Baqaie v Colonial Castings Pty Limited
[2006] NSWWCCPD 297
•7 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Baqaie v Colonial Castings Pty Limited [2006] NSWWCCPD 297
APPELLANT: Gulbodin Baqaie
RESPONDENT: Colonial Castings Pty Limited
INSURERS:(i) Allianz Australia Workers
Compensation (NSW) Limited, on risk 30 June 1996 – 30 June 2002.
(ii)Vero Workers Compensation (NSW)
Limited, on risk from1 July 2002
FILE NUMBER: WCC4867-06
DATE OF ARBITRATOR’S DECISION: 7 July 2006
DATE OF APPEAL DECISION: 7 November 2006
SUBJECT MATTER OF DECISION: ‘Special circumstances’ within the meaning of section 254(2) of the Workplace Injury Management and Workers Compensation Act 1998; late notice of claim; serious and permanent disablement.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Self represented
Respondent: Allianz – Goldbergs Solicitors
Vero – Stephen Lee Legal
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 7 July 2006 is confirmed.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Gulbodin Baqaie (‘Mr Baqaie’) was employed by Colonial Castings Pty Limited (‘Colonial’) as a Die Caster and Process Worker. He claimed that, in the course of his employment with Colonial, he sustained a number of injuries as follows:
(a)On 18 March 2002 he slipped and fell on a broken section of floor and suffered injuries to his back, left shoulder, left arm, left leg and left side of body, and depression.
(b)As a result of the nature and conditions of employment from 2002 to 4 April 2005 involving constant lifting, bending and carrying heavy pieces of aluminium, he suffered the injuries referred to in paragraph (a) above.
(c)On 4 April 2005 as a result of a piece of aluminium cutting his left hand, he suffered dermatitis.
Mr Baqaie claimed that notice of the relevant injuries was given to Colonial on 18 March 2002 and 4 April 2005. Mr Baqaie completed a claim form in respect of the injury on 4 April 2005 with Royal & Sun Alliance Insurance (now Vero Workers Compensation (NSW) Limited – (‘Vero’)) on 26 April 2005. On 30 May 2005 Mr Baqaie completed a Vero claim form in respect of his injury on 18 March 2002. A further Vero claim form appears to have been completed by Mr Baqaie in relation to the injury on 18 March 2002 on 1 September 2005. It appears that that claim form was forwarded by Vero to Allianz Workers Compensation (NSW) Limited (‘Allianz’). Allianz wrote to Mr Baqaie on 29 September 2005 in the following terms:
“We refer to your claim for Workers Compensation benefits duly made on 01/09/05 and regret to advise that liability has been denied for the following reason(s). This decision is pursuant to section 65 of the WCA.”
In respect of the injury on 4 April 2005, liability was accepted by Vero and weekly benefits compensation and medical expenses paid up until 20 July 2005.
On 27 March 2006 Mr Baqaie filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 20 July 2005 “to date and continuing” and medical expenses in the sum of $2,500.00 in respect of all injuries.
On 13 April 2006, Allianz filed a ‘Reply’ listing as one of the issues in dispute whether a claim for compensation was made within the time limited by the legislation. On the same date, Vero also filed a ‘Reply’ also listing as issues in dispute, inter alia, whether Mr Baqaie gave notice of the injury to the “back, left shoulder, left arm, left leg and left side of body …” and made a claim in respect of that injury in accordance with the provisions of sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The matter was listed for a conciliation/arbitration hearing on 4 July 2006. The Arbitrator gave ex tempore reasons for his decision contained in the transcript of those proceedings.
On 7 July 2006 a ‘Certificate of Determination’ was issued with an accompanying ‘Statement of Reasons – Extempore Orders’. The decision of the Arbitrator was as follows:
“1. I determine that the claim made with reference to the date of injury of 18
March 2002 fails in that the claim was not made within the time limited by the Act and in particular the failure to make the claim was not excused by s.261(4) of the Workplace Injury Management and Workers Compensation Act 1998. Accordingly, Award for the Respondent in the interests of the insurer Allianz Australia Limited with respect to the claim made for 18 March 2002.
2.Award for the Respondent in the interests of both insurers Allianz Australia Limited and Vero (Cambridge Integrated Services Australia Pty Limited) with respect to the claim made for nature and conditions of work from 2002 to 4 April 2005.
