Gilarte v Bluescope Steel Limited
[2007] NSWWCCPD 99
•26 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Gilarte v Bluescope Steel Limited [2007] NSWWCCPD 99
APPELLANT: Jose Gilarte
RESPONDENT: Bluescope Steel Limited
INSURER:Self Insurer
FILE NUMBER: WCC 6169-06
DATE OF ARBITRATOR’S DECISION: 2 August 2006
DATE OF APPEAL DECISION: 26 April 2007
SUBJECT MATTER OF DECISION: Proof of injury and section 261 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers.
REPRESENTATION: Appellant: Slater and Gordon
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: For the reasons here stated the finding by the Arbitrator recorded in paragraph (i) of the Determination dated 2 August 2006 is revoked and the following order made:
“ (i) Award for the Respondent.”
Paragraph (ii) of the Arbitrator’s determination dated 2 August 2006 is confirmed.
No order as to costs of the Appeal.
BACKGROUND TO THE APPEAL
On 30 August 2006 Jose Gilarte (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 2 August 2006.
The Respondent to the Appeal is Bluescope Steel Limited (‘the Respondent’).
The Appellant commenced employment with the Respondent in 1977 and remained in that employ until 11 October 2002. The Appellant was initially employed as a Crane Chaser/Crane Driver at the Respondent’s premises known as the Rail Bank Department. From time to time thereafter the Appellant was required to work at different work sites within the Respondent’s organisation including the CRM, the Four High Mill, the Five Stand Mill and the CG Line. The work performed by the Appellant at those sites varied from time to time and those duties each involved manual labour.
The Appellant continued performing manual duties with the Respondent until 20 February 2001. From that date until termination of employment on 11 October 2002 the Appellant performed duties of a sedentary/clerical nature which included preparation of sketches of lifting gear, arranging modification of work areas, conduct of training for new and transferred employees and general clerical tasks. This position was made available to the Appellant by reason of the Appellant’s then state of health.
The Appellant, following termination of the his employment, made a claim against AMP Life Limited with respect to superannuation and disablement entitlements. That application was supported by a detailed medical certificate prepared by Dr GA Ajam, General Practitioner. The contents of that certificate issued by Dr Ajam are addressed in more detail below.
The Appellant has not worked since October 2002. On 7 April 2005 a letter was sent by the Appellant’s Solicitors to the Respondent making a claim for lump sum entitlement under the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of alleged injuries to the Appellant’s back and legs. That correspondence stated:
“Our client’s injury occurred as a result of the nature and conditions of his employment with your company which involved heavy lifting, crane driving, crane chasing and other various tasks.”
The correspondence enclosed a copy of a medical report from Dr Richard Deveridge, Surgeon, dated 8 March 2005.
The Appellant’s claim was declined by the Respondent and notice of same was communicated to the Appellant’s Solicitors in correspondence dated 1 February 2006 forwarded by the Respondent’s Solicitors.
The Appellant, on 20 April 2006, filed an Application to Resolve a Dispute in the Commission. That Application alleged:
“Injury to the back caused and/or materially aggravated by the Applicant’s employment with the Respondent.”
The date of injury is there stated as being “20 February 2001”. The Application included a description of the injury as follows:
“The nature and conditions of the Applicant’s employment with the Respondent from 1977 to 19 February 2001 involving heavy lifting, pushing, pulling, working in confined spaces and in awkward positions, and general heavy manual labour.”
On 9 May 2006 the Respondent filed a Reply to the Appellant’s Application to Resolve a Dispute. That Reply enumerated a number of issues in dispute including a denial by the Respondent of ‘injury’ as alleged by the Appellant and an assertion that the Appellant’s claim for compensation was not made within the time limits specified by the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Appellant’s Application was heard by an Arbitrator on 25 July 2006 at which hearing both parties were represented by Counsel. The Arbitrator delivered her Determination on 2 August 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 2 August 2006 records the Arbitrator’s determination as follows:
“(i)The Respondent is not liable to pay compensation to the Applicant for his claim with respect to his back and right and left legs.
(ii)No Order as to Costs.”
The Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’) was attached to the Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in determining that the Appellant was debarred from recovery of compensation by reason of his failure to comply with the requirements as to notice prescribed by section 261 of the 1998 Act.
(ii)Whether the Arbitrator erred “in finding that the Worker’s back condition was not caused by his employment with the Respondent”.
