Ellis v Dontarna Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ellis v Dontarna Pty Ltd [2024] NSWPIC 513
APPLICANT:	Rikki Ellis
RESPONDENT:	Dontarna Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	17 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant sustained bilateral shoulder injury and suffered incapacity; a claim for section 66 compensation was made in April 2023; applicant assessed at 23% whole person impairment by Medical Assessor; parties agreed that the injury was deemed pursuant to section 15; whether the date of injury was deemed in October 2019 being the first date of incapacity or the date of claim in April 2023; decision inconsistent with previous decision of SAS Trustee Corporation v O’Keefe; Haddad v The GEO Group Australia Pty Limited applied; Held – applicant’s deemed date of injury was date of first incapacity in October 2019.
DETERMINATIONS MADE:	The Commission determines: Finding 1. The date of injury pursuant to s 15(1)(a)(i) of the Workers Compensation Act 1987 is deemed to be 30 October 2019. Order 2. Order 1 of the Certificate of Determination dated 5 August 2024 is amended by replacing the date “23 September 2019” with the date “30 October 2019”.

STATEMENT OF REASONS

BACKGROUND

Mr Rikki Ellis (the applicant) was employed by Dontarna Pty Ltd (the respondent) and sustained injury to the upper extremities. This dispute relates to the correct deemed date of injury considering the recent Court of Appeal decision of Haddad v The GEO Group Australia Pty Ltd.[1]
[1] [2024] NSWCA 135 (Haddad).
The parties agreed that the first economic incapacity in respect of the injury was on
30 October 2019 when the applicant consulted his general practitioner and payments of weekly compensation commenced.
The applicant brought proceedings seeking lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The matter was referred to a Medical Assessor with a deemed date of injury of
23 September 2019. This was the date pleaded in the Application.
Medical Assessor Crocker issued a Medical Assessment Certificate dated 1 July 2024 in which he assessed 10% whole person impairment of the right upper extremity and 14% whole person impairment of the left upper extremity. This resulted in a combined whole person impairment of 23% (the MAC). The Medical Assessor made no deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 5 August 2024 the Personal Injury Commission (Commission) issued a Certificate of Determination consistent with the terms of the MAC for 23% permanent impairment resulting from injury deemed to have occurred on 23 September 2019 (the COD). The respondent was ordered to pay the applicant the sum of $61,900.

Hearing of Application

The matter was listed for hearing on 12 September 2024. Mr Barter of counsel appeared for the applicant and Mr Flocco, solicitor appeared for the respondent.
The parties agreed that the COD required reconsideration. The applicant asserted that the correct deemed date was 6 April 2023 which was the date of the claim for permanent impairment compensation with a s 66 entitlement in the sum of $66,460.
The respondent submitted that the correct deemed date was 30 October 2019 being the first date of relevant incapacity. That date did not involve any change to the s 66 entitlement set out in the COD.
It was agreed, consistent with the findings of the MAC, that the injury is deemed to have occurred pursuant to s 15 of the 1987 Act noting that there was no s 323 deduction by the Medical Assessor.
I adopt the common submission noting that the history recorded by the Medical Assessor was inconsistent with a disease injury. However, I have deferred to the parties’ agreement noting the applicant’s statement concerning the heavy and repetitive nature of his work duties.
The parties also agreed that there were no discretionary factors preventing the reconsideration of the COD pursuant to s 57 of the Personal Injury Commission Act 2020 and that I would determine the application solely on the correct deemed date of injury. Accordingly, unlike what normally occurs when orders are subject to an application for reconsideration, I have not referred to the various matters discussed in Samuel v Sebel Furniture Limited.[2]
[2] [2006] NSWWCCPD 141.

Submissions

The applicant submitted:
(a)the date for permanent impairment is not dependent upon incapacity;
(b)the notion of permanent impairment required an assessment pursuant to Chapter 7 of the 1998 Act;
(c)injury in this sense is either the incident or the damage flowing from the incident which may result in permanent impairment;
(d)there was no entitlement to permanent impairment compensation until a claim had been made. The first opportunity was when the insurer has an opportunity to review the claim following the letter dated 6 April 2023;
(e)the incapacity did not result from injury in this case because the injury is the notional injury of an impairment. There is no incapacity resulting from the notional date which occurred in April 2023;
(f)the decisions of Alto Ford Pty Ltd v Antaw[3] and SAS Trustee v O’Keefe[4] supported its argument for the deemed date of injury to be the date of claim;
(g)there was no additional incapacity resulting from the injury by reason of the statute;
(h)the decision of Haddad does not cast doubt on the reasoning in O’Keefe and Haddad did not deal with “that subject”, and
(i)paragraphs 75, 81, 105 and 117 of Haddad supported the applicant’s claim for the deemed date of injury and the impairment in this case did not depend upon the accepted incapacity.
[3] [1999] NSWCA 234 (Alto Ford).
[4] [2011] NSWCA 326 (O’Keefe).
The respondent referred to the agreement that there was relevant incapacity at
30 October 2019. It otherwise submitted that:
(a)O’Keefe was no longer good law considering the decisions of Haddad and Inghams Enterprises Pty Ltd vThoroughgood;[5]
(b)this was not a Stone v Stannard Brothers Launch Services Pty Ltd[6] case as the applicant had accepted there was incapacity related to the injury, and
(c)paragraph 81 of Haddad does not assist the applicant. There was clear incapacity resulting from injury which was agreed at the telephone conference.
[5] [2014] NSWCA 166 (Thoroughgood).
[6] [2004] NSWCA 277 (Stone).

