Burke v Suncorp Staff Pty Ltd

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION: Burke v Suncorp Staff Pty Ltd [2021] NSWPICPD 6
APPELLANT: Belinda Burke
RESPONDENT: Suncorp Staff Pty Ltd
INSURER: Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: A1-3872/20
MEMBER: Mr J Wynyard
DATE OF MEMBER’S DECISION: 20 October 2020, amended 27 October 2020
DATE OF APPEAL DECISION: 23 April 2021
CATCHWORDS: WORKERS COMPENSATION – section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998, failure to make a claim “occasioned by ignorance, mistake, absence from the State or other reasonable cause”, alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
PRESIDENTIAL MEMBER: Deputy President Michael Snell
HEARING: On the papers
REPRESENTATION: Appellant:
Ms M Ross, solicitor
Monaco Solicitors
Respondent:
Mr J Callaway, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:

1.    To the extent that it is necessary, the identity of the respondent is amended from “Asteron Life” to “Suncorp Staff Pty Ltd”.

2.    The decision in the Amended Certificate of Determination dated 27 October 2020 is confirmed.

INTRODUCTION AND BACKGROUND

  1. As a matter of housekeeping it should be noted that, at the arbitration hearing in this matter on 9 September 2020, the identity of the employer was amended by consent to be “Suncorp Staff Pty Ltd” in substitution for “Asteron Life”.[1] This was reflected in the written orders issued by the Commission. The documents subsequently lodged in this appeal did not reflect the amendment. To the extent that it is necessary, the employer’s identity in this appeal is amended to “Suncorp Staff Pty Ltd”.

    [1] Transcript of arbitration hearing, 9.9.20, (T), T 32.18–20.

  2. Belinda Burke (the appellant) commenced working with Suncorp Staff Pty Ltd (the respondent) from about 28 July 2008. She was employed full-time as a claims support officer with the respondent’s ‘First Response Unit’. Her duties were mainly administrative and customer service. She answered telephone calls, prepared and opened new claims and entered information into a database.[2] She stated she was given an additional responsibility of training a new recruit, who she described as “Prianka” (she was unsure of the spelling of the name). The appellant said she had to work harder to accommodate Prianka’s mistakes. The appellant fell behind with her own work. The appellant sought treatment for anxiety. She suffered from panic attacks when commuting to work by train.[3] She collapsed at home on the night of Sunday, 6 September 2009 and did not work thereafter. She received sick leave, annual leave and unpaid leave. She made a claim for income protection benefits which was accepted, and she was paid income support by that insurer.[4]

    [2] Statement of Jamahl Wesser, 9.3.15, Reply, p 25; statement of appellant, 7.9.15, [10], [12], Application to Resolve a Dispute (ARD), p 2.

    [3] Appellant’s statement, 7.9.15, [14]–[19], ARD pp 3–4.

    [4] Appellant’s statement 7.9.15, [24]–[26].

  3. The appellant lodged a workers compensation claim form dated 22 October 2014 in respect of the alleged psychological injury.[5] The…

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Details
Case
[2021] NSWPICPD 6
Decision Date

CaseChat Overview and Summary

The case of Burke v Suncorp Staff Pty Ltd involved a dispute between the claimant, Burke, and the insurer, Suncorp Staff Pty Ltd, regarding a workers' compensation claim. The matter was heard in the relevant state tribunal, tasked with adjudicating on the validity and extent of the compensation claim. The primary issue before the court was whether the claimant's failure to lodge a timely compensation claim was due to "ignorance, mistake, absence from the State or other reasonable cause" as outlined in section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998. The court also considered the applicability of the decision in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 to the facts of this case.

The court examined the evidence and submissions from both parties to determine the factual circumstances surrounding the claimant's delay in lodging the claim. It was essential to assess whether the delay was genuinely occasioned by one of the specified reasons in the Act. The tribunal considered the claimant's explanation for the delay and weighed it against the insurer's arguments that the delay was not due to any of the prescribed causes. The court also evaluated the precedent set by Raulston v Toll Pty Ltd, which provided guidance on how to interpret and apply the statutory provisions in similar cases.

Upon review of the evidence, the court found that the claimant's delay in lodging the compensation claim was not due to any of the reasons specified in section 261(4) of the Act. The court concluded that the claimant's actions did not meet the threshold for an acceptable excuse under the statute. Consequently, the court confirmed the decision in the Amended Certificate of Determination dated 27 October 2020, which upheld the insurer's position. The identity of the respondent was amended from “Asteron Life” to “Suncorp Staff Pty Ltd” to accurately reflect the party involved in the dispute.

The final orders of the tribunal were to amend the identity of the respondent from “Asteron Life” to “Suncorp Staff Pty Ltd” and to confirm the decision in the Amended Certificate of Determination dated 27 October 2020. This ruling upheld the insurer's stance and rejected the claimant's argument for an extension of time to lodge the compensation claim based on the specified statutory reasons.

Orders

Orders of the court

1. To the extent that it is necessary, the identity of the respondent is amended from “Asteron Life” to “Suncorp Staff Pty Ltd”.

2. The decision in the Amended Certificate of Determination dated 27 October 2020 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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