery of the medical expenses. Because a refusal in advance of treatment has the same practical effect as a denial of liability at any material time, the real practical utility of s 60(2A) should be seen to be to give the insurer a voice in the decision that a worker must ultimately make as to whether to have the medical treatment and if so what treatment to have ([64]).

Draca v Formtec Group (NSW) Pty Limited [2016] NSWWCCPD 53

Application of Sch 8, cl 11 of the 2016 Regulation

Snell DP

7 November 2016

Background

Facts

The appellant, Mr Draca, suffered injury in the course of his employment with the respondent on 28 November 2001. A number of claims for lump sum compensation were made, prior to 19 June 2012. By September 2012 Mr Draca had received lump sum compensation (in respect of claims made prior to 19 June 2012) for permanent impairment of the back, the left and right legs at or above the knee, the left arm at or above the elbow and the neck.

Mr Draca claimed lump sum compensation in respect of the bowel and digestive system on
30 October 2012 (that is, after 19 June 2012). The claim was finalised on 26 May 2014 with a determination of zero per cent permanent loss of bowel function, consistent with a Medical Assessment Certificate (MAC).

On 14 April 2014 Mr Draca claimed additional lump sum compensation in respect of further permanent impairment of the neck and back, permanent loss of the left arm at or above the elbow, permanent loss of both legs at or above the knee, and bowel injury/impairment, together with a threshold dispute.

On 13 November 2015, Sch 8, cl 11 of the 2016 Regulation (previously Sch 8, cl 11A of the 2010 Regulation) commenced allowing one - and only one - further lump sum compensation claim for a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.

By consent the matter was referred to two AMSs, to assess the orthopaedic and bowel claims, and a threshold dispute. A MAC dated 11 September 2015 contained assessments in respect of the neck and the right leg at or above the knee, sufficient to entitle Mr Draca to further lump sum compensation for these parts. A Certificate of Determination was issued by the Deputy Registrar on 25 November 2015, providing for further lump sum compensation for these parts. The employer sought reconsideration of it, on the basis that the further compensation was not available due to the decision in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250; 13 DDCR 281. Additionally it was said that appropriate credit had not been allowed for previous compensation paid for permanent impairment of the neck. The matter was referred to an Arbitrator, who then dealt with it.

Mr Draca argued that the claim made on 30 October 2012 had not been a valid claim, and alternatively that the further claim was saved by Sch 8, cl 11 of the 2016 Regulation. The Arbitrator found that the claim made on 30 October 2012 was a valid claim. The 2014 lump sum compensation claim offended s 66(1A). It was not saved by cl 11, Sch 8 of the 2016 Regulation.

Mr Draca appealed. The issue dealt with on appeal was whether the Arbitrator erred in failing to apply cl 11(4).

Clause 11(4) provides:

“[f]or the purpose of subclauses (1) and (2):

(a) a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with before the commencement of subclause (1), is to continue and be dealt with as if section 66(1A) of the 1987 Act had never been enacted, and

(b) no regard is to be had to any further lump sum compensation made in respect of the existing impairment:

(i) that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and

(ii) in respect of which no compensation has been paid”.

Held: (1) the Certificate of Determination dated 1 July 2016 was revoked; (2) the respondent was to pay the appellant, by way of additional lump sum compensation pursuant to s 66of the 1987 Act, resulting from injury on 28 November 2001:       $2,000 in respect of an additional five per cent permanent impairment of the neck, and $3,750 in respect of an additional five per cent permanent loss of use of the right leg at or above the knee.

Considerations

1. The issue of whether cl 11 permitted the appellant to pursue the current claim was approached on the assumption that the October 2012 claim was valid and was not a nullity, contrary to the appellant’s argument that the claim was not a valid claim ([30]).

2. Regulations are to be construed according to ordinary principles of construction: Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101 at [19]. The operation of cl 11 was considered by Keating P in Avni v Visy Industrial Plastics Pty Ltd [2016] NSWWCCPD 46 ([31]).

3. The claim made on 14 April 2014 fell within the definition of a “further lump sum compensation claim” in cl 11(6). It was not “withdrawn or otherwise finally dealt with” before the commencement of cl 11(1). It was “one further lump sum compensation claim” for the purpose of cl 11(6) ([32]).

4. The October 2012 claim was finally dealt with on 26 May 2014, prior to the commencement of Sch 8, cl 11. Mr Draca did not recover any compensation in respect of that claim. Clause 11(4)(b) provides that no regard is to be had to the October 2012 claim in those circumstances ([33]-[34]).

