Goodwin v Arrowfield Wines Pty Limited
[2006] NSWWCCPD 165
•27 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Goodwin v Arrowfield Wines Pty Limited [2006] NSWWCCPD 165
APPELLANT: Anthony Scott Goodwin
RESPONDENT: Arrowfield Wines Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC18724-05
DATE OF ARBITRATOR’S DECISION: 14 February 2006
DATE OF APPEAL DECISION: 27 July 2006
SUBJECT MATTER OF DECISION: Interlocutory orders; leave to appeal; deemed date of injury; section 16 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners, Lawyers
Respondent: Bartier Perry, Solicitors
ORDERS MADE ON APPEAL: 1. Leave to appeal against the decision of the Arbitrator dated 14 February 2006 is refused.
2. The matter is remitted to the Arbitrator to deal with outstanding issues.
3. Each party to pay his/its own costs of the appeal.
BACKGROUND TO THE APPEAL
Anthony Scott Goodwin (‘the worker’) was employed by Arrowfield Wines Pty Limited (‘the employer’) as a labourer and suffered injuries to his back on 25 October 1996 and 25 October 2001 whilst so employed. A claim for compensation was submitted to CGU Workers Compensation (NSW) Limited (‘the insurer’) which, it appears, accepted liability and commenced payments of compensation.
Proceedings were brought in the Compensation Court of New South Wales to recover lump sum compensation under section 66 and section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) (matter No. 10472 of 2002). In those proceedings, Terms of Settlement dated 1 July 2003 were signed on behalf of the worker and the employer which provided for an award as follows:
(a) 10% permanent impairment of back – $6,000.00;
(b) 2.8% loss of use of the right leg at or above the knee – $2,100.00;
(c) 2.8% loss of use of the left leg at or above the knee – $2,100.00;
(d) section 67 – $1,800.00.
On 23 March 2005 the worker was seen by a sexual health physician, Dr Michael Lowy, at the request of the worker’s present solicitors. That doctor assessed permanent impairment of the worker’s sexual organs at 25%.
On 22 March 2005 Dr Grahame Mahony, an orthopaedic surgeon, examined the worker at the request of the same solicitors and gave reports assessing impairment of the back as well as loss of use of the right and left lower limbs and also sexual impairment. Those assessments were substantially in excess of the figures agreed in the Terms of Settlement of 1 July 2003 referred to above.
On 20 July 2005 the worker’s solicitors wrote to the employer and also to the insurer making a claim for further compensation and enclosing a draft Application to Resolve a Dispute. Weekly compensation was sought from 25 December 2001, together with sums under section 66 representing 35% permanent impairment of the back and 15% loss of use of the right leg. A further claim was made under what is termed “new section 66”, being in respect of 10% of the left leg and 30% loss of sexual organs, together with a further sum for pain and suffering of $40,000.00.
It is not clear that the insurer responded to this claim however, the Application to Resolve a Dispute was registered with the Workers Compensation Commission (‘the Commission’) on 3 November 2005. That application relied upon the two injuries of 25 October 1996 and 25 October 2001, together with the disease provisions of the 1987 Act, that is, sections 15 and 16. It was stated that the deemed date of injury was 25 October 2001.
A statement of the worker dated 19 December 2004 was attached to the Application to Resolve a Dispute. The worker stated that he was receiving workers compensation at that time. He began working with the employer in 1993 and described his duties, namely tractor driving, constructing new vineyards, replacing posts, trellising, planting, spraying the vines using a tractor, pruning and harvesting. He says this was often a heavy job and, depending on the season, he would often spend a lot of hours sitting in a tractor driving over rough and uneven surfaces. He described the injury of 25 October 1996. He had been driving a small tractor with a disc plough attached. After 1½ days doing this, his back became uncomfortable and when he got up from the tractor he felt a sharp lumbar pain. It seems that he had only half a day off work following that injury and continued to have back pain thereafter. He worked for the employer up until 1998 in the same duties. The worker then went to work for the proprietors of another vineyard doing similar work up until June or July 2000. In July 2000 the worker returned to the employer on a casual basis up until the last day that he worked, which is said to be 23 December 2001.
On 25 October 2001 he was driving the same tractor and suddenly developed what he described as “really bad back pain”. The worker was then off work until approximately 1 November 2001 and he then worked at his normal duties until 23 December 2001. On 21 January 2002 the worker returned to work but was suffering constant pain. He told the manager that his back was not better and he was not able to continue on working. It is not clear whether the worker did in fact perform any work that day or not.
