Divertie v Startrack Express Pty Limited (formerly Neilsen Brame Pty Limited)
[2008] NSWWCCPD 45
•14 April 2008
WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
REPORTED DECISION: Divertie v Startrack Express Pty Limited (formerly Neilsen Brame Pty Limited) (2008) 6 DDCR 26
CITATION:Divertie v Startrack Express Pty Limited (formerly Neilsen Brame Pty Limited) [2008] NSWWCCPD 45
APPLICANT: Daniel Divertie
RESPONDENT: Startrack Express Pty Limited (formerly Neilsen Brame Pty Limited)
INSURER:QBE Insurance (Australia) Pty Limited
FILE NUMBER: WCC9290-07
DATE OF DECISION: 14 April 2008
SUBJECT MATTER OF QUESTION: ‘novel or complex’, section 351 and section 41A of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: President Keating, DCJ
HEARING:On the papers
REPRESENTATION: Applicant: Maurice Blackburn
Respondent: Mr Matthew Moir
ORDERS MADE: Leave to refer a question of law under section 351 of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
No order as to costs.
THE QUESTION SOUGHT TO BE REFERRED
On 20 March 2008 the Arbitrator dealing with this matter submitted to the Workers Compensation Commission (‘the Commission’), on her own motion, an ‘Application for Leave to Refer a Question of Law’.
The question of law is:
“When does a dispute as to liability arise for the purposes of section 41A of the [1998] Act?”
The question arose during the arbitration hearing on 21 February 2008, when it became apparent to the parties that the Respondent’s primary argument related to the jurisdiction of the Commission and the Registrar to exercise their statutory powers in circumstances where the Respondent denied there was a “dispute” in respect of the relevant workplace injury. With the consent of the parties, the Arbitrator referred the question, as stated above, to me under section 351 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and the proceedings before her were adjourned.
Attached to the ‘Application to refer a Question of Law’ were copies of submissions and supplementary submissions filed by both parties.
The WorkCover Authority has not sought to intervene in the proceedings under section 106 of the 1998 Act.
ON THE PAPERS
Both parties have made extensive written submissions. The question of whether the matter can be dealt with ‘on the papers’ has not been the subject of a submission by either party.
Having regard to section 354(6) of the 1998 Act I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine the question of leave to refer a question of law, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
BACKGROUND
Chapter 3 of the 1998 Act concerns Workplace Injury Management. The object of the chapter is to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work of workers following workplace injuries (see section 41(1) of the 1998 Act).
Section 41A is in these terms:
“The requirements of this Chapter apply even when there is a dispute as to liability.”
Mr Divertie alleges he sustained injury to his neck when the forklift he was driving collided with a steel bollard during the course of his employment with Startrack Express Pty Limited on 11 May 2007. Initially liability was accepted and compensation paid. Startrack provided Mr Divertie with suitable duties at its premises at Minchinbury.
On 21 August 2007, Mr Divertie attended an independent medical examination by Dr Ross Whittaker. Dr Whittaker opined that any ongoing incapacity was the result of a constitutional disorder and no longer related to the effects of the injury sustained in May 2007.
On 19 October 2007, QBE Insurance (Australia) Pty Limited (‘QBE’) acting on behalf of Startrack issued a notice under section 74 of the 1998 Act to Mr Divertie. QBE relied on the medical report from Dr Whittaker, and declined further payments of compensation from 22 October 2007. In light of the medical evidence and QBE’s decision to decline liability, Startrack withdrew the provision of light duties as from 5 November 2007.
On 5 December 2007, Mr Divertie, through his legal representatives, filed in the Commission an ‘Application to Resolve a Workplace Injury Management Dispute’ seeking continuation of light duty employment, which was referred to a Commission Arbitrator for determination.
