Baigent v Qube Ports Pty Ltd
[2017] WADC 143
•6 NOVEMBER 2017
BAIGENT -v- QUBE PORTS PTY LTD [2017] WADC 143
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 143 | |
| Case No: | APP:30/2017 | 23 AUGUST 2017 | |
| Coram: | TROY DCJ | 6/11/17 | |
| PERTH | |||
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | TINA-ANNE PATRICIA BAIGENT QUBE PORTS PTY LTD |
Catchwords: | Workers' compensation Appeal Error of law Failure to decide dispute allocated to arbitrator Relevance of weekly payments already made Causal connection between injury and incapacity |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) s 5, s 18, s 21, s 57A, s 58(5), s 93K, s 93L, s 178, s 182O, s 182 ZT, s 188, s 217, s 247(1) and sch 1 cl 7(3) Workers' Compensation Injury Management Regulations (1982) r 22 |
Case References: | Allianz Australia Insurance Ltd v Peters & Brownes Group & Ors [2005] WASCA 195 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163 Catholic Education Office of WA v Granitto [2012] WASCA 266 Cole v P & O Ports Ltd [2002] WASCA 157 Department of Education v Azmitia [2015] WASCA 246 Hewitt v Benale Pty Ltd (2002) 27 WAR 91 Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 Minter Ellison Services Pty Ltd v Kotzman [2012] VSC 375 Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Rosmini v Chrysler (1973) 6 SASR 212 Rosmini v Chrysler and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Ward v Corrimal-Balgownie Collieries (1938) 61 CLR 120 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
QUBE PORTS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram : ARBITRATOR MOSS
File No : A 34098 of 2017
Catchwords:
Workers' compensation - Appeal - Error of law - Failure to decide dispute allocated to arbitrator - Relevance of weekly payments already made - Causal connection between injury and incapacity
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 5, s 18, s 21, s 57A, s 58(5), s 93K, s 93L, s 178, s 182O, s 182 ZT, s 188, s 217, s 247(1) and sch 1 cl 7(3)
Workers' Compensation Injury Management Regulations (1982) r 22
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr D M Bruns
Respondent : Mr A Basile
Solicitors:
Appellant : JDK Legal Services
Respondent : SRB Legal
Case(s) referred to in judgment(s):
Allianz Australia Insurance Ltd v Peters & Brownes Group & Ors [2005] WASCA 195
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Catholic Education Office of WA v Granitto [2012] WASCA 266
Cole v P & O Ports Ltd [2002] WASCA 157
Department of Education v Azmitia [2015] WASCA 246
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Kanowna Belle Goldmines v Feierabend [2003] WASCA 246
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Minter Ellison Services Pty Ltd v Kotzman [2012] VSC 375
Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Rosmini v Chrysler (1973) 6 SASR 212
Rosmini v Chrysler and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Ward v Corrimal-Balgownie Collieries (1938) 61 CLR 120
- TROY DCJ:
Introduction
1 This is an application for leave to appeal and an appeal against the decision of Arbitrator Moss dismissing the appellant's application for the respondent to pay weekly payments for total incapacity, resulting from a neck injury she sustained on 1 August 2013.
2 The appellant submits that the arbitrator failed to determine the real issue between the parties which was whether liability arose following an incident on 1 August 2013 (ground 1), instead turned the hearing into an inquiry into the cause of the appellant's incapacity from that date (ground 2) and declined to order liability because of an irrelevant consideration, namely payments already made (ground 3).
3 The appellant also asserts that the arbitrator failed to take into account relevant considerations such as a medical note and certain correspondence (ground 4).
Background
The June 2012 injury
4 In this matter the appellant was involved in two work related accidents on respectively 14 June 2012 and 1 August 2013.
5 The respondent employed the appellant as a stevedore from 5 January 2012. On 14 June 2012 the appellant sustained an injury to her arm, described in a medical certificate of the same date as, a sore right wrist to elbow. The appellant was certified fit for restricted return to work that day.
6 The appellant lodged a claim form on 19 June 2012 in respect of that injury. A second medical certificate was issued on the same date, to the effect that the appellant also had a neck pain and was totally unfit for work for the next seven days.
7 On 23 August 2012 the respondent's then insurers, GIO Workers Compensation, accepted liability for weekly payments in the sum of $1584.89 as well as medical expenses from the date the appellant first attended on a certified medical practitioner (14 June 2012). The incapacity was stated to be a right arm strain.
8 According to the appellant's witness statement, she commenced a graduated return to work programme on 15 October 2012, and by March 2013 she resumed her normal duties. In March 2013, accordingly, the appellant's weekly payments for the June 2012 injury ceased.
9 The amount of payments has not been quantified but, assuming a return to work on or about 14 March 2013, would have been approximately $61,810. This sum is less than the prescribed amount under sch 1 cl 7 (3) of the Workers' Compensation and Injury Management Act 1981(WA) (the Act) for the financial year 2012/2013.
The August 2013 injury
10 On 1 August 2013, again in the course of her employment, the appellant sustained an injury as a result of two incidents, the former appearing to be the more serious. The appellant hit the roof of a vehicle she was driving and developed a pain in the back of her neck.
11 As a result, the appellant lodged a claim form on 19 August 2013.
12 The respondent commenced to make weekly payments to the appellant on or about 8 August 2013. These payments ultimately ceased on 5 June 2016 by which time they amounted to $231,180.84.This amount exceeds the prescribed amount for the financial year 2016/2017 of $221,891.00.
13 The relevance of that latter fact is very much in issue between the parties. Although the appellant's position on appeal is that this factor is irrelevant, the appellant's written outline of submissions of 11 January 2017 did not deal with the respondent's contention that because this sum exceeded the prescribed amount, there was no further entitlement to weekly payments.
