CSR Limited trading as Bradford Insulations v Milosevic
[2006] NSWWCCPD 154
•19 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:CSR Limited t/as Bradford Insulations v Milosevic [2006] NSWWCCPD 154
APPELLANT: CSR Limited t/as Bradford Insulations
RESPONDENT: Zlata Milosevic
INSURER:CSR National Workers Compensation (self insurer)
FILE NUMBER: WCC9111-05
DATE OF ARBITRATOR’S DECISION: 20 December 2005
DATE OF APPEAL DECISION: 19 July 2006
SUBJECT MATTER OF DECISION: Time for making a claim; Sections 60A and 261 of the Workplace Injury Management and Workers Compensation Act 1998; and section 17 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Vardanega Roberts
Respondent: Villari & Co
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 20 December 2005 is confirmed.
2.The matter is remitted to the Arbitrator at first instance for determination of the outstanding issues.
3.CSR is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Zlata Milosevic (‘Ms Milosevic’) commenced employment with CSR Limited t/as Bradford Insulations (‘CSR’) as a moulding operator in about 1969 and ceased work on 6 October 1978. She apparently ceased employment as a result of a work injury which was the subject of proceedings number 7605 of 1981 in the former Compensation Court. Those proceedings were concluded on 22 August 1984. She also brought a claim for damages against CSR arising out the same incident in the District Court being matter No. 17962 of 1984 which was resolved by way of terms filed on 13 December 1993.
Those proceedings did not involve any claim in relation to industrial deafness.
On 30 September 2004, Ms Milosevic notified CSR of a claim for compensation for industrial deafness. She claimed the sum of $6,084.00 in respect of 11.7% binaural hearing loss together with hearing aids to the value of $2,848.00.
On 2 December 2004, CSR through its solicitors, replied in the following terms:
“… Given the extraordinary delay in … bringing this claim we are instructed that liability for the claim is declined on the basis that your client has failed to comply with the former section 92 of the Workers Compensation Act 1987 with respect to the time limits applicable to injury alleged to have been suffered before 1998.”
On 14 June 2005 Ms Milosevic lodged an ‘Application to Resolve a Dispute’ in the Commission seeking lump sum compensation together with the cost of hearing aids as described in paragraph 3 above.
On 28 June 2005, CSR filed a ‘Reply’ disputing Ms Milosevic’s entitlements and noting that notice of the alleged injury was not given as required by the legislation, thereby causing prejudice to CSR and further, that the claim for compensation was not made within the time limits prescribed.
The parties attended a conciliation/arbitration hearing on 23 September 2005. On 20 December 2005 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The determination of the Arbitrator was as follows:
“1.The Applicant gave notice of the claim within the time limits provided under the workers compensation legislation.
2.The Applicant made a claim for compensation within the time limits provided under the workers compensation legislation.
3.The medical dispute between the parties is referred to an ‘Approved Medical Specialist’, for assessment under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.”
On 19 January 2006, CSR filed an ‘Appeal Against the Decision of the Arbitrator’. Briefly, CSR submits that the Arbitrator erred in finding that Ms Milosevic was entitled to commence proceedings, erred in his findings relating to both the giving of notice and date of injury, failed to give adequate reasons and failed to adequately address the issue of ‘prejudice’ to CSR.
On 7 March 2006, Ms Milosevic filed a ‘Notice of Opposition to the Appeal’. Ms Milosevic submits that much of CSR’s appeal focuses on material that was the subject of written ‘agreed facts’ and that the Arbitrator’s determination was consistent with the evidence before him.
LEAVE TO APPEAL
The amount at issue on appeal satisfies the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The appeal was filed within the time limits prescribed by section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Both parties agree that the matter is suitable for a determination ‘on the papers’. Having carefully read the ‘Arbitrator’s Statement of Reasons’, the evidence before him, the transcript, and both parties’ submissions on appeal, I am satisfied that I have sufficient information to adopt this course of action, and that it is the appropriate course in the circumstances.
ISSUES ON APPEAL
The issues can be properly summarised as follows:
1.The giving of ‘notice’ of injury to the employer and sections 61 and 62 of the 1998 Act.
