Bourke Shire Council v Rankmore
[2011] NSWWCCPD 17
•29 March 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Bourke Shire Council v Rankmore [2011] NSWWCCPD 17 | ||||
| APPELLANT: | Bourke Shire Council | ||||
| RESPONDENT: | Terry John Rankmore | ||||
FIRST INSURER: SECOND INSURER: | GIO General Limited StateCover Mutual Limited | ||||
| FILE NUMBER: | A1-7947/10 | ||||
| SENIOR ARBITRATOR: | Ms D Moore | ||||
| DATE OF ARBITRATOR’S DECISION: | 5 January 2011 | ||||
| DATE OF APPEAL DECISION: | 29 March 2011 | ||||
| SUBJECT MATTER OF DECISION: | Disease; deemed date of injury; two insurers; s 15 of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Bartier Perry | |||
| Respondent: GIO General Limited: | White Barnes Hicksons | ||||
ORDERS MADE ON APPEAL: | The Senior Arbitrator’s determination of 5 January 2011 is confirmed. The appellant employer in the interests of StateCover Mutual Limited is to pay the costs of the respondent worker and of GIO General Limited. | ||||
BACKGROUND
Mr Rankmore started work for the Bourke Shire Council (the Council) as a team leader in the parks and garden department in about 1989. His duties required him to work outdoors and exposed him to sunlight.
He worked for the Council until he resigned on 20 July 1998. Between July 1998 and 20 March 2000, Mr Rankmore worked as an attendant at the local pool and was again exposed to sunlight. He resumed work with the Council in March 2000 and remains in that employment. His evidence is that he has spent all of his working life with the Council outdoors.
The Council was insured by GIO General Limited (GIO) up to 30 June 2002 and by StateCover Mutual Limited (StateCover) from 1 July 2002 to date.
Mr Rankmore has claimed weekly compensation for five separate periods of incapacity between 4 May and 14 December 2009 and medical expenses for the treatment of skin cancer. He alleged a deemed date of injury of 15 September 2009.
Mr Rankmore first received treatment for skin cancer in 1993, 1996 and 1997. He described the treatment in 1997 as “a substantial procedure” on his nose that required time off work from 1 September until 18 September 1997. He claimed sick leave for this period off work.
On 17 December 2009, StateCover entered a complying agreement under s 66A of the Workers Compensation Act 1987 (the 1987 Act) in which it agreed to pay Mr Rankmore $23,350 in respect of a 14 per cent whole person impairment (for bodily disfigurement resulting from scarring due to his skin cancer) and $12,500 for pain and suffering. The agreed date of injury was 30 October 2009, the date on which Mr Rankmore claimed lump sum compensation.
Neither insurer has disputed that Mr Rankmore has received an injury within the terms of s 4 of the 1987 Act, or that he is entitled to weekly compensation at $875 for the periods claimed. Though Mr Rankmore initially claimed weekly compensation for four weeks and three days in 2005, he discontinued that claim at the arbitration.
The only issue before the Senior Arbitrator was the determination of the correct deemed date of injury under s 15 of the Workers Compensation Act 1987 (the 1987 Act). StateCover submitted that the correct date was the first date of incapacity (1 September 1997) and GIO submitted that it was the first date of incapacity for which compensation was claimed (4 May 2009).
The Commission listed the matter for arbitration on 15 December 2010. Each of the parties was represented by counsel. The Senior Arbitrator heard no oral evidence and the matter proceeded with submissions from each counsel.
In a reserved decision delivered on 5 January 2011, the Senior Arbitrator found that Mr Rankmore had received an injury (skin cancer) arising out of or in the course of his employment and that the injury was of such a nature as to be contracted by gradual process. In the alternative, she found that his injury was an aggravation, exacerbation or deterioration of a disease. As she found a deemed date of injury of 4 May 2009 (the date of first date of incapacity for which compensation was claimed), she made an award against the Council in the interests of StateCover and an award in favour of GIO.
The Commission issued a Certificate of Determination on 5 January 2011 in the following terms:
“The Commission determines:
1. The applicant sustained injury arising out of or in the course of his employment with the respondent.
2. The applicant’s employment with the respondent was a substantial contributing factor to the injury.
3. For the purposes of the Workers Compensation Act 1987 (the 1987 Act) the injury is deemed to have happened on 4 May 2009.