14 It would seem that at some stage after 24 August 2014, the appellant lodged a further claim form although that claim form was not before either the arbitrator or me.
15 On 21 March 2016 those acting for the appellant wrote to the solicitors for the respondent's insurers, Sparke Helmore to advise that without confirmation by the respondent that a fresh injury occurred on 1 August 2013, an application would be issued at WorkCover without further notice. It would seem that no such confirmation was forthcoming, and at some point in time between 14 April and 20 June 2016 the matter was referred to WorkCover.
16 On 5 June 2016 the appellant's weekly payments came to an end.
17 On 22 June 2016 a Ms. Medbury from CGU (the insurer now revealed to be the insurer on risk for the respondent) wrote to the appellant to advise that it had not been possible for CGU to make a decision, within the time limit provided for by s 57A(3) of the Act, as to whether or not liability was to be accepted, in respect of weekly payments for an accident on 1 August 2013.
18 The matter then proceeded to conciliation and then to arbitration.
Referral to WorkCover for arbitration
19 The section of the Act conferring jurisdiction on an arbitrator is s 182ZT. This provides that if a dispute has not been resolved by conciliation, a party to the dispute may apply to the registrar in accordance with this Act and the arbitration rules for determination of the dispute by arbitration.
20 This is what the appellant did. She made a written application for arbitration on 25 July 2016 which the appellant submits in ground 1 defined, along with written submissions, the dispute.
21 Within the claim form the appellant described the events of 1 August 2013 and claimed for weekly payments from 8 June 2016 (when the payments previously made had ceased) onwards at $1584.89 per week.
22 The appellant identified the nature of the dispute as being a determination on liability for an injury sustained following an incident on 1 August 2013, and an order for weekly payments of compensation and associated statutory entitlements.
23 The appellant was asserting that the 1 August 2013 injury was a new injury and at that time the respondent was disputing that.
24 Prior to the hearing the respondent and the applicant filed further submissions on respectively 9 January 2017 and 11 January 2017.
25 The matter accordingly came before the arbitrator on 23 January 2017.
Arbitrator's reasons
26 Following the hearing the arbitrator published her reasons for dismissing the application on 30 March 2017 (Arbitrator's decision A 34098).
27 The arbitrator relevantly found as follows:
(1) It was not in dispute that the appellant suffered an injury to her neck on 1 August 2013 in the course of her employment: [3].
(2) It was also not in dispute that the respondent paid the total sum of $231,180.84 by way of weekly payments (in excess of the prescribed amount) to the appellant for the period 8 August 2013 to 5 June 2016, whereupon the respondent ceased making such payments: [6].
(3) It was a matter for the parties to agree the statutory allowances that the respondent accepted were likely to be owed to the appellant, on the basis that if agreement could not be reached, the parties were entitled to make further application for assessment of those expenses: [165].
(4) The appellant's application was accordingly dismissed: [166].
Section 5 of the Act
28 I bear in mind the policy underpinning the compensatory provisions of the Act.
29 As Hasluck J noted in Hewitt v Benale Pty Ltd (2002) 27 WAR 91 [60], s 3 is intended to reflect the general policy of the Act, but the manner in which the Act makes provision for the compensation of workers who suffer a disability is to be determined by a close reading of the various checks and balances comprising the scheme of the Act.
30 In the same case Heenan J observed at [124] workers' compensation legislation has long been recognised as remedial in character and like all such legislation should be construed beneficially.
31 As Buss JA held in Napier v BHP Billiton (Worsley Alumina) Pty Ltd (2015) 49 WAR 243 [106]the existence of a compensable 'injury' as defined in s 5(1) of the Act is the core concept of the Act. It is the occurrence of an injury to a worker that triggers the entitlement of a worker and the liability of the employer, subject to the Act, to pay compensation.
32 Section 5 relevantly provides:
injury means—
(a) a personal injury by accident arising out of or in the course of employment, or whilst the worker is acting under the employer's instructions; or
(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree.
33 It is clear, therefore, that whether the injury that occurred on 1 August 2013 was an entirely new injury or a recurrence, it is an injury as defined by s 5.
This appeal
34 By appeal notice dated 27 April 2017 the appellant applied for leave to appeal to the District Court against the arbitrator's decision.
35 Section 247(1) of the Act allows an appeal to the District Court from an arbitrator's written reasons for decision subject to the leave of the court.
36 The notice of appeal identified two questions of law. Firstly whether an arbitrator is obliged to determine a dispute allocated to and heard by that arbitrator. Secondly whether an arbitrator is obliged to take into account relevant matters and not take into account irrelevant matters in determining such a dispute.
37 In BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Pullin JA (with whom Wheeler JA agreed) held [3]:
To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred.
38 His Honour also held at [15] that a decision does not 'involve' an error of law, unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.
39 As Mazza JA noted in Department of Education v Azmitia [2015] WASCA 246 [120]:
The term 'a question of law is involved' is broader in its scope than provisions which stipulate that an appeal may be brought 'on a question of law'. The authorities to which I have referred do not seek to define the scope of the matters that may be decided where 'a question of law is involved', although they stand for the proposition that an appeal 'involves' a question of law where either an error of law or an error mixed fact and law is involved. An error of fact alone is insufficient.
40 In Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 [31] Pritchard J observed that the distinction between errors of law, errors of fact, and mixed errors of law and fact, can be elusive.
41 In the present case the respondent accepts that questions of law arise. Once a question of law is involved the whole decision appealed from is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18]. This court must undertake a 'real review' of the application before the arbitrator, but is limited to the materials before the arbitrator. It is not a hearing de novo. Before this court may disturb the arbitrator's decision the appellant must establish a proper basis for doing so, in other words that the arbitrator made some error, either of fact, law or logic: Pacific Industrial Co v Jakovljevic [20], [26].