2.The making of a claim for compensation under section 261 of the 1998 Act.
3.The adequacy of reasons issue.
4.The issue of prejudice to CSR.
SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Notice’ Issue
Prior to the parties attending the arbitration hearing on 23 September 2005, the Arbitrator requested that the parties file a ‘Statement of Agreed Facts and Issues in Dispute’ signed by both parties.
This document is dated 20 September 2005 and formed part of the evidence before the Arbitrator as noted by him at paragraph 11 of the ‘Statement of Reasons’.
Relevantly, the parties agreed that “the Applicant notified the Respondent of the injury re the current proceedings on or about 30 September 2004” and that “the Applicant lodged a claim with the insurer for lump sum compensation, medical and related expenses on or about 30 September 2004.”
CSR in its submissions claims that the Arbitrator erred in failing to determine “… whether the Notice of Injury dated 30 September 2004 complied with the mandatory requirements of s.62 of the [1998] Act.” In its submissions, CSR claims that “… the Notice dated 30 September 2004 is incapable of amounting to compliance with s.61 and/or s.62 …” and that “… s.61 and s.62 are provisions that are mandatory pre-requites [sic] to the commencement of proceedings and not merely directory or procedural …”.
This submission is misconceived in light of the parties’ agreement. The parties agreed that Ms Milosevic gave ‘Notice of Injury’ on 30 September 2004. Presumably, no such agreement would have been reached if it was alleged that the notice was in some way defective so as to not comply with the relevant provisions.
No issue was raised by CSR before the Arbitrator as to any alleged ‘defect’ in the notice such that, as Ms Milosevic points out in her submissions, “… the Appellant is estopped from raising the accuracy of the ‘Notice of Injury’ in its appeal.”
It is not disputed by the parties that Ms Milosevic’s “… last day on which [she] was employed in an employment to the nature of which the injury was due …” was 6 October 1978.
Section 60A(1) of the 1998 Act provides that “sections 61 and 64 apply only in respect of an injury received before the commencement of this section …”
Section 61 of the 1998 Act provides as follows:
“61(1) Compensation may not be recovered under this Act unless notice of
the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)Notwithstanding sub-section (1), the absence of, or defect or inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation:
(a) that the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings, or
(b) that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the state or other reasonable cause, or
(c) that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, …”
However, section 17(1)(b) of the 1987 Act which makes ‘special provisions’ in respect of hearing loss claims provides that:
“The provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom .”
In other words, in relation to hearing loss claims, as the Arbitrator pointed out at paragraph 37 of his ‘Statement of Reasons’ “… there is no requirement for a worker to give notice of a claim at any particular time prior to making the claim …” The Arbitrator went on to refer to the decision of the Commission in Girkin v Outboard Marine Corp Australia Pty Limited WCC 19727 – 2003 at page 30.
In view of the ‘exemption’ contained in section 17 of the 1987 Act, I can see no error in the Arbitrator’s reasoning on this issue.
The Making of the Claim Issue
At paragraph 38 of the ‘Statement of Reasons’, the Arbitrator stated:
“It is not in dispute and I am satisfied that the Applicant through her solicitors gave notice of the claim on about 30 September 2004 being a date after the commencement of the 1998 Act and I am satisfied that section 261 of Division 2 of Chapter 7 of the 1998 Act applies to this claim – see also Camden City Council v Hancock [2005] WCCPD 6 …”
Section 261 of the 1998 Act provides as follows:
“(1)Compensation cannot be recovered unless a claim for the compensation has been made within six months after the injury or accident happened, or, in the case of death, within six months after the date of death.
(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 three years after the injury or accident happened …
(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 worker first became so aware.”
In her statement dated 19 March 2005, Ms Milosevic said:
“ When I got injured at work in 1978 I went to see a solicitor … and they commenced a claim for me with respect to my orthopaedic injuries. They did not tell me about a possible industrial deafness claim.
I do recall that my hearing started to deteriorate whilst I was with Bradford but I did not know why and I thought that it might be my age. I did not know that I could make a claim,..It was only in 2003 when a friend of mine remarked that my hearing seemed to be bad and said words to me to the following effect; ‘did you know that it could be from work and you can make a claim for Workers Compensation?’
