Bluescope Steel Ltd v Eason
[2007] NSWWCCPD 172
•7 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bluescope Steel Ltd v Eason [2007] NSWWCCPD 172
APPELLANT: Bluescope Steel Ltd
RESPONDENT: Trevor Eason
INSURER:Self insured
FILE NUMBER: WCC19204-05
DATE OF ARBITRATOR’S DECISION: 22 March 2007
DATE OF APPEAL DECISION: 7 August 2007
SUBJECT MATTER OF DECISION: Section 65(13) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore
Respondent: Russell McLelland Brown
ORDERS MADE ON APPEAL: The Arbitrator’s determinations dated 22 March 2007 and his findings, set out in his ex tempore reasons delivered on 20 March 2007, are revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator for the remaining issues under section 65(13) of the Workplace Injury Management and Workers Compensation Act 1998 to be re-determined in accordance with the reasons in this decision.
2.Costs of the first and second arbitrations are, so far as possible under the relevant costs regulations, to follow the event of the third arbitration.”
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 17 April 2007 Bluescope Steel Ltd (‘the Appellant Employer/Bluescope’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 March 2007.
The Respondent to the Appeal is Trevor Eason (‘the Respondent Worker/Mr Eason’).
Mr Eason started work with the Appellant Employer as an electrician in January 1986. At that time it was known as BHP but later changed its name to Bluescope. He worked with the company until he accepted a voluntary redundancy on 26 July 2001. He alleges that he injured his back on two occasions in the course of his employment: first in April 2001 and second in July 2001. His symptoms increased significantly when he was at home in September 2001. Neither injury was reported until about 10 December 2001 when he took steps to submit Incident Report forms to Bluescope.
Mr Eason made no claim for compensation until 12 April 2005 when his current solicitor wrote to Bluescope claiming lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the sum of $9,000.00 in respect of a 15% permanent impairment of his back, $7,500.00 in respect of a 10% loss of efficient use of his right leg at or above the knee and $10,000.00 compensation for pain and suffering pursuant to section 67 of the 1987 Act. In a letter dated 29 August 2005 Bluescope’s solicitor denied liability for the claim on the ground that Mr Eason had not lodged “a Claim for Compensation in respect of either injury, within 6 months of the injury, in accordance with section 65(7) of the Workplace Injury Management and Workers Compensation Act 1987 [sic]”.
On 10 November 2005 Mr Eason’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission. In the Application he claimed the same compensation set out in the letter of 12 April 2005 referred to above. In its Reply the Respondent Employer denied liability because, among other reasons, Mr Eason had not given notice of injury and had not claimed compensation within the time limits set in the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The claim was listed for conciliation/arbitration conference on 17 March 2006 and, as the parties could not resolve their differences, it proceeded to arbitration. In a reserved decision delivered on 11 April 2006 the Arbitrator made several findings in favour of Mr Eason on the issues of ‘injury’ and ‘notice of injury’, but made an award for the Respondent Employer on the ground that the Appellant Worker’s claim for compensation had been made more than three years after the injury and the injury had not resulted in “serious and permanent disablement” within the meaning of section 65(13)(b) of the 1998 Act. The Arbitrator also found that it was beyond doubt that Mr Eason had not made a claim for compensation within six months after his injuries (see Arbitrator’s Statement of Reasons for Decision dated 10 April 2006 (‘the first decision’) at paragraph 43). He made no finding as to whether the failure to claim within the time set in section 65(7) could be excused under section 65(13).
Mr Eason successfully appealed that decision (Eason v Blusecope Steel Ltd [2006] NSWWCCPD 265 (‘Eason No.1’) on the ‘serious and permanent disablement’ issue and the matter was remitted to the Arbitrator for the remaining issues under section 65(13) to be determined.
A further arbitration was held on 20 March 2007 when counsel represented each party and further submissions were made. In an ex tempore decision the Arbitrator found in favour of Mr Eason. Bluescope seeks leave to appeal that decision.
