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Camden Council v Hancock

Camden Council v Hancock

Case [2005] NSWWCCPD 6 9 February 2005

Notice of Injury

Deemed Date of Injury

Compensation

Disease of Gradual Onset

Workers Compensation Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Camden Council v Hancock

Details

AGLC: Camden Council v Hancock [2005] NSWWCCPD 6
Case: [2005] NSWWCCPD 6
Decision Date: 9 February 2005

CaseChat Overview and Summary

The Camden Council, the appellant, appealed against a decision of the Workers Compensation Commission in relation to a claim by Mr. Maxwell Hancock, the respondent, for workers compensation. Mr. Hancock's claim was for medical, hospital or related expenses, and for permanent impairment/pain and suffering. The Council argued that Mr. Hancock was 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); 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; and the Arbitrator failed to deal with the Council’s substantive submissions or gave them only cursory attention, and failed thereby to give adequate reasons for his decision. Mr. Hancock argued that the Arbitrator had taken the correct approach and that the Council should not succeed. The court found that the Arbitrator was entitled to arrive at the conclusion that Mr. Hancock suffered an injury, within the meaning of section 4(b)(ii) of the 1987 Act, that arose out of, or in the course of, his employment. The court found 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. The court found 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. The court found that the Reasons of the Arbitrator are adequate and that this ground of appeal is not made out. The decision of the Arbitrator is confirmed. The Appellant Employer is ordered to pay the costs of the appeal as agreed or assessed.

Orders