The above summary of the issues is taken from the Appellant’s document headed “Submissions in Support of Appeal”. Those matters have been the subject of Submissions in Response by the Respondent filed with the Commission.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator is summarised at paragraph 9 of her ‘Reasons’. That material comprised the totality of evidence before the Arbitrator.
There is available a transcript of proceedings conducted before the Arbitrator on 25 July 2006 which records the submissions made on behalf of each party.
It is to be noted that the report of Bayview Medical Centre dated 25 April 2004 which was relied upon by the Appellant in evidence before the Arbitrator appears to be incomplete. That matter was raised by the Respondent’s Counsel in the course of his submissions before the Arbitrator however no step was taken on behalf of the Appellant to correct the apparent deficiency.
The Appellant, in his undated Statement, describes the classification, location and physical aspects of his work whilst in the employ of the Respondent from the year 1977. That Statement (at paragraph 8) made brief reference to an injury sustained by the Appellant to his shoulders in a fall, the date of which was not specified.
The Appellant addresses the subject of the alleged injury to his back and legs in his Statement between paragraphs 14 and 19:
“14.During the 1980’s I started to notice my back would ache after work. I didn’t think much of it as the work I was doing was fairly heavy. I thought it was just a muscular thing.
15.by (sic) the late 1980’s my back was worse and occurring more often. In 1988 I reported to the works medical centre where I was treated for physiotherapy.
16.Since that time I have had ongoing problems with my back. Sometimes it was good and sometimes it would flare up. When I had the problems with the pain in my back I would report to the works medical centre and sometimes they would give me physiotherapy.
17.I also reported to my own family doctor, Dr Bock at the Bayview Medical Centre.
18.As the years progress my back pain continued to get worse. It got to the point where the slightest thing would put my back out and cause me a lot of pain.
19.I still have constant pain in my lower back. I also have a lot of stiffness. I also have pain going down my right leg.”
The Appellant put in evidence before the Arbitrator correspondence signed by an Officer of the Respondent Company which described the nature of duties which “were involved with Mr Gilarte’s project work”. It is clear that these duties were of a sedentary nature and, as stated in that document, the position was created “specifically to meet Mr Gilarte’s requirements”. There is a handwritten endorsement at the foot of that document which states:
“Duties between 20 February 2001 and 11 October 2002 when employment ceased.”
There was before the Arbitrator a report of Dr Deveridge dated 8 March 2005. That report contains a summary of the Appellant’s relevant history and makes reference to a report from Dr G Ajam and copies of “medical history card and physio treatment sheet (Bluescope Steel (AIS) Pty Limited)”. Dr Deveridge recorded an injury to both the Appellant’s arms and the fact of shoulder surgery, however confined the terms of his report “to his back and leg condition”.
It is noted by Dr Deveridge that the Appellant was “unable to remember any specific incidents of injury” and further notes that reliance was placed upon references to particular matters contained in a report of Dr Ajam. A number of consultations relating to back pain had been noted in that report and, specifically, a notation was made that on 23 March 2000 Dr Ajam saw the Appellant concerning a back injury “that occurred at work 4 months earlier”. Dr Deveridge notes that the Appellant was medically retired on 11 October 2002 by reason of “a combination of back, shoulder, carpal tunnel and heart condition”.
Dr Deveridge noted the symptoms as reported by the Appellant which he experienced in his back and lower limbs. Following physical examination of the Appellant and examination of diagnostic studies including a CT lumbar spine study dated 6 January 2003, Dr Deveridge expressed the following opinion:
“OPINION
Your client has moderate ongoing disability with chronic low back pain, stiffness and radicular type symptoms referred to the lower limbs mainly on the right side. The medical imaging has demonstrated degenerative lumbar spondylosis and disc lesions at the lower two lumbar levels most prominent at L5/S1. This correlates closely with the clinical presentation. It is not possible to determine when the disc lesions developed, but they most probably date back to 1989-1990 when he first developed mechanical low back pain. I believe that these changes have been subject to acceleration and aggravation by the nature and conditions of his employment. On the balance of probabilities, the greater part, if not all, of the back and leg disability is attributable to work injury at Bluescope Steel (AIS) Pty Limited. I did not identify any factors outside the workplace that were likely to have contributed to his current state. ….”