Having heard that, I contacted a firm of solicitors [current solicitors] with respect to my claim.”
CSR claimed that Ms Milosevic was barred from pursuing her claim by virtue of the delay of some 26 years after the alleged injury occurred.
CSR’s submissions on this issue were dealt with by the Arbitrator at paragraphs 39 – 42 of the ‘Statement of Reasons’ as follows:
“The Respondent seeks to rely upon the decision in Zouroudis v Plastic Services [2005] NSWWCCPD 113 (‘Zouroudis’ case’) in support of its contention that this application is barred by delay as the claim is brought too long after the injury happened. That matter involved a claim to which s.92 (repealed) of the 1987 [Act] applied – it is noted that s.92(4A) and s.261(6) of the 1998 Act are of [sic] identical terms.
Upon consideration I am satisfied that the decision Zouroudis v Plastic Services depends largely upon the finding that ‘as a matter of fact Mr Zouroudis was aware that he suffered hearing loss attributable to his employment while working with both Respondents’ and therefore, for the purposes of that matter and in applying relevant section, the injury was taken to have been received sometime in about 1980 … they are not the findings in this matter”.
The decision of Akmal Ahmad v CSR Limited WCC 5987 – 2005 involved a matter where the medical examinations were undertaken in 1981 and 1984 and notice of injury purportedly given by letter dated 29 June 1984 attaching medical reports in support with the claim not being made until after the commencement of the 1998 Act. Those are not the facts here, in this matter the legal advice, medical investigations, notice of injury, and the making of the claim were all brought within a short time and all after the commencement of the 1998 Act.
In this matter, there is no evidence that earlier than sometime in 2003, the Applicant was aware that her hearing loss was or could have been employment related or that she was aware that she was entitled to make a claim in connection with her condition. On the evidence before me, I am satisfied that the Applicant, although recalling that her hearing had deteriorated whilst working with the Respondent, it was not until much later that she became aware that her hearing loss was or may have been employment related.”
The decisions relied upon by CSR referred to by the Arbitrator in the preceding paragraph were distinguished by him on the basis of certain findings of fact in those cases, not relevant to his findings in this particular case, i.e., that Ms Milosevic did not become ‘aware’ of her injury until ‘much later’.
Ms Milosevic submitted that she became aware of her injuries either when she was examined by an ENT specialist, Dr Lucchese on 11 August 2004 or when her friend remarked to her in about 2003 that her hearing loss may be work related, or when she consulted her present solicitors (following her friend’s remarks) in about March 2004.
In those circumstances, Ms Milosevic submitted, the relevant date of injury for the purposes of section 261(6) of the 1998 Act was either August 2004, or March 2004 or sometime in 2003.
CSR submitted that the injury occurred either during Ms Milosevic’s employment with it or shortly thereafter, on the basis of Ms Milosevic’s statement that she noticed “… that my hearing started to deteriorate whilst I was with Bradford …” or on the basis of the earlier proceedings between the same parties. By virtue of those proceedings, CSR submitted, Ms Milosevic ought to have been aware of her compensation rights and the procedures in relation to the making of claims.
The Arbitrator determined at paragraph 47 of his ‘Statement of Reasons’:
“Having regard to the totality of the facts and circumstances of this matter and for the reasons already given, I am satisfied for the purposes of section 261(6) the Applicant’s requisite ‘awareness’ of her right to bring this claim was when the Applicant first received confirmation from an appropriate medical practitioner that her injury is employment related – this took place on about 11 August 2004 and the claim was made on 30 September 2004 – accordingly, I find that the claim is made within the 6 month period provided by s.261.”