PRELIMINARY MATTERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
The Respondent Worker seeks an oral hearing but no submissions are made as to why an oral hearing is required. The Appellant Employer consents to the matter being dealt with on the papers.
Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 March 2007, records the Arbitrator’s orders as follows:
“1. That s65(13) of the Workplace Injury Management and Workers Compensation Act 1998 is not a bar to the recovery of compensation claimed by the Applicant.
2. That the dispute concerning permanent loss pursuant to s66 of the Workers Compensation Act 1987 is to be referred to an Approved Medical Specialist pursuant to s321(1) of the Workplace Injury Management and Workers Compensation Act 1998. The Registrar is to choose the Approved Medical Specialist in accordance with s321(2) of the 1998 Act.
3.That the matter is certified a complex matter for the purposes of costs pursuant to Schedule 6 of the Workers Compensation Regulation 2003.
4.That the Respondent pays the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in finding that the Respondent Worker’s failure to claim compensation within the six months prescribed by section 65(7) of the 1998 Act was excused by the operation of section 65(13) because:
a) that finding was contrary to authority and wrong in law;
b) the Arbitrator misdirected himself as to the correct test to be applied in determining whether the Respondent Worker’s failure to make a claim for compensation was excused on the basis of “other reasonable cause”, and
c) there was no evidence to support any finding by the Arbitrator that the Respondent Worker’s failure could be excused by “other reasonable cause” within the terms of section 65(13).
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(6) 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.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)
The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’. Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (‘Regan’) it was held at [27] that:
“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”
As no compensation has been awarded in this matter the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. Mr Eason claims $26,500.00 under sections 66 and 67 of the 1987 Act plus hospital and medical expenses. Therefore, the quantum of compensation “at issue” on appeal exceeds the $5,000.00 threshold in section 352(2)(a). As no compensation has yet been awarded it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCCPD 5).
Therefore, the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Interlocutory Order
In light of the above amendments to section 352(8) of the 1998 Act and the issues raised in the appeal, I issued the following Direction to the parties on 28 June 2007:
1. “The parties are directed to the provisions of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as amended by Act 113 of 2005, which excludes from the definition of ‘decision’, ‘any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations’.
Under Clause 200B of the Workers Compensation Regulation 2003, as amended, ‘for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed’.
Under Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 the above amendments to section 352 ‘apply in respect of a claim for workers compensation made before the commencement of the amendments’.
2. In light of the above amendments, the parties are invited to make written submissions on the following issues:
· whether the current appeal is against an order, ruling, determination or direction of an interlocutory nature, and, if so,
· the basis on which leave to appeal should be granted.
3. The Appellant Employer’s submissions are to be filed and served on or before 4.30pm on Thursday 12 July 2007 and the Respondent Worker’s submissions in reply are to be filed and served on or before 4.30pm on Thursday 26 July 2007.” (emphasis added)
Each of the parties has filed further submissions in response to the above direction. The Appellant Employer submits that:
a) the current appeal is not an appeal from an interlocutory order but concerns the application of section 65 of the 1998 Act which is clearly a “limitation provision”;
b) limitation provisions such as section 65 are substantive and not procedural (Gregson v L & MR Dimasi Pty Ltd (2000) 20 NSWCCR 520; John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503);
c) the determination of a substantive right should not be characterized as an interlocutory determination;
d) the Arbitrator’s “decision” on 22 March 2007 as to the application of section 65(13) of the 1998 Act “conclusively” (within the unique parameters of the statutory provisions which bind the Commission) determined the limitation issue in the Respondent Worker’s favour and overcame the bar to the recovery of compensation that had arisen due to the Respondent Worker’s failure to bring his claim within six months of injury;
e) on the basis of the decision of P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’) at [37(j)] the Arbitrator’s decision should not, for the purpose of assessing whether the Appellant Employer should be deprived of the right to appeal to a Presidential member, be characterised as “genuinely interlocutory” in nature;