3.With respect to the claim made for the frank injury of 4 April 2005 I find:
(a) There was an injury in terms of s.4 of the Workers Compensation Act 1987;
(b) That the Worker’s employment at the time was a substantial contributing factor to that injury; but that any incapacity arising from that injury had resolved such that there is no residual incapacity in the terms pleaded by the Applicant other than for the payments of twelve (12) weeks at $484.40 weekly from 4 April 2005 already made and satisfied by the subject insurer Vero, and for the medical treatment already approved at $2500.00 by the Respondent insurer Vero, and as set out in its letter to the Applicant of 6 May 2005.
4.Consequently, award for the Respondent in the interests of both insurers for the weekly benefits claim made for the period of 20 July 2005 to date and continuing and with respect to the claim made for further or continuing s.60 medical expenses.
5.There is no Order as to costs.”
On 31 July 2006 Mr Baqaie filed an ‘Appeal Against Decision of Arbitrator’. Although a number of grounds of appeal are cited, in essence, Mr Baqaie claims that the Arbitrator erred in determining that there were no “special circumstances” as defined in section 254 of the 1998 Act to excuse Mr Baqaie’s failure to give notice of the injury on 18 March 2002 within the time prescribed.
On 18 August 2006 Vero filed a ‘Notice of Opposition to Appeal’. Vero submits that Mr Baqaie’s grounds of appeal do not demonstrate any error by the Arbitrator and that the appeal should be dismissed.
On 25 August 2006 Allianz filed a ‘Notice of Opposition to Appeal’. In brief, Allianz submits that the appeal is misconceived since “the Appellant failed under section 261 of the Act mainly because he failed to establish as required by section 261(4)(b) that the injury had resulted in serious and permanent disablement”, and that it was open to the Arbitrator to make such a determination on all the evidence before him.
LEAVE TO APPEAL
The amount at issue on appeal satisfies the criteria set out in section 352(2)(a) of the 1998 Act. Consistent with the Commission’s decision in Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5, the 20% threshold set out in section 352(2)(b) of the 1998 does not apply as no award was made.
Accordingly, leave to appeal is granted.
ON THE PAPERS REVIEW
Mr Baqaie submits that the matter is suitable for a determination ‘on the papers’. Allianz makes a similar submission. Vero submits that “Vero would wish the opportunity to advance oral argument”. No reasons are advanced by Vero as to why an oral hearing is required.
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing”.
In the present case, I have before me the transcript including the parties’ submissions before the Arbitrator and the Arbitrator’s reasons, all the evidence before him, the Commission files, and the detailed submissions by all parties on appeal. Accordingly, I am satisfied that I have “sufficient information” within the meaning of section 354(6) and in accordance with Practice Direction No. 1 to determine the issues raised ‘on the papers’ and that this is the appropriate course in the circumstances.
I note at this point that, in his submissions on appeal, Mr Baqaie indicated that he may wish to rely upon further submissions once the transcript of the proceedings was available. Mr Baqaie’s appeal application was filed by the solicitors who represented him at the hearing before the Arbitrator. Those solicitors wrote to the Commission on 30 August 2006 indicating that they no longer acted for Mr Baqaie. I note that a copy of the transcript was forwarded to those solicitors on 16 August 2006. The Commission advised Mr Baqaie’s solicitors that any further grounds of appeal and/or submissions should be immediately lodged with the Commission. I assume since the Commission’s letter pre-dates the solicitor’s letter dated 30 August 2006 that Mr Baqaie has received the transcript. No further submissions, nor indeed any other material, has been filed in the Commission by Mr Baqaie.
FRESH EVIDENCE
On 11 September 2006 Vero made an ‘Application to Admit Late Documents’ being a medical report of Dr Michael Ryan dated 5 July 2006. Vero states that: “The document was requested before the Reply was filed and at 4.2 in the Reply it is listed as a document the Respondent intends to use but did not have at the time the Reply was filed..”
Section 352 of the 1998 Act makes provisions for the filing of an appeal against decisions of Commission Arbitrators. Section 352(6) provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
In its letter to the Commission of 11 September 2006, Vero stated that “a copy of same [Dr Ryan’s report] has been served on the Applicant’s solicitors.” Those solicitors ceased to act for Mr Baqaie as at 30 August 2006. I do not know if Mr Baqaie has ever received this report. In addition, there is no indication that it was served on the solicitors for Allianz.