In paragraph 48, he then said:
“If an alternative view should prevail, namely that the requisite ‘awareness’ of the Applicant’s right to bring a claim is when after she is advised by her friend that her bad hearing could be compensable or when she first seeks advice from her lawyers in this regard – sometime in March 2004 – the fact that the claim was made on 30 September 2004 means that the claim was made outside the initial six month period provided by s.261(1) and it would be necessary to have regard to the provisions of s.261(4) to consider whether the Applicant’s failure to bring the claim earlier can be remedied by the operation of that sub-section. Section 261(4)(a) allows a claim to be made within three years of the worker becoming aware of the injury provided it is found that the failure to bring the claim was occasioned by ignorance, mistake, absence from the state or other reasonable cause…. I accept that apart from the submissions made at hearing, there is little direct evidence as to the timing of the consultations with her lawyers regarding this matter and the nature and the timing of the steps and processes undertaken and assistance or objections or delay provided either by the Respondent, its insurer or other parties to the Applicant’s solicitors to help or hinder the Applicant’s solicitors in making the pre-claim enquiries more expeditiously. However in the circumstances of the nature of this claim for industrial deafness and having regard to the evidence before me, namely the length of time since the Applicant worked with the Respondent, that prior compensation claims had been made over 20 years previously … that the Respondent’s records have been archived, that the Respondent itself seeks to rely on the difficulty in obtaining archived evidence as a major reason in support of its contention that the claim ought not to be entertained and as the claim was made on 30 September 2004 – the same day as Notice of Injury was given – just days outside of the 6 month period that the Applicant sought legal advice regarding this claim allows me to be satisfied that on balance, there is some ‘other reasonable cause’ for the claim not being brought within the initial 6 month period … in summary, to the extent that it may have been necessary for me to make a finding with respect to the operation of s.261(4)(a) I am satisfied, having regard also to s.261(6), that the Applicant’s failure to bring her claim within the initial 6 month period was occasioned by ‘other reasonable cause’. In the circumstances of this matter, I am also satisfied that the Applicant was either mistaken or ignorant of her right to make a claim within 6 months of her friend bringing the prospect to her attention and it was not until she had received legal advice and the medical report diagnosing a compensable work related injury that she had caused to give notice of the injury and make the claim.”
CSR on appeal submits that the Arbitrator erred by finding that:
“… The date of injury deemed for the purposes of s.261 of [the 1998 Act] was, in the alternative, ‘an earlier date being either the date when she contacted her lawyers or after being advised by her friend of the possibility her hearing loss might be compensable’ in that there was no evidence or insufficient probative evidence to come to such a conclusion.”
CSR further submits that:
“… In the facts and circumstances the Commission would not be satisfied that the Arbitrator’s determination that the Respondent discharged her onus in respect of establishing that there was ignorance or mistake or any other reasonable cause for bring [sic] the claim more than 6 months after the requisite awareness of the work-related nature of her injury was acquired so as to attract the benefits of the extent of time limit under s.261(4).”
Finally, CSR submits that:
“… The Arbitrator erred in accepting evidence, which it is submitted did not rise above an uncorroborated statement by the Respondent that at some unspecified date she obtained awareness of a possible relationship between her long standing deterioration (Dr Lucchese’s report, page 1, line 1) for the first time from a friend who was not called to give evidence, as sufficient to discharge her onus”
True it is that the evidence on this issue was really confined to the statement of Ms Milosevic. Ms Milosevic was not called to give evidence and as the Arbitrator noted at page 1 of the transcript:
“The parties were … capable and … able to agree on an agreed set of facts and issues pursuant to Rule 72 which has been handed up to me and signed by the parties. I will take that into evidence. Apart from that, the evidence in this matter are [sic] as contained in the Application and the Reply.”
My task on appeal is not to further debate the evidence before the Arbitrator, by way of a ‘re-hearing’ of the matter. The powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the Arbitrator’s decision is affected by some legal, factual or discretionary error. [See Allesch v Maunz [2000] 203 CLR 172].
The Arbitrator was in possession of material lodged in advance of the hearing by the parties, and was entitled to act on the material. There was no application made by CSR for Ms Milosevic’s friend to be “… called to give evidence …”. The Arbitrator was entitled to accept Ms Milosevic’s statement as to the circumstances of her becoming ‘aware’, in the compensable sense, of her injury.
Consequently, I can see no error in the Arbitrator’s determination on this issue.