Grounds of appeal
42 There are four grounds of appeal. Firstly, that the arbitrator erred in law in failing to determine the issues in dispute as identified in the application for arbitration of 25 July 2016 and the parties' written submissions.
43 Secondly, and inextricably linked with ground one, that the arbitrator erred in law in making her findings, not on issues before her but rather on the question 'what is the cause of the incapacity from 1 August 2013?'
44 Thirdly, that the arbitrator erred in law in taking into account irrelevant considerations such as the total of payments previously made.
45 Fourthly, that the arbitrator erred in law in taking into account the irrelevant considerations as specified in the ground.
46 The appellant contends that the form of order that should have been made is as set out in the notice of appeal under the section, 'decision sought' namely that the respondent pay the applicant weekly payments and statutory allowances calculated in accordance with sch 1 to the Act, for the injuries sustained on 1 August 2013.
47 The appellant filed written submissions on 18 August 2017 in response to the respondent's outline of submissions dated 15 August 2017. The matter came before me on 23 August 2017 when I heard oral submissions before reserving my decision.
Issues for resolution
Was the August 2013 injury a new injury or a recurrence?
48 On 11 August 2014 an orthopaedic surgeon, Mr Barrie Slinger provided his first medical report. On 24 August 2014 he provided a second report in which he observed that the appellant made what was in all probability a full recovery from the June 2012 injury, so that the incident of 2013 is a fresh injury.
49 The appellant submits that it is now uncontroversial that the August 2013 injury was indeed a new or fresh injury.
50 On 28 June 2016 a certificate of outcome under s 182O of the Act was issued concluding conciliation. The issue referred for conciliation by the appellant was a determination on liability confirming that she sustained a fresh injury in the incident on 1 August 2013.
51 Under the heading, 'details of outcome' it was noted that it remained in dispute whether the incident of 1 August 2013 was a new injury or a recurrence. It was noted that the appellant's view was that a new injury occurred on 1 August.
52 As of 9 August 2016, there was an issue between the parties as to whether the incident of 1 August 2013 was a new injury (the appellant's position) or a recurrence from the earlier injury of 14 June 2012 (the respondent's position).
53 By the time of the hearing before the arbitrator, however, the position taken by the respondent was that it did not matter how the injury was categorised. The appellant's position remained that the appellant had sustained a fresh or new injury following an incident on 1 August 2013. The respondent's now position was that the appellant was not entitled to a declaration that she suffered a new injury on 1 August 2013, because s 5 of the Act does not define injury in terms of a new injury or some other classification. The arbitrator accordingly did not have power to make such a declaration of liability per se.
54 In her reasons the arbitrator stated at [136]:
In so far as I understand Ms Baigent's submissions to be that the absence of a first medical certificate (and instead the provision of a progress medical certificate) is supportive of her contention that the August 2013 injury is a recurrence, I reject it. Section 57A is concerned with the process of making a valid claim. It is not determinative of the nature of the injury.
55 The appellant submits that this observation mis-states the appellant's position which was that although the August 2013 injury had been treated as a recurrence from an early stage, the appellant had, since before conciliation, plainly asserted that the August 2013 injury was a fresh injury arising from a fresh accident.
56 I do note that at [38] (expressly) and at [77] and [98] (implicitly) the arbitrator referred to the appellant's contention that the 1 August 2013 injury was a new or fresh injury.
57 The appellant submits that the error at [136] is repeated at [159]. At that point of her reasons, however, the arbitrator was dealing with the appellant's alternative position, as explained at ts 14, that if the payments could be re-characterised as payments for a fresh injury, that characterisation could only run from 24 August 2014, the date of the second Slinger report. Hence there was an entitlement in any event to payments between 8 August 2013 and 24 August 2014.
58 Although at [158] the arbitrator indicated it was not necessary to characterise the precise nature of the August 2013 injury at [159] she held that the injury was not a mere recurrence of the June 2012 injury in the sense discussed in Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163.
59 I take this to be a reference to the passage in Canale v Commissioner of Main Roads (164):
Considerable confusion often arises as to what is a recurrence of an old injury, and what should be regarded as a new injury. It is not possible to lay down any rule to completely answer the problem in the multitudinous circumstances from which it rises. Generally however, I would say that an injury or condition recurred where it flared up either spontaneously or because of the ordinary stresses and strains of living and working, and that any consequent incapacity would be related to the original accident. On the contrary, even though the first injury left a weakness, even a great weakness and a potential site of trouble, where that trouble is precipitated by a new incident of an accidental nature such as could well originate trouble in its own right, then that trouble should be regarded as a new injury for which the later incident is the direct cause.
60 There is either an inconsistency between pars [136] and [159] on the one hand and pars [38], [77] and [98] on the other hand, or the arbitrator mis-stated the appellant's position.
61 In my view, when one considers the reasons as a whole, including the passage referred to in Canale, the arbitrator did treat the August 2013 injury as a new injury and she did conclude that this new injury was the cause of the appellant's incapacity thereafter. I conclude from the reasons as a whole that the arbitrator was referring at [136] and [159] to a contention that the August 2013 injury was regarded by all parties as a recurrence.
62 It is clear, and I so conclude, the August 2013 injury was a new injury. Although the arbitrator did state that it was unnecessary to characterise the nature of the injury, by finding that it was not a mere recurrence, to all intents and purposes, she treated it as a new injury.
What did GIO accept liability for?
63 Following the incident of 1 August 2013, on 19 September 2013 GIO issued a Form 3A under s 57A(3)(a) of the Act signifying that liability was accepted in respect of weekly payments of $1584.89.
64 The notice referred to the date that the claim was made by the employer as 25 June 2012. The claim number was the same claim number referrable to the 2012 injury. The date of injury was said to be 14 June 2012. The nature of the incapacity was said to be 'exacerbation of neck strain'.
