Camden Council v Hancock
[2005] NSWWCCPD 6
•9 February 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Camden Council v Hancock [2005] NSW WCC PD 6
APPELLANT: Camden Council
RESPONDENT: Maxwell Hancock
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC16231-03
DATE OF ARBITRATOR’S DECISION: 9 June 2004
DATE OF APPEAL DECISION: 9 February 2005
SUBJECT MATTER OF DECISION: Notice of injury and/or claim for compensation within the time prescribed; application of section 261 of the Workplace Injury Management and Workers Compensation Act 1998; deemed date of injury; proper consideration of submissions and adequate reasons for decision.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Vandevords Solicitors
Respondent: Whitelaw McDonald Solicitors & Attorneys
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant Employer is to pay the costs of the appeal as agreed or assessed.
BACKGROUND TO THE APPEAL
Mr. Maxwell Hancock, the Respondent Worker, retired from the workforce and from his employment with Camden Council (the Council) in November 1986, and at the time of the proceedings before the Arbitrator, was 73 years of age. He worked as a labourer, plumber and pipe fitter with Gilbarco Australia for many years until 1975 when he obtained employment with Camden Council, the Appellant Employer in this appeal.
Mr. Hancock’s employment at Gilbarco involved active and heavy labour, and included the use of jack hammers and sledge hammers with which he broke up concrete. As observed by the Arbitrator, he was also involved in “jumping in and out of plumbing trenches”.
The Arbitrator summarises Mr. Hancock’s subsequent employment activities at the Camden Council, thus:
“At the Council the work required shovelling hot mix off trucks; lifting heavy items from the back of trucks; working stiff clutches and brakes which caused increased pain in the Applicant’s knees; jumping in and out of trucks without access steps; using jack hammers; concreting on his hands and knees which caused increased knee pain; working from time to time on garbage trucks lifting heavy garbage and getting up and down from the truck, causing pain in the knees; walking on uneven ground.”
Mr. Hancock states that he never made any formal report of injury to the Council, but he does recall that he spoke to a supervisor on one occasion, informed him that he had pain in the back and the knees, and requested assistance in loading and unloading the trucks.
He says that he did not realise that he could make a claim for an injury that developed gradually over time and was ignorant of the relevant provisions of the Workers Compensation Legislation until speaking with his Solicitor on 17 April 2003. He says that he was informed of his legal rights by his Solicitor and was also told that he should have reported his injury within 6 months of when it occurred.
On 15 October 2003, Mr. Hancock lodged in the Workers Compensation Commission, an Application to Resolve a Dispute against Gilbarco Australia Limited and the Council. However, the proceedings against Gilbarco Australia Limited were discontinued on 17 November 2003. The dispute with the Council remains on foot and was the subject of the determination of the Arbitrator, to which this appeal relates. The disputed claim is for “Medical, Hospital or Related expenses and for permanent impairment/pain and suffering”.
In a Certificate of Determination dated 9 June 2004, the decision of the Arbitrator is set out as follows:
“For the reasons set out in this statement the decision in this matter is:
1. Respondent to pay the Applicant’s s60 of the Act expenses on production of accounts or receipts.
2. Respondent to pay the Applicant’s costs as agreed or assessed.
DIRECTION
The worker is to be assessed by an Approved Medical Specialist in orthopaedics to be appointed at Newcastle by the Registrar in respect of the disputed claims for lump sums pursuant to section 66.”
On 8 July 2004 the Council lodged with the Commission an Application for Leave to Refer a Question of Law. On 9 July 2004 the Registrar wrote to the Solicitors for the Council and observed that the Application filed “appears to be in the nature of an appeal against a decision of an Arbitrator”, and asking for particulars of the Question of Law. The Solicitors responded by letter dated 19 July 2004 confirming that the Application “is an appeal pursuant to section 352” and requested that it be dealt with, accordingly. The Solicitors filed an amended Application for Leave to Appeal Against Decision of [the] Arbitrator and indicated that a copy of all documents, including a copy of their covering letter, had been served upon Mr Hancock’s Solicitors.
ISSUES IN DISPUTE
The issues in dispute in this appeal are:
(1) Mr Hancock is disentitled to compensation by reason of the failure to give notice of injury and/or make a claim for compensation within the time prescribed and accordingly, the Arbitrator erred in his application of section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(2) Alternatively, the Arbitrator erred in finding the deemed date of injury to be 16 July 2003, and was bound to find a deemed date of injury of no later than 7 November 1986;
(3) The Arbitrator failed to deal with the Council’s substantive submissions or alternatively, gave them only cursory attention, and failed thereby to give adequate reasons for his decision.