The ‘Adequacy of Reasons’ Error
CSR submits that:
“… The Arbitrator failed to give adequate reasons for making findings about the nature and timing of the consultations with her lawyers with the fact that there was no direct evidence given in her statement dated 19 March 2005 as to when she consulted legal advisors and whether she was advised about her entitlements to claim for industrial deafness on any particular occasion.”
True, there was no specific evidence from Ms Milosevic as to when she consulted her present solicitors. However, as those solicitors point out in their submissions, “… the date of the first consultation was clarified from the Bar Table (page 8 transcript) …”. That is indeed an accurate reference to the transcript such that the evidence was that Ms Milosevic saw her lawyers “… in March 2004 …”. It can logically be inferred from that consultation that steps were then taken by Ms Milosevic’s solicitors to determine whether or not she was entitled to pursue a claim such that arrangements were then made for her to consult Dr Lucchese.
As Deputy President Fleming said in Mayne Health Group v Sandford [2002] NSWWCCPD 6:
“… To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant Employer to demonstrate not only that the reasons are inadequate but that the inadequacies sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the Application …”
This submission is again somewhat misconceived in light of the evidence from the ‘Bar Table’ by Ms Milosevic’s solicitor, having consulted his file, that she attended upon that firm in March 2004. No issue appears to have been taken by CSR on this point at the arbitration hearing.
Nothing in the Arbitrator’s Reasons suggests that he failed to fairly and lawfully determine the matter such that I can see no error by him in relation to this ground of appeal.
The ‘Prejudice’ Issue
CSR submits that the Arbitrator erred “… in holding that there was no actual prejudice to the Appellant from the Respondent’s delay”.
This issue was the subject of lengthy submissions by CSR’s solicitor to the Arbitrator (see pages 9 – 18 of the transcript). Again, considerable reliance was placed upon the decision of Zouroudis referred to earlier.
As CSR rightly points out, the facts were not dissimilar. Mr Zouroudis had worked using apparently noisy machinery from about 1970 until December 1981 when he ceased employment as a result of an injury to his left hand for which he later received compensation. He claimed that he noticed his hearing deteriorate and eventually sought medical attention in May 2000 after which tests showed that he did in fact have some hearing loss. He claimed that it was at this time that he first became ‘aware’ of his compensable injury. Mr Zouroudis was unsuccessful in his claim before the Arbitrator who determined that it was not in the “interest of justice” that the claim continue given that it was made out of time. The Arbitrator’s decision was confirmed on appeal. The Arbitrator determined that Mr Zouroudis’ failure to make an earlier claim for hearing loss was not occasioned by ‘ignorance’ and there was no evidence as to any other ‘reasonable cause’ for his failure to make an earlier claim. Relevant to the determination was the fact that his wife made complaints about his hearing apparently during the period 1970 – 1981 and that in his statement he claimed to have noticed a defect in his hearing prior to commencing employment with the second Respondent, Parker Furniture from 1970 – 1981. The Arbitrator determined that in that particular case, Mr Zouroudis had sought legal advice for his 1981 hand injury and was aware of the possibility of bringing a claim.
On appeal, Deputy President Fleming noted that the onus was on Mr Zouroudis to prove that his failure to make the claim within the required period was occasioned by ignorance or other reasonable cause and made reference to the decision of Burke J as he then was in Gregson v L & M Dimarsi Pty Limited [2000] 20 NSWCCR 520 (‘Dimarsi’s case’). Deputy President Fleming quoted from Dimarsi’s decision as follows:
“The burden upon a worker immediately prior to the operation of the WIM Act where the claim was made more than three years after injury was to establish that the delay was occasioned by ignorance, mistake, absence from the state or other reasonable cause and, additionally, that it was in the interest of justice that he be permitted to recover compensation … There is no direct evidence on the matter. The overall evidence permits some inferences.
The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the Applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
In the present case, Ms Milosevic claimed that she was not advised by her lawyers in around 1978 about a possible industrial deafness claim and only became aware of the ‘rights driving from the Act’ in about 2003.