65 The appellant submits that the only inference that can be drawn from the content of the form is that as of 19 September 2013 GIO understood that it was accepting liability for a recurrence of the 2012 accident.
66 The decision of Canale generally remains good law as to the distinction between a recurrence of an old injury and a completely new injury. The caveat, as was pointed out in Allianz Australia Insurance Ltd v Peters & Brownes Group & Ors [2005] WASCA 195 [36], is to the extent that it suggests that it is necessary to select only one cause of any incapacity, Canaleshould no longer be applied.
67 On 20 June 2016 GIO's solicitors, now Jarman McKenna, wrote to the conciliation officer at the Conciliation and Arbitration Service, WorkCover WA. The writer observed that the appellant had previously represented that on 1 August 2013 she had sustained a mere recurrence of the 14 June 2012 injury and not a fresh injury.
68 The respondent provided a written reply to the arbitration application which was received by WorkCover on 9 August 2016. In respect of issues in dispute, the respondent indicated it disputed the application on the basis that liability had been accepted by GIO in respect of a recurrence of the appellant's cervical spine injury.
69 Consistently with the written submissions, at the arbitration hearing, counsel for the appellant submitted that the acceptance of liability by GIO on 19 September 2013 was not for an injury that occurred on 1 August 2013, rather it was for an exacerbation of an injury that had occurred on an earlier date, 14 June 2012.
70 Further, counsel submitted that the appellant in August 2013 put in a recurrence claim and not a fresh claim. Counsel submitted that the appellant was asserting that she was not healthy before 1 August 2013, and if there was no fresh claim there could not be an acceptance of liability for a fresh claim on 19 September 2013.
71 Accordingly, counsel contended that the respondent had only ever accepted liability for the 2012 injury, initially in June 2012 and then as a recurrence in August 2013, and had never accepted liability for the 2013 injury in itself.
72 The arbitrator summarised the appellant's contentions in this regard at [80] - [83] and set out the supportive arguments, as she understood them to be, at [85] - [91] of her reasons. In particular she referred at [95] to the submission by the appellant's counsel that the respondent was now retrospectively characterising recurrence payments as fresh liability payments.
73 To the extent to which the appellant relied on form and the parties' conduct to support her contentions, the arbitrator rejected that approach: [120]. That rejection was based upon the matters the arbitrator referred to at [83] - [95].
74 On appeal the appellant refers to this finding as mysterious. It seems to me that the arbitrator was plainly referring to the overall submission by the appellant's counsel, as noted at [95].
75 The arbitrator referred to s 188 of the Act (I note that the transcript of the reasons erroneously refers to s 88) requiring her to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms: [121].
Relevance that GIO was not the insurer on risk
76 Although this decision to accept liability was made by GIO, it transpires that it was not the insurer on risk as of 1 August 2013.
77 In the letter of 20 June 2016 from Jarman McKenna it was revealed, as I understand for the first time, that GIO was not the insurer on risk for the respondent as of 1 August 2013. It was contended therefore, that the claim arising from the alleged 1 August 2013 injury would need to be considered by the appropriate insurer.
78 In my view, the arbitrator correctly concluded that it did not matter precisely what it was that GIO had in the past accepted liability for. I also accept the respondent's contention that the identity of the insurer as of 1 August 2013 is immaterial.
Termination date
79 On 22 October 2015, after the respondent had been making weekly payments to the appellant for more than two years, the then solicitors for GIO, Sparke Helmore, wrote to the appellant's legal representatives and contended that the appellant's termination date, under s 93M of the Act, to make an election in respect of exercising rights under the Act or at common law had passed.
80 Submissions were made to the arbitrator, and also to me, that one of the reasons why it was so important that the question of liability for 1 August 2013 be established, was because the course that this dispute had taken had deprived the appellant of her ability to exercise her common law rights.
81 Should a worker wish to pursue their common law rights and sue for damages as a result of an injury received on a particular day, it is necessary to make an election under s 93K(4) of the act before the termination day, as that term is defined by s 93L and s 93M.
82 The appellant submits that the absence of a decision on liability has deprived the appellant of her right to elect, given the content of form 34 as provided for by reg 22 of the Workers' Compensation Injury Management Regulations 1982.
83 The respondent counters by submitting that the appropriate termination date was 19 August 2014, and that there was sufficient material in Mr Slinger's first medical report of 11 August 2014 to have warranted, given the fact that the appellant was legally represented, an application to extend the termination date. A further application could have been made following the communication on 22 June 2016 when CGU indicated that it had not been possible for CGU to make a decision, within the time limit provided for by section 57A(3) of the Act, as to whether or not liability was to be accepted, in respect of the 1 August 2013 injury.
84 In my view it is not necessary to decide whether or not any common law rights have been extinguished, and if so whether or not that is the fault of the appellant. It does not bear on the fundamental issues of whether the arbitrator unilaterally changed the nature of the dispute and/or erroneously took into account the fact that payments had been made to the appellant since August 2013 that exceeded the prescribed amount.
Was the arbitrator required to simply make a finding as to liability or a finding on liability to make weekly payments?
85 Section 18 provides:
If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
86 Schedule 1 cl 7 provides:
(1) Subject to section 56 and subclause (3) when total incapacity for work results from the injury a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with this Schedule.
(2) Subject to section 56 and subclause (3), where partial incapacity for work results from the injury, a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker calculated and varied in accordance with this Schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.
(3) An entitlement of a worker to weekly payments for an injury under this Act ceases if and when the total weekly payments for that injury reaches the prescribed amount, unless an arbitrator makes an order to the contrary under section 217, and there shall be no revival of, or increase in, that entitlement upon any subsequent increase in the prescribed amount.
87 Section 217 is concerned with a situation where the injury has resulted in permanent total incapacity for work of the worker.