In the circumstances, I consider that it would be extremely prejudicial to Mr Baqaie to permit the filing of this fresh evidence at this stage. Accordingly, leave to admit this evidence is refused.
In any event, the thrust of Mr Baqaie’s submissions on appeal is concerned with the Arbitrator’s interpretation of section 254 of the 1998 Act as it related to notice of the injury on 18 March 2002, predating Vero’s period of risk such that the issues on appeal, in my view, do not have any major impact on the interests of Vero.
THE GROUNDS OF APPEAL
Mr Baqaie lists a number of grounds of appeal many of which overlap and are really by way of submissions. The relevant matters are listed below, adopting the paragraph numbers contained in Mr Baqaie’s appeal.
“1The Applicant submits the decision of the Arbitrator … is harsh, unfair and unjust. The Arbitrator has acted against the objects of the Workers Compensation Commission namely to assist the worker to seek his legitimate rights of compensation as per the legislation. The Commission must be seen to be acting as a shield rather than a sword upon such rights.
2.Section 254(2) of the 1998 Act states:
‘The failure to give notice of injury as required by this section (or any defect or inaccuracy in notice of injury) is not a bar to the recovery of compensation … if it is found that there are special circumstances as provided in this section.’
It is submitted there exists special circumstances under which the Applicant can claim relief and refusal to grant it is the subject of current appeal.
3.It is submitted the situation of the Applicant falls within the scope of a special circumstance as stated in section 254(3)(b) of the 1998 Act. A ‘failure to give notice of injury … was occasioned by ignorance, mistake, …’
4.It is submitted the Applicant in his written statement (paragraph 13) … states he was ‘not aware there was such a thing as workers compensation’.
5.It is submitted the Applicant was ignorant of the requirements under workers compensation legislation and such ignorance caused the delay in filing a claim for his injuries to his employer and solicitors.
6.It is submitted the Arbitrator failed to take into consideration the impact the Applicant’s ignorance would have in relation to his workers compensation claim. Only after the Applicant suffered a further injury in April 2005 was he told by a friend he could claim workers compensation. It is submitted the Arbitrator failed to take into consideration the Applicant’s financial pressures and his ignorance of his workers compensation rights when determining the claim for the injury on 18 March 2002 was out of time.
7.With respect to the issue of ignorance, the Applicant refers to the decision of the Arbitrator in Turunen v Manildra Flower Mills (MFG) Pty Limited WCC20383-04 where he stated he was ‘satisfied on the balance of probabilities that the Applicant’s failure to make a claim for compensation within six months of the injury was occasioned by ignorance and that as the claim was made within three years after the injury, the Applicant comes within sub-section (4)(a) of 261 of the 1998 Act and that he is therefore not disentitled to recover compensation …’
8.The Applicant relies upon the decision of the Arbitrator in Turunen’s case where he accepted ‘the Applicant was ignorant of the prescribed time limits …’
9.The Applicant submits the Arbitrator failed to adequately deal with the submissions provided for in section 254 and subsequently erred in her [sic] decision to rule against the Applicant.”
The focus of Mr Baqaie’s submissions lies on the provisions of section 254 of the 1998 Act. It is appropriate for the purposes of this appeal to set out the relevant terms of that section as follows:
“254 (1) Neither compensation nor work injury damages are recoverable by
an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a)the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b)the failure to give notice of injury, or the defect or the inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d)the injury has been reported by the employer to the Authority in accordance with this Act.”
Section 260 of the 1998 Act sets out the procedures for making a claim for compensation, as opposed to giving notice of injury. Section 261 makes provisions in respect of the time within which a claim for compensation must be made. Relevant provisions are as follows:
“261(1) Compensation cannot be recovered unless a claim for the
compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death …
(4)The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State, or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of any injury resulting in the death or serious and permanent disablement of a worker …
(6)If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator’s reasons were given extempore at the hearing and commence on page 36 of the transcript. At page 38, the Arbitrator stated as follows:
“… I deal, firstly, with the fact that the claim in this matter relative to the 18 March 2002 injury, it seems, was first flagged and notified by letter of claim on 30 May 2005 by way of first notification. This was in relation to the discreet injuries, if I can call them that, of physical injuries, again if I can call them that, but in particular contended back, left shoulder, left arm, left leg and left side of body complaints emerging from the table fall incident … of March 18 2002. The insurer on risk then was Allianz.