ON THE PAPERS REVIEW
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.”
The Council has submitted that given the complexity of the appeal, it wishes to supplement its written submissions by oral arguments. Mr. Hancock says that oral argument is unnecessary, but if oral argument is allowed, he wishes to be heard.
Having closely examined the evidence and other relevant documents that are on the file, including all evidence, documents and submissions that were before the Arbitrator and that are now before me, and having considered the written submissions on appeal, 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.
LEAVE TO APPEAL
Notwithstanding the process involved in lodging this appeal, as outlined in paragraph 8 above, I am satisfied that the appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. Although it was submitted in the first instance under cover of an Application for Leave to Refer a Question of Law, the grounds of appeal are identical with those put forward in support of the Question of Law. The Council filed an amended Application – Appeal Against Decision of Arbitrator on 19 July 2004, following correspondence with the Registrar who had sought clarification from the Council. The Council duly clarified the position, indicating that the Application for Leave to Refer a Question of Law should be treated as an Application – Appeal Against Decision of Arbitrator. That was done.
The Council seeks an extension of time under Rule 77(8) of the Workers Compensation Commission Rules 2003 (the Rules). Mr. Hancock indicates that he does not take any issue with what the Council has to say in relation to this matter.
The original Application was lodged within 28 days of the decision appealed against. The Registrar sought clarification. Clarification was forthcoming promptly, but the Council prudently submitted an amended Application with precisely the same information and substantive submissions, albeit couched in slightly different terms. In the circumstances, I find that there has been substantial compliance with section 352(4) of the 1998 Act and that an extension of time pursuant to Rule 77(8) is unnecessary.
The amount of compensation at issue in this appeal is at least $5,000. Section 352(2)(a) of the 1998 Act is satisfied. The Council submits that section 352(2)(b) has no application as no award has yet been made (Fletchers International Exports Pty Limited v Mawson [2002] NSW WCC PD 5; Way v Newcastle City Council [2004] NSW WCC PD 17) (Way). Mr. Hancock does not disagree with this submission. I agree with the Council and find that section 352(2)(b) does not apply in this appeal.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The Appellant Employer
The Council relies upon the “First Respondent’s Written Submissions” made to the Arbitrator in support of the proposition that Mr Hancock is disentitled to compensation by reason of his failure to give notice of injury and/or make a claim for compensation within the time prescribed, and accordingly, submits that the Arbitrator’s application of section 261 of the 1998 Act was erroneous. In the alternative, the Council relies upon the contents of that document in support of its submission that the deemed date of injury should have been at least 7 November 1986, and that in any event, there was clearly incapacity before the deemed date of injury found by the Arbitrator. Specifically, it is submitted:
“The Applicant failed to provide a notice of injury and/or notice of incapacity in respect of any injuries sustained during the course of his employment with the First Respondent from 13 November 1975 to 7 November 1986 as required by section 53 of the 1926 Act [Workers Compensation Act 1926], and the First Respondent is thereby prejudiced.
In the alternative, the Applicant failed to provide notice of injury and/or notice of incapacity in respect of any injuries sustained during the course of his employment with the First Respondent from 13 November 1975 to 7 November 1986 as required by section 61 of the 1998 Act, and the First Respondent is thereby prejudiced.
The Applicant failed to make a claim for compensation in respect of any injuries sustained during the course of his employment with the First Respondent from 13 November 1975 to 7 November 1986 as required by section 65 of the 1998 Act, and the Applicant is thereby barred from this claim.”
In any event, the Council further submits that Mr Hancock did not receive an injury arising out of or in the course of his employment with it, and the permanent impairment claimed did not result from injuries arising out of or in the course of his employment with the First Respondent. It is submitted that Mr Hancock is not entitled to compensation pursuant to either section 16 of the 1926 Act or sections 66 and 67 of the 1987 Act.
The Council further submitted to the Arbitrator that the claim is frivolous, vexatious and has been made without proper justification, and sought an order for costs pursuant to the provisions of section 341 of the 1998 Act.
The Council concedes that Mr Hancock was employed by it from 13 November 1975 to 7 November 1986 and that osteoarthritis is a disease which falls within section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
The Council states that it has no records, medical or otherwise, to support Mr Hancock’s claims of giving notice. Mr Terry Potts, the supervisor at the relevant time, while no longer in the employ of the Council, states that he has no recollection of Mr Hancock ever making any complaints of knee or back pain.