88 Section 21 provides as follows:
21. Compensation payable from date of incapacity
An employer is liable to pay compensation under this Act from the date of incapacity resulting from the injury but clause 9 applies in any case.
57A. Claims procedure where employer insured
(1) This section applies where —
(a) a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with section 178(1)(b); and
(ba) the employer is indemnified by a policy of insurance against liability to pay the compensation claimed; and
(b) the worker suffering the injury serves on the employer a certificate signed by a medical practitioner —
(i) in or to the effect of the form prescribed containing substantially the information sought in the form; or
(ii) to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as referred to in subparagraph (i) has previously been served.
178. Notice of injury and claim
(1) Proceedings for the recovery under this Act of compensation for an injury are not maintainable unless –
(a) a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and
(b) the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury or, in case of death, within 12 months from the time of death.
58. Liability for weekly payments, arbitrator may determine
(1) Where, in the circumstances mentioned in section 57A(1) —
(a) a period of 19 days has elapsed since those circumstances arose and the worker has not received the first of the weekly payments claimed; or
(b) whether or not the period mentioned in paragraph (a) has elapsed, notification has been given by the insurer —
(i) under section 57A(3)(b) or 57A(3a)(b), that liability is disputed; or
(ii) under section 57A(3)(c), that a decision as to liability is not able to be made within the time allowed,
- an arbitrator may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed.
(5) On a hearing under subsection (1), (2), (2a) or (3) the arbitrator is to satisfy himself as to all the evidence before him and —
(a) if the arbitrator considers that the evidence is satisfactory to establish liability to make weekly payments, may —
(i) make an order that weekly payments including arrears to the date of the hearing shall be paid out of moneys standing to the credit of the General Account and that the employer shall forthwith pay to WorkCover WA for the General Account the amount of such payments together with an additional 10% of that amount; or
(ii) make an order as to weekly payments by the employer to the worker on such terms as the arbitrator sees fit;
93 In this case the insurer at risk, CGU, had given notification under s 57A(3)(c), that a decision as to liability is not able to be made within the time allowed. The appellant had submitted a claim for weekly payments from 8 June 2016 onwards. Accordingly the arbitrator was empowered to hear and determine the question of liability to make the weekly payments claimed, in respect of the injury that occurred on 1 August 2013.
94 The language of s 58(5) requires consideration of whether the evidence presented by an appellant is satisfactory to establish liability on the employer to make weekly payments. By operation of s 58 (5)(b) if an arbitrator considers that the evidence is not satisfactory to establish liability to make weekly payments, he/she may dismiss or adjourn the application on such terms as the arbitrator sees fit.
95 In this case if the arbitrator considered that the evidence was satisfactory to establish liability on behalf of the respondent to make weekly payments, it would have been open to the arbitrator to make an order as to weekly payments by the employer to the worker on such terms as the arbitrator saw fit. The language of s 58 does not mandate an order to make weekly payments if liability is established.
96 As of 9 August 2016, following the arbitration application I have referred to, the issues between the parties included whether the appellant was entitled to a determination on liability for an injury sustained following an incident of 1 August 2013 (the appellant's position) and whether the appellant was entitled (as a consequence) to weekly payments from 8 June 2016 onwards (also the appellant's position).
97 Immediately prior to the hearing and following the written submissions referred to in appeal ground 3, one of the fundamental issues between the parties remained whether the appellant had an entitlement to weekly payments of compensation as a result of the 1 August 2013 injury (the appellant's position).
98 During the hearing before the arbitrator counsel for the appellant noted that the respondent's submissions should be taken as an acceptance of liability for statutory allowances for an event occurring on 1 August 2013 with the question of weekly payments remaining in dispute.
99 In my view the arbitrator was not simply being called upon to make a general pronouncement on the question of liability; rather she was being asked to determine whether, having found liability established, she should order the weekly payments claimed.
100 As Murphy JA noted in Catholic Education Office of WA v Granitto [2012] WASCA 266 [21], in Ward v Corrimal-Balgownie Collieries (1938) 61 CLR 120, 129, Latham CJ observed (relevantly) that compensation is not payable in respect of an injury itself, but rather in respect of total or partial incapacity resulting from an injury.
The relevance of what the post August 2013 payments related to
101 During the hearing before the arbitrator counsel for the appellant placed reliance upon Mr Slinger's second medical report of 24 August 2014 and submitted that with the revelation that there were in fact two injuries, June 2012 and August 2013, an entitlement to two prescribed amounts, as opposed to one prescribed amount, arose (ts 13).Up to that point, ran the argument, each party understood that the respondent had been making weekly payments to the appellant as a consequence of the recurrence of the 2012 injury.
102 Counsel argued that because on the evidence the appellant had suffered two different injuries she was entitled to two sets of prescribed amounts. In due course the arbitrator refers to this contention at par [7] of her reasons.
103 Counsel expressly asked the arbitrator not to find that the payments made from August 2013 were a fresh liability payment as opposed to a recurrence payment.
104 Counsel requested a determination of liability from which it was said a fresh prescribed amount would then come into being.
105 The transcript reveals that before the arbitrator, counsel for the respondent made it clear that whilst it was accepted that there was an entitlement to weekly payments, the respondent's position was there was no further entitlement to such payments because the prescribed amount had been reached. From the respondent's perspective the dispute clearly related to what the post August 2013 payments related to.
106 In my view that contention naturally flowed from the written submissions previously advanced on behalf of the respondent. In any event I see no warrant for approaching matters on the basis, as is implicit in ground one, that the dispute was delineated by the form 150 and the written submissions. Ultimately the dispute that the arbitrator was required to resolve had been defined by the application for arbitration, the written submissions, the oral submissions and the evidence of the appellant.
