Considine v Northpower
[2005] NSWWCCPD 89
•17 August 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Considine v Northpower
[2005] NSWWCCPD 89
APPELLANT: Peter Considine
RESPONDENT: Northpower
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC2324-2004
DATE OF ARBITRATOR’S DECISION: 5 July 2004
DATE OF APPEAL DECISION: 17 August 2005
SUBJECT MATTER OF DECISION: Practice Direction 6 and Rule 77; what must be attached to appeal; section 261 of the Workplace Injury Management and Workers Compensation Act 1998; time limit for claim where “injury” is a disease or aggravation of a disease; sections 15 and 16 of Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: Whitelaw McDonald, Solicitors
Respondent: Turks Legal
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator, dated 5 July 2004, is revoked.
(2) The matter is remitted to the Arbitrator (or another arbitrator if the Arbitrator is not available) for determination in accordance with this decision.
(3) The Respondent is to pay the Appellant’s costs of the appeal.
(4) The costs of the original proceedings are referred to the Arbitrator for determination at the next arbitration.
BACKGROUND TO THE APPEAL
The appellant is Mr Peter Considine (‘the Appellant’). He seeks leave to appeal the decision of an arbitrator (‘the Arbitrator’) made 5 July 2004. The Arbitrator dismissed Mr Considine’s application for compensation for permanent impairment, pain and suffering and for medical expenses on the basis that the claim was made out of time. The respondent to the appeal is Northpower (‘the Respondent’). Northpower’s insurer at the time Mr Considine was employed by it was GIO Workers Compensation (NSW) Limited (‘the Insurer’).
There is no dispute that the Appellant worked in the construction and maintenance of power lines from 1969-1997. He was employed initially as a trainee linesman for Peel Cunningham County Council (‘PCCC’) and over the years was promoted to linesman, foreman and finally superintendent. He ceased work for the Respondent by taking a voluntary redundancy in January 1997. His evidence before the Arbitrator did not address the relationship, if any, between PCCC and the Respondent and reads as though he was continuously employed by the one employer. The Appellant asserts he suffered a work injury to his right shoulder in “the late seventies” and an aggravation to his injury in 1995. He did not claim compensation at either of those times but completed a PCCC form entitled “Workcover: Register of Injuries” in respect of the 1995 injury the day after that injury. The Appellant says his shoulder was never “quite right” after the first injury, that he continued to suffer intermittent pain in his right arm and shoulder, and that his duties often aggravated his arm and shoulder injury (statement dated 3 November 2003, paragraphs 6,7, 8 and 18). He said the injury “has worsened since I aggravated it in 1995. Every year it deteriorates more and I am much more limited with physical activities” (statement paragraph 20). He did not seek medical attention until July 2002. In November 2002 his solicitors gave notice to the Respondent of a claim under the Workplace Injury Management Act 1998 (‘the 1998 Act’) for lump sum compensation for 15% permanent loss of use of the right arm at or above the elbow, pain and suffering and medical expenses. The Appellant completed a claim form of the Insurer on 26 November 2002.
The Respondent opposed the claim in its reply on a number of grounds. The Respondent asserted that the Appellant had suffered frank injuries, not a disease, and accordingly asserted that the claim was out of time. The Respondent also denied liability on the basis that neither of these frank injuries occurred while the Appellant was employed by the Respondent (as opposed to PCCC) and, in the event that liability was found, disputed the amount of impairment. The Arbitrator at the telephone conference directed that each party file submissions on what was described in the directions as “the preliminary matter”. The published directions do not identify what was the “preliminary matter”, but it is clear from the Respondent’s submissions and the Arbitrator’s Statement of Reasons that the issues were whether or not the injury was a disease, and whether the claim was made within time (Reasons paragraph 9). The Arbitrator determined the “preliminary matter” on the papers.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 5 July 2004 records the Arbitrator’s orders as follows:
“1. The Applicant is not entitled to compensation under the 1987 Act.