The Council submits that there is no contemporaneous medical evidence before the Commission with regard to Mr Hancock’s complaints of back or knee pain during the course of his employment. It also submits that there is no evidence to support that his employment with the Council contributed to an aggravation, acceleration, exacerbation or deterioration of Mr Hancock’s osteoarthritis.
It is further submitted that Mr Hancock first became aware of the “injury” prior to 13 November 1975, when he was employed by Gilbarco Australia Limited. In the report of Dr. Conrad dated 19 June 2003 the history is given that when employed by the Council Mr Hancock was “given some assistance with the heavier parts of his duties”. The Council states:
“The concept of incapacity is well established. In Arnotts Snack Products Pty Limited v Yacob (1985) 155 CLR 171 [Yacob], the High Court confirmed the general concept that there will be incapacity where a worker is physically restricted in doing work he would otherwise have been able to do.
Clearly, in this case, the Applicant was suffering incapacity at least when he last worked for the Respondent because he wasn’t able to do all of his normal work and on the history given by Dr Conrad, which was evidence the Applicant relied upon, he as much as says so.
Accordingly, the deemed date of injury should, at the latest, have been the last day of employment, namely 7 November 1986.
In any event, there was clearly incapacity before the deemed date of injury which was found by the Arbitrator.”
In its further written submissions, the Council “concedes that the notice provisions pleaded, in particular section 53 of the 1926 Act and section 65 of the 1998 Act, do not have application…”. Schedule 6 Part 9 of the 1987 Act sets out the provisions relating to notice of injury and claims for compensation. It submits that section 92 of the 1987 Act has been repealed but is saved by Schedule 6, and further submits that:
· Mr Hancock has not made a claim for compensation within six months after the “injury”, as prescribed by section 92(2) of the 1987 Act;
· Mr Hancock sought out and became appraised of his legal rights at some time prior to the making of a claim for compensation for loss of hearing caused by industrial noise against the Council, on 9 December 1997;
·The onus is on Mr Hancock to establish ignorance, mistake or other reasonable cause to remove the bar to the recovery of compensation as required by section 92(4) of the 1987 Act;
·In the alternative, the Council relies on section 61 of the 1998 Act in relation to the issues of notice of injury and notice of claim;
·Pursuant to section 60A of the 1998 Act, section 61 applies only in respect of an injury received before the commencement of section 60A, which was inserted into the 1998 Act by the Workers Compensation Legislation Amendment Act 2001. There is no saving or transitional provision in relation to the like provision to section 61 of the 1998 Act for injuries sustained on or before the commencement of the 1998 Act. The like provision in the 1987 Act was section 88;
·As the “injury” occurred prior to 13 November 1975, pursuant to section 61(1) of the 1998 Act, Mr Hancock was required to give notice of the injury to the Council as soon as possible after the injury happened and before he voluntarily left the employment of the Council;
·Section 61(2) of the 1998 Act provides criteria to lift the bar for the recovery of compensation. Section 61(2) (c), (d) and (e) do not apply, given that the claim is made approximately 17 ½ years after Mr Hancock ceased his employment with the Council;
·The Council is prejudiced pursuant to section 61(1)(a) of the 1998 Act as it has no records in relation to the nature and conditions of Mr Hancock’s employment and the only nominated witness of any alleged injury is no longer in the employ of the Council. However, the former employee, has no recollection of Mr Hancock making any complaints of back or leg pain;
· The extraordinary length of delay in giving notice of the injury results in the matter being decided on less evidence that would otherwise have been available had Mr Hancock given notice when he first became aware of the “injury” or at the latest, prior to him voluntarily leaving his employment with the Council.
· The onus rests with Mr. Hancock to establish the grounds in section 61(2)(b) of the 1998 Act. In particular, Mr Hancock sought out and obtained advice about his legal rights in or about December 1997. There cannot be said to be any ignorance or mistake resulting in a further 7 year delay in bringing the claim.
The Council submits that for section 16 of the 1987 Act to apply Mr Hancock is required to establish first, the existence of a disease or aggravation of disease which is within the definition of section 4 of that Act. Section 16 assumes that an injury has occurred which a worker must prove in accordance with section 9(1) of the 1987 Act. The worker’s entitlement to compensation is governed by the law in force at the date of the injury, thus the date of injury must be fixed and the employer who is liable, can be properly selected. Section 16 operates to determine where the liability falls (Crisp v Chapman (1994) 10 NSWCCR 492) (Crisp).