I refer immediately to the fact that claim is made over 3 years after the initiating injury impact and is, therefore, and it is not disputed at least to that extent, outside the specified period in section 254 of the 1998 Act.”
The Arbitrator then went on to consider the provisions of section 261(4) of the 1998 Act, and noted all parties’ submissions on this issue. At page 39 of the transcript, he noted submissions on behalf of Mr Baqaie to the effect that the injury occurred approximately one year after Mr Baqaie’s arrival in Australia from Afghanistan, and “… that he was unaware of the worker’s compensatory [sic] system in this country but, once aware, he put in his claim …”
The Arbitrator continued as follows:
“Against those submissions the Respondent insurers submitted that there is no evidence of serious and permanent disablement, even if ignorance is satisfied.
I have to say that I am not entirely convinced on the balance of probabilities on the question of ignorance. As one illustration of this, the clinical records of Isra Medical Centre have the Applicant illustratively frequently medically consulting throughout an extensive period, including before and after the injury date on a range of medical challenges.
Within that chronology … there appears not to me to be a significant back reference on balance until a long time after March 2002 … the first reference made in those same clinical notes in April 2005 to a back pain of a type. The entry of the incident date by his general practitioner on 18 March 2002 and taken from those clinical notes reads: ‘Fell over at work. Ankle swollen… crepe bandage’.
The Applicant continued at work after this table fall intrusion without interruption and, again, there is no debate as to an uninterrupted work history throughout the period which followed. That period continued … until April 4, 2005, when the dermatitis challenge emerged.
Even if I were not satisfied on the ignorance point, and I am not, I have, for completeness, traversed the medical history, as it is my view on the balance of reliable medical material that there is not in terms of section 261(4) an emergence in terms of the 18 March 2002 injury of a serious and permanent disablement of a worker.”
The Arbitrator then proceeded to consider the medical evidence on this issue. He stated at page 41:
“… the physical symptoms complained of are far less conclusive and certainly less dramatic, in my view, than the Applicant puts in his claim … the Applicant has, as I have stated, continued uninterruptedly working until April 4, 2005, when, were it not for the dermatitis intrusion, did he only then leave work not to return”.
The Arbitrator then concluded:
“Consequently, to this point, in terms of the Respondent represented by the insurer Allianz, I have an award for the Respondent insurer with respect to the discreet injury of March 18, 2002 as not formerly notified as which has not satisfied the requisite statutory requirement, in my view, and determination under section 261(4), and, secondly, an award for the Respondent in the form of the Allianz insurer with respect to the nature and conditions claim, where I am not satisfied that there is a work place injury …”
THE SUBMISSIONS, EVIDENCE AND FINDINGS
There are two statements of Mr Baqaie before the Arbitrator, one dated 23 January 2006 annexed to his Application and another dated 19 May 2005 taken by an investigator engaged by Vero. In his statement dated 23 January 2006, Mr Baqaie stated:
“On or about 18 March 2002 I was pouring molten aluminium into the press which was on the table. I was standing on the table when one of its legs broke and I fell down hitting my back on the smaller table nearby. I reported the injury to Kevin, my manager. I went and saw Dr Hamid who prescribed me some pain killers. I went to a pharmacy and bought a belt for my back … I went back to work the next day. I continued working fulltime despite the pain. I was taking tablets prescribed by Dr Hamid to assist with the pain.”
Mr Baqaie went on to state as follows:
“I did not claim any workers compensation as I was not aware such a system existed. In Afghanistan there is no such thing as workers compensation and I had to support my large family. I only made a claim when I was told by a friend to see a solicitor about my work injuries. I saw [solicitors] in mid 2005.”
I think it is far to say that the Arbitrator’s consideration of the issue of “ignorance” was scant indeed. Mr Baqaie did not give oral evidence. There was no real challenge to his statement that he was ignorant of his rights to make a claim for compensation. The Arbitrator appears to have focused his attention on the medical records of the Isra Medical Centre in concluding that he was not “… entirely convinced on the balance of probabilities on the question of ignorance.”
Both Counsel for Mr Baqaie and the Arbitrator appear to have confused the factors set out sections 254 and 261 of the 1998 Act as they relate to notice of injury and making a claim.