f) the determination of the “limitation question” required by section 65 of the 1998 Act is another example of a “final order” which should give rise to an entitlement to pursue an appeal in accordance with section 352 of the 1998 Act, and
g) if the appeal is successful, the resolution of the dispute will be finalized with fairness and cost effectiveness, reducing administrative costs across the workers compensation system thus pursuing the objectives of the Commission (section 367 of the 1998 Act)
The Respondent Worker submits:
a) the granting of an extension of a limitation period is interlocutory (Merton Enterprises Pty Ltd v Nelson (1988) 13 NSWLR 454 (‘Nelson’);
b) the Arbitrator’s determination was effectively a determination extending a limitation period;
c) an interlocutory determination is one that does not finally determine (in a legal and not a practical sense) the rights of the parties (Licul v Corney (1976) 50 ALJR 439 (‘Licul’) and Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 (‘Dousi’)). The determination to “unbar” Mr Eason’s cause of action did not finally determine his legal rights;
d) the determination that the bar did not operate was ancillary to a determination of whether Mr Eason was entitled to compensation and it was interlocutory (Dousi at 379G);
e) “preliminary” includes a determination that opens the door, or removes the bar, to determination of the issues truly relevant to a final determination of a workers cause of action, and
f) alternatively, the requirement to make a claim within 6 months is a condition precedent to recovery of compensation, being a condition that is excusable, and a determination to excuse failure to comply with the condition is preliminary to the final determination of the Respondent Worker’s entitlement to compensation (Murray v Baxter (1914) 18 CLR 622 at 633 (‘Murray’)).
I do not believe there is any issue that the amendments to section 352 are applicable to the present matter (see Hawkins at [34]).
The distinction between a ‘final’ and ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL an others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206 (‘Southern Cross’)). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. His Honour added at 207:
“Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another.
The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.”
His Honour quoted from Gibbs J (as his Honour then was) in Licul at 443-444 where his Honour said that the established view in Australia was that what is interlocutory:
“…depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?”
The statutory scheme within which the Commission operates was discussed in detail in Hawkins where, after reviewing the legislative context of section 352(8), I stated at [37(j) and (k)]:
“j)in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase “preliminary or interim orders…of an interlocutory nature” to matters that are genuinely preliminary, provisional or interim in nature, and
k)given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”
In the circumstances of the present matter the order under appeal has finally determined the parties’ rights because the determination has crystallised Mr Eason’s entitlement to compensation, subject to an assessment of his permanent losses by an AMS. An AMS is not part of the Commission (see section 368 of the 1998 Act) and such an assessment will be “conclusively presumed to be correct” as to the degree of permanent impairment and whether any proportion of that permanent impairment is due to any previous injury or pre-existing condition or abnormality (section 326 of the 1998 Act).
I have carefully considered the authority of Nelson. In that case the Court of Appeal held that when an order is made under section 58(2) of the Limitation Act 1969, extending the limitation period, the person claiming to have the cause of action will, upon commencement of proceedings within the extended limitation period, be proceeding on the same cause of action as he was in a position to claim on from the time it first accrued. No new right is given by the order extending the limitation period. The Court (Samuels, Priestley and McHugh JJA) held at 457D that whether the order was one extending time or refusing to extend time, in neither case is the decision “a final one in the sense in which the word is used in this area of legal discourse”. The ‘area of legal discourse’ the Court was considering was quite different to that within which the Commission operates.
In Dousi the Court of Appeal repeated that an application for an extension of time within which to institute proceedings pursuant to the Limitation Act 1969 involves no final adjudication of substantive rights but deals with questions of procedure only and was therefore interlocutory. An order refusing an application to extend the limitation period is not a final order because further applications may be made without any issue estoppel being raised (Nominal Defendant v Manning (2000) 50 NSWLR 139).