It is further submitted that where a disease has manifested itself either prior to or during the course of employment, that manifestation results in an actual “injury” and it is upon that “injury” that the limitation periods for the provision of notice under the Act, runs. This approach was adopted in Way. Unlike the worker in that case, Mr Hancock, on his own evidence, was aware of his injury prior to the commencement of his employment with the Council and remained aware of it throughout the course of his employment.
Finally, it is submitted that, “it is nonsensical for a deemed date of injury to override the actual date of injury for the purposes of considering limitation provisions. It is unjust that the Council should have to face a ‘stale claim’ that it never expected to face, more than 25 years after the manifestation of the symptoms and 17 ½ years after Mr Hancock ceased his employment with the Council (Donovan v Gwentoys Ltd [1990] 1 WLR 472 (Donovan)).”
The Respondent Worker
Mr Hancock submits that the argument now put by the Council in relation to the deemed date of injury is a new one that was not put to the Arbitrator. He submits that Yacob is not relevant to this case as it merely goes to the general concept of incapacity and not the particular definition of incapacity in respect of sections 15 or 16 of the 1987 Act. He cites GIO Workers Compensation (NSW) Limited v GIO General Limited and Another (1995) 12 NSW CCR 187 (GIO), where Sheller JA said at 196:
“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.”
He further submits that in P & O Berkeley Challenge Pty Ltd v Alfonzo & Ors [2000] NSWCA 214 (Alfonzo), “Her Honour Truss J in the Compensation Court and later the Court of Appeal state that incapacity within the meaning of sections 15 and 16 has a particular meaning as defined in Section 34.” Priestly JA in paragraph 24 said:
“Section 34 thus makes it plain that incapacity, for the purposes of Division 2, is incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity.”
And further:
“In my view the kind if incapacity it [section 34] is talking about is the kind for which a worker establishes entitlement to weekly payments of compensation.”
And finally:
“Sections 15 and 16 reduce the need to analyse in detail at what stage in the gradual process of disease injuries the stage of an injury, or incapacity, for the purposes of the Act, has been reached. The price paid for this is the imposition of rules which cannot altogether eliminate some arbitrariness in their operation.”
Mr Hancock further observes that in Davis v State Rail [2001] NSWCC 173 (31 January 2001) (Davis), Armitage J agreed that incapacity in sections 15 and 16 means inability to engage in the workers pre-injury work. Had the case proceeded His Honour said that he would have been bound by authority to determine that incapacity within the meaning of the sections, by asking when, if at all, the worker became unable to perform his pre-injury employment, totally or partially.
Mr Hancock submits that Yacob is not the correct test, which is found in Alfonzo and Davis. “Taking the correct test, one needs to ask when Mr Hancock has suffered incapacity within the meaning of Section 34, that being ‘incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity’ (see [Alfonzo] at paragraph 24).”
Mr Hancock submits that he was performing his full duties until he left the employ of the Council on 7 November 1996. He submits that asking for assistance in the manner described by the Council, by itself, does not establish an incapacity for a pre-injury employment, giving rise to a right to claim weekly compensation. “Whether or not he asked for assistance he continued to perform his full duties.” Mr Hancock also submits that the report of Dr Conrad does not indicate why any assistance was given nor in respect of what it was given. “This does not make it plain that any assistance was given in respect of the injuries for which there has been a claim brought.” It is submitted that it is common for workers performing heavy work to be assisted simply because of the nature of that work. This does not evidence an inability to perform pre-injury duties, which would give rise to a claim for weekly compensation.
Mr Hancock submits that he said in his statement that his condition was worse when he finished working for the Council than when he started. Nothing indicates that he has an incapacity within the meaning of section 34 of the 1987 Act. “All it says is that he had some pain in his knee. It does not indicate there was any incapacity resulting in a right to claim weekly compensation.”
Mr Hancock submits that for all practical purposes, this case is “identical with Way”, which was decided in the Commission in March 2004; that the Arbitrator has taken the correct approach, and that the Council should not succeed.
Mr Hancock notes the Council’s submission that this case has implications for insurers under the former 1926 Act. He submits that GIO makes those implications clear. The Court of Appeal recognised that the Legislature had repealed in entirety the Workers Compensation Act 1926 and replaced with the 1987 Act. “Only parts of the 1926 Act were saved pursuant to Part 3 of Schedule 6 of the 1987 [sic] Act.” He submits that the definitions of “injury”, “disease” and “incapacity” are contained within the 1987 Act, wholly and solely. He goes on to submit:
“There is therefore nothing new in the proposition that an insurer who insured an employer pursuant to the previous 1926 Act will have to pay compensation in accordance with the figures quoted in the 1987 Act.
