| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31 | ||
| APPELLANT: | Paul Gregory Collingridge | ||
| RESPONDENT: | IAMA Agribusiness Pty Ltd | ||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||
| FILE NUMBER: | A1-5710/10 | ||
| ARBITRATOR: | Ms E Beilby | ||
| DATE OF ARBITRATOR’S DECISION: | 2 February 2011 | ||
| DATE OF APPEAL HEARING: | 10 May 2011 | ||
| DATE OF APPEAL DECISION: | 3 June 2011 | ||
| SUBJECT MATTER OF DECISION: | Disease; deemed date of injury; relevance of findings in earlier proceedings of injury and deemed date of injury; application for additional lump sum compensation due to deterioration; ss 4 and 16 of the Workers Compensation Act 1987; cl 3 of Pt 18C of Sch 6 to the Workers Compensation Act 1987; Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 distinguished; leave to appeal interlocutory decision; s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr P Perry, instructed by McCabe Partners | |
| Respondent: | Mr B Stringer, solicitor, Moray and Agnew | ||
ORDERS MADE ON APPEAL: | Leave to appeal is granted. The Arbitrator’s determination of 2 February 2011 is revoked and the following orders made in its place: “1. The applicant worker’s deemed date of injury is 12 June 1998. 2. The claim for additional lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities applicable to injuries received prior to 1 January 2002. 3. The respondent employer is to pay the applicant worker’s costs under Pt 2 Table 1 Item F Column 2 of Sch 6 to the Workers Compensation Regulation 2010. The matter is certified as complex with an uplift of 15 per cent.” The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST. | ||
INTRODUCTION
This appeal concerns the disease provisions in ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act) and the determination of the correct deemed date of injury in a claim for additional lump sum compensation made on 15 March 2010 where, in proceedings in 2002, the former Compensation Court of NSW determined the deemed date of injury to be 12 June 1998.
BACKGROUND
Between 1989 and June 1998, the appellant, Mr Collingridge, worked as a truck driver for two different employers. He worked for J O’Malley Pty Ltd (O’Malley) from March 1989 until June 1996 and then for the respondent employer, IAMA Agribusiness Pty Ltd (IAMA), from June 1996 until June 1998. In addition to driving a truck, his duties with both employers required him to regularly lift and carry heavy weights.
Mr Collingridge felt pain in his back on various occasions in the course of his employment in the 1990s and had a short period off work in 1995. After returning to work in October 1995 and performing selected office duties until December 1995, he resumed his normal duties. His back symptoms deteriorated and,…
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- Case
- [2011] NSWWCCPD 31
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the deemed date of injury could be fixed at the date of the claim for additional lump sum compensation and whether the Arbitrator's determination should be upheld or revoked. The court examined relevant legislation, including sections 4 and 16 of the Workers Compensation Act 1987 and clause 3 of Part 18C of Schedule 6 to the Act. The court also considered the case of Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246, which held that the date of the claim could be the relevant date for determining incapacity. The court also considered the case of Whitehead v Kassagrove Pty Ltd t/as Moorebank Hotel (No 2) [2008] NSWWCCPD 38, which supported the Arbitrator's determination.
The court found that the Arbitrator's determination was incorrect. The court held that, under section 16(1)(a)(ii) of the 1987 Act, the deemed date of injury was the date of the claim for additional lump sum compensation, and the Arbitrator should have applied this provision. The court also found that, in the absence of a claim for weekly compensation, it was appropriate to follow Antaw and determine the date of the claim as the relevant date. The court held that the Arbitrator had misinterpreted Antaw and had failed to apply the correct legal principles. The court granted leave to appeal the Arbitrator's determination and revoked the Arbitrator's decision. The court made orders setting the deemed date of injury as 12 June 1998, remitting the claim for additional lump sum compensation to the Registrar for assessment, and ordering the employer to pay the worker's costs.
Orders
Orders of the court
Leave to appeal is granted.
The Arbitrator’s determination of 2 February 2011 is revoked and the following orders made in its place:
“1. The applicant worker’s deemed date of injury is 12 June 1998.
2. The claim for additional lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities applicable to injuries received prior to 1 January 2002.
3. The respondent employer is to pay the applicant worker’s costs under Pt 2 Table 1 Item F Column 2 of Sch 6 to the Workers Compensation Regulation 2010. The matter is certified as complex with an uplift of 15 per cent.”
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST.
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
Hodgson JA (Mason P agreeing) reached the same conclusion, noting at [37] and [38]:“37 Berkeley Challenge [Alfonzo] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s 16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.38 In the present case, the claim for facial disfigurement is a claim for a loss of a thing as the result of an injury, within s 66(1), which loss is itself to be treated as an injury within s 16(1), as provided by s 16(3). The same applies to the claim in respect of bodily disfigurement. Each such loss or injury was the disfigurement assessed by Dr Lobel on 5 March 2003, and included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 30 June 1987: in my opinion, this plainly follows from Antaw at par [18]. For that reason, in my opinion the primary judge did make an error of law, and the appeal must be upheld.” (emphasis added) Applying the principles in Antaw, as explained in Stone, s 16 can “fix different dates for incapacity and impairment injuries”. However, the question in the present case is not the same as that posed in the above decisions. It is whether, once McGrowdie ACCJ determined the deemed date of injury to be 12 June 1998, the mere making of a claim for additional lump sum compensation because of a deterioration in the worker’s condition creates a new deemed date of injury, without any further period of work in employment to the nature of which the disease was due, or an aggravation to which employment was a substantial contributing factor. The Arbitrator referred to the above authorities and to Whitehead v Kassagrove Pty Ltd t/as Moorebank Hotel (No 2) [2008] NSWWCCPD 38 (Whitehead). Applying Antaw and Whitehead, the Arbitrator said that, as Mr Collingridge had made no claim for weekly compensation, s 16(1)(a)(ii) applied to determine the deemed date of injury and the correct date was the date on which Mr Collingridge claimed additional lump sum compensation. She added, consistent with Handley JA’s decision in Stone, that even if s 16(1)(a)(i) was capable of operating to fix the date for Mr Collingridge’s incapacity, it was nevertheless appropriate to follow Antaw where the Court of Appeal held “that s 16(1) could fix different dates of incapacity impairment injuries, and in the later [sic] case the relevant date was the date of the claim” (Statement of Reasons at [27]). References to the transcript in this decision are references to the appeal transcript (AT). Mr Perry submitted that the Arbitrator misinterpreted Antaw. He argued that Antaw can be distinguished because Mr Antaw suffered a “personal injury” under s 4(a) of the 1987 Act in 1976 when a piece of metal struck his left eye. In 1978, he settled his claim for lump sum compensation under s 16 of the 1926 Act for a 10 per cent loss of vision as a result of that injury. The compensation he later sought was determined by the Court of Appeal to be a different injury which attracted the operation of s 15 because of the application of Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724, where Meagher JA said (at 729) that the finding of an injury at the later date was “the ineluctable result of a combination of cl 1 of Pt 6 of Sch 6, s 15 and s 71 of the [1987] Act”. Mr Antaw’s disease injury under s 15 was distinct from the injury which he settled for a 10 per cent loss of vision in 1978 and that is completely different from Mr Collingridge’s claim.