In brief, section 254 requires that notice of the injury should be given to the employer as soon as possible after the injury has happened, but a failure to do so is not a bar for the recovery of compensation if “special circumstances” exist. Section 261 makes provisions for the time within which a claim for compensation must be made, again, with the proviso that a claim made late will not preclude a worker from recovering compensation if certain circumstances exist.
As to the question of “notice”, Mr Baqaie claimed that he reported the incident in March 2002 to “Kevin”. In its ‘Reply’, Vero included a factual investigation report which contained a statement from Kevin O’Hearn, the manager of Colonial, dated 8 February 2006. Mr O’Hearn made a number of statements as follows:
·“At no time during the course of his employment did Mr Baqaie make any complaints of injury to his neck, back, left side of body, left shoulder, left arm and depression.
·I have searched the Register of Injuries from 2000 to date and the only entry involving Mr Baqaie relates to an episode which occurred on 4 April 2005 involving a puncture injury.
·Mr Baqaie was aware that he was to report any injuries suffered whilst employed by Colonial Castings Pty Limited to management.
·He was involved in an induction course and was advised of the requirements of reporting of injury.
·Colonial Castings Pty Limited employs a large number of workers of an ethnic background similar to Mr Baqaie. I am aware that he was advised by nationals of his own ethnic background of the requirement that he report any injury as soon as it has occurred.
·I reiterate that at no time did the Applicant report to me or make any complaint or record in the Register of Injuries any injury to his back, neck, left shoulder, left arm, left side body or depression.
·At no time did I observe Mr Baqaie to wear a lumbar support.”
This statement is in stark contrast to that of Mr Baqaie. In addition, a statement by Tran Bui, a foreman at Colonial, dated 18 May 2005, also included in Vero’s ‘Reply’ contained this statement: “Before he hurt his hand Baqaie never said anything to me about hurting his back or his shoulder in a fall at work.”
The medical records of the Isra Medical Centre annexed to Mr Baqaie’s application were also insightful. As discussed earlier, there was an entry on 18 March 2002 referring to a fall at work with a swollen ankle requiring a “crepe bandage”. No other injuries were recorded. There was no further entry until 17 February 2003. The records disclosed Mr Baqaie consulted that centre on a number of occasions throughout 2003 and 2004 with no record of any complaints of back pain until an entry on or about 20 August 2005 where a reference is made to “lower back pain”.
There seems to be have been no dispute between the parties that the first notice of claim in relation to this incident was made on 30 May 2005, well outside the time permitted by section 261 of the 1998 Act. In those circumstances, the Arbitrator was required to determine whether that late claim fell within the ‘exceptions’ provided by section 261(4).
As to the question of ‘notice’ within the terms of section 254, of the 1998 Act, Mr Baqaie’s claim that he gave oral notice of his injury to “Kevin” is disputed. There was no evidence from Mr Baqaie to the effect that he gave any written notice of injury such that Mr Baqaie’s version of events was refuted by both Mr O’Hearn and Bui. Mr Baqaie in his submissions claims that he was “ignorant” such that his situation fell within the “special circumstances” provided for in section 254(3)(b) and that it was as a consequence of that “ignorance” which “… caused the delay in filing a claim for his injuries to his employer and solicitors”.
Even if it were accepted that Mr Baqaie failed to give notice of the injury in March 2002 as required by section 254 of the 1998 Act because of “ignorance”, Mr Baqaie was then still required to demonstrate to the Arbitrator that the failure to make a claim within three years of that injury as required by section 261 of the 1998 Act was also as a result of “ignorance”, but that, because the claim was made outside the three year period, it was “… in respect of an injury resulting in the death or serious or permanent disablement of a worker”.
As is often the case in disputes before the Commission, the Arbitrator was faced with conflicting medical opinion, to which I will refer shortly. However, the principal difficulty for the Arbitrator to determine was whether or not Mr Baqaie had indeed suffered an injury to his back and other body parts in the alleged fall on 18 March 2002. Contemporaneous medical records referred only to a “swollen ankle”. Those records disclosed no complaint of back pain for more than three years after that incident.
In his application, Mr Baqaie relied on a number of radiological investigations and a report from Dr Hamid dated 16 January 2006. Dr Hamid recorded a history of the incident on 18 March 2002 and that Mr Baqaie “… fell to the ground injuring the back. This was apparently witnessed by another worker/leader. He continued working despite back pain … as the back pain intensified he used low back support while working and on a regular basis.”