The Appellant also relied upon the contents of a report from Bayview Medical Centre dated 25 April 2004. As noted above that document appears to be incomplete. The report contains a heading “HISTORY transcribed from notes”. That history includes reference to consultations with respect to back pain on a number of occasions between 24 July 1990 and 20 April 2001. There is no reference in that summary to injury occurring to the Appellant’s back in the course of his work other than, as noted apparently during a consultation on 20 April 2001, that the Appellant:
“… mentioned that he injured his back approximately 18 months previously doing the same thing and that he had injured his back at work in the past but did not make a claim”.
That report makes reference to a referral of the Appellant to Dr P Moloney, Neurosurgeon.
The Appellant relied upon the handwritten clinical notes compiled by the Physiotherapist from time to time at the Respondent’s Medical Centre. Those notes appear to relate to attendances by the Appellant between April 1988 and June 1989. Those notes contain a number of references to complaint by the Appellant of back disability and treatment is recorded. Those complaints of back disability were often accompanied by complaints in relation to pain experienced by the Appellant in his neck and shoulder.
The Appellant placed reliance upon the contents of two items of correspondence from his Solicitors to the Respondent the first dated 16 July 2004 and the second being 7 April 2005. The first of those letters appears to be a notice of claim against the Respondent in respect of medical expenses. The correspondence does not identify the nature of the injury but makes reference to a copy of a report by Dr Ajam of the Bayview Medical Centre dated 25 April 2004. That enclosure, which may reasonably be inferred was identical to the document referred to above (paragraph 30) was not attached to the document relied upon.
The second item of correspondence relied upon, namely that dated 7 April 2005, appears to be a notice of claim by the Appellant against the Respondent in respect of a back injury allegedly sustained by the Appellant “as a result of the nature and conditions of his employment …”. The correspondence states that a copy of Dr Deveridge’s report dated 8 March 2005 was enclosed and the quantum of the claim was set forth as being pursuant to section 66 and 67 of the 1987 Act with respect to injury to the Appellant’s back and legs as assessed by Dr Deveridge.
The Respondent declined liability in respect of the claim made on behalf of the Appellant as outlined in the correspondence dated 7 April 2005. A copy of the Respondent’s Solicitors letter dated 1 February 2006 stating such denial of liability was tendered in evidence on behalf of the Appellant.
A report by Dr P Moloney dated 21 May 2003 addressed to Dr Ajam was before the Arbitrator and formed part of the evidence relied upon by the Appellant. Dr Moloney records in that report that he saw the Appellant on 19 May 2003 with respect to his complaint of back pain and right sided leg pain. Dr Moloney further recorded that the Appellant had informed him that he (the Appellant) had been “ on a disability pension since 11 October 2002 because of cardiac problems requiring a triple bypass together with shoulder problems for which he has had operations on both sides and a carpal tunnel syndrome”. A brief history of work as a Crane Driver/Chaser and Computer Operator was noted by Dr Moloney. Dr Moloney stated:
“I think that his back problem could be due to the crane driving/chasing. The changes on the CT scan certainly do not look like degenerative changes but would be more consistent with trauma given that they are at one level.”
Before the Arbitrator was a copy of a handwritten letter of referral from Bayview Medical Centre addressed to Dr Moloney dated 22 April 2003. The document relied upon by the Appellant is an incomplete copy of the original letter and no signature appears by reason of the flawed manner in which the copy was produced. It is reasonable to infer that the author was Dr Ajam given that Dr Moloney addressed his report, produced subsequently, to that Practitioner. The author of that document states that the Appellant had been working as a Crane Driver “for many years” and had “developed a multitude of musculoskeletal problems in his shoulders, neck, wrists and also his back”.
The Respondent placed in evidence before the Arbitrator copies of the Appellant’s Medical History Card with respect to his attendances at the Works Clinic between July 1986 and August 2002. There are numerous entries noted during that period most of which concerned complaints relating to shoulder disabilities. Some of the entries have been obscured during copying process and the handwriting recording relevant history and complaints is often difficult to decipher. It appears from the face of the document that there are no recorded complaints by the Appellant with respect to back or leg injury or disability.
The Respondent relied upon the contents of reports of Dr Bornstein dated 19 December 2005 (four in number) and one dated 27 June 2006. Dr Bornstein recorded in 2005 that the Appellant had been medically retired in 2002 and that he had “heart complaints as well as shoulder problems and back complaints”. Also recorded was the conduct of:
“a triple bypass in 1997, a carpal tunnel syndrome, surgery to both his shoulders he believes for cuff tears in about 1987 and about 1997. He has also complained of problems with his neck.”