We would point out again that on several occasions during this case the [Council] has suggested that to take this approach simply does not make sense. It is however in totality the approach adopted by both the legislature and the courts in respect of Section 16. We concede it is arbitrary, but note, as stated above by His Honour Priestley JA, that this is the price paid for the deeming provisions in Section 15 and 16.”
Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSW CA 277 (18 August 2004) (Stone) where GIO was considered, is submitted as support for the position of Mr Hancock in the appeal.
Finally, Mr Hancock submits that the Arbitrator did not fail to give adequate reasons for his decision.
Other evidence and submissions
In addition to the Arbitrator’s Statement of Reasons for Decision (Reasons), all of the evidence, submissions and other documents that were before the Arbitrator in this matter are before me on appeal. These include amongst other things:
· [Camden Council’s] Written Submissions of 28 April 2004;
· Applicant’s Written Submissions of 3 May 2004;
· Application to Admit Late Documents and Dr Conrad’s report dated 2 April 2004;
· Applicant’s further amended Response dated 2 April 2004;
· Amended Reply of 3 February 2004;
· Applicant’s Response to Respondent’s Reply dated 19 February 2004;
· Statement of Mr Max Hancock dated 11 February 2004.
I have noted and taken into account all documents and evidence, and in particular those set out above. There is no reason to set out again the contents of those documents.
DISCUSSIONS AND FINDINGS
Role and function of a Presidential Member
A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential Member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Buildings Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of a Presidential Member to revoke a decision of an Arbitrator, pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.
Disease of gradual onset
In the instant matter the Arbitrator found that Mr Hancock suffers from osteoarthritis, which was contracted before he commenced his employment with the Council. According to the totality of the medical evidence of Drs Conrad and Whistler, both knees are affected, along with his lumbar spine in which “spondylitic changes” were detected. A medical report of 14 April 2003 from Dr. Raymond Lau was also submitted into evidence before the Arbitrator, indicating that Mr. Hancock suffers from mild osteoporosis in both ankles. The Arbitrator makes no finding in relation to this report. As the Arbitrator indicates, the medical evidence put forward by Mr Hancock is sparse and the Council has not introduced medical evidence of its own. However, the Arbitrator’s finding that Mr Hancock “suffered from a disease of gradual onset in his lumbar spine and both legs” is not disputed.
The Arbitrator observed that there is no contemporaneous medical evidence of complaints about the injuries to Mr Hancock’s back and knees. He relies upon Dr. Conrad’s opinion and further states, “The factual evidence as to the heavy nature of the work at Camden given by the Applicant supports its significance over a period of some 11 years in the development of the diseases.” On this basis, he found that Mr Hancock’s employment with the Council was a substantial contributing factor to his injuries, for the purposes of section 9A of the 1987 Act.
However, the Council submits in the alternative, that Mr Hancock failed either to provide notice of any injury and/or notice of incapacity of any injuries sustained in the course of his employment with the Council, as required by section 53 of the 1926 Act or by section 61 of the 1998 Act, (but subsequently conceded that section 53 has no application). Mr Hancock states that he was not aware of his legal rights until 17 April 2003 when his Solicitor told him. He duly filed his claim some 17 years after leaving the employ of the Council. His supervisor at the time, Mr. Terry Potts has no recollection of Mr. Hancock ever complaining to him about suffering pain during the course of his employment, contrary to Mr Hancock’s memory. Dr. Conrad’s reference to the assistance “with the heavier part of his work” given to Mr Hancock while performing those duties, is information given to him by Mr. Hancock during and in the context of the consultation process, when his condition was being assessed.
Applicable Legislation
Section 281 and Schedule 5 of the 1987 Act repealed the whole of the 1926 Act, with certain limited exceptions.
Section 60A of the 1998 Act provides:
“60A Application of Division
(1)Sections 61-64 apply only in respect of an injury received before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
(2)Sections 65 and 66 apply only in respect of the making of a claim before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
Note: Chapter 7 (New claims procedures) provides for notice of injury and making of claims in all other cases.”
Notwithstanding the issues in dispute between the parties, it is not disputed that the injury occurred before the commencement of this section. Sections 61-64 apply. Part 2 of Chapter 4 of the 1998 Act, within which these sections are contained, substantially reproduces the former Part IV of the 1987 Act, which was deleted from the Act by the Workers Compensation Legislation Amendment Act 1998, which commenced on 1 August 1998, the same date as the 1998 Act, and extends to injuries received prior to that date (see Mills, Workers Compensation New South Wales, (Sydney: Butterworths), page 36,771).