4. The respondent in the interests of StateCover is to pay the applicant weekly benefits at the rate of $875.00 per week for the following periods:
(a) From 4 to 18 May 2009;
(b) From 4 to 18 July 2009;
(c) From 20 to 24 August 2009;
(d) From 29 August to 14 October 2009; and
(e) From 10 to 14 December 2009.5. The respondent in the interests of StateCover is to pay the applicant’s reasonably incurred medical, hospital and rehabilitation expenses pursuant to section 60 of the 1987 Act.
6. The respondent in the interests of StateCover is to pay the applicant’s costs as agreed or assessed and the costs of the respondent in the interests of GIO.
7. Award for the respondent in the interests of GIO
8. For the purposes of the costs order, certify the matter as “complex” and allow a 15 percent uplift of costs applicable to the applicant and the respondent in the interests of both GIO and StateCover.”
In an appeal filed on 1 February 2011, the Council in the interests of StateCover seeks leave to appeal the Senior Arbitrator’s finding that the deemed date of injury is 4 May 2009.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Monetary threshold
It is not disputed that the monetary thresholds in s 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Senior Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Senior Arbitrator erred in determining the deemed date of injury to be 4 May 2009 and not 1 September 1997.
EVIDENCE
I have essentially taken the following summary of the evidence from the Senior Arbitrator’s helpful and unchallenged statement at [17] to [24] of her Statement of Reasons (Reasons).
In an undated statement apparently taken prior to May 2009, Mr Rankmore said that for all of his working life with the Council he had been outdoors. He said that he began to notice skin cancers “from the mid – 1990’s”. In 1997 he was referred to a dermatologist, Dr Frederiksen, who performed “a substantial procedure” on his nose. He has continued to consult that doctor since. He generally had skin cancers on his face, forearms and upper chest which were all “areas which are exposed to the sun in the course of my employment”. He said that he had always taken sick or holiday leave when any procedures were performed, and that he had paid for this treatment himself or through Medicare. He said that he was not aware of any entitlements to compensation (presumably until 2009) and had not previously submitted any claim form. In a handwritten note included at the end of his statement, he said:
“Over the past 10 years Council has had a clothing policy – that they do there [sic] best for employees to follow but to date it has not been endorsed [and] it is still in draft form.”
On 21 August 1996, Mr Rankmore’s general practitioner, Dr Greenberg, wrote to Dr Frederiksen seeking a diagnosis of and treatment for a condition on the worker’s nose. Dr Frederiksen wrote to the worker on 1 July 1997 outlining his planned surgical treatment. Dr Greenberg saw the worker on 10 September 1997 nine days post operatively following removal of an “scc nose.” On 17 September 1997 he recorded that the skin graft on the nose was infected.
A medical certificate confirmed that Mr Rankmore attended the Skin & Cancer Foundation at Westmead on 1 September 1997 and was certified unfit for work until 15 September 1997. A Dr Moreton issued a certificate on 17 September 1997 stating that Mr Rankmore was “medically unfit for work” from 16 to 18 September 1997. Mr Rankmore took sick leave during these periods.
In a report dated 23 April 2009, Dr Frederiksen said:
“Mr Rankmore has been under my care for a number of years now as a result of numerous actinic keratoses and cutaneous malignancies.
His current major concern is a squamous cell carcinoma on his lip and he will be visiting a plastic surgeon in Dubbo, Dr Michael Richards, for excision of that lesion. He has spent most of his life working outdoors and his outdoor employment is a significant contributor to his cutaneous malignancies.
Consequently I consider his condition work-related…”
Mr Rankmore was seen by Dr Lobel at the request of his solicitors on 2 September 2009. In a report dated 10 September 2009, Dr Lobel obtained the history that Mr Rankmore first noted skin lesions “about thirteen years ago”. The worker said that he had been employed by the Council for about 23 years and that for the first 14 years or so, no hat or sunscreen was worn. He noted that Mr Rankmore had been seeing Dr Frederiksen about every three months since his initial consultation. He said:
“Mr Rankmore stated that he generally had about one week off work after each of the surgical procedures and he is currently off work for at least two months because of the x-ray therapy. He stated that prior to the onset of the current condition [the lip carcinoma] he had never had any time off work as a result of any skin disorder…”
The worker resigned his employment with the Council in July 1998, but returned to the same duties in 2000.
On 17 May 2009, Mr Rankmore lodged a worker’s compensation claim form with the Council. He said that “exposure to sun in the course of employment” had caused skin cancers, but he had returned to work.