2. There is an award for the Respondent.
3. There is no order as to costs.”
In his Statement of Reasons the Arbitrator records that the Appellant relies on injury in 1970 (this appears to be an error) and 1995 and the nature and conditions of his employment, or “alternatively, it is alleged that the applicant suffered a disease of gradual onset invoking sections [sic] 15 or that his employment aggravated, accelerated or exacerbated a disease invoking section 16 of the 1987 Act” (Reasons paragraph 3). The Arbitrator identified the issues for his determination on the preliminary points as follows:
“Whether the Applicant has satisfied the time limits within which to make a claim under the legislation so as to entitle him to compensation under the legislation; if so,
whether the Applicant’s employment with the current Respondent caused a disease of gradual onset for the purposes of section 15 or alternatively, aggravated, accelerated or exacerbated the disease for the purposes of section 16” (Reasons paragraph 10) (emphasis added)
Thus it appears the Arbitrator took the view that he could determine whether or not the claim was within time before he determined whether or not the injury was a disease within sections 15 and 16. He followed this approach in his Reasons. He found that the claim was not made within the time limits required by section 261 of the 1998 Act, and none of the exceptions set out in that section applied. He concluded that “As the rule in subsection 261(1) prevails in this case, the Applicant is not entitled to compensation under the 1987 Act” (Reasons paragraph 51). He did not consider whether or not the injury was a disease within sections 15 and 16 of the Workers Compensation Act 1987 (‘the 1987 Act’) because he took the view that it was not necessary to do so, given his finding in relation to section 261 (Reasons paragraph 53).
GROUNDS OF APPEAL
The Appellant appeals on two alternative grounds. First, his solicitors submit that the Arbitrator erred in failing to consider whether or not the injury was a disease pursuant to sections 15 or 16 of the 1987 Act. Had the Arbitrator found that the injury was a disease within either section, then, the Appellant submits, the deemed date of injury was the date the claim was made and so the requirements of section 261 of the 1998 Act were satisfied.
The alternative ground appears to relate to the 1995 injury as a frank injury. In this alternative ground the Appellant submits that the Arbitrator erred in failing to find that the time requirements of section 261 were satisfied by virtue of written notification of the 1995 injury by the Appellant to PCCC by completion of the PCCC form referred to earlier. The Appellant relies on section 261(9) which provides that the entry of particulars of injury in a register kept by an employer “suffices” as the making of a claim for compensation in respect of the injury. In this submission, the Appellant appears to say that the Respondent and PCCC should be regarded as the one employer, because the Respondent “took over the Applicant’s employment by way of merger with (PCCC) on 1 July 1996” (paragraph 2, page 7 of the appeal). The Appellant also refers to subsection 261(8) in this portion of the appeal grounds. That submission appears to assume that PCCC and the Respondent are distinct employers, because it provides that where two or more persons are liable a claim is taken to be made when a claim is made on any one. The Appellant seeks leave to rely on fresh evidence in relation to this alternative ground only.
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.”
Both parties agree that the appeal can be determined on the papers. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
Was the appeal lodged out of time?
The appeal was lodged on 30 July 2004. This is within 28 days of the Arbitrator’s decision, which was issued on 5 July 2004. By letter dated 30 July 2004 the Registrar advised that the appeal was incomplete and required the Appellant to provide further information in relation to whether or not the leave application and appeal could be determined on the papers, and in relation to the application to admit fresh evidence. The appeal as filed made no comment as to whether or not it could be determined on the papers, and attached the fresh evidence but did not add any submissions as to why it should be received. The Registrar required further information on both these matters by 9 August 2004. This further information was supplied by the solicitors for the Appellant by letter dated 5 August 2004, marked received by the Commission on 6 August 2004. The Registrar issued sealed copies of the appeal by letter dated 11 August 2004 and issued a further direction on that day, directing, amongst other things, that the Appellant file a statement as to why the appeal should be allowed to be lodged out of time. The Appellant filed a statement to this effect by letter dated 12 August 2004. That statement asserted that “the Application was not lodged out of time as all annexures and fresh evidence to be relied upon was served on the Commission and the Respondent within the limitation period prescribed by the Rules.”
The Respondent asserts that the appeal was lodged out of time because it was incomplete when initially lodged. In particular, it asserts that although the proposed fresh evidence was attached the appeal did not comply with Practice Direction 6 in that it did not set out reasons why the evidence was not given in the proceedings and why the evidence should be admitted. The Respondent submits that the appeal “should be rejected on the basis that it was lodged out of time.”