Dr Bornstein further notes that:
“This 49 year old, right handed, Level III Process Worker is complaining of lower back pain which was of gradual onset but also his neck.
Around 1990 he states that he was starting to get discomfort which went on for years after that. It has got progressively worse over time and over the last three to four years he finds he can’t walk or sit for protracted periods of time and he will also get pain mainly into the right leg and to a lesser extent into the left leg.”
Dr Bornstein conducted a physical examination and viewed what was described as an MRI scan dated 6 January 2003. Dr Bornstein accepts that the Appellant is genuine in his complaints with respect to his back disability and was of the view that he suffered multi level degenerative disc disease with superimposed protrusions at L4/5 and L5/S1. Dr Bornstein was of the opinion that the diagnosed condition “is almost certainly constitutional in origin …”. Such changes would, in Dr Bornstein’s view, cause pain if the Appellant experienced stress of “the tender area”. Dr Bornstein was of the view that the Appellant’s back disability combined with his other disabilities render him medically unfit for work. Dr Bornstein’s ultimate conclusion appears to be as expressed at paragraph 7 on page 4 of his report:
“7.It is my view that his current incapacity is not as a result of injury sustained during the course of employment with the Respondent. It is likely due to constitutional factors.”
Dr Bornstein in his report of 27 June 2006 makes reference to a lumbar spine CT scan of 6 January 2003 and an x-ray of the lumbosacral spine of 20 April 2001. Dr Bornstein confirmed that he considered that the Appellant was genuine in his complaint but that the problem is constitutionally based and not work related.
The Respondent placed before the Arbitrator two discharge summaries relating to hospitalisation of the Appellant between 27 April 2006 and 12 May 2006. Treatment and investigation described in those documents relates to the Appellant’s reported symptoms of shortness of breath, pain with inspiration and clamminess. These documents are not relevant to any suggested injury to the Appellant’s back.
The Arbitrator had before her two reports from Dr Dunn, Consultant Physician dated 21 March 2006 and 12 December 2003. These documents relate to the Appellant’s cardiac symptoms and contain no reference to any back disability.
The Arbitrator had before her a copy of a CT lumbar spine dated 6 January 2003 signed by Dr Chapman. That document included the following:
“COMMENT
Annular bulging at each level. Small right para-central focal protrusion at L4/5 with a moderate large focal postero-central protrusion at L5/S1. Moderate compression of the thecal sac at this level with some canal stenosis. Bilateral facet joint disease. Stenosis of each L5 exit foramen.
Lumbaristation of S1.”
The Respondent placed in evidence before the Arbitrator a Medical Report and Certificate for Superannuation Disablement Claim prepared on behalf of the Appellant by Dr Ajam. That report dated 9 November 2002 and certificate dated 10 January 2003 was addressed to AMP Life Limited. That certificate and report identified the Appellant’s medical problems giving rise to a claim for benefits against AMP as involving chronic pain in both shoulders, neck, both wrists and especially in the right upper limb. Dr Ajam noted further that the Appellant suffers with ischaemic heart disease and depression. There is no mention in those documents of any disability involving his back or legs.
The Arbitrator had before her a copy of the medical notes relating to the Appellant’s admission to Wollongong Hospital referred to above (at paragraph 41). There is no notation in those notes of any injury or disability involving the Appellant’s back or legs.
There was before the Arbitrator a Statement of Mr Stephan Bergner. That Statement addresses the nature of the duties performed by the Appellant at different stages of his employment and contains an assertion by Mr Bergner that he had “no knowledge of Jose Gilarte having a problem with his back”.
Appellant’s Submissions
As noted above (paragraph 13) the Appellant asserts that the Arbitrator has erred in respect of her finding that the Appellant was “barred from recovering compensation” by reason of his failure to comply with section 261 of the 1998 Act and further erred in finding that “the Worker’s back condition was not caused by his employment with the Respondent”.
At the hearing before the Arbitrator it was argued on behalf of the Appellant that, having regard to the relevant facts, the Commission would be satisfied that the Appellant’s failure to report the subject injury within the time limited by the provisions of section 261 of the 1998 Act was occasioned by “reasonable cause” within the meaning of subsection (4) of that last mentioned section. The Appellant’s Counsel pointed to the evidence of Mr Bergner whose Statement contained the assertion that one of the reasons the Appellant left the company was to assist his wife who at that time had “some medical problems”. Reference was also made, in support of this argument, to the Appellant’s state of health and medical history. Following an attempted summary of matters that were suggested to be relevant Counsel stated (transcript page 10, line 32):
“My submission to you is that there is reasonable cause given the other evidence that you’ve got before you with regard to what was going on in his life at that time such that he may well be justified for not pressing on with the back claim.”