Mr Divertie has not filed in the Commission an ‘Application to Resolve a Dispute’ with respect to the insurer’s decision to decline further weekly payments of compensation or to seek lump sum compensation pursuant to the provisions of section 66 and/or 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 2 November 2007, Mr Divertie’s solicitors wrote to Startrack indicating their instructions to challenge the decision of the insurer and also noting their intention to file an Application to Resolve a Dispute in the Commission. At the telephone conference, which took place on 31 January 2008, Mr Divertie’s legal representatives orally confirmed their intention, following instructions from Mr Divertie, to prepare such an application for filing in the Commission.
On 23 January 2008, Mr Divertie’s served notice of his intention to claim benefits under section 66 of the 1987 Act and served a medical report from Dr Bodel in support of the claim. As discussed in the Worker’s submissions he has been prohibited from filing an application with respect to the section 66 claim until the statutory time restrictions before referring a dispute to the Commission have expired. Pursuant to section 102 of the 1998 Act the time restriction for referring a dispute to the Commission commences 12 weeks from the date when the claim for compensation is duly made. On my calculation, Mr Devertie is restricted from commencing court proceedings for lump sum compensation until 16 April 2008.
The Worker submits he was prohibited from commencing proceedings (which in the Employer’s submission is the trigger for a dispute) at the time the referral of the question of law was made, at least in so far as his lump sum benefits claim was concerned. The Worker also submits, quite rightly, that claimants are encouraged under the statutory scheme, where possible, to bring all claims before the Commission at the same time. The Worker has stated his intention to file an Application for Resolution of a Dispute in the Commission in respect of all matters, including the entitlement to weekly benefits and any entitlement to lump sum benefits under section 66 and section 67 when he is able to do so.
RELEVANT STATUTORY PROVISION
Section 351(1)-(5) of the 1998 Act provides:
“351 Reference of question of law on compensation claim to Commission constituted by Presidential member
(1) A question of law arising in proceedings before the Commission constituted by an Arbitrator may, with the leave of the President, be referred by the Arbitrator for the opinion of the Commission constituted by the President.
(2) The reference of a question under this section may be made on the application of a party to the proceedings or of the Arbitrator’s own motion.
(3) The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.
(4) If the President refuses to grant leave for the referral of a question of law under this section, the President must state his or her reasons in writing to the parties for the refusal.
(5) Despite the reference of a question under this section, the Commission constituted by an Arbitrator may make an award in the matter in which the question arose unless the question is the question of whether the Commission may exercise functions under this Act in relation to a matter
(6)…” (emphasis added).
DISCUSSION AND FINDINGS
His Honour Justice Sheahan, former President of the Commission, said in Dimmock v State of New South Wales [2004] NSWWCCPD 64:
“15. In the new dispute resolution regime applying in this State, it is incumbent upon the Commission’s Arbitrators, who deal with a wide range of disputes, to determine in all cases any questions of jurisdiction, to make findings of fact, to interpret relevant statutory provisions (not just those of the NSW Workers Compensation legislation), to determine the applicability of such provisions to the facts so found, and then, in appropriate instances, to apply them.
16. The Question of Law procedure envisaged by section 351 is not designed for the determination of matters such as whether a particular Applicant in a particular set of circumstances can successfully argue that the Commission has jurisdiction to deal with a claim for compensation, or that a particular piece of legislation might apply to the facts of the case.
17. The fact that the determination of such issues in particular cases may be regarded as difficult or ‘complex’, or indeed may be ‘novel’ to particular decision-makers, is not sufficient to attract the provisions of section 351. They fall for determination by the Arbitrator assigned the particular case, and cannot be ‘abdicated’ to the President pursuant to section 351.18. Once all the Arbitrator’s functions are carried out, and a determination made by him or her of entitlements under the NSW Workers Compensation legislation, the aggrieved party to the proceedings may avail itself of the legislation’s appeal provisions as appropriate.”
I agree with and adopt the above principles in the present matter.
The language of section 41A is plain. The provisions with respect to workplace injury management are said to apply “even when there is a dispute as to liability”.