REASONS

The parties agreed that the applicant’s date of injury is deemed pursuant to s 15 of the 1987 Act.
Section 15 of the 1987 Act relevantly provides:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(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.
…
(4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
The reasons of the Court of Appeal in Haddad were delivered by Griffiths AJA with Kirk and Stern JJA agreeing.
The following propositions are derived from the reasons in Haddad:
(a)the determination of which limb of s 15(1)(a) applies turns on whether the applicant has an incapacity;[7]
(b)the text on s 15(1) does not make the content or the formulation of a claim for incapacity determinative in selecting which of the two limbs applies;[8]
(c)even if not pleaded, the fact that there is an incapacity cannot be ignored.[9] Where there is no objective evidence of incapacity, the second limb of the deeming provision will apply;[10]
(d)the correct position is that where a disease injury causes an incapacity and at the same time gives rise to an entitlement for either medical expenses and/or permanent impairment, the claim is deemed to have occurred at the time when the worker suffered incapacity,[11] and
(e)this construction is supported by reference to context and purpose.[12]
[7] Haddad at [70].
[8] Haddad at [70], [71], [80] and [95].
[9] Haddad at [72]-[73].
[10] Haddad at [75].
[11] Haddad at [80].
[12] Haddad at [82]-[93].
The applicant relied on Alto Ford as supporting his position. However, in Haddad, Griffiths AJA explained Alto Ford as standing for the proposition that this was a claim for an additional loss of vision which was unrelated to the initial claim and payment of weekly compensation.[13] As his Honour stated in respect of Alto Ford:[14]
“It is only of an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”
[13] See Haddad at [103]-[105].
[14] Haddad at [105].
I accept that the Court of Appeal decision of O’Keefe[15] supports the applicant’s position that the deemed date of injury in the present case would be the date of claim. However, I accept that the findings in O’Keefe are subject to what was said by Griffiths AJA in Haddad when his Honour stated:[16]
“Some aspects of this reasoning appear to overstate the correct position. First, the authorities do not support the proposition at [96] that ss 15(1)(a)(i) and 16(1)(a)(i) only apply to a claim for weekly compensation. Nor does the text of those provisions support that proposition. Secondly, the cases do not support the proposition at [101] that, where there is a claim for lump sum compensation, any earlier claim for weekly compensation is always irrelevant. That proposition is stated too broadly. Whether or not an earlier claim for weekly compensation is relevant or irrelevant depends on the facts, as the differing outcomes in Alto Ford and Berkeley reveal. The subsequent reasoning in Thoroughgood (in which McColl JA also sat) expresses the position more accurately.
In my view, the obiter observations in O’Keefe which are relied upon by the appellant here should be confined to the facts of that particular case. The circumstances here are quite different, especially having regard to the evidence which identified that the injury the subject of the s 60 claim had produced incapacity.”
[15] [2011] NSWCA 326.
[16] Haddad at [118]-[119].
The applicant referenced legislative provisions as supporting its submissions set out at paragraph 13 above. I do not accept that s 15(4), means that the permanent impairment is treated as a separate injury for the purposes of s 15(1)(a). Section 15(4) and the similar provision in s 16 (s 16(3)) were relied upon in O’Keefe as support for the applicant’s position that a claim for permanent impairment is a different injury. The applicant’s submission on this provision is too broadly stated and the text of s 15(4) does not support his approach.
The correct approach, as discussed Haddad and Thoroughgood is that where the disease injury causes incapacity and gives rises to an entitlement to compensation (either medical expenses or permanent impairment), the first limb of s 15(1)(a) operates to deem the date of injury to be when the worker suffered incapacity.[17]
[17] Haddad at [80].
The Court of Appeal has held that a worker’s cause of action and the employer’s liability vests at the time of injury even though the entitlement to permanent impairment is not immediately ascertainable.[18] In Hochbaum that conclusion was adopted in support of the conclusion that there was no timing element in s 39 of the 1987 Act and that, once the relevant threshold had been established, weekly payments of compensation were payable for any period.
[18] Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (Hochbaum) at [52].
The applicant otherwise references various paragraphs of Haddad as supporting his position. However, the subject paragraphs note the second limb will be applied where there is no relevant incapacity (see Haddad at [75], [81]). The other references by the applicant to Haddad (at [105] and [117]) were explanations of other cases and otherwise state the opposite proposition to the applicant’s submission.[19]
[19] See the final sentence in para [105] of Haddad.
I am obliged to apply the principles discussed in the recent decision of the Court of Appeal where that decision differs from prior decisions.[20] As the considered and detailed discussion of Haddad shows, the decision has broad application and is not restricted to a claim for medical expenses. Indeed, the statement by the Court specifically addresses that s 15(1)(a)(i) applies to a claim for permanent impairment where there is a relevant incapacity regardless of whether a claim is made in the proceedings.
[20] See Re J & E Holdings Pty Ltd and the Corporations Law; J & E Holdings Pty Ltd v Vaughan (1995) NSWLR 541 at 551; Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478.
The agreement by the parties and the evidence[21] clearly establishes that the injury caused an incapacity on 30 October 2019 and gave rise to an entitlement to permanent impairment compensation. Accordingly, injury is deemed to have occurred on 30 October 2019 pursuant to s 15(1)(a)(i) of the 1987 Act.
[21] See for example the applicant’s statement, Application, page 3, para 19-20.
I accept that there are several Presidential decisions which followed the decisions of O’Keefe and Stone holding that where the claim was solely related to permanent impairment based on the disease provisions, the injury was deemed to have occurred at the date of the claim. I decline to follow those decisions in light of Haddad in circumstances where the injury in this case resulted in incapacity.

FINDINGS AND ORDERS

The findings and orders are set out in the Certificate of Determination.

[2024] NSWPIC 513

17 September 2024