Determination of this preliminary issue requires examination of the Workers Compensation Commission Rules 2003 (‘the Rules’), Practice Direction 6 (‘Appeal Against a Decision of the Commission constituted by an Arbitrator’) and the relationship between them. Rule 77 sets out the requirements for lodging an appeal against an arbitrator’s decision. Subrule (1) provides as follows: “A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (8).” Subrule (2) provides that the decision appealed against is “ made” when the Commission issues the Certificate of Determination, here 5 July 2004. Subrule (8) provides that the Commission constituted by a Presidential member may extend the time for making an appeal in limited circumstances. While at first blush this might appear inconsistent with section 352(4) of the 1998 Act, a power to make rules that provide for “the extension or abridgement of any period referred to in this Part” (which includes section 352) is specifically conferred on the Minister by section 364(1)(g) of the 1998 Act.
Subrule (3) sets out what must be attached to an application for leave to appeal. The subrule provides as follows:
“(3) An application referred to in subrule (1) must include, or have attached, full details of:
(a)the arguments to be put in favour of review of the decision sought to be appealed against, and
(b)for the purposes of section 352(2) of the 1998 Act, the amount of compensation alleged to be at issue on the appeal, and
(c)any new evidence in respect of which leave is to be sought, by the party lodging the application, in accordance with section 352(6) of the 1998 Act, and
(d)if the party lodging the application wishes to object to the matter of leave to make the appeal, or the appeal, being decided solely on the basis of the written application and any written notice of opposition lodged, the reasons for the objection.”
In relation to fresh or new evidence, subrule (3) requires only that the evidence be attached to the application. It does not require that an explanation be attached as to why it was not adduced at the arbitration and why it should now be admitted, although it would be difficult, if not impossible, to properly determine whether or not to admit the new evidence without these submissions. In relation to determination of the application and appeal on the papers, subrule (3) only requires comment if the appellant opposes determination on the papers i.e. under subrule (3) the appellant may be silent if he or she is content to have the matter determined on the papers. The further information on these points required by the Registrar in this case are required by Practice Direction 6, but not the Rules.
The power to make Practice Directions “in relation to the operation of these rules” is conferred on the President of the Commission by Rule 89. The President has issued a practice direction, Practice Direction 6, in relation to the making of appeals. The Practice Direction has now been amended on a number of occasions. The version made 13 August 2003 applied at the time this appeal was lodged. The Practice Direction of that date required, amongst other things, that the appeal include “a statement as to whether the leave application and appeal should be determined on the papers, and if not, why not” (page 3) and, where new evidence was relied on, in addition to “a brief outline of the new evidence”, “the reasons why it was not given in proceedings before the Arbitrator, and submissions as to why the new evidence should be admitted” (page 4). The Rules do not require that an explanation as to why the new evidence was not given at the arbitration and why it should now be admitted be attached to the application for leave to appeal. Nor do they require a positive statement as to whether or not the application can or should be determined on the papers - only any objection to that course. Those matters were only required to be attached by Practice Direction 6.
Does failure to comply with the Practice Direction in these respects until after 28 days from the date of the Arbitrator’s decision mean that the appeal was lodged out of time? In my view no. The appeal as initially lodged complied with the requirements of Rule 77(3) in all respects. Accordingly it complied with subrule (1) and so was lodged in time. The power to make practice directions is limited by Rule 89 to provision in relation to “the operation of these rules”. In other words, practice directions are subservient to the Rules. That is not to minimise the importance of the Practice Directions. Their intention is to facilitate the operations of the Commission, to give content to the intention of the Rules where required, and to do so in a more discursive and accessible format than is appropriate in a legislative instrument. Where the issue is compliance with the Rules, however, as in this instance, that issue is to be determined having regard to the Rules. The appeal complied with the Rules and so was lodged in time, although it did not comply with the Practice Direction.
Amount at issue on the appeal: section 352(2) (a) and (b)
There is no dispute that the amount at issue on the appeal is at least $5000 as required by section 352(2)(a). In relation to paragraph (b), no amount was awarded by the Arbitrator. A number of Commission decisions by Presidential members, commencing with Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, have held that paragraph (b) is not applicable to appeals against decisions in which no award is made.
Having regard to these matters, I grant leave to appeal.