There is a dispute as to when Mr. Hancock’s injury occurred and when he became aware of it, and the legislative provisions that apply in terms of his claim. The claim was not made before the commencement of section 60A of the 1998 Act and consequently, sections 65 and 66 of that Act, in relation to making a claim, do not apply in this matter.
Section 251 of the 1998 Act provides that except as otherwise specifically provided in Chapter 7, the Chapter applies to, and in respect of, new claims only. It does not apply to
the giving of notice of injury in the instant matter, as sections 61-64 apply in respect of an injury received before the commencement of section 60A of the 1998 Act, as outlined above.
However, section 259 of the 1998 Act provides:
“259 Application of Division
(1) This Division applies to the making of a claim after the commencement of this section (even if the injury concerned was received before the commencement of this section).
(2) However, this Division does not apply to the making of a claim for work injury damages if court proceedings to recover the work injury damages concerned were commenced before the commencement of this section.”
Mr Hancock made his claim after the commencement of section 259 of the 1998 Act. Consequently, Division 2, Part 2 of Chapter 7 of the 1998 Act is relevant to the determination of this matter.
Section 2A(3) of the 1987 Act provides that if there are inconsistencies between the 1987 Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.
Injury
The Arbitrator observed that the medical evidence is quite sparse. Nevertheless, there is no dispute that Mr. Hancock suffered injury at some point. The Appellant Respondent did not or was unable to put forward any medical evidence. The Arbitrator accepted Dr. Conrad’s opinion that Mr. Hancock was “involved in heavy work mainly at Gilbarco Pty Limited and at Camden Council as outlined … As a result of the conditions of work at Gilbarco and Camden Council he has developed a chronic back strain and a bilateral knee strain associated with super added osteoarthritis.” The Arbitrator relied heavily upon Dr. Conrad’s report in which he stated, inter alia, that Mr. Hancock’s impairment related directly to the conditions of work at Gilbarco and Camden Council, “in the proportions given, which can be said to be a substantial contributing factor to his impairment and losses.” Dr Conrad opined that there was a 20% contribution from the work at Camden Council to the injuries in the knees and the back. Furthermore, Mr. Hancock submits that his condition was worse when he left the employ of Camden Council than when he started. The Arbitrator concluded that, “the factual evidence as to the heavy nature of the work at Camden [Council] given by the Applicant supports its significance over a period of some 11 years in the development of the diseases.”
The Arbitrator summarised the nature of the work performed by Mr. Hancock, at paragraph 13 of his Statement of Reasons for Decision (Reasons), as outlined in paragraph 3, above.
Notwithstanding that the evidence was “quite sparse”, the Arbitrator was entitled to give weight to it. The Appellant Employer submits that Mr. Hancock was aware of his injury prior to entering into employment with the Council. However, the evidence before the Arbitrator was that Mr. Hancock had “suffered” an injury, not being a frank injury – but not necessarily that he was “aware” of it. Mr. Hancock apparently knew that he had something wrong with him, that is, osteoarthritis, a disease of gradual onset and, certainly knew that he was in a good deal of discomfort from time to time, by reason of his disease. However, there is no evidence that Mr. Hancock had any appreciation of an “injury”, as distinct from his ongoing “disease” and his attendant discomfort, let alone an injury for which workers compensation could be claimed.
The Appellant Employer has no records, medical or otherwise, upon which it can rely to deal with this matter, because of the significant amount of time that has passed since Mr. Hancock retired from his employment. While this is unfortunate, the fact is that Mr. Hancock’s “sparse” but adequate evidence has not been rebutted by evidence to the contrary. On the evidence that was before him the Arbitrator was entitled to arrive at the conclusion, on the balance of probabilities, that Mr Hancock suffered an injury (its actual existence not being in dispute), within the meaning of section 4(b)(ii) of the 1987 Act, that arose out of, or in the course of, his employment, notwithstanding that some of his “impairment and losses” may relate to the conditions of work at Gilbarco Pty Ltd as well as at Camden Council.
I find that the Arbitrator has made no error in this regard.
Notice of, and claim arising from, injury and incapacity
The Appellant claims that there was a failure by Mr Hancock to give notice of the injury and/or make the claim for compensation within the time prescribed, in accordance with the relevant provisions.
There is no evidence that Mr. Hancock knew of or reported any injury to the Appellant Employer during the period of his employment, or prior to taking up that employment. As previously stated, there is no dispute that on one occasion he complained to some extent, of a pain in his legs (or knee) and back, and asked for assistance. Mr. Potts, his supervisor at the time, has no independent recollection of this. Mr. Hancock submits that having regard to the nature of the work he was undertaking, it would not have been unusual for employees to give each other assistance from time to time. Consequently, no notice was given and no claim was made until mid 2003.