5. The claim made on 14 April 2014 was available and was to be dealt with as if
“s 66(1A) had never been enacted” under cl 11(1)(a). If the 2012 claim was a nullity, then the April 2014 claim was the one further claim for the purpose of cl 11(1) and (2); if it was valid, no regard was had to it pursuant to cl 11(4)(b) ([35]).

6. The approach was consistent with the approach taken by Keating P in Avni. It was consistent with the clear words of the clause, interpreted according to their “ordinary and grammatical sense” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[2009] HCA 41 at [4]) ([36]).

7. The provision was beneficial in nature. If there was ambiguity in the language, it was appropriate to give the provision a beneficial construction in favour of the injured worker (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 13 DDCR 90 at [28]–[29]). That approach was consistent with the Explanatory Note to the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 ([38]).

8. As the first ground of appeal was made out, it was unnecessary to consider the other ground of appeal ([39]).

Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55

The test to establish ‘injury’ in the primary sense pursuant to the definition in s 4(a) of the 1987 Act – application of Military Rehabilitation and Compensation Commission v May [2016] HCA 19; ‘injury’ in the primary sense and ‘disease’ injury not mutually exclusive – application of Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310

Snell DP

15 November 2016

Facts

The appellant worker was employed by the respondent as a picker and packer and forklift driver from 1988 to 13 January 2012. He was subsequently employed by another company as a picker and packer between 2014 and 2015.

The appellant claimed lump sum compensation for nine per cent WPI in respect of the right upper extremity (shoulder), four per cent in respect of the right lower extremity (knee) and four per cent in respect of the left lower extremity (knee).

The date of injury was described as “deemed 13 January 2012”, which was the date on which the appellant’s employment was terminated by the respondent. The appellant pleaded the injury as a nature and conditions claim, rather than a disease claim.

The respondent’s insurer denied liability in respect of the shoulder injury on the basis of ‘injury’ and s 9A of the 1987 Act. The combined degree of permanent impairment of the left and right knees was less than the threshold of s 66(1) of the 1987 Act.

The focus of the dispute before the Arbitrator was whether the appellant suffered injury to the right shoulder within the meaning of s 4(a) of the 1987 Act, and, if so, whether the appellant was entitled to found a lump sum compensation claim pursuant to s 66 in respect of the injury.

The Arbitrator was not satisfied that the injury to the right shoulder was a “personal injury” as there was no “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. Rather, the Arbitrator found that the injury to the right shoulder constituted “a disease condition” that was contracted gradually. The appellant had not presented the case on this basis, or sought any such finding on ‘injury’. As the appellant’s argument that there was an ‘injury’ in the primary sense failed, there was an award for the respondent on the allegation of injury to the right shoulder.

It followed that the impairment of the right shoulder could not be aggregated with the impairment of the lower extremities. The claim failed, as it did not meet the threshold in s 66(1) of the 1987 Act.

The issues on appeal concerned whether the Arbitrator erred in:

(a) concluding that a finding of ‘injury’ required “a sudden and ascertainable or dramatic physiological change or disturbance in the normal physiological state”;

(b) fact in his consideration of the evidence of Dr Dias;

(c) his findings “regarding personal injury” against the evidence or the weight of the evidence;

(d) concluding that there was no evidence that the appellant’s duties involved “a series of micro traumata”, and

(e) finding that the appellant’s claim pursuant to s 66 of the 1987 Act was not valid.

In addition, the respondent disputed that the appeal was filed within the 28-day period required by s 352(4) of the 1998 Act.

Held: the Certificate of Determination dated 18 May 2016 was revoked; the matter was remitted for re-determination by another Arbitrator.

Time for filing the appeal

1. The Deputy President considered the 2011 Rules, in the context of s 352(4) of the 1998 Act which provides that an appeal can only be made within 28 days after the making of the decision appealed against. In view of rr 16.2(11), 1.4(2) and 2.5(3) of the 2011 Rules, an appeal application is made when it is registered and accepted by the Registrar with the Commission’s seal affixed to it. It followed that the appeal was filed within the prescribed time pursuant to s 352(4) of the 1998 Act. The fact that the appeal application was later amended, following direction of the Registrar, did not alter the time the appeal was made ([25]-[31]).

The requirements for a finding of injury

2. Deputy President Snell observed that the appellant effectively raised two separate issues under this gorund ([49]):

(a) whether the Arbitrator misstated the test described in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar) and Kennedy Cleaning v Petkoska [2000] HCA 45; 200 CLR 286; 174 ALR 626; 74 ALJR 1298 (Petkoska), by applying the test in [39] (rather than [35])of Petkoska, that is, whether there was a “sudden identifiable pathological change”. Associated with this issue was the issue whether the test applied by the Arbitrator was consistent with the approach in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May), and

(b) whether, notwithstanding his reference to Yum Restaurants Australia Pty Ltd t/as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31, the Arbitrator approached the matter on the basis that a finding of ‘personal injury’ was unavailable, if there was an injury properly characterised as a ‘disease injury’.