The first point to note is that the Limitation Act 1969 does not apply to proceedings in the Commission. In addition, the authorities of Dousi and Nelson are, in my view, distinguishable from the matter before me in that the Arbitrator’s decision in the present matter (taken with his earlier decision on injury and the decision in Eason No.1) has finally determined that parties rights (subject only to quantification by an AMS, someone not part of the Commission). The legal effect of the decision is that the Appellant Employer is liable to Mr Eason for such losses as may be assessed by the AMS. Such a determination should not, in the statutory context in which the Commission operates, be classified as a ‘preliminary or interim order…of an interlocutory nature’. If the Arbitrator had determined that Mr Eason had not satisfied the conditions in section 65(13) of the 1998 Act, he would have entered an award in favour of Bluescope and Mr Eason’s rights would have come to an end. There is no logical reason why the same principle should not apply to proceedings in the Commission when Mr Eason has succeeded.
I do not accept the Respondent Worker’s argument that the Arbitrator’s decision to excuse the failure to comply with the provisions of section 65(7) was preliminary to his right to recover compensation. It was an essential requirement the Respondent Worker had to satisfy (just as he had to prove injury) before he had an entitlement to compensation. That issue, along with all other issues, having now been decided in his favour, the parties’ rights have been determined by a final decision by a Commission Arbitrator.
If the Appellant Employer’s arguments on appeal are accepted the matter will come to an end. If leave to appeal is refused an AMS will then assess Mr Eason. Each party has the right to appeal the AMS assessment to a Medical Appeal Panel. Those steps would involve substantial further cost and delay before a further Certificate of Determination is issued entitling Bluescope to again appeal. To allow that to happen would be contrary to the clearly stated objectives of the legislation, namely, to provide a fair and cost effective system for the resolution of disputes (section 367 of the 1998 Act).
Therefore, I believe that the Arbitrator’s decision cannot be properly classified as a ‘preliminary or interim’ order of an interlocutory nature. It has, in the circumstances of this matter and bearing in mind the legislative context in which the Commission operates, finalised the parties’ rights.
I grant leave to appeal.
DISCUSSION AND FINDINGS
The evidence is that Mr Eason injured his back in April 2001 when he stepped into a hole at work resulting in a jarring sensation through the entire right side of his body. He did not report this incident and had no time of work. The history recorded by Dr Bodel, orthopaedic surgeon qualified by Mr Eason’s solicitor, is that he jarred his right leg and hip and whilst he was sore for the next few days his discomfort “seemed to completely resolve” (report Dr Bodel 6 January 2005, page one).
The next incident was in July 2001. On this occasion (recorded by Dr Bodel as being about 20 July 2001 and by Mr Eason as being about one week before he finished employment with Bluescope) Mr Eason was installing a fan cover on a hoist motor. As he tried to move the motor to align the fan he felt pain in his low back. At the time Joe Cianter was walking by and Mr Eason sought his assistance to finish the job. Again this incident was not reported to Mr Cianter, or anyone else at Bluescope, and Mr Eason lost no time from work. His symptoms initially improved but did not resolve completely. He ceased employment with Bluescope and accepted a voluntary redundancy on 26 July 2001.
Mr Eason’s statement dated 28 October 2005 was in evidence before the Arbitrator. At paragraph 12 he said:
“On 2 December 2001, I contacted Joe Cianter. He remembered me asking him for assistance to complete the task of replacing the fan cover. I had not informed Joe of the injury to my lower back at the time, as I thought it might jeopardise my voluntary redundancy application. My voluntary redundancy application was stressful for a number of reasons and I did not want to complicate the matter further.”
The suggestion that Mr Eason did not wish to jeopardise his voluntary redundancy is partly corroborated by the clinical notes from Dr Pryor who saw him on 22 March 2002 and recorded the injury of July 2001 and noted “no time off – was looking for a vol redundancy”.
On 10 December 2001 a former work colleague, Vince Petrolo, submitted ‘Incident Reports’ to Bluescope on behalf of Mr Eason. The Incident Reports are in evidence. They are undated and, though unsigned, were presumably completed by Mr Eason in or about December 2001. The documents are headed “BHP Incident Report” and have five sections: Basic Details, Incident Description, Consequences – Actual & Potential, Immediate Corrective Actions and Persons Immediately Notified. In the form relating to the April 2001 incident only parts one, two and four have been completed. In the form relating to the July 2001 incident only parts one and two have been completed.