In a s 74 notice dated 23 December 2009, StateCover denied liability for the claim on the basis that they were not the insurer as at “the first date of incapacity…being 1 September 1997.”
THE SENIOR ARBITRATOR’S REASONS
After referring to the relevant authorities, the Senior Arbitrator concluded that the deemed date of injury was 4 May 2009. That was because that was the date of the first “relevant incapacity”, namely, the date on which Mr Rankmore claimed compensation. Whilst Mr Rankmore had time off work in September 1997, he “had no entitlement to compensation at that time since he had not made a claim for compensation nor lost wages in a material sense” (Reasons at [38]).
SUBMISSIONS, DISCUSSION AND FINDINGS
StateCover has submitted that, under s 15(1)(a)(i) of the 1987 Act, the (deemed) date of injury in a claim for weekly compensation is the first “period of incapacity”. That was, it was submitted, in September 1997 when Mr Rankmore was unfit for work because of treatment he received for skin cancer.
StateCover says that the Senior Arbitrator erred in drawing a distinction between “incapacity where compensation is claimed, and incapacity giving rise to an entitlement to compensation”. It argues that ss 15 and 16 “simply make reference to incapacity, and are not qualified by an injured worker claiming compensation”.
Reliance is placed on the decision of Fitzgerald JA (at [49]) in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481; 20 NSWCCR 554 (Alfonzo) where his Honour said:
“Mrs Alfonzo’s material ‘incapacity’ was not the first impairment of her working ability as a result of the aggravation of her disease by her employment but the incapacity which resulted from her material injury, which was the injury which entitled her to the compensation which she was awarded. That incapacity was Mrs Alfonzo’s permanent partial incapacity on and after 11 February 1996. The ‘time’ of that ‘incapacity’ was 11 February 1996. That is the deemed date of Mrs Alfonzo’s material injury.” (emphasis added)
His Honour added (at [50]) that:
“Section 16(1)(a)(i) is capable of operation when an injury results in an incapacity for which no compensation is claimed.”
I do not accept StateCover’s submissions.
Section 15(1) of the 1987 Act provides:
“15 Diseases of gradual process-employer liable, date of injury etc
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury-at the
time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
The Court of Appeal has considered the appropriate deemed date of injury in s 15 and s 16 claims in several cases. In GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO v GIO), the worker was exposed to sunlight in the course of his employment over 19 years. As a result, he developed a melanoma on his right cheek. Doctors removed the melanoma in 1983. This treatment resulted in a short period of incapacity. The worker subsequently developed a number of metastases of the melanoma. In 1993, he died from a brain tumour, which was a metastatic melanoma that had resulted from his original melanoma in 1983. His widow claimed compensation under the 1987 Act and succeeded. The insurer on risk in 1993 appealed. It argued that as the operation on the melanoma in 1983 had caused a period of incapacity and, as the worker’s death had resulted from the 1983 melanoma and there was no evidence that exposure to sunlight since 1983 had played any role in the worker’s death, s 15(1) deemed the injury to have happened at the time of the incapacity in 1983.
Sheller JA said (at 195F–G) (Priestley and Clarke JJA agreeing):
“But, if the injury resulted in incapacity for work and the worker’s death, is it deemed to have happened at the time of the worker’s death or at the time of the worker’s incapacity for work? The appellant submitted that the answer was incapacity for work if that resulted. The injury is only deemed to have happened at the time of the worker’s death if it did not result in incapacity for work before death. In 1983, the operation on the melanoma resulted in incapacity for work. The appellant submitted that, pursuant to section 15(1), the injury was deemed to have happened at that time and that, accordingly, within the meaning of Part 3, clause 2(1), the worker’s death resulted from an injury received before the commencement of Division 1 of Part 3 and the amount payable was that under the former Act.” (emphasis added)
The appellant’s argument in GIO v GIO was the same argument presented by StateCover in the present case. In rejecting this argument, Sheller JA held at 196G that “for the purpose of the widow’s claim, the worker’s injury is deemed to have happened at the time of death”. His Honour said at 196B:
“In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed.” (emphasis added)
His Honour added (at 196E-F):
“In my opinion, if on a worker’s claim, the injury is deemed to have happened at the time of incapacity and the employer liable to compensate is the employer at the time, or who last employed the worker before that time, it follows logically and sensibly that, on a dependant’s claim, if death results from the injury and the employer liable to compensate is the employer at that time, or who last employed the worker before that time, the injury should be deemed to have happened at the time of death. In neither case does it matter that there were earlier periods of incapacity resulting from the injury.”