FRESH EVIDENCE
The Appellant seeks leave to rely on fresh evidence pursuant to section 352(6) of the 1998 Act (called “new evidence” in the Rules). This new evidence is only relied on in relation to the second ground of appeal i.e. that the Appellant gave notice of his 1995 injury to PCCC, which is said to constitute notice of claim under section 261(9) to the Respondent, Northpower. The evidence seeks to establish that Northpower should be regarded as PCCC. For the reasons shortly to be set out I allow the appeal on the first ground, that the Arbitrator failed to determine whether or not the injury was a disease. Accordingly, it is not necessary to determine whether or not this new evidence should be admitted on the appeal. It will be a decision for the Appellant whether or not to seek to file that evidence in the next arbitration and for the next arbitrator whether or not to allow it. If the next arbitrator determines that the injury is a disease within either section 15 or 16 of the 1997 Act, then it may not be necessary to establish any relationship between Northpower and PCCC as compensation under both sections is payable by the last employer.
EVIDENCE AND SUBMISSIONS
The material before me for determination of this appeal is accordingly as follows:
· The original application and statement of the Appellant dated 3 November 2003
· The reply and further evidence for the Respondent, being letter from Elisabeth Tye dated 10 March 2004 with attachments, statement by Mr Barry McNamara dated 14 April 2004, and two medical reports by Dr Brian Stephenson dated 15 March 2004
· Written submissions by each party on the “preliminary issue”
· The Arbitrator’s Statement of Reasons
· The application for leave to appeal (excluding the fresh evidence)
· The submissions by the Respondent on the appeal
DISCUSSION AND FINDINGS
The 1998 Act makes provision for a time limit within which a claim for compensation must be made, if compensation is to be payable. Section 261 of the 1998 Act provides as follows:
“Section 261
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)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 this section taken to have been received when the worker first became so aware.
(7)If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
The “claim” referred to in the section is defined in section 4 of the 1998 Act as “a claim for compensation …that a person has made or is entitled to make”. It is a claim on the employer, not the filing of an application in the Commission. Section 261 appears in Chapter 7 of the 1998 Act, which was inserted by the 2001 amendments that provided for the subsequent abolition of the Compensation Court of New South Wales and the creation of the Workers Compensation Commission. The Chapter is headed “New Claims Procedures” and some portions only apply to injuries or claims received after 1 January 2002, when the Commission began operations. Section 261 is one such provision. It only applies to claims made after 1 January 2002, although the injury may have occurred before that date (see section 259). Thus section 261 only applies if the “claim” in this case is regarded to be the letter by the solicitors of the Appellant to the Respondent dated 1 November 2002, or the claim form of the Insurer completed by the Appellant later that month. Section 261 does not apply if the relevant “claim” was the notification by the Appellant to PCCC in 1995 of the injury he received on 29 May 1995.
The general provision is that the claim must be made “within 6 months after the injury or accident happened” (subsection (1) emphasis added). If the “injury or accident” in question is regarded as either the injury suffered by the Appellant in the late 1970’s or the further injury in 1995 then it is clear that the claim (being the claim made in November 2002) was made well outside this general time limit. The section then sets out a number of exceptions to this general rule. The Arbitrator considered these exceptions at some length, and concluded none applied. There is no objection taken by the Appellant to the Arbitrator’s findings in relation to the exceptions. What the Appellant says is that the Arbitrator was in error in failing to first determine what the “injury” was, and in particular, in failing to determine whether or not it was a disease. “Injury” is defined in section 4 of the 1998 Act as follows:
“injury:
(a)means a personal injury arising out of or in the course of employment, and
(b)includes :
(i)a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but
(c) (does not include a dust disease)”
The same definition of “injury” is found in the 1987 Act. Section 15 of that Act deals with certain types of disease that constitute injury within this definition. The section applies “if an injury is a disease which is of such a nature as to be contracted by a gradual process” (subsection (1) emphasis added). If that is the case, then the subsection provides that:
“(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.” (emphasis added)
Similarly, section 16 of the 1987 Act provides that:
“(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease-
(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 that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.” (emphasis added)
Both sections say that the deeming provisions apply for the purposes of the 1987 Act but by virtue of section 2A of the 1987 Act, that includes a reference to the 1998 Act. Accordingly, for the purposes of section 261 of the 1998 Act an injury that consists of a disease within section 15 or aggravation of a disease within section 16 of the 1987 Act is deemed to have happened at a certain point in time. If death or “incapacity” has not occurred, then that point in time is the making of the claim, thus rendering the 6 month time limit of no effect. This is the interpretation given to the interrelationship between the sections in Gow v Patrick Stevedores No 2 Pty Limited [2002] NSWCC 60 (‘Gow’) and Way v Newcastle City Council [2004] NSW WCC PD 17 (‘Way’), both of which are relied on by the Appellant in the appeal.