The Incident Report forms were clearly intended for internal use by Bluescope. They make no mention of a claim for compensation. If Mr Eason believed that his submitting of the Incident Report forms amounted to the making of “a claim for compensation”, he was mistaken.
On 13 February 2002 Mr Eason saw a solicitor with Kells, solicitors at Wollongong. He states that he was advised he had three years to make a claim against Bluescope. In a letter from Kells to Mr Eason dated 14 February 2002 the solicitor stated:
“We confirm that you are likely to have the following Workers’ Compensation Rights:
(a)A right to receive payments of weekly compensation.
(b)A right to receive payments of all reasonable hospital and medical expenses including travelling costs.
(c)A potential right to recover lump sum compensation if we can show you have permanent injuries.”
The letter added that a common law case must be started within three years of the date of the accident but made no mention of time limits in respect of claims for workers compensation benefits. The letter seems to have assumed (though it is by no means clear) that Mr Eason had already made a claim for compensation.
No formal claim for compensation was made on behalf of Mr Eason until his current solicitor made a claim by letter dated 12 April 2005.
In his first decision delivered on 10 April 2006 the Arbitrator found at paragraph 43 that it was “beyond dispute that Mr Eason did not make a claim for compensation within 6 months after the injury or accident happened”. That finding has never been challenged. That being so the issue before the Arbitrator at the second arbitration was: did Mr Eason give a reason or reasons for not claiming compensation within the period July 2001 to January 2002 that could as a matter of law satisfy the terms of section 65(13) of the 1998 Act?
Subsections (7) and (13) of section 65 of the 1998 Act provide:
“65 Making a claim for compensation
…
(7) Compensation may not be recovered under this Act 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 of the date of death.
…(13) The failure to make a claim within the period required by subsection (7) 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 of 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 an injury resulting in the death or serious and permanent disablement of a worker.” (emphasis added)
Whilst at T12.27 the Arbitrator acknowledged that the relevant time within which a claim must be made was six months, his reasons indicate that he focused on Mr Eason’s conduct after January 2002. He said at T14.2:
“From the applicant’s viewpoint it was reasonable he did not pursue his claim until he secured his new employment, his new position, and that was on 22 January 2004, and that’s outlined in paragraph 5 of the 28 October 2005 statement.
Mr Eason made contact with his present solicitors on 16 January 2004, which is contained in paragraph 2 of the solicitor's statement of 19 March 2007, that is, within the three‑year period. The initial information was made available to the solicitor during February 2004. Again, that’s within the solicitor’s statement that’s in evidence. The initial notice of a proposed claim was made on BlueScope in March 2004. All this was within the three‑year limitation period. The problem as I see it really was the time the solicitor had taken to properly and appropriately finalise the evidence to make the proper and formal claim against BlueScope. This was eventually done on 12 April 2005. The history of what I’ve just said is adequately outlined in the solicitor’s statement in paragraphs 9 to 39.” (emphasis added)
The Arbitrator accepted that, as a lay person, Mr Eason “would not have an understanding of what is required to make a proper claim for the benefits that he sought” (T14.25). He accepted Mr Eason’s evidence at paragraphs six and seven of his statement of 15 March 2006 as being “valid reasons in Mr Eason’s mind” (T14.28) for not claiming within time. Mr Eason stated that it was only when he secured permanent employment in January 2004 that he contacted his present solicitor (Mr Eason’s statement 15 March 2006, paragraph six).
He added that he did not “progress the claim” in the period from February 2002 until January 2004 because he was receiving treatment and was more involved in trying to get himself better than in pursing a claim (Mr Eason’s statement 15 March 2006, paragraph seven).
After referring to this evidence the Arbitrator stated at T14.46:
“Mr Eason, it appears to me, whilst cutting it fine, had instructed his solicitors some two and a half years after the July ’01 accident to make a claim on his behalf. Mr Eason was ignorant of what time such instructions would take to fulfil.
