Corliss v State of New South Wales (NSW Police Force)
[2023] NSWPIC 336
•11 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | ||||||||||||||||||||||
Citation: | Corliss v State of New South Wales (NSW Police Force) [2023] NSWPIC 336 | |||||||||||||||||||||
| APPLICANT: | Danielle Corliss | |||||||||||||||||||||
| RESPONDENT: | State of New South Wales (New South Wales Police Force) | |||||||||||||||||||||
| Member: | Cameron Burge | |||||||||||||||||||||
| DATE OF DECISION: | 11 July 2023 | |||||||||||||||||||||
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation; certain body systems to be referred for assessment by consent; others the subject of dispute pursuant to section 254 and 261; whether applicant precluded from obtaining compensation by virtue of the operation of the time limitation provisions in the above sections; Held –on 22 January 2018, the applicant lodged a formal P902 Incident Notification form in relation to her right knee injury suffered on 15 December 2017; the fact of the injury is not in issue; such notification satisfies the requirements of section 254(1); namely to give notice of an injury to an employer as soon as possible after the injury happened and before a worker has voluntarily left the employment the worker was in at the time of injury; similarly, the lodging of the P902 form satisfies the requirements of section 261(9); and as such the lodging of such a form suffices as the making of a claim; the application to amend the deemed date of injury with respect to the lumbar spine injury to the date of the letter of claim for permanent impairment compensation, namely 26 October 2021, is consistent with the established authority in Stone v Stannard Brothers Launch Services Pty Ltd; the application is therefore granted and the deemed date of injury brings the applicant’s claim for permanent impairment compensation within the relevant timeframes for making such a claim; both the right knee and lumbar spine claims are referred for medical assessment along with the other accepted body systems. | |||||||||||||||||||||
determinations made: | The Commission determines: 1. The claim for compensation in respect of the injury suffered on 1 January 2019 by way of acute traumatic right lateral epicondylitis is discontinued. 2. Leave is granted to amend the date of injury to the lumbar spine by deleting the deemed date of injury of 5 July 2020 and substituting the date “26 October 2021 (deemed)”. 3. The claims for permanent impairment compensation in respect of the following injuries are remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from them:
4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) applicant’s Application to Admit Late Documents dated 11 May 2023. | |||||||||||||||||||||
STATEMENT OF REASONS
BACKGROUND
Danielle Corliss (the applicant) was employed by the New South Wales Police Force (the respondent) since the age of 22, in August 2003. There is no issue that over the course of her employment with the respondent, the applicant has suffered a number of injuries. The majority of those injuries claimed will be the subject of a referral to a Medical Assessor to determine the degree of the applicant’s whole person impairment.
There are two injuries in dispute in these proceedings. The first is a right knee injury which took place on 15 December 2017, and the other an injury to the applicant’s lumbar spine with a deemed date of injury of 5 July 2020. The fact of these injuries is not in dispute; however, the respondent alleges the applicant is precluded from recovering compensation as she did not lodge a claim within the timeframe required pursuant to s 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
There is no issue that a finding in relation to the limitation point in favour of the applicant will lead to the two injuries at issue being referred for medical assessment. A finding in favour of the respondent will lead to an award in its favour.
ISSUES FOR DETERMINATION
The parties agree that the only issue for determination is whether the applicant is precluded from recovering compensation by virtue of the operation of ss 254 and/or 261 of the 1998 Act.
At the hearing of this matter, the applicant withdrew her claim with respect to an alleged right upper extremity injury said to have taken place on 1 January 2019.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 5 July 2023. At the hearing, the applicant was represented by Mr Hammond of counsel instructed by Mr Bourke. The respondent was represented by Mr Stockley of counsel instructed by Mr Kim.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) applicant’s Application to Admit Late Documents (AALD) dated 11 May 2023.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Injury to the right knee on 15 December 2017
Mr Hammond submitted the dispute notice issued with respect to the right knee injury had been issued in error. He noted the summary of the decision listed the right knee as one of the claims to which the respondent took issue pursuant to ss 254 and 261 of the 1998 Act, however, in the body of the s 78 notice where the reasons for decision are outlined, the right knee injury (incorrectly identified by the date 15 December 2015 instead of 15 December 2017) is disputed on the basis of a nil assessment of permanent impairment by the respondent’s independent medical examiner (IME) Dr Wallace.
The dispute notice concluded as follows:
“In summary,
·Based on the opinion of Dr Wallace, we recommend that liability for further impairment of the left ankle and your claim under s 67 for that body part is declined.
·Liability for which those body parts for which no claim has been lodged (lumbar spine, cervical spine, right shoulder and right elbow) are declined relying on ss 254 and 261 of the 1998 Act and s 66 of the 1987 Act.
·Liability for the balance of the injuries claimed is declined on the basis that those injuries have not resulted in permanent impairment as required by s 66 of the 1987 Act.”
It is apparent on the face of the s 78 of the dispute notice that there is an internal inconsistency. Mr Hammond submitted the right knee injury had plainly been put into the wrong category in the paragraph headed “Summary of the Decision”, when it was plainly in substance disputed on the basis of an alleged lack of permanent impairment suffered.
The respondent issued a review notice dated 23 December 2022, found at page 57 of the Application. It declined liability for the claims for whole person impairment. Relevantly, the s 287A review notice does not indicate it ought to be read in conjunction with the previous s 78 notice, even though it is a review of that decision.
The review notice indicated a disputed liability on the basis the applicant was not entitled to compensation because of a failure to give notice of claimed injury and make a claim for compensation within the relevant timeframes under ss 254 and 261 of the 1998 Act. Additionally, the notice indicated the respondent disputed whether the applicant had suffered any permanent impairment as a result of her injuries.