In Alfonzo, the worker developed pain in her arms and neck in the early 1990s while working for the first employer. Her doctor put her off work in 1993 and the insurer paid weekly compensation. She moved to the second employer, where her symptoms worsened and she again had time off work in December 1995 and was paid compensation by that employer’s first insurer. The second employer changed insurers on 31 December 1995. She worked for about two weeks in February 1996 but, because of an aggravation of her disease, she ceased work in mid-February and did not return. She claimed continuing weekly compensation from the time she stopped work in February 1996.
Mrs Alfonzo claimed weekly and lump sum compensation from both employers. The trial judge held that the deemed date of injury was the date of the incapacity for which compensation was claimed. As that was February 1996, the insurer on risk at that time was liable. That insurer appealed.
The dispute in the Court of Appeal was which of the second employer’s two insurers was liable: the insurer on risk in December 1995 (when there had been an incapacity) or the insurer on risk in February 1996 (when there had been a further incapacity). The Court held that, as between the two insurers, the relevant deemed date of injury was not the date of the incapacity in December 1995, but the date of the incapacity for which compensation was claimed or entitled to be claimed, namely, February 1996.
Priestley JA (Clarke A-JA agreeing) expressly approved the passage I quoted at [38] above from Sheller JA in GIO v GIO. Priestley JA added (at [24]):
“Section 34 thus makes it plain that incapacity, for the purposes of Div 2, is incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity.”
Whilst Fitzgerald JA preferred not to equate the “incapacity” referred to in s 16(1)(a)(i) with the incapacity for which compensation is claimed (as Sheller JA did in GIO v GIO), his Honour acknowledged (at [50]) that, in most cases, the result will be the same. The result was the same in Alfonzo because the “material incapacity” was not the first impairment of the worker’s working ability as a result of the aggravation of her disease, but was “the incapacity which resulted from [the worker’s] material injury” (emphasis added), which was the injury that entitled her to the compensation she was awarded. That incapacity was Mrs Alfonzo’s permanent partial incapacity on and after 11 February 1996 and that was the deemed date of injury. The “material injury” was the aggravation of the worker’s disease as a result of the work she did in January and February 1996.
Adopting Fitzgerald JA’s approach, the material incapacity for Mr Rankmore was not his incapacity in 1997, but the incapacity that resulted from his “material injury”, namely, an aggravation or exacerbation of his skin cancer as a result of exposure to sunlight over many years (including several years after 2002). That incapacity was Mr Rankmore’s incapacity on and after 4 May 2009 and that was the deemed date of injury.
Given the express approval of Sheller JA’s approach by Priestley and Clarke JJA, in both GIO v GIO and in Alfonzo, the Commission is bound to follow and apply that approach. That approach was also cited with approval by Hodgson JA (Mason P agreeing) (at [37]) in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701.
In the present matter, Mr Rankmore had time off work for treatment for skin cancer in 1997. He has made no claim for compensation for that period. The “incapacity for which compensation is claimed” (per Sheller JA in GIO v GIO) is the incapacity that commenced on 4 May 2009 and, as the Senior Arbitrator found, 4 May 2009 is the correct deemed date of injury. Even adopting Fitzgerald JA’s approach, as urged by StateCover, and looking at the incapacity resulting from the “material injury”, the result is the same.
Though the disease provisions often throw up incongruous results, there is nothing illogical about the result in this matter. Mr Rankmore’s employment with the Council exposed him to sunlight since he started there in 1989 and the evidence is that his exposure has continued ever since. Therefore, he has remained in employment to the nature of which the disease of skin cancer is due for several years after 1997, or the alternative, has suffered an aggravation or exacerbation of the disease of skin cancer since 1997. In these circumstances, it would be illogical if the insurer on risk in 1997 were made liable for an incapacity in 2009.
CONCLUSION
Having conducted a review on the merits, I have concluded that the correct deemed date of injury is 4 May 2009, as found by the Senior Arbitrator.
DECISION
The Senior Arbitrator’s determination of 5 January 2011 is confirmed.
COSTS
The appellant employer in the interests of StateCover Mutual Limited is to pay the costs of the respondent worker and of GIO General Limited.
Bill Roche
Deputy President
29 March 2011
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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