107 This is particularly so given that counsel for the appellant accepted that the written submissions, 'probably could have made it clearer for the arbitrator' (ts 6).
108 The arbitrator understood (ts 4) that the position on behalf of the appellant was that the payments made after 1 August 2013 were made in relation to the 2012 injury. Counsel then appearing for the appellant implicitly accepted that, by his observation that the appellant had received the prescribed amount for her 2012 injury.
109 As of March 2013 the appellant had received less than the prescribed amount and so, it follows, to have received the prescribed amount for the 2012 injury, payments in relation to the 2012 injury must have continued after August 2013.
110 Having acknowledged that the appellant had received the prescribed amount for her 2012 injury, counsel then submitted that there was a 2013 injury for which liability had been accepted giving rise to another 'prescribed amount at play' which was said to be 'the crux of the issue.'
111 It was on the basis of that exchange that the arbitrator was satisfied that there was a dispute between the parties and the matter therefore proceeded to hearing.
112 According to the parties, the point of contention between them was the injury to which these weekly payments of $231,180.84 related: [10].
113 On appeal the appellant submits that there was no basis to characterise the dispute in that manner. In my view, however, it fairly reflects the position adopted by counsel for each party as can be seen from, in particular, ts 4 and 5 of the hearing before the arbitrator.
114 The arbitrator then stated at [11]:
In determining whether Ms Baigent (the appellant) is entitled to an order for weekly payments from 8 June 2016, I must determine the cause of Ms Baigent's incapacity from 1 August 2013, that is whether it results from the June 2012 injury or the August 2013 injury.
115 This characterisation is at the heart of the appeal, because the appellant submits that that was not what the arbitrator had to do. It is submitted, reflecting the grounds of appeal, that this was not the dispute before the arbitrator. In her reasons the arbitrator changed the dispute.
116 In my view this characterisation follows from the course set by both parties at the outset of the hearing. It was plainly germane to determine whether the appellant's incapacity from 1 August 2013, resulted from the June 2012 injury or the August 2013 injury.
Causation of August injury
117 The appellant gave evidence and confirmed that from an unspecified date in March 2013 until 1 August 2013 she worked for the respondent at full capacity.
118 On behalf of the respondent it was submitted that because the appellant had returned to work, the payments she received after 1 August 2013 had to be wholly attributable to a new injury as opposed to a recurrence (ts 20). The payments made to the appellant could only be for incapacity after 1 August 2013.
119 In my view the conclusion urged on me by the respondent, that the appellant's recovery by March 2013 meant that the payments she received after 1 August 2013 had to be wholly attributable to a new injury does not follow.
120 The parties could quite logically, and seemingly did, approach matters on the basis that the appellant suffered an injury in June 2012, but that prior to 1 August 2013 she had fully recovered. On that day, however, she was involved in an incident which did not give rise to a new injury in itself, but reactivated the 2012 injury. As a result of that, payments were made.
121 The arbitrator was correct, in my view, to evaluate the medical evidence in considering whether the August 2013 injury was new or otherwise and she did so. It would have been an error to assume, merely from the earlier recovery, that the August 2013 injury had to be new.
122 Having identified question for resolution in that way, the arbitrator concluded that the incapacity following 1 August 2013 arose from the injury on that day, not from the June 2012 injury: [12].
123 The arbitrator found that as of 26 June 2013 the appellant had made a functional recovery from the June 2012 incident and had capacity to undertake her pre-accident position on a full-time basis, which she had already been undertaking prior to a medical report of that date: [129].
124 The injury sustained by appellant on 1 August 2013 could be regarded as a 'soft tissue injury to the cervical spine' (according to Dr Thompson) or as a 'simple mechanical neck pain with muscle spasm' (according to Mr Slinger): [142].
125 The arbitrator reiterated that the question that required her resolution was whether the appellant's incapacity since 1 August 2013 resulted from the June 2012 injury or the August 2013 injury. Put another way was either injury, or both, a material contributing cause of the incapacity since August 2013: [148].
126 The symptoms currently suffered by appellant were caused by the two jarring incidents on 1 August 2013: [155].
127 It was irrelevant to the arbitrator's determination of the dispute whether the August 2013 injury was an exacerbation/acceleration/ aggravation/recurrence of the June 2012 injury, or whether it was a new/fresh injury: [158].
128 The appellant's incapacity from 1 August 2013 arose from the injury on that day, not from the June 2012 injury: [12], [157] - [159] and [162].
129 The appellant had no ongoing incapacity as a result of the June 2012 injury: [162].
130 The weekly payments received by the appellant in the period 8 August 2013 to 5 June 2016 were payments for her incapacity resulting from the August 2013 injury: [163].
131 Clearly, that was a finding the arbitrator was entitled to make.
132 Provided that an injury, incurred in the course of the appellant's employment, was a material contributing cause of the appellant's incapacity from 1 August 2013 onwards, she was entitled to compensation for that injury: Rosminiv Chrysler (1973) 6 SASR 212 (215) (Bray CJ); Cole v P & O Ports Ltd [2002] WASCA 157 [23].
133 In this case the appellant incurred injuries in the course of her employment in June 2012 and in August 2013. The arbitrator found that the August 2013 injury was the material contributing cause of her incapacity from 1 August 2013 onwards.
134 Put another way, and in compliance with authorities such as Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 (referred to by the arbitrator [144] and applied by her), Rosmini v Chrysler and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, the appellant's incapacity from 1 August 2013 onwards resulted from her August 2013 compensable injury.
135 Accordingly the appellant was entitled to a new prescribed amount from 1 August 2013.
136 The appellant submitted that it is trite that if one has an accident in 2012 one is entitled to weekly payments for incapacity until the prescribed amount is reached (or, it might be added once one returns to work). If one has another accident in 2013 then, again, one is entitled to weekly payments for incapacity caused by that accident until a new prescribed amount is reached.