The text Statutory Interpretation by David, Pearce and Geddes (5th Edition) refers at page 20 to the statutory requirements in interpretation and describes the “literal” approach as follows:
“The literal approach (sometimes called a rule) was defined and explained by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Limited (‘the Engineers Case’) (120) 28 CLR 129 at 161-2 as follows:
‘The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it: and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean: and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.’”
I have been taken, by the Worker in his submissions, to the Second Reading speech with respect to the Workplace Injury Management and Workers Compensation Bill by the Hon. JW Shaw QC, Attorney General and Minister for Industrial Relations and Minister for Fair Trading. Mr Shaw said:
“Turning to the central issue of injury management, the proposal of the legislation aims to promote early intervention to affect a timely, safe and durable return to work at the highest possible level of earnings for injured workers. Each insurer will be obliged to establish an overall injury management programme to integrate all aspects of injury management, including treatment, rehabilitation, retraining, claims management and employment management practices….
Injury management plans may include provision for the insurer to make special advanced payments covering treatment by the workers nominated treating doctor. Those advanced payments may cover situations before actual lodgment of a workers claim, before the insurer has decided on liability or pending resolution of the dispute. Those payments will be made without prejudice to the employers in the event that liability is ultimately denied and will be made in order to ensure that the nominated doctor is prepared to participate from the outset in the development of and arrangements under the injury management plan. The intention here is to assist the effective operation of the injury management process from the earliest possible stage.”
Given the plain words of section 41A of the 1998 Act, adopting the literal approach and having regard to the stated intention of the Parliament to actively pursue injury management before liability has been decided or while the resolution of the dispute is pending, it is clear that the provisions of Chapter 3 of the 1998 Act apply in respect of an injured worker even in circumstances where there is a dispute as to liability, or before actual lodgment of a worker’s claim.
Startrack argue that there is no dispute between the parties due to the fact that the Worker has been notified that in the opinion of its doctor the effects of the work injury have ceased and the Worker has failed to take action to apply to the Commission for the resolution of a dispute in relation to liability. Startrack argues that the Commission has no jurisdiction because its denial of the claim has not been “disputed” by the Worker by the filing an Application for Resolution of a Dispute. This ignores the fact that an application, (at least in so far as it relates to a claim for benefits under sections 66 and 67 of the 1987 Act), could not be filed at the time of the referral for the reasons stated in paragraph [16] above.
Clearly there is dispute in this matter. Startrack has denied the claim and has served a notice dated 19 October 2007 under the provisions of section 74 of the 1998 Act. Section 74 uses the same wording as section 41A: it provides, “If an insurer disputes liability….”. That is in fact what has happened in this matter. The fact that the Worker has not yet filed an application seeking weekly compensation is of no consequence. It is not the filing of the application that triggers the dispute. The Worker has (through his solicitors) indicated his intention to file an application seeking weekly compensation and lump sum benefits in accordance with the assessment by Dr Bodel as and when he is able to do so in accordance with the relevant statutory provisions (see paragraph [16] above).
The Worker has sustained a workplace injury and was on light duties until they were withdrawn shortly after the section 74 notice was issued disputing liability. The dispute is whether the effect of the work injury has ceased. That dispute is alive notwithstanding that it has not yet come before this Commission.
I am reinforced in these views by section 58 of the 1998 Act, which states that nothing done by an employer under, or for the purpose of, an injury management programme or injury management plan, constitutes an admission of liability by the employer. Clearly, this section contemplates that the employer will be required to do certain things under Chapter 3 of the 1998 Act at a time when liability is disputed.
For the foregoing reasons, I am not satisfied that the question referred for determination involves any “novel or complex question of law” and leave to appeal is refused.
DECISION
Leave to refer the question of law is refused.
COSTS
I make no order as to costs.
His Hon. Judge Greg Keating
President
14 April 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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