Gow is a decision of His Honour Judge Geraghty of the Compensation Court. The worker in that case sought compensation for skin cancer. He had last been employed by the respondent employer in 1991 when he retired voluntarily. He brought his claim for compensation for skin cancer, which he said had been either caused or aggravated by his employment as a waterside worker, in 2001. His Honour found that he had suffered an aggravation of a disease (being skin cancer) within section 16 of the 1987 Act, and that his employment as a waterside worker was a substantial contributing factor to that aggravation (paragraphs 11 and 12 of the decision). The Court then considered when the injury “happened”, given the deeming provisions of section 16. As the claim in this case pre-dated 1 January 2002 the relevant time limit provision was section 65 of the 1998 Act. The relevant provisions of that section are similar to those in section 261. In particular, 65(7) provides the same general rule, that compensation is not recoverable unless a claim for compensation is made within six months after the injury or accident “happened” and subsections (13), (15) and (17) make similar exceptions to those in subsections (4), (6), (7) and (9) of section 261. The Court held that the worker was not incapacitated when he ceased employment and accordingly the relevant deeming date for when the injury, being the aggravation of the disease, “happened” was the date of the claim (paragraphs 15,18 and 55).
Way is a decision of the Commission by Deputy President Fleming. It was published in March 2004, i.e. before this decision, although neither party referred the Arbitrator to the decision. In that case the arbitrator had dismissed an application for compensation for arthritis of the knees on the basis that the claim for compensation had not been made within the time limits imposed by section 261. The worker in that case had been employed by the respondent in heavy physical work. He ceased work in 1990, received workers compensation for four years for an unrelated injury and retired in 1994. He brought his claim for compensation for osteoarthritis in his knees in January 2003. The worker appealed the arbitrator’s decision on the basis that the arbitrator had failed to apply the disease provisions of sections 15 and 16 of the 1987 Act as to when the injury “happened”. The facts are in these respects very similar to the facts in this case, save that in Way there was no frank incident giving rise to his knee problem and there was no dispute on the medical evidence that Mr Way suffered osteoarthritis. There was a dispute as to the contribution, if any, played by his work to that condition. The Deputy President found that Mr Way’s employment had aggravated or otherwise contributed to his disease of osteoarthritis. As it did not cause him “incapacity” for work then, pursuant to section 16(1)(a)(ii), the date the injury was deemed to have happened was the date of the claim. Accordingly, the arbitrator was in error in finding that section 261 was not complied with.
I consider that the Arbitrator in this case made a similar error of law. He failed to first determine the worker’s contention that he suffered from a disease within section 15 or aggravation of a disease within section 16 of the 1987 Act before considering the application of section 261. This was an error, as the determination of when the injury “happened” as required by section 261(1) depends on whether or not the deeming provisions of section 15 or section 16 apply. For that reason the decision of the Arbitrator must be revoked.
I have given consideration to whether or not I should determine whether sections 15 or 16 apply, but have come to the conclusion that the more appropriate course is to revoke the Arbitrator’s decision and remit the application to the Arbitrator (or another arbitrator if the Arbitrator is not available) for fresh determination in accordance with this decision. This was also the approach taken in Way. In my view the same reasons for adopting this approach here apply as in Way, being that the arbitrator in each case did not determine a principal issue of liability before dismissing the claim on time limit grounds, albeit that the live issue here is different to the live issue in Way. In Way there was no dispute that the worker suffered a disease (in the general sense of that term). The doctors for each party agreed that he suffered osteoarthritis of the knees and there was no frank incident that could be said to have caused his condition. The issue of liability not determined was whether or not the injury arose “out of or in the course of employment” within section 4 of the 1987 Act and whether it had the necessary association with employment required by sections 15 and 16 (see paragraphs 32-35 and 47-49).