137 It was open on the evidence for the arbitrator to find that the incapacity from 1 August 2013 onwards resulted from both the June 2012 and the August 2013 compensable injuries. If the arbitrator had so found, the appellant would have been entitled to a continuation of weekly payments for the June 2012 injury, which had ceased in March 2013 following the appellant's then complete recovery, until the prescribed amount that applied to that injury was exhausted. Further she would have been entitled to a new prescribed amount from 1 August 2013.
138 It is for that reason that, in my opinion, it was relevant and necessary for the arbitrator to make findings as to which injury or injuries caused the incapacity from 1 August 2013 onwards.
139 The arbitrator understood that potentially either the June 2012 injury, or the August 2013 injury or a combination of those injuries was the material contributing cause of the undisputed incapacity since 1 August 2013: [148].
140 As Judd J noted in Minter Ellison Services Pty Ltd v Kotzman[2012] VSC 375 the legislative history of workers' compensation in Australia, while sometimes employing different formulations to describe the necessary causal link between injury and incapacity, seems to have been uniformly applied by reference to a common sense notion of causation that looks for a sufficiently proximate relationship between injury and work capacity.
141 An arbitrator is not bound by the rules of evidence (s 188(2)(a)) of the Act, is entitled to inform him/herself on any matter as he/she sees fit (s 188(3)) and is required to act according to good conscious and the substantial merits of the case (s 188(2)(b)).
142 In my view, applying s 18 of the Act in conjunction with sch 1 cl 7(3) and s 58(5)(a), a live question for the arbitrator was whether the 1 August 2013 injury was a material contributing cause, albeit not necessarily the only cause, of the incapacity from 1 August 2013 onwards.
143 The arbitrator preferred, as she was entitled, the evidence of Dr Thompson over Mr Slinger, and on the basis of Dr Thompson's report of 10 September 2013 accepted that the symptoms suffered by the appellant were caused by the two jarring incidents on 1 August 2013: [155].
144 The arbitrator was entitled to make that finding. The finding of fact that the June injury was not a material contributing cause of the appellant's incapacity for work from August 2013 onwards stands unless an error of law is identified enlivening this court's jurisdiction.
By her approach did the arbitrator change the dispute?
145 As noted, the arbitrator applied s188 of the Act: [121].
146 The arbitrator stated that the issue for her to determine, whether it had been framed this way by the parties or not, was the cause of the appellant's incapacity from 1 August 2013: [123].
147 In my view the arbitrator was not altering the whole nature of the dispute. Rather she was teasing out the logical consequence of the issue upon which the parties had joined, namely what did the post August 2013 payments relate to.
148 It is trite to observe that weekly payments arise under the Act because of a causal compensable injury. In this case counsel for the respondent, without any demurral from the appellant, identified as the core issue for resolution what the undoubted payments during the undoubted period of incapacity related to. In answering that question, it was inevitable that consideration would have to be given to the question, 'what caused the disability that necessarily resulted in those payments?'
The relevance, or otherwise, of payments made to the appellant
149 It is not disputed that the respondent paid to the appellant $231,180.84 by way of weekly payments from 1 August 2013.
150 From the appellant's perspective it is irrelevant that if none of the payments received after August 2013 actually related to the 2013 injury, then the appellant had received a total sum substantially in excess, given the maximum prescribed sum, of her actual entitlement for the 2012 injury.
151 From the outset, the respondent relied on this fact as fundamentally relevant.
152 As of 28 June 2016, following the conclusion of conciliation the issues included the relevance of the fact that payments for the 2013 injury now exceeded the prescribed amount so that no further weekly payments could be made (the respondent's position – the appellant stating that she did not have information to form any view of this).
153 In the written reply received by WorkCover on 9 August 2016 the respondent indicated that one of the reasons for it disputing the application was that the appellant had received and remained in receipt of weekly payments for her recurrent injury sustained on 1 August 2013.
154 As I have noted although the appellant's position on appeal is that this factor is irrelevant, the appellant's written outline of submissions of 11 January 2017 did not deal with the respondent's contention that because this sum exceeded the prescribed amount, there was no further entitlement to weekly payments.
155 The appellant did not expressly deal with this aspect save to assert that liability had been accepted for a mere recurrence as opposed to a new injury under s 5.
156 If the payments received after August 2013 were all referrable to the 2012 injury, leaving aside the issue of the relevance of the apparent surplus to the appellant, the prescribed sum for the 2013 injury would not have been reached. Indeed they would not have commenced. Accordingly an entitlement to weekly payments would be established.
157 Further, if some of the weekly payments made after 1 August 2013 were not solely referrable to the 2013 injury, but were referrable to both injuries, then in those circumstances it would not be inevitable that the prescribed sum for the 2013 injury had been reached.
158 Once the arbitrator had made the finding that the symptoms suffered by the appellant were caused by the two jarring incidents on 1 August 2013, it followed that there were indeed two injuries and therefore two prescribed sums. In respect of each injury the appellant was entitled to weekly payments until either she made a recovery or the weekly payments reached the prescribed sum.
159 As explained by Buss JA in Napier [93]:
It is well established that the expression 'results from', and cognate expressions, in the Act describe a causal connection. It is a question of fact whether, in a particular case, incapacity 'results from' an injury under the Act. The factual inquiry involves the application of common sense in evaluating the causal chain bearing in mind that the object of the inquiry is to determine whether compensation is payable by the employer because the worker's incapacity was causally related to an injury suffered in the course of employment.