With respect to the issue of ‘injury’ it was put on behalf of the Appellant at the hearing before the Arbitrator that the contents of the physiotherapy notes compiled by the Respondent, the history as recorded in the clinical notes of Dr Ajam’s practice, the views of Dr Moloney and the opinion of Dr Deveridge support the Appellant’s argument that:
“It was the nature and conditions of the work that were making his back worse.”
(Transcript page 15, line 20.)
The Appellant’s submissions in this appeal seek to direct the Commission’s attention to the provisions of section 261(6) of the 1998 Act which provides:
“(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 the worker first became so aware.”
It is argued that the evidence permits a conclusion that the Appellant “reported the injury as soon as he became aware that he had received an injury”. The evidence in support of such a proposition includes reference to the Appellant’s statement that he first noticed back pain “in work in the 1980’s” and that the Appellant “thought this was a muscular pain and did not take it seriously”. Reference is then made in the Appellant’s submission to the reports by the Appellant to the physiotherapy centre of back disability in the years 1988 and 1989. It is those reports that are relied upon in this submission as constituting notice being made when the Appellant first became aware he had received an injury.
The Appellant’s submission with respect to notice proceeds upon a reliance of the provisions of section 261(9) which provides:
“(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 of the injury.”
It is asserted by the Appellant that the reports of back disability to the physiotherapy centre “was sufficient to comply with section 261(9)”.
The Appellant’s submissions on this appeal proceed with the following description as to the nature of the ‘injury’ alleged to have been received:
“The Worker is not alleging that he sustained a frank injury to his back but rather he is alleging injury to his back caused and/or materially aggravated by the nature and conditions of his employment with the Respondent from 1977 to 19 February 2001.”
Reference is made by the Appellant in his submissions to the medical evidence upon which reliance is placed in support of the allegation of injury including that of Dr Ajam (who, it is stated, is the author of the report dated 25 April 2004) and Dr Deveridge. It is submitted that there was sufficient evidence for the Applicant to establish that:
“The Worker sustained an injury to his back during the course of his employment with Bluescope Steel.”
The Appellant submits that the Arbitrator’s Determination “should be overturned” and that findings with respect to notice and injury should be made in the Appellant’s favour and that the matter should be referred to an Approved Medical Specialist for a determination of “the level of permanent impairment resulting from the Worker’s back injury”.
Respondent’s Submissions
At the hearing before the Arbitrator it was argued on behalf of the Respondent that the two issues raised in its defence, namely “notice” and “injury” run “hand in hand in this case” (transcript page 9, line 5). The various medical records which were in evidence before the Arbitrator were the subject of careful analysis by Counsel and it was put in argument that:
“… what happened to him in ’88 for a short time and in ’89 for a period of some five, maybe six, weeks – five weeks anyway – was he had some sort of strain in the region of his low back but nothing else and with no ongoing sequelae. …”
With respect to the issue of ‘notice’ the Respondent, in submissions to the Arbitrator, accepted that the subject injury was one allegedly occasioned by the nature of his work up until a date in February of 2001. Upon that basis it was argued that the relevant three year period stipulated by the provisions of section 261(4) of the 1987 Act terminated in February of 2004. It was further argued that, so far as was relevant, the Appellant had failed to make out a case that his failure to comply with the notice provisions was occasioned by ignorance, mistake or other reasonable cause.
The Respondent’s submissions on this appeal reiterate the assertion that the Appellant has failed to comply with the notice provisions of section 261 of the 1987 Act. The Appellant’s argument with respect to compliance with that last mentioned section having been effected by the reports to the physiotherapy centre in 1988/89 is challenged upon the basis that the Appellant’s allegation of injury involves “the nature and conditions of his employment between 1977 and 19 February 2001”.
The Respondent reiterates those submissions put before the Arbitrator which are recorded in the transcript at pages 15 to 17. Those submissions included (transcript page 16, lines 37 to 43) an argument that any reliance by the Appellant upon the “disease” provisions of the 1987 Act requires proof that the work was “… a substantial contributing factor involved in the case”.