In setting out the reasons relevant to the decision, the respondent noted its IME, Dr Wallace examined the applicant in respect of (relevantly) the injury to her right knee and diagnosed a soft tissue injury only. Dr Wallace accepted the applicant had sustained the right knee injury but concluded she had recovered, and the injury had resolved.
The dispute notice then states:
“● Liability for those body parts for which no claim had been lodged (lumbar spine, cervical spine, right shoulder and right elbow) were declined relying on the time limitation provisions under s 254 and 261 of the Workplace Injury Management and Workers’ Compensation Act 1998 and pursuant to s 66 of the Workers’ Compensation Act 1987.
· Liability for lump sum compensation for the balance of injuries claim was declined on the basis that those injuries have not resulted in permanent impairment as required by s 66 of the Workers’ Compensation Act 1987.”
The review notice then concludes the reasoning set out in the prior s 78 dispute notice was maintained.
At page 25 of the Application is a P902 incident notification form in respect of the right knee injury, completed by the applicant on 22 January 2018 in respect of the injury of 15 December 2017. In my view, that notification clearly satisfies the requirements of s 254 of the 1998 Act, namely the applicant has given notice to the respondent as soon as possible after the injury happened and before she had left the respondent’s employment that she had suffered an injury. In my view, it can hardly be said that notification of an injury only some five weeks after it took place could be considered to be an unreasonable delay.
Section 254(3)(a) also notes that even if there is a delay which would otherwise preclude the recovery of compensation, the failure to give notice of injury is not a bar to the recovery of compensation in special circumstances, which includes the respondent not being prejudiced in respect of the proceedings by the failure to give notice of injury.
Mr Stockley submitted the respondent was prejudiced in this matter, because it would lose its defense under the relevant time limit. With respect, that submission cannot stand. Where it allowed to, that would mean that the mere fact of pleading a time limits defense would itself ground prejudice so as to preclude the operation of ss 254(3)(a).
In relation to s 261, the failure to make a claim for compensation within the three year period as is the case with respect to the right knee will not be a bar to the recovery of compensation where the claim has resulted in the death or serious and permanent disablement of a worker (s 261(4)(b) of the 1998 Act).
In any event, the P902 form lodged by the applicant only five weeks after the right knee injury in my view satisfies the requirements of s 261(9) of the 1998 Act which says:
“(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 to the injury.”
The P902 form plainly serves as an entry in a register of injuries. Upon its lodgement, an incident number is generated pursuant to a relevant workers’ compensation policy.
Mr Stockley submitted the operative part of the s 78 notice with respect to the right knee clearly identified a limitation defense, and the applicant could not simply assert there was a mistake in that notice. He submitted that just because the particulars of the notice are somewhat different, that does not mean the limitation defense has been dispensed with.
In Reply, Mr Hammond submitted the applicant did not address the question of her potentially late claim in relation to the right knee in her supplementary statement lodged in her AALD because she simply believed there was no need to owning to the contents of the s 78 and s 287A notices.
In my view, the applicant has satisfied the requirements of ss 254 and 261 of the 1998 Act. She lodged an incident report form only five weeks after the injury, the fact of that injury not being in issue. In my view, the respondent has not materially prejudiced, having the benefit of IME examination by Dr Wallace to assess any alleged permanent impairment arising from said injury.
Moreover, in my view, the lodging by the applicant of the P908 form satisfies the requirements of s 261(9) to the 1998 Act, namely the particulars of injury were entered into a register of injuries kept by the employer under the 1998 Act, which suffices for the purposes of s 261 as the making of a claim for compensation in respect to the injury.
Lumbar spine injury
Mr Hammond made application to amend the deemed date of injury to in respect of the lumbar spine injury to 26 October 2021, being the date of the letter of claim. He submitted the claimed injury is clearly a disease injury, and both Dr Oats, IME for the applicant and Dr Wallace, IME for the respondent except it is an injury brought about by the nature and conditions of the applicant’s duties at work. The application to amend the date of injury was opposed by the respondent.
Mr Hammond relied on the decision in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (Stone).
In that matter, the Court of Appeal accepted but in a claim for permanent impairment compensation, the relevant “injury” is the loss within s 66 (1), in this case the permanent impairment to the lumbar spine, and such injury does not crystallize until the loss is assessed and claimed in accordance with the decision in Alto Ford Pty Limited v Antaw (1999) 18 NSWCCR 246.
Mr Hammond submitted in these circumstances, the amendment of the date of injury to 26 October 2021, being the date of the letter of claim, is merely following established precedent.
For the respondent, Mr Stockley submitted the application ought to be refused as it is nothing more than an application made in an attempt to subvert the statutory scheme. He submitted the prejudice to the respondent is the denial of its defense if the amendment to the date of injury is made, as such amendment would bring the date of injury within the relevant time limit. He submitted the issue is whether in the interest of justice but prejudice is obviated by the need to have the dispute concerning the injury heard. Mr Stockley submitted that at best, the applicant claims a 5% whole person impairment with respect to her lumbar spine, and such impairment does not constitute a serious and permanent disablement pursuant to s 261.
In Reply, Mr Hammond submitted the application is not a device to get around the relevant time limitations, but rather the law is the law and Stone stands as authority that the correct date of injury in this matter should be that the date of the letter of claim, namely 26 October 2021.
I accept that submission. Stone remains goodwill and clearly establishes that in matters such as this, where the applicant’s injury is clearly a disease, that the appropriate date of injury is in fact that of the date of claim.
It was accepted between the parties that if the amendment was granted, then the amended date of injury would fall within the relevant timeframes under ss 254 and 261, and there will be no time limits argument.
Accordingly, I am of the view the claim for the lumbar spine injury should be remitted to the President along with the other body systems for referral to a Medical Assessor.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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