Giang v Creata Promotions (Aust) Pty Ltd
[2005] NSWWCCPD 112
•20 September 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Giang v Creata Promotions (Aust) Pty Ltd [2005] NSW WCC PD 112
APPELLANT: Vincent Giang
RESPONDENT: Creata Promotions (Aust) Pty Ltd
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC14846-2004
DATE OF ARBITRATOR’S DECISION: 8 February 2005
DATE OF APPEAL DECISION: 20 September 2005
SUBJECT MATTER OF DECISION: Sections 15 and 16 of the Workers Compensation Act 1987; Deemed date of injury.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Malouf Solicitors
Respondent: Phillips Fox Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 8 February 2004 Vincent Giang filed an ‘Application to Resolve a Dispute’ in the Commission claiming lump sum compensation for permanent impairment and pain and suffering for an injury to his right arm, hand and shoulder. The matter was referred to a Commission Arbitrator and proceeded to a teleconference on 1 December 2004.
By ‘Direction’, dated 8 February 2005, the Arbitrator determined that “the date of injury is deemed to be 22 August 2003.” The Commission file indicates that this ‘Direction’ was not issued to the parties until 15 February 2005.
On 16 March 2005 Mr Giang sought leave to appeal against this ‘date of injury’ decision. The Respondent to the Appeal is Mr Giang’s former employer, Creata Promotions (Aust) Pty Ltd, insured by GIO Workers Compensation (NSW) Limited. The Insurer acted for and on behalf of the employer in the Commission proceedings.
Mr Giang has not made submissions on whether leave to appeal and the appeal can be determined on the papers. The Respondent submits that the appeal is capable of determination on the papers. 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 (pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
I am satisfied that the amount of compensation at issue in the appeal exceeds $5,000. No amount of compensation was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application.
Although the ‘Direction’ is dated 8 February 2005, it was not issued to the parties until 15 February 2005. The appeal was received in the Commission on 16 March 2005. I am satisfied that there are exceptional circumstances and that it is in the interests of justice to extend the time to appeal pursuant to rule 77(8) of the Workers Compensation Commission Rules 2003 and section 352 of the 1998 Act.
Leave to appeal is granted.
ISSUE IN DISPUTE
The grounds of appeal are confined to the issue of whether the Arbitrator erred in determining the deemed date of injury to be 22 August 2003.
CONSIDERATION
The Arbitrator considered the evidence given by the worker and the histories recorded in the medical reports and determined the deemed date of injury to be 22 August 2003. The reasons for this decision are summarised in paragraph [13] of the ‘Direction’:
“I have considered the above evidence and cannot agree with the Applicant’s submissions that the Applicant’s date of injury is 15 December 2001. The evidence shows that the Applicant continued to work at least until 18 February 2002 and for some time beyond that, being terminated on 22 August 2003. The applicant has not given sufficient history to know for certain what, if any, duties he was performing between 18 February 2002 and 22 August 2003. However, it is open to me on the evidence to include the entire period of the Applicant’s employment with the Respondent in the claim and therefore I have found the date of injury to be 22 August 2003, the date the Applicant was partially or fully incapacitated for his pre-injury employment.”
Mr Giang submits that the Arbitrator’s finding that the deemed date of injury is 22 August 2003 is “inconsistent with the terms” of section 15 of the Workers Compensation Act 1987 (‘the 1987 Act’).
Mr Giang refers to Davis v State Rail Authority (NSW) (2001) 21 NSWCCR 322 (‘Davis’) as authority for the proposition that “incapacity within the meaning of section 15 means the inability to engage in pre-injury work either partially or totally”. He submits that he first sought medical treatment for pain in his right side in December 2001 and was advised to take time off work to rest. Mr Giang submits that 15 December 2001 is the deemed date of injury as it was the first period of incapacity for work.
The Insurer submits that the Arbitrator was correct and that the deemed date of injury should be determined pursuant to section 16 of the 1987 Act. The Respondent relies upon the Court of Appeal’s decision in P & O Berkeley Challenge v Alfonzo [2000] NSWCA 214 (‘Berkeley Challenge’) as authority for the proposition that incapacity, in section 16 “means incapacity falling within the period that the worker becomes entitled to weekly payments of compensation, not incapacity at the time of the injury”. The Insurer submits “the deemed date of injury should be the last date on which the Applicant actually worked for the Respondent”.
In the alternative the Insurer submits that if the deemed date of injury is not the last day of employment, “the deemed date of injury cannot be prior to 16 February 2002, being the date upon which notification was given and a claim form completed”.