Reference in submissions is made to the absence of corroboration of the Appellant’s allegation of ongoing back problems throughout the period of his employment, the Appellant’s failure to include back disability as a factor in his disablement claim made in 2002 and attention is paid to detail of medical records in support of the submission that “no error of law exists and the decision of the Arbitrator should be upheld”.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
The Arbitrator’s ultimate conclusion with respect to the issues of ‘notice’ and ‘injury’ is to be found at paragraph 24 of her Reasons where it was stated:
“24. Having reviewed all of the material carefully, I am not satisfied that the Applicant has demonstrated a reasonable cause to explain his failure to make his claim within the prescribed period and accordingly, the Applicant’s claim must fail. I am satisfied that the reason the Applicant did not make his claim within the prescribed period because [sic] it was not work related.”
Did the Arbitrator Err in Her Finding as to ‘Notice’?
As noted above the Appellant at the hearing sought to rely upon the provisions of section 261(4) of the 1987 Act to resist the defence as to ‘notice’ as raised on behalf of the Respondent. Submissions in support were, in my view, deficient in that no attention was given to the precise terms of the relevant section and, in particular, no analysis was made of the relevant facts upon which the Appellant relied.
It is necessary to identify with precision the injury alleged by the Appellant. It seems reasonably clear from the manner in which the alleged injury was particularised in the Appellant’s original Application, the manner in which the matter was conducted before the Arbitrator and the submissions made on behalf of each party that what was alleged was an injury within the meaning of section 4(b) of the 1987 Act, that is that the Appellant by reason of repeated trauma in the course of his employment had suffered a back injury being a disease either caused and/or materially aggravated by the conditions of his work. That being so the Arbitrator, in my view, was correct in impliedly treating the relevant date of injury for the purposes of ‘notice’ as being a date in February 2001. Whilst the Arbitrator in her Reasons has not made a specific finding as to the relevant date of injury it appears (at paragraph 20) that she had accepted the Respondent’s submission with respect to the relevant chronology.
It is my opinion that the Arbitrator’s conclusion with respect to the defence raised founded upon ‘notice’ was correct however the reasons expressed failed, as did the submissions of the Appellant, to address the facts relevant to the provisions of section 261 of the 1998 Act.
Section 261 of the 1998 Act provides as follows:
“261 (1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(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 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(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 the worker first became so aware.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(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 of the injury.”
The Arbitrator in the course of her Reasons appears to have accepted that there was available to the Appellant, for the Commission’s consideration, an argument that failure to give notice within six months as prescribed by section 261(1) of the 1998 Act was occasioned by “reasonable cause”. The only evidence as to formal ‘notice’ were the two items of correspondence from the Appellant’s Solicitors to the Respondent, the first dated 16 July 2004 and the second being 7 April 2005. On this appeal it has been argued, as noted above, that notice given to the physiotherapy centre in the years 1988 and 1989 constituted evidence of notice as required by that provision.
No argument has been advanced on behalf of the Appellant either before the Arbitrator or on this appeal that the letter dated 16 July 2004 may constitute notice as required by the 1998 Act. I note, in particular, that no reliance has been placed upon the provisions of section 261(3) of the 1998 Act.
Whilst not expressly stated by the Arbitrator it is clear from her Reasons that she has accepted that relevant notice was first given in the correspondence dated 7 April 2005. Upon the assumption that the Arbitrator had, whilst unstated, accepted that the relevant date of injury was February 2001 it may be seen that the notice given was not only outside the period as prescribed by subsection (1) of the aforementioned section but also outside the three year period provided for in subsection (4) of that section. In those circumstances a determination by the Arbitrator of the operation of that section in the context of the present facts required attention to be given to the provisions of section 261(4)(b). That is, consideration needed to be given to the existence or otherwise of evidence that the subject injury had resulted in “serious and permanent disablement” of the Appellant. This question was not addressed by the Arbitrator in the course of her Reasons. That omission in my view constitutes error requiring review.
Did the Arbitrator Err with Respect to her Finding as to ‘Injury’?
The Arbitrator’s Reasons do not contain a precise statement with respect to the question of whether the Appellant sustained an injury as alleged. It was common ground between the parties that the Appellant suffers from a back disability and the question for determination before the Arbitrator was one of ‘causation’.
The Arbitrator (at paragraph 22 of her Reasons) following a summary of medical history records which were in evidence before her, stated:
“There is no evidence to support the assertion that these incidents are work related.”