Mr. Hancock submits that he did not realise that he could make a claim for injury that developed gradually over time. However, the Appellant Employer submits that Mr. Hancock became aware of his legal rights in December 1997 and “there cannot be said to be any ignorance or mistake resulting in a further 7 year delay in bringing the claim.” On the other hand, Mr. Hancock submits that he became aware of his legal rights on 17 April 2003, during an interview with his Solicitor on another matter. It is not disputed that Mr. Hancock sought legal advice in relation to industrial deafness in December 1997, but there is no evidence or other indication that he either sought or in fact obtained legal advice on that occasion, about the injury, the subject of this appeal. The Arbitrator accepted Mr. Hancock’s evidence in this regard and in the absence of evidence to the contrary, it was reasonable for him to do so.
The Appellant Employer submits that it has been unduly prejudiced by reason of the long delay between the time of the injury and the matter being dealt with. There is little doubt that the delay has caused inconvenience to the Appellant Employer but it has not outlined the nature of any specific prejudice to it nor the actual injustice that may be involved, other than to say that it now has no records of the nature and conditions of the work done by Mr. Hancock and that it has not yet had the opportunity to obtain a formal statement from Mr. Terry Potts, Mr. Hancock’s supervisor at the time. Unfortunately, I can find no reference to this important submission, in the Arbitrator’s Reasons. However, I do not agree that lengthy delay alone must always give rise to prejudice and injustice. Actual injustice must be demonstrated, not merely potential injustice (see Holt v Wynter [2001] NSW CA 143). Any rights or entitlements that Mr. Hancock may have, are not extinguished on the basis of the delay, per se, and the state of the Council’s records and the absence of a formal statement from Mr. Potts who is readily contactable, do not in my view, provide a persuasive argument in support of injustice or prejudice to the Appellant Employer. Furthermore, the failure by the Arbitrator to determine the point, while regrettable, is not so significant as to be fatal to his decision, having regard to the whole of the evidence in this matter.
The Appellant Employer submits that the onus rests with Mr. Hancock to demonstrate that the absence of a notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause, pursuant to section 61(2)(b) of the 1998 Act. While the Arbitrator dealt with the issue of the making of the claim, he failed to deal with the question of the notice of injury. However, it is abundantly clear that the reasons for failing to make the claim within the prescribed time are synonymous with the reasons for failing to give the notice of injury within the prescribed time. That is demonstrated by the evidence and once again, the omission of the Arbitrator, while regrettable, is not fatal to his decision. In any event, it seems that in relation to disease of gradual onset, because of the deeming provisions, notice need not be given in circumstances such as those surrounding the instance case, (Gow v Patrick Stevedores [2002] NSWCC 60) (Gow). However, I find that on the evidence before the Arbitrator, that Mr. Hancock’s delay in submitting the notice of injury within the prescribed time, was occasioned by ignorance of his legal rights and obligations, including the implications of the impact of the work he was required to do, on his disease of gradual onset, while employed by Camden Council.
Similarly, section 261 of the 1998 Act is relevant to Mr. Hancock’s failure to make a claim within the prescribed time. Section 261(6) provides that 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 the section, taken to have been received when the worker first became so aware. According to the evidence, Mr. Hancock became “aware” of his injury in and around mid 2003, as a result of specific medical examinations and assessment, following discussions with his Solicitor in April 2003. He lodged his claim shortly after this time and because of his ignorance, as outlined in paragraph 60, is not barred from recovering compensation (section 261(4) of the 1998 Act). I find that the Arbitrator made no error in this regard.
Did the Arbitrator err in finding the deemed date of injury to be 16 July 2003?
The Appellant Employer submits that the Arbitrator erred in finding the deemed date of injury to be 16 July 2003. Mr. Hancock submits that this is a new argument that was not put before the Arbitrator, but nevertheless, submits that it carries no weight and ought to be rejected.