In this case there is evidence in the written reports from both the Appellant’s orthopaedic surgeon, Dr Carmody, and the Respondent’s, Dr Stephenson, of a causal relationship between the Appellant’s shoulder condition and his employment as a linesman. However, there may be a dispute on the written medical evidence as to whether or not the condition suffered by the Appellant is or is not a disease, even in the general sense, let alone within sections 15 or 16. Dr Carmody describes the Appellant as suffering certain diseases of the right shoulder, being osteoarthritis, possible rotator cuff pathology, impingement syndrome and a frozen shoulder in his written report dated 17 September 2002. Dr Stephenson does not use the word “disease” in his written reports dated 4 December 2002 and 15 March 2004. In the later report he records the injuries as soft tissue strain to the right shoulder occurring on two occasions. He notes degenerative change from osteoarthritis and a tear to the tendon (which he says could also be degenerative) but it is unclear whether or not he considers these to be “diseases”. Remitting the matter to the Arbitrator for fresh determination is unfortunate, given the time delays, but it would be inappropriate to seek to determine a principal issue in the case on review when that issue has never been determined at first instance and the parties’ attention on this appeal was focused on the time limit issue.
Way also sets out some principles to guide the Arbitrator when next considering the application, in paragraph 47-49 of the decision, and I consider those principles should also apply to the next consideration of this case. The remarks emphasise that determination of the time limit issue cannot take place until the arbitrator has determined whether the injury complies with the definition of “injury” in section 4 of the 1987 Act. Where the injury is said to be a disease or aggravation of a disease within paragraph (b) of that definition, the arbitrator must determine whether the condition is properly characterised as a “disease” or aggravation of a disease, whether it was contracted in the course of employment (first limb of paragraph (b)) or aggravated by employment (second limb) and whether the connection with employment required by both limbs of paragraph (b) is established. I would add that the arbitrator must next determine whether it is section 15 or section 16 of the 1987 Act that applies, or neither, and then, if either applies, whether or not “incapacity” resulted from the “injury”. This will allow determination of the date the injury is deemed to have “happened” and so consideration of whether the claim has been made within the requirements of section 261.
Further, as Way makes clear, the overriding obligation of the worker in a disease case, just as in every case, is to prove that the injury arose “out of or in the course of employment” (paragraph (a) of the section 4 definition of “injury”). Further, where the injury occurred after the 12 January 1997, the worker must prove that the employment was a “substantial contributing factor” to the injury within section 9A of the 1987 Act (not just “a contributing factor” as paragraph (b) of the section 4 definition of “injury” requires). Although neither of the specific incidents relied on by the Appellant in this case occurred after 12 January 1997, characterisation of his current condition as a “disease” or aggravation of a disease within either of sections 15 or 16 may mean that the injury is deemed to have occurred on the date of the claim i.e. after 1997, thereby attracting the operation of section 9A. This would be the case if no incapacity was occasioned by the shoulder condition prior to the Appellant ceasing his employment.
Given that these major issues must be determined before the application of the time limit provisions can be considered in a disease case in my view an arbitrator should be cautious about classifying the time limit issue as a “preliminary” one, and seeking to determine it first, particularly without oral hearing.
As the decision of the Arbitrator is revoked for the reasons set out above it is not necessary to consider the other matters ventilated in the parties’ submissions on the appeal. If the Arbitrator determines that the injury is not a disease within sections 15 or 16 and the Appellant seeks to rely on his notification to PCCC of injury in 1995 as a relevant “claim” for the purpose of the operation of the time limit provisions, then the parties and Arbitrator should give consideration to whether section 261 is the relevant time limit provision, as it only applies to claims made after 1 January 2002. If this aspect of the application is pursued, then consideration may also be required as to whether PCCC should be regarded as the same employer as the Respondent. The Arbitrator may need to consider whether or not further evidence should be allowed on that issue. These brief comments merely seek to acknowledge some of the matters raised in the appeal that it is not necessary for me to determine. They should not be taken as an exhaustive statement of the issues that will require determination in the next arbitration. As indicated in Way, the Arbitrator will also be required to attempt a conciliated settlement of the dispute and an assessment may be required from an Approved Medical Specialist as to the degree of impairment.
DECISION
The decision of the Arbitrator is revoked. The application is remitted to the Arbitrator (or another arbitrator if the Arbitrator is not available) for determination in accordance with this decision.
COSTS
As the Appellant has been successful on this appeal his costs should be paid by the Respondent. The costs of the original proceedings are adjourned for determination at the next arbitration. If the Appellant is ultimately unsuccessful then it may not be appropriate for him to recover his costs of either sets of proceedings.
Robyn Lansdowne
Acting Deputy President
17 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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