Sections 15 and 16 of the 1987 Act, in part, provide as follows:
“15 Diseases of gradual process—employer liable, date of injury etc
(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…”
“16 Aggravation etc of diseases—employer liable, date of injury etc
(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…”
The Arbitrator refers (at paragraph 5 of her reasons) to Mr Giang’s legal representative’s reliance upon section 15 of the 1987 Act and appears to have based her decision upon the claim made under that section. The result would be the same in any event as sections 15 and 16 of the 1987 Act both provide that the date of injury is deemed to be the time of the worker’s incapacity.
The determination of the ‘date of injury’ was a mixed question of fact and law for the Arbitrator to determine. In this matter she reviewed the evidence before her as follows:
·Mr Giang first experienced pain in the right elbow in February –March 2001 with further episodes in August –September 2001, when he first sought treatment.
·He took time off work to rest in January 2002.
·He returned to work in January 2002 but complained that he could not perform his pre-injury duties without pain. Dr Harvey-Sutton reported that Mr Giang linked this to a change of duties involving more computer work.
·Mr Giang has not given a work history after January 2002.
·Dr Chan first saw Mr Giang for pain in the right elbow on January 2002. He was sent for clinical tests but did not see Dr Chan again until 22 September 2003.
·Mr Giang was terminated from his position in August 2003.
·Dr Bhattacharyya records that Mr Giang first noted pain in February 2002 but had only intermittent time off work until August 2003.
·Dr Harrison reports Mr Giang’s account of increased pain from February 2002.
·Dr Herlihy records a similar history of the first report of pain as February 2002.
The decision of Armitage J in Davis does not assist Mr Giang. In that matter Armitage J took the view that “incapacity” in s 15 and s 16 means inability to engage in the applicant’s pre-injury work ( at 329).
In GIO Workers Compensation v GIO General Ltd (1995) 12 NSWCCR 187 Sheller JA (‘GIO’)(Priestley and Clarke JJA) considered section 15 of the 1987 Act and stated that:
“In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed.”
In Berkeley Challenge the Court of Appeal considered the definition of ‘incapacity’ pursuant to sections 15 and 16 of the 1987 Act. The Court held that, although “incapacity” is not defined in a “strict sense” in the 1987 Act, “the general sense of incapacity in the Act is a state of the health of a worker which affects his or her earning capacity or opportunities for employment” (at 485-486). At issue before the Court of Appeal was the correct deemed date of injury for a worker who suffered from painful symptoms in her arms and neck during the course of her employment as a cleaner. Ms Alfonzo was first incapacitated for work in 1993, had more time off in 1995, until finally her injury caused her to cease employment on 11 February 1996.
The Court of Appeal upheld the decision of the trial judge finding that the deemed date of injury was 11 February 1996. Priestley JA (Clarke JA agreeing) stated: “In my view the kind of incapacity [section 16] is talking about is the kind for which a worker establishes entitlement to weekly payments of compensation.” Fitzgerald JA stated: “Mrs Alfonzo’s material ‘incapacity’ was not the first impairment of her working ability as a result of the aggravation of her disease by her employment but the incapacity which resulted from her material injury, which was the injury which entitled her to the compensation which she was awarded. That incapacity was Mrs Alfonzo’s permanent partial incapacity on and after 11 February 1996.”
Mr Giang’s submission that his ‘incapacity’ arose when he was “first unable to partially complete the duties of his position”, on 15 January 2001, is inconsistent with the relevant authorities. The evidence is that his incapacity did not give rise to an entitlement to weekly payments until 22 August 2003.
The Court of Appeal in the recent matter of Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 referred, with approval, to the decision in Berkeley Challenge and GIO . Hodgson JA stated that “Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation” (at para 37).
The Arbitrator did nor err in her determination that the material incapacity that resulted in Mr Giang’s claim for compensation for permanent impairment occurred on 22 August 2003. This was the date on which he ceased work and his claim for weekly compensation arose.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
Neither party has made submissions in relation to the costs of the appeal. Sections 341 and 345 of the 1998 Act apply to the determination of the costs of an appeal. Mr Giang has been unsuccessful on the appeal and therefore is not entitled to an award that his costs be paid. At the same time I am not satisfied that the appeal was frivolous or vexatious, fraudulent or brought without proper justification pursuant to section 341(4) of the 1998 Act.
The appropriate order is ‘No order as to costs of the appeal’.
Dr Gabriel Fleming
Deputy President
20 September 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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