I agree with Mr. Hancock that the test in Yacob is that there will be incapacity where a worker is physically restricted in doing what he would otherwise have been able to do. While this decision of the High Court indicates a general concept of incapacity it does not deal with particular incapacity within the meaning of sections 15 and 16 of the 1987 Act. In Davis v State Rail [2001] NSWCC 173, (31 January 2001) at paragraph 18, His Honour Judge Armitage said that incapacity within the meaning of these sections is inability to engage in pre-injury work. He went on to say that the question to be asked in that case, had it proceeded, was when, if at all, the applicant became unable to perform his pre-injury employment, totally or partially. (See also GIO Workers Compensation (NSW) Limited v GIO General Limited and Another (1995) 12 NSWCCR 187; P & O Berkeley Challenge Pty Ltd v Alfonzo & Ors [2000] NSWCA 214). In Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (18 August 2004), at paragraphs 5 and 10, Handley JA said:
“Incapacity referred to in s 16(1)(a) does not mean physical incapacity for work in the sense explained in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 but means the incapacity for which weekly compensation is claimed. See GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO), 196 per Sheller JA and P & O Berkeley Challenge Pty Ltd v Alfonzo (2000) 49 NSWLR 481 (Berkeley Challenge), 487 per Priestley JA. No such claim for weekly compensation was or could be made in this case.
…
In the present case where there was and could be no claim for weekly compensation s 16(1)(a)(i) did not fix a date on which the impairment injury happened. Accordingly s 16(1)(a)(i) applied and this injury is deemed to have occurred when the claim for lump sum compensation was made. Even if s 16(1)(a)(i) was capable of operating in this case to fix a date for the worker’s incapacity injury we should nevertheless follow the Alto Ford case where this Court specifically held that s 16(1) could fix different dates for incapacity and impairment injuries and, in the latter case the relevant date was the date of the claim.”
It is not claimed in the instant case that the disease itself is the injury (section 15 of the 1987 Act) as in Smith v Mann (1932) 47 CLR 426 cited by the Appellant Employer, but that the injury essentially arose out of the disease (section 16 of the 1987 Act). I agree with the Appellant Employer that having established the injury, section 16 of the 1987 Act operates to determine where the liability for the injury should fall (Crisp v Chapman (1994) 10 NSWCCR 492). Moreover, I generally agree with the approach found in paragraph 47 of Way, in relation to the construction of the applicable provisions of the legislation.
Notwithstanding the submissions made by the Appellant Employer, I do not agree that Dr Conrad’s report or Mr. Hancock himself, suggested or conceded that his injury manifested itself by incapacity at the time. Dr Conrad’s report indicates that the injury consisting in the aggravation, acceleration, exacerbation or deterioration of a disease of gradual onset occurred, but he did not state that Mr. Hancock suffered any obvious incapacity by virtue of the injury. He made an assessment about the injury, and also made observations about Mr. Hancock’s disease in the context of the nature and conditions of his work. This is consistent with Mr. Hancock’s recollection that he did not make any complaint of injury, but asked to be given a hand because of the soreness in his back and legs. The fact that Mr. Hancock did not claim to have suffered an incapacity for work does not preclude him from a claim for payment of workers compensation (Gow).
I find that the Arbitrator was correct in finding that the deemed date of injury was 16 July 2003 pursuant to section 16(1)(1)(a)(ii) of the 1987 Act, and in his application of section 261 of the 1998 Act.
Mr. Hancock concedes that the approach taken by the Arbitrator may be viewed as arbitrary but “that this is the price paid for the deeming provisions in Section 15 and 16”. (See Berkeley Challenge, per Priestley J, at paragraph 27).
Did the Arbitrator fail to take the Council’s substantive submissions properly into account and as a consequence, fail to give adequate reasons for decision?
The Reasons provided by the Arbitrator are not particularly detailed and as indicated above, there were certain omissions in them, which ought not to have been made. However, he has addressed the essential elements and the available evidence. Notwithstanding the errors made, in my view, these were not such that the decision should be revoked or that the matter should be remitted back to him or to another Arbitrator, to be determined afresh. An Arbitrator has a statutory duty to provide adequate reasons for decision (section 294(2) of the 1998 Act and Rule 73 of the Rules). Fundamentally, the reasons given must be capable of conveying adequately to the parties, the basis upon which the Arbitrator came to his decision. Reading the Reasons as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444, and Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259) in the context of the evidence provided and the submissions made, it is my view that they would adequately convey to the parties who are acquainted with the circumstances of this matter, the basis upon which the Arbitrator came to his decision.
I find that the Reasons of the Arbitrator are adequate and that this ground of appeal is not made out.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant Employer is ordered to pay the costs of the appeal as agreed or assessed.
OTHER
The Registrar should make arrangements as soon as possible for Mr Hancock to be assessed by an Approved Medical Specialist in orthopaedics, at Newcastle, appointed by the Registrar, in respect of the disputed claims for lump sums pursuant to section 66 of the 1987 Act, as directed by the Arbitrator.
Gary Byron
Deputy President
9 February 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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