In all the circumstances, I believe Mr Eason’s failure to make the claim within the time frame is squarely…”
The above passage makes it clear that the ‘time frame’ the Arbitrator considered was the three-year period referred to in section 65(13). The relevant time period is the six months after injury. If a worker has failed to claim compensation within that time because of ignorance, mistake, absence from the state or other reasonable cause, it is not relevant that there is a further delay after that six months for which the worker has no excuse (see Murray, cited at [24 (f)] above). Therefore, Mr Eason’s conduct after January 2002 was irrelevant to the question that had to be decided, namely, was there an explanation, within the terms of section 65(13), for the fact that Mr Eason did not make a claim for compensation “within 6 months after the injury” (section 65(7)). As can be seen from the above analysis, the Arbitrator did not address that issue and he was in error in failing to do so.
Therefore, the Appellant Employer’s grounds of appeal seem to me to be misdirected in that the Arbitrator did not direct his mind to the relevant period, the six months after injury. It is necessary, however, that I deal with the grounds of appeal so as to avoid confusion at the re-determination that must now take place.
The operation of section 65(13) was considered in Albury Real Estate Pty Ltd v Rouse & anor [2006] NSWWCCPD 139 (‘Rouse’), where I said at [29] to [32] inclusive:
“The words used in section 65(13) are virtually identical to those used in section 53(1)(b) of the Workers Compensation Act 1926 (‘the 1926 Act’). Under that legislation it was accepted that ‘mistake’ included a mistake of fact, one of law, and a mixed mistake of fact and law (C P Mills Workers Compensation (New South Wales) second edition (‘C P Mills’) page 466 and Stevenson v Metropolitan Meat Industry Commissioner [1937] WCR 120 at 124-5). In G C Singleton & Co Pty Ltd v Lean (Seymour) [1970] ALR 129 (‘Seymour’) it was held that ‘ignorance’ will include the case where the worker does not know of the need to give the notice within the specified time. Seymour was applied to similar legislation by the South Australian Workers Compensation Tribunal in Zac Paul Williams v WorkCover/GIO Australia (Simar Transit Mixers) [1998] SAWCT 101 where Judge Cawthorne said:
‘In my view the failure on the worker’s part to make his claim within the prescribed period should not create a bar to the making of the claim. In reaching that conclusion to my mind two factors stand out. First until the worker saw Dr. Tolis in February 1997 and was told of the seriousness of his injury he had no intention of making a claim for compensation being under the misapprehension that his problem was only one of muscular strain which would eventually resolve. In the light of all of the evidence and in particular that of Mr. McCulloch that was clearly a mistaken view on the worker’s part. Second, although I am prepared to accept that the worker had some understanding of the compensation system having made earlier claims, I accept his evidence that he was not aware that a time limit existed for the making of a claim for compensation. In those circumstances it is my view that the failure of the worker to make a claim within the prescribed period was also occasioned by ignorance (G.C. Singleton and Co. Pty. Ltd. v. Lean (Seymour) 1970 A.L.R. 129) or mistake on his part.’
The phrase ‘reasonable cause’ was considered in Garratt v Tooheys Ltd [1949] WCR 80 (‘Garratt’) at 86-7. In that case Judge Rainbow said at 86:
‘The next question is whether the applicant’s failure was occasioned by some reasonable cause. In its context, cause means the grounds which led the workmen to omit to claim. And the mixture of facts, circumstances and motive which constitute the explanation of the failure must be reasonable. It is sometimes argued that the reasonableness of the cause is only to be measured and considered from the viewpoint of the worker and reference is made for example to King v Port of London Authority [1920] AC 1 where Lord Atkinson at page 24 said: ‘Of course it is reasonable cause having reference to the workman himself’. If this argument means that the inquiry is to be limited to discovering whether the worker believed himself to be acting or thinking reasonably that is not the law: cf Brown v Aveling and Porter, (22 BWCC 165 at 169). It is not the worker who is to be reasonable, it is the cause. As Lord Birkenhead said in King v Port of London Authority, ‘the general atmosphere must always be considered’. The reasonableness is to be measured objectively in the light of every circumstance in the case relevant to showing why the failure to claim occurred: cf Atherton v Chorley Colliery Co Ltd (19 BWCC 314).’