At paragraph 24 of her Reasons the Arbitrator, as above noted, concluded:
“I am satisfied that the reason the Applicant did not make his claim within the prescribed period because [sic] it was not work related.”
It is implicit in the last mentioned finding that the Arbitrator was not satisfied that any back disability was causally related to his work.
The Appellant’s submissions with respect to the issue of injury raised on this appeal do not seek to identify any error of fact or law nor as to exercise of discretion on the part of the Arbitrator. Reference is made to the medical evidence before the Commission and an attempt is made to reiterate arguments which were put before the Arbitrator at the hearing. Following the Appellant’s summary of relevant medical material the submissions contain an assertion that “there was sufficient evidence for the Applicant to establish that … the Worker sustained an injury to his back during the course of his employment with Bluescope Steel”.
I am of the opinion that the Arbitrator’s conclusion as to the question of ‘injury’ is correct. The Appellant in his submissions has not sought to challenge the Arbitrator’s reasoning process, there is no suggestion as to error of law and the only discernable argument is that the Arbitrator erred in her finding of fact with regard to this issue. I am of the opinion that the Arbitrator’s conclusions were open to her on the evidence and that the Appellant has failed to establish any error requiring review of her determination of this issue.
The Arbitrator’s conclusion that the Appellant’s back disability is not causally related to his work constitutes, in my view, a finding that no injury in any relevant sense has been proven by the Appellant, and the Respondent is entitled to an award in its favour. Notwithstanding that determination and its inevitable consequence I consider it appropriate to review the Arbitrator’s determination of the issue of ‘notice’.
The finding by the Arbitrator, implied by her Reasons as recorded, as to the date of the alleged injury being February 2001, is not challenged by the Appellant. In that circumstance it was incumbent upon the Appellant to give notice of the subject injury within six months of February 2001. There is no evidence that notice in any relevant sense was given within that six month period.
Reliance by the Appellant upon evidence concerning reports of back disability to the physiotherapy centre in 1988 and 1989 cannot, in my view, be treated as compliance with the notice requirements. I reach this conclusion without addressing the question as to the availability of this argument given that the Appellant failed to raise the point in submissions before the Arbitrator.
It is my opinion that the Appellant’s arguments founded upon the provisions of section 261(6) should fail. There is no evidence as to the date upon which the Appellant first became aware of injury. The Appellant’s submissions rely upon inferences to be drawn from the evidence however there is no direct evidence of this matter of fact from the Appellant himself or any other source. My conclusion with regard to this matter is reached without consideration of the availability of such argument given that it was not raised before the Arbitrator.
The Appellant further argues that his reports of injury to the Respondent’s medical centre constituted compliance with the notice requirements of the 1998 Act and makes reference in particular to section 261(9) thereof. This submission is not supported by any analysis of the state of the evidence and it is my view that the written record held by the Respondent with regard to treatment rendered to the Appellant at the medical centre is incapable of being construed as being notice of injury, that is the alleged injury as pleaded in the Appellant’s original Application. I reach this conclusion without addressing the question as to whether such argument was available on this appeal given that the Appellant failed to raise this issue at the hearing before the Arbitrator.
The Appellant’s argument as to “reasonable cause” for failure to give notice must fail given that there is no evidence nor argument advanced on behalf of the Appellant that the alleged injury resulted in “serious and permanent disablement” of the Appellant. Such evidence was required having regard to the relevant chronology of events and was needed to found an argument that the Commission’s discretion as granted under that subsection be exercised in favour of the Appellant.
It may be seen that, for the reasons expressed above, I respectfully agree with the ultimate conclusions reached by the Arbitrator. As the Respondent has succeeded in its defence of both the Application and Appeal it is entitled to an award in its favour. The formal order as found in the Certificate of Determination paragraph (i) constitutes a finding on the question of liability. That finding is here confirmed however I consider it appropriate to revoke the form of the determination by deletion of paragraph (i) and substituting same by providing for an award for the Respondent.
DECISION
The appeal is unsuccessful. For the reasons here stated the finding by the Arbitrator recorded in paragraph (i) of the Certificate of Determination dated 2 August 2006 is revoked and the following order made:
“ (i) Award for the Respondent.”
Paragraph (ii) of the Arbitrator’s determination dated 2 August 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Kevin O’Grady
Acting Deputy President 26 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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