Was the correct test applied?

3. Deputy President Snell considered the test in May in determining whether the Arbitrator applied the correct test ([52]-([54]).

4. Deputy President Snell observed that, overall, the test referred to in May differs from that described by Gleeson CJ and Kirby J in Petkoska, in that it makes it clear that “suddenness” is not necessarily required for there to be a finding of ‘injury’ in the primary sense ([55]).

5. May involved the definition of ‘injury’ in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth); it concerned the meaning of ‘injury’ “in its primary sense”. It reasoned from the decisions in Zickar and Petkoska. The reasoning of the plurality in May had application in construing the definition of ‘injury’ in its primary sense, in s 4(a) of the 1987 Act. The approach was consistent with Justice Gageler’s reasoning in May which was based on “[m]ore than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation” ([56]–[59]).

6. It followed that the Arbitrator, in applying a test different to that described in May, going to the meaning of ‘injury’ in its primary sense, was in error ([60]).

7. Overall, at the least the medical evidence was consistent with the proposition that “suddenness” may not have been present. The extent to which any absence of “suddenness” was a factor in the finding on ‘injury’ was not apparent from the Arbitrator’s reasons. It could not be concluded that the identified error could not possibly have affected the result: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [9]–[10] and Toll Pty Ltd v Morrisey [2008] NSWCA 197; 6 DDCR 561 at [10] applied ([63]).

Was there error in the approach to the availability of a ‘disease’ finding?

8. Deputy President Snell considered whether the Arbitrator approached the matter on the basis that a finding of ‘personal injury’ was unavailable, if there was an injury properly characterised as a ‘disease injury’ ([65]).

9. The Arbitrator referred to Zickar and Petkoska, as authority for the proposition that “the terms personal injury and disease are not mutually exclusive” ([66]). The Arbitrator considered that the process in which the  appellant’s right shoulder pathology arose was analogous to that in Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; NSWCCR 253. He concluded that the right shoulder condition constituted a disease condition ([67]).

10. Deputy President Snell found no concession by the appellant, that his case must fail if there was a finding of a ‘disease’ injury. The Arbitrator did not decline to find injury in the primary sense on the basis of the finding of a ‘disease’ injury. Rather, it was after finding that ‘injury’ in the primary sense could not be established, that the Arbitrator concluded that ‘injury’ based on the ‘disease’ provisions could have been established ([69], [72]).

11. Reading the Arbitrator’s reasons as a whole (Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430 at 444), Deputy President Snell did not accept that the Arbitrator approached the matter on the basis that a finding of ‘injury’ in the primary sense was unavailable, if there was an injury which could be properly characterised as a ‘disease injury’ ([73]).

12. In view of the above findings, the Deputy President found that the preferable approach was to have the matter remitted to another Arbitrator for re-determination. In the circumstances it was unnecessary to consider the other grounds of appeal ([74]-[75]).

Fairfield City Council v Elek [2016] NSWWCCPD 52

Section 261(6) of the 1998 Act – application of Unilever Australia Ltd v Petrevska [2013] NSWCA 373; 13 DDCR 260; s 254(3)(a) of the 1998 Act; deciding a dispute on a basis not put – application of Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 at [82]-[84]; alleged errors in fact finding

Snell DP

1 November 2016

Facts

The respondent was employed by the appellant from 1974 to 24 August 2012. He received lump sum compensation in 2005 for hearing impairment due to exposure to industrial noise. The respondent claimed compensation for further hearing impairment on 29 October 2014.

The Arbitrator found that the respondent first became aware of his further injury on 23 June 2014, when he consulted Dr Kleiner, an ear, nose and throat surgeon, at the request of his solicitors. Thus a claim was made within six months of the respondent becoming aware of his further injury, and there was compliance with s 261 of the 1998 Act. Notice of injury was given on 29 October 2014. The Arbitrator found that the respondent had complied with ss 254 and 255 of the 1998 Act, in giving notice of the injury to the appellant employer, on the basis that no prejudice resulted from the failure to give notice until 29 October 2014 (ss 254(2) and (3) of the 1998 Act).

The issues on appeal were whether the Arbitrator:

(a) made an error of law “in making a finding in the absence of any evidence to support it” in respect of the respondent’s state of knowledge of the injury;

(b) made an error of law in determining the dispute on a basis not put by or to the parties;

(c) erred in his consideration and determination of the issue as regards ‘notice of injury’, and

(d) erred in the exercise of his discretion in “declining to give leave to issue certain Directions”.