Under the heading “opinion” Dr Hamid stated: “Mr Baqaie has suffered lumbar discopathy with left radiculopathy from heavy bending and lifting. The work place activities have also resulted in left supraspinadatis syndrome.” No reference was made to the incident in March 2002 as having caused these ‘injuries’.
As to Dr Hamid’s reference to “heavy bending and lifting”, in his statement of 8 February 2006, Mr O’Hearn indicated that Mr Baqaie’s duties involved him “from time to time” being required to place ingots of aluminium into the furnace which weighed approximately 10 kilograms. Mr O’Hearn stated that “there was no bending involved … Mr Baqaie was at no stage required to lift dies as these were hydraulically manoeuvred. There was no lifting or reaching above shoulder height whilst engaged in the duties as a process worker/die caster.” Those duties Mr O’Hearn described as involving “manufacturing light-weight aluminium products.”
Again, there was conflicting factual evidence which would cast some doubt on the veracity of Dr Hamid’s report.
In a report dated 4 November 2005, Dr Rushworth, Consultant Neurosurgeon, who examined by Mr Baqaie at the request of Allianz, concluded that Mr Baqaie required an MRI scan since the diagnosis was unclear in respect of Mr Baqaie’s complaint of “… pain affecting the whole of the left side of the body…”
Dr Matheson, Consultant Neurosurgeon, who examined Mr Baqaie at the request of Vero and prepared a report dated 22 November 2005, also considered that Mr Baqaie should probably have an MRI since the CT Scan was equivocal. Dr Matheson concluded “most of his symptoms are somatised. He is perfectly capable of working in the foundry if he chose to”.
Interestingly, Dr Matheson, with the assistance of an interpreter, took this history:
“… On 18 March 2002 he was lifting up a table at work when he got some low back pain. He said he saw Dr Kay Hamid for this but did not take time off work … he said this slowly settled down and he did not concern himself with it. In his report, Dr Hamid has not referred to this incident nor has he referred to any further episodes of back pain.”
It was then that Dr Matheson went on to consider the dermatitis condition.
Whilst the medical evidence suggested that Mr Baqaie may indeed have some disability in his spine, there was very little evidence, apart from his own history, that this condition resulted either from the incident on 18 March 2002 or the nature and conditions of his employment between 2002 and 2005. Moreover, Mr Baqaie’s history to Dr Matheson, given with the assistance of an interpreter, suggests that the back condition was not of any great significance, his main focus being with the dermatitis condition. Dr Matheson also obtained a history that “… the episode of developing the rash has stirred up his back pain and has given him much more widespread symptoms”, which Dr Matheson concluded was “nonsense”.
The Arbitrator’s conclusions that the evidence did not support the finding that Mr Baqaie suffered a “serious and permanent disablement” as a consequence of either the incident on 18 March 2002 or the nature and conditions of employment, was entirely consistent with the totality of the evidence before him.
As to Mr Baqaie’s submission that he was “not aware there was such a thing as workers compensation”, it is not clear whether this is intended as a reference to the provisions of section 261(6) of the 1998 Act. Even if it was, that section makes reference to an awareness of an “injury”, not an awareness as to the entitlement to claim compensation. This issue was considered by recently in CSR Limited t/as Bradford Insulations v Milosevic [2006] NSWWCCPD 154. The claim was one for industrial deafness where the worker claimed that it was not for many years after ceasing employment with the Respondent that she became aware that she suffered from hearing loss which may entitle her to bring a claim.
There is no suggestion in this case that Mr Baqaie was not “aware” that he had suffered an injury.
Mr Baqaie in his submissions on appeal relies upon the decision of the Arbitrator in Turunen, supra, on the basis that, in that case, the Arbitrator determined that the Applicant’s failure to make a claim within six months of the injury was occasioned by ignorance. That is not relevant to this claim since it appears from Mr Baqaie’s submissions, that that case involved a finding of fact that the claim was made within three years after the injury such as to enable the worker to take advantage of the provisions of section 261(4)(a) of the 1998 Act.
Mr Baqaie’s focus on the issue of “ignorance” in that context is misconceived. His claim was clearly made outside the three year period such that he was required to satisfy the Arbitrator that his injury resulted in “serious and permanent disablement”. Mr Baqaie’s evidence fell short of that requirement.