Commenting on Garratt C P Mills said at page 468:
‘The mixture of facts, circumstances and motive which constitute the explanation of the omission must be reasonable, considered from the view point of the worker not in the sense that he considered his omission reasonable, but rather in the sense that the cause of the omission is reasonable in the light of all the circumstances in which the worker found himself.’
In Garratt the facts were that the worker delayed in making his claim because he did not want to prejudice any retirement benefit he might receive from his employer. It was held that such a reason for delaying was not a ‘reasonable cause’ within the terms of the act. The word ‘ignorance’ was not in the relevant legislation at that time.” (emphasis added)
The Appellant Employer relies on the principles discussed in Garratt and King v Port of London Authority (1920) AC 1 and submits that the effect of the reasoning in these cases is that “if a worker decides to delay making a claim because he does not wish to prejudice other benefits he might receive such reason for delay is not a reasonable cause” under section 65(13) (emphasis added) (Appellant Employer’s submissions, paragraph 14). It is submitted that that is “the exact factual situation that exists in this case”. I reject this submission. In the present case Mr Eason delayed reporting his injuries because he did not wish to jeopardise his voluntary redundancy. He received his redundancy on 26 July 2001. It is clear beyond doubt that the delay occasioned by his concern about the voluntary redundancy was only relevant to the explanation as to why he did not report his injuries at or about the time they happened. The evidence on this issue is in Mr Eason’s statement of 28 October 2006 (quoted at [39] above) where he made it clear that he did not inform Joe Cianter of the injury (that is, he did not report the injury) because he thought it might jeopardise his redundancy application (see also Mr Eason’s statement of 15 March 2006, paragraph 11). Therefore, once he received his voluntary redundancy on 26 July 2001 it played no role in his not making a claim for compensation before January 2002. In Garratt, the injury was reported on the day it happened. The six-month delay in making the claim for compensation resulted from the worker’s desire not to prejudice any payment he was entitled to receive from his employer for long service leave and retiring allowance. Thus the facts in Garratt were totally different to those in the present matter and that authority has no relevant application to Mr Eason’s situation.
The facts in King have no particular relevance in the present matter. In that matter the worker failed to claim compensation within the six-month period because he had been given light work at the same wage rate. The general principle stated was that it was necessary for an Arbitrator to consider the facts of the particular matter and to set out plainly the facts upon which his or her conclusion was based. The Arbitrator has not done that in the present matter because he considered the wrong ‘time frame’.
The Appellant Employer submits that the onus is on Mr Eason to show that the discretion in section 65(13) should be exercised in his favour (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25). I agree that the onus is on Mr Eason to establish that he failed to claim compensation within six months of his injury because of one or more of the reasons set out in section 65(13). For the reasons set out at [54] above, however, it is not correct to say that Mr Eason has “for reasons unconnected with any compensation right chosen to delay the reporting and bringing of any claim for compensation” (Appellant Employer’s submissions, paragraph 13).
In light of the errors identified above, it is necessary for the Arbitrator’s determinations and findings to be revoked and for the matter to be re-determined. In view of the factual issues involved and the apparent misunderstanding of the relevant authorities, it is appropriate that the matter be remitted to a different Arbitrator for that re-determination in accordance with the reasons in this decision and in light of such further evidence as the parties may wish to adduce. The issue to be determined is whether Mr Eason’s failure to claim compensation in the six months after his injuries was occasioned by “ignorance, mistake, absence from the State or other reasonable cause”.
DECISION
The Arbitrator’s determinations dated 22 March 2007 and his findings, set out in his ex tempore reasons delivered on 20 March 2007, are revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator for the remaining issues under section 65(13) of the Workplace Injury Management and Workers Compensation Act 1998 to be re-determined in accordance with the reasons in this decision.
2.Costs of the first and second arbitrations are, so far as possible under the relevant costs regulations, to follow the event of the third arbitration.”
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
7 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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