Held: the Certificate of Determination was revoked; the matter was remitted for redetermination by another Arbitrator, to determine whether the respondent is entitled to rely on s 254(3)(a) of the 1998 Act for the purpose of establishing that there were “special circumstances” within the meaning of s 254(2) of that Act.

The claim

1. Section 261(6) of the 1998 Act provides that if an injured worker first becomes aware that he or she received an injury after the injury was received, the date of injury is taken to be the date when an injured worker first became so aware.

2. The appellant submitted that the date of injury should be the deemed date of injury of 24 August 2012, or at the latest the date the appellant sought advice from his legal representative in November 2013 ([35]).

3. Deputy President Snell referred to the authorities that the Arbitrator relied on: Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Jones) and Unilever Australia Ltd v Petrevska [2013] NSWCA 373; 13 DDCR 260 (Petrevska) ([40]-[42]).

4. He observed that the test dealing with when a worker first became aware of an injury is an objective one, based on the worker’s actual knowledge, rather than constructive knowledge (Jones at [89]) ([40]).

5. Applying Petrevska Snell DP held that the belief of a lay person as to the cause of his deafness is likely to be of little, if any, significance. The respondent’s awareness of a further loss of hearing, reading information in the newspaper and obtaining advice from his legal representative, was insufficient to provide relevant awareness of the injury. The date when the respondent first became aware of the injury was the date when he attended a medical specialist examination with Dr Kleiner on 23 June 2014. It followed that the claim was made in time pursuant to ss 261(1) and 261(6) ([43]-[44]).

Notice of injury

6. The Arbitrator inferred that the respondent left it to his solicitor to provide particulars of injury and noted that the respondent’s failure to give notice may be occasioned by ignorance or mistake. The appellant argued that there was no evidence supporting the respondent’s statement that he left it to his solicitor to provide particulars of injury or the Arbitrator’s finding that there were “special circumstances” under ss 254(2) and 254(3) of the 1998 Act ([46]–[47]).

7. Deputy President Snell held that the respondent’s statement justified the inference drawn by the Arbitrator that the respondent left his solicitors to provide particulars of injury. Even if the inference was drawn in error, it could not have affected the result and could not constitute appealable error (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141at [16], Toll Pty Ltd v Morrisey [2008] NSWCA 197; 6 DDCR 561 at [10]). The important matter was when notice was given, on which the finding was correct and not challenged ([44], [48]).

8. Accordingly, this ground failed ([51]).

Determining the dispute on a basis not put

9. The argument was that the Arbitrator erred in finding “special circumstances” pursuant to s 254(3)(a) based on a lack of prejudice to the appellant, without that issue having been addressed by the parties or put to the parties by the Arbitrator ([53]-[54]).

10. Deputy President Snell observed that both parties had addressed the issue of whether there had been a failure to comply with s 254(1) of the 1998 Act. The issue of prejudice was addressed by evidence but the question of whether there were special circumstances within the meaning of s 254(3)(a) of the 1998 Act was not raised by the parties in their submissions or put to them by the Arbitrator ([70]-[71]).

11. Applying Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; 10 DDCR 290 (Bathurst CJ at [75]) and Jones at [82]-[84], Snell DP found that the failure to put this issue to the parties deprived the appellant of an opportunity to be heard on, and respond to, the issue based on s 254(3)(a), and amounted to a denial of procedural fairness ([72]-[74]).

12. Accordingly, this ground was upheld ([75]).

Error on the “notice of injury” issue

13. The appellant submitted that the Arbitrator erred in finding either that the respondent gave notice of injury “as soon as possible” in compliance with s 254(1) of the 1998 Act, and/or that any failure to give notice under s 254(1) was excused on the basis of s 254(3)(b) of the 1998 Act ([76]-[77], [79]).

14. Deputy President Snell found that this ground was misconceived. The Arbitrator did not make the findings the appellant complained of. The Arbitrator approached the issue of notice of injury on the basis that the appellant did not comply with s 254(1).The finding on “special circumstances” was discussed above ([80]).

15. Accordingly, this ground failed ([81]).

Directions for Production

16. This ground was not pressed as the alleged error in determining the dispute on a basis not put was made out ([82]).

Lukac v Berkeley Challenge Pty Ltd t/as Spotless [2016] NSWWCCPD 56

Consequential condition from accepted work injuries; assessment of expert evidence; Paric v John Holland (Constructions) Pty Ltd (1984) 2 NSWLR 505; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; alleged errors of fact; application of the principles in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505

Keating P

18 November 2016

Facts

The worker sought compensation pursuant to s 66 of the 1987Actfor an alleged consequential condition to her left shoulder. She alleged the condition was caused by overuse due to favouring her left arm to protect her right shoulder and neck which were injured in an accepted work injury in 2002.