The appeal process permitted by section 352 of the 1998 Act is not, as Allianz points out in its submissions, “… a rehearing, nor a hearing ‘de novo’.” The appeal is to be by way of review of the Arbitrator’s decision. The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the Arbitrator’s decision is affected by some legal, factual or discretionary error. (See Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7). In addition, as Deputy President Fleming said in Mayne Health Group v Sarah Sandford [2002] NSWWCCPD 6, “findings of an arbitrator based on credit will only be disturbed where there is demonstrable error or unfairness …”
Mr Baqaie’s submission that the Arbitrator’s determination was “harsh, unfair and unjust” does not demonstrate any error on the part of the Arbitrator nor address the substantial merits of the claim.
As Deputy President Fleming said in Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34, mere disagreement with the outcome of the proceedings is not a proper basis for appeal:
“Where the parties are accorded procedural fairness and the Arbitrator has taken the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate on review by a Presidential member to interfere with the Arbitrator’s decision.”
As Allianz rightly points out in his submissions, Mr Baqaie, on appeal, has taken issue with the Arbitrator’s consideration of the terms of section 254 of the 1998 Act with respect to the failure to give notice of injury, but his submissions:
“… Fail to deal with the fact that the Appellant was unsuccessful because of a failure to make a claim for compensation within the time limited by the Act as provided by section 261 of the Act … The Appellant failed under section 261 of the Act mainly because he failed to establish as required by section 261(4)(b) that the injury had resulted in serious and permanent disablement”.
That was a finding open to the Arbitrator on the totality of the evidence before him, both medical and lay. The evidence disclosed that Mr Baqaie lost no time from work following the injury in March 2002, and did not suffer any “incapacity” until the dermatitis injury in April 2005. In addition, as I have said, there was clearly conflicting evidence as to what ‘injuries’ Mr Baqaie suffered as a consequence of the incident in March 2002.
The issue of “serious and permanent disablement” was considered by Burke J of the former Compensation Court in Gregson v L & M R Dimasi Pty Limited [2000] 20 NSWCCR 520 (‘Gregson’) where he said:
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the Applicant’s incapacity and losses before a considered answer to those previous questions is available.
In other words, the word “disablement” refers principally to disablement in respect of incapacity to perform work. The evidence before the Arbitrator disclosed that Mr Baqaie was not incapacitated to perform his work as a result of the incident on 18 March 2002. Indeed, any ‘incapacity’ to perform work only eventuated following the injury in April 2005 resulting in a dermatitis condition. Mr Baqaie’s statement that he wore a “belt” to assist him, and took pain killers prescribed by Dr Hamid, is unsupported by other lay and medical evidence such that it must be said that all of “the questions” outlined by Burke J in Gregson cannot be answered in the affirmative. Whilst the radiological evidence might suggest that Mr Baqaie had something of a ‘disability’ in his spine, the evidence did not support a finding that it was either serious, permanent, or impinged adversely upon his capacity to work.
CONCLUSION
Whilst I agree with Mr Baqaie’s submissions to the effect that the Arbitrator’s treatment of the issue of “ignorance” as set out in section 254 of the 1998 Act was somewhat cursory, poorly expressed, and placed undue reliance on medical records as opposed to Mr Baqaie’s uncontradicted statement as to his lack of knowledge about compensation entitlements, I do not consider that that is an error fatal to his ultimate determination. Even if it were accepted that Mr Baqaie was ignorant of his obligation either to give notice of an injury or to make claim for compensation, his ultimate task was to persuade the Arbitrator that, given his claim was made outside the three year time limit provided for in section 261 of the 1998 Act, his injuries resulted in “serious and permanent disablement”.
This applies both to the injuries alleged to be consequent upon the incident on 18 March 2002 and to the ‘nature and conditions’ claim. The factual evidence as to the latter was markedly conflicting such that Mr Baqaie failed to discharge his onus to establish that the ‘nature and conditions of employment’ resulted in an injury within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1997 Act’).
The Arbitrator’s reasons for his determination, consistent with the totality of the evidence before him, were adequate in the context of his duty in that regard.
DECISION
The decision of the Arbitrator dated 7 July 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Deborah Moore
Acting Deputy President
7 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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