160 The test to be applied where, as is the case here, there is more than one possible cause of an incapacity remains, as Buss JA notes in Napier at [95], the test articulated by Parker J (Murray & Wheeler JJ agreeing) in Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 [13]:
Where there is more than one possible cause of an incapacity it is sufficient for the purposes of the Act that the disability resulting from the work injury be a material contributing cause. That issue is to be determined as a matter of fact in light of the circumstances of the particular case when those circumstances are assessed by a process of common sense evaluation of the causal chain. It follows, of course, that there may be more than one cause contributing to an incapacity.
161 In my view that is the approach adopted by the arbitrator here.
162 The appellant submitted that sch 1 cl 7 of the Act provides the mechanism by which the appropriate payment that flows from a demonstrated incapacity is to be determined. On a proper application of the schedule, it is not possible to, for example receive payments twice for the same week for two accidents. The appellant submits that it was this supposed vice that the arbitrator was at pains to deal with in her decision whereas, it was submitted, that was entirely irrelevant to the simple issue of whether there was a new accident on 1 August 2013, giving rise to liability to pay compensation or not.
163 In my view that is a flawed approach because it overlooks the wording of s 58 of the Act and the need to consider s 18 along with sch 1 cl 7 of the Act.
164 The fact that the appellant has brought a mixed application for weekly payments and a claim for statutory expenses does not alter the nature of the arbitrator's task under s 58.
165 For the reasons I have set out, in my opinion it was necessary for the arbitrator to determine what the post 1 August payments related to. They were relevant.
166 The arbitrator found that given that those payments exceeded the prescribed amount, the appellant was not entitled to an order for weekly payments from 8 June 2016: [164].
Summary of findings on the relevant issues
167 My findings, accordingly, are as follows.
168 The August 2013 injury was a new injury.
169 It did not matter precisely what it was that GIO had in the past accepted liability for.
170 The identity of the insurer as of 1 August 2013 is immaterial.
171 It is not necessary to decide whether or not any common law rights have been extinguished, and if so whether or not that is the fault of the appellant. It does not bear on the fundamental issues raised in this appeal.
172 The arbitrator was not simply being called upon to make a general pronouncement on the question of liability; rather she was being asked to determine whether, having found liability established, she should order the weekly payments claimed.
173 The arbitrator was correct in approaching matters by determining whether the appellant's incapacity from 1 August 2013, resulted from the June 2012 injury or the August 2013 injury. In doing so she followed the course set by both parties at the outset of the hearing.
174 The arbitrator was entitled to find that the weekly payments received by the appellant in the period from 1 August 2013 were payments for her incapacity resulting from the August 2013 injury.
175 The arbitrator did not alter the whole nature of the dispute.
176 It was necessary for the arbitrator to determine what the post 1 August payments related to. They were relevant.
Conclusions
Ground One
177 I am not satisfied that the arbitrator failed to determine the issues in dispute.
178 Whether the appellant was entitled to a determination on liability for an injury sustained following an incident of 1 August 2013 was plainly not the only issue before the arbitrator. A consideration of the application, the written submissions and, importantly, the oral submissions at the hearing itself taken as a whole make it clear that the position was far more nuanced and multifaceted than that.
179 The arbitrator was required to and did decide the issue of whether the appellant had suffered an injury as defined by the Act on 1 August 2013. The arbitrator found that she did.
180 The arbitrator was required to and did decide the issue of whether that injury gave rise to an incapacity for work, and found that it did.
181 The arbitrator was required to and did decide the issue of whether the proven incapacity arising from that injury gave rise to an entitlement to weekly payments of compensation. The arbitrator found that it did not because of the fact that the prescribed sum had been exceeded.
182 I conclude that the arbitrator was entitled to take into account the fact that the prescribed sum had been exceeded.
183 The arbitrator's detailed reasons dealt with the issues that have been placed before her for resolution. Indeed, in my view, it was essential for the arbitrator to resolve the issues that she did.
Ground Two
184 Ground two is closely connected to ground one. I am not satisfied that the arbitrator erred in law by determining the dispute, without notice, on a distinctly different basis.
185 Whilst the arbitrator teased out further conclusions that arose from the competing submissions, the fundamental nature of the dispute had been set by the parties from the time that the application for arbitration was submitted and particularly during the course of the hearing itself.
Ground Three
186 As I have found, it was relevant and necessary for the arbitrator to make findings as to which injury or injuries caused the incapacity from 1 August 2013 onwards. Having determined that the incapacity was caused by the injury of 1 August 2013, it followed that the appellant was entitled to weekly payments until either she made a recovery (which in respect of this injury did not occur) or the weekly payments reached the prescribed sum (which occurred at some point prior to 5 June 2016). In that sense the issue of the relevant prescribed sum was not irrelevant.
187 To the contrary, given that the weekly payments received in that period exceeded the prescribed sum, the appellant was not entitled to an order for weekly payments from 8 June 2016.
Ground Four
188 Ground four is based upon an argument that in referring to certain pieces of evidence as not being determinative, the arbitrator in truth treated them as being irrelevant and thereby erred in law by failing to take into account relevant considerations.
189 The arbitrator made it clear that she had considered all of the evidence placed before her: [122].
190 Contrary to the appellant's argument, the arbitrator did not regard as determinative, in characterising the nature of the August 2013 injury, the contents of the claim form, the rate of weekly payments, the insurer's view (as expressed in the Form 3A or otherwise) nor the fact that it was GIO (rather than CGU), who accepted liability for the claim: [134]. In so doing the arbitrator in effect expanded upon her observation at [120].
191 In support of ground of appeal four, the appellant raises the possibility that the arbitrator was going further than merely stating that these factors were not determinative and, read with [121] concluded that they were irrelevant.
192 That is not consistent with the plain language used by the arbitrator. Ground four has not been made out.
Orders
193 The arbitrator was correct in dismissing the appellant's application.
194 I grant leave to appeal on all grounds, but for the reasons outlined above I dismiss all four grounds and consequently the appeal.
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