The worker challenged the Arbitrator’s factual finding that she failed to discharge the onus of establishing that the alleged overuse occurred and the weight attached to the evidence of the medical experts.

Held: The Arbitrator’s determination was confirmed.

Dr Manohar

1. The appellant submitted that the Arbitrator erred in finding that Dr Manohar, consultant physician musculoskeletal and spine medicine, was under the mistaken belief that the symptoms suffered by the worker in her left shoulder resulted directly from the accepted workplace injury in 2002 ([79]).

2. The President accepted that the initial history obtained by Dr Manohar in 2013 concerned the development of neck pain extending down the right arm arising from the workplace injury in 2002. For almost a year thereafter, Dr Manohar continued to treat the worker for symptoms relating to the cervical spine and right shoulder. The doctor first recorded a report of pain in the left side of the neck and shoulder in 2014, but took no history at that time of the cause of the symptoms. It wasn’t until two months later that the doctor recorded a history that the worker also injured her left shoulder at work while wearing a backpack vacuum cleaner. That was not the worker’s case. She alleged an overuse of the left arm due to favouring the right arm. Therefore it was open to the Arbitrator to conclude that the opinions expressed by Dr Manohar were based on an incorrect history ([95]-[98], [101]).

3. The President was not satisfied that the Arbitrator erred (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227, and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied) ([93]-[94], [102]).

Dr Faithfull

4. The appellant submitted that the Arbitrator erred in preferring the report of Dr Faithfull, orthopaedic surgeon, on several bases including that the doctor did not refer to the existence of Dr Manohar’s reports regarding the left shoulder ([103]).

5. The President observed that Dr Faithfull found that the worker’s condition was degenerative and not related to the accepted injury in 2002. The doctor’s opinion was based on a review of the documentation concerning the worker’s prior treatment, the radiological examination, her personal and clinical history, her current complaints, and a thorough clinical examination ([111]-[114]).

6. The President found that the history the doctor recorded with respect to the alleged overuse of the left shoulder was substantially consistent with the history given by the worker. It was consistent with someone who avoids activities rather than someone who undertakes them but with physical consequences ([115]-[117]).

7. The President was satisfied that the history relied upon by Dr Faithfull provided a “fair climate” for the acceptance of his opinion (Paric v John Holland (Constructions) Pty Ltd (1984) 2 NSWLR 505 applied). He was also satisfied that Dr Faithfull’s report clearly set out the history obtained, the physical examination findings, the documentation provided to him, and the history garnered from other sources. The doctor’s opinion expressed on the basis of that material formed a satisfactory basis for the acceptance of his opinion (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 applied) ([118]).

The finding that the worker did not suffer a consequential condition in her left shoulder

8. The appellant submitted that the Arbitrator erred in proposing that in order for the worker to succeed it was necessary for the Arbitrator to ascertain whether the accepted 2002 injury to her neck and right shoulder led to a greater use of the left arm and in the alternative whether the worker simply reduced her level of physical activity overall ([120]).

9. The President found that the Arbitrator approached the resolution of the issues before him on the correct basis, namely, that it was necessary to establish that the condition complained of resulted from the accepted 2002 injury. The worker carried the onus of establishing that there was an evidentiary basis for a finding that the consequential condition resulted from the accepted work injury ([129]-[130]).

10. The worker failed to satisfy the requisite onus. The Arbitrator was aware that the worker said that she favoured her left shoulder due to ongoing pain in the right shoulder, however, that evidence was inconsistent with other evidence in relation to the worker’s activities. That evidence indicated that the worker did not do a lot of physical activity; she frequently lays down and tends to rest during the day and her daughters do most of her house work ([131]-[132]).

11. The worker’s reduced level of physical activity was relevant to the Arbitrator’s determination of whether the worker suffered the alleged consequential injury. The worker did not identify the activities that she claimed led to the condition in her left shoulder, despite three statements filed ([133]-[134]).

12. The President rejected the submission that the Arbitrator failed to address the nature and extent of the worker’s deteriorating work related injuries. His reasons contained many references to the histories of the worker’s ongoing treatment and her deteriorating condition ([135]-[137]).

13. It followed that it was open to the Arbitrator to conclude on the balance of probabilities that the alleged “overuse” had not been made out. Once that finding was made the factual basis for the acceptance of certain medical evidence fell away ([138]-[140]).