As Deputy President Fleming said in Zouroudis’ case:
“… Consistent with the reasoning in Dimarsi, the Arbitrator was entitled to find Mr Zouroudis’ failure to bring his claim … within time was not occasioned by ignorance … it is not expected that he be aware of the detailed requirements of workers compensation law, however it is reasonable to expect that he would be aware that a failure to bring a claim for more than 20 years after the injury occurred might preclude him from recovering compensation for the injury. It was open to the Arbitrator to find, as a matter of fact, that Mr Zouroudis was aware that he suffered hearing loss attributable to his employment while working with both Respondents”.
Similarly, in the present case, it was open to the Arbitrator to find, as a matter of fact, that Ms Milosevic was not aware that she had a compensable claim until many years after she ceased employment with CSR.
As to the ‘interests of justice’ issue, Deputy President Fleming, again quoting from Dimarsi’s case, said:
“… Prima facie, it would appear in the interests of justice that a worker receive the benefits which the legislature has beneficently bestowed upon him. Other factors can impinge upon that evaluation. If a worker emerges out of the mists of time some six years later to announce for the first time that he had suffered injury way back then and now sought compensation, it could be difficult to say that justice inter partes suggested that he should recover”.
Deputy President Fleming determined that Mr Zouroudis had ‘emerged out of the mists’ some 20 years after his employment ceased and determined that the Arbitrator had not erred in finding that it was not in the interests of justice to allow Mr Zouroudis to bring his claim.
This however is in contrast with the decision of Deputy President Byron in Camden City Council v Hancock [2006] NSWWCCPD 6. That was a case involving an alleged giving of notice of an injury well over 10 years after the worker ceased employment. As to the issue of prejudice, Deputy President Byron said this:
“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 … 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] NSWCA 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 … do not in my view provide a persuasive argument in support of injustice or prejudice to the Appellant Employer.”
In the present case, there was no specific evidence as to any prejudice occasioned by delay. It is noted that it its Reply, CSR indicated that various ‘employment records’ ie, “files being obtained from archives” were expected to be available within 6 to 8 weeks . It did not suggest that the files were in fact unavailable, simply archived. True it is that CSR had indicated that the premises where Ms Milosevic worked had been sold or closed down some considerable time ago.
CSR’s submissions before the Arbitrator were indeed compelling and supported by a number of authorities to which I have referred.
However, the difficulty with those authorities was that they failed to address the provisions of section 261 as it applied to the facts of this case as determined by the Arbitrator.
The Arbitrator made a primary finding of fact that the ‘injury’ occurred on or about 11 August 2004 but indicated that there were effectively three alternative ‘dates’ upon which Ms Milosevic was ‘aware’ of her injury, being in either 2003 or 2004, and any one of those ‘dates’ fell within the three year ‘limit’ prescribed by section 261(4) of the 1998 Act. Ms Milosevic’s claim may well have been denied had the circumstances of her becoming ‘aware’ of her injury as described in her statement occurred in say, 2000 or 2001.
As the Arbitrator stated at page 19 of the transcript “But prejudice in the interests of justice does not apply if [section] 261 applies?” to which CSR’s solicitor replied “That’s right”. Having made a primary finding of fact that Ms Milosevic’s ‘injury’ occurred in August 2004, or possibly alternatively in 2003 or March 2004 such that the claim fell within the requirements of section 261 on the 1998 Act, it follows that Ms Milosevic lodged her claim within the time limits prescribed in section 261 and was not barred from recovering compensation by virtue of the provisions of section 261(4) of the 1998 Act.
I can find no error in the Arbitrator’s determination on this issue for the reasons stated.
CONCLUSION
Where the Arbitrator’s determination involves a finding of fact open to him on the evidence, prima facie it should not be disturbed.
The primary finding of fact by the Arbitrator that Ms Milosevic was not ‘aware’ of her injury until August 2004 was a finding open to him on the evidence before him and in line with a number of authorities to which he (and I) have referred. Having made that finding, his determination that Ms Milosevic gave notice of the claim and made a claim for compensation within the time limits provided “… under the Workers Compensation Legislation …” was consistent with that finding. I can see no error of law that would justify the revocation of the Arbitrator’s determination.
DECISION
The decision of the Arbitrator dated 20 December 2005 is confirmed.
The matter is remitted to the Arbitrator at first instance for determination of the outstanding issues.
COSTS
CSR is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
19 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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