The Application to Resolve a Dispute was allocated to a Commission Arbitrator who conducted a conference by telephone on 2 February 2006 in an attempt to resolve the matter. The employer raised non-compliance with section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). That is, a claim for compensation in respect of impairment of sexual organs had not been made within six months after the injury happened. The Arbitrator on 14 February 2006 determined that the claim in respect of the worker’s sexual organs was within time since the injury was deemed to have occurred on 20 July 2005 when a claim was made in respect of it. The claim for permanent impairment was referred to an approved medical specialist.
It is from this determination of 14 February 2006, as to the deemed date of injury in relation to the claim for impairment of the worker’s sexual organs, that the worker sought leave to appeal by application lodged on 6 March 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 14 February 2006 records the Arbitrator’s orders as follows:
“1.That the claim for whole person impairment as a result of injury to the applicant’s sexual organs is admitted and the injury is deemed to have occurred on 20 July 2005.
2.That the Applicant’s claim for permanent impairment lodged on 3 November 2005 be referred to an Approved Medical Specialist.”
The findings of the Arbitrator in making this determination are relatively short and I will set them out in full hereunder:
“32.I did not have the advantage of seeing the applicant answer questions but I am satisfied that he answered truthfully without any attempt to improve his case notwithstanding that there was enough said during the teleconference for him to know the parameters of the dispute. The respondent did not suggest that the applicant was untruthful or exaggerating his impairment.
33.I accept Mr McCabe’s version of the events leading to the claim for impairment of sexual function.
34.The medical evidence when examined chronologically leads inevitably to the conclusion that the sexual impairment did not become noticeable until 2003 and it was probably exacerbated and became significant as a result of the deterioration to his back experienced by the applicant in August 2003.
35.August 2003 was not a time when the applicant was in contact with legal advisers. His original claim was completed and he did not see Mr McCabe until 5 December 2003. In my opinion, his consultation with Mr McCabe in November 2003 supports the applicant’s claim that his condition severely worsened in August 2003.
36.There is no evidence and, indeed, no claim that the applicant suffered a frank injury to his sexual organs. Rather his injury is one that falls within the definition of disease in section 16 of the 1987 Act as it consists of the aggravation or exacerbation of a disease. The impairment is one that has arisen as a result of the injury aggravated as a result of the worsening condition of the applicant’s back and leg.
37.My conclusion is supported by the report of Dr Mahony of 22 March 2005 quoted above.
38.The date that the applicant is taken to have received an ‘injury’, for the purpose of the Workers Compensation Act (the 1987 Act and the 1998 Act), is either at the time of his incapacity or at the time he made the claim.
39.‘Incapacity’, means ‘total or partial incapacity for work’ as per section 33 of the 1987 Act. Mr Goodwin does not claim to have suffered incapacity for work as a result of this injury. This does not automatically result in a denial of any claim to compensation (Gow v Patrick Stevedores [2002] NSWCCR 60). He ceased work in 2002 due to his back and leg injuries and has not claimed any incapacity for work as a result of the impairment of his sexual function. Mr Goodwin’s injury therefore falls to be determined pursuant to section 16(1)(a)(ii), namely the date that his injury was ‘deemed to have happened’ is the date he made the claim, that is, 20 July 2005.
40.Mr Goodwin has therefore satisfied s261 of the 1988 (sic) Act and consequently the next step in these proceedings is to refer the Application to an Approved Medical Specialist and I shall do so in accordance with the agreement of the parties at the teleconference.”
It should be noted that the deterioration in August 2003 referred to by the Arbitrator was spontaneous and without any obvious cause.
ISSUES IN DISPUTE
The issue in dispute in the appeal is:
(a)Whether the Arbitrator erred in selecting the deemed date of injury pursuant to section 16 as 20 July 2005 rather than 25 October 2001 or 23 December 2001. This is said to affect the worker’s entitlement to lump sum compensation under section 66 of the 1987 Act.
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.
That section speaks of “the amount of compensation at issue on the appeal”. That amount must be at least $5,000.00 and at least 20% of the whole amount awarded in the decision appealed against. There has of course been no amount awarded in this matter so far. I note what was held by Deputy President Byron in Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 regarding section 352(2)(b) of the 1998 Act. Nonetheless that does not prevent the question being asked under section 352(2)(a) whether the amount of compensation at issue on the appeal is at least $5,000.00. The Arbitrator’s decision as to the deemed date of injury is said to affect the worker’s entitlement to lump sum compensation under section 66. Precisely what effect this decision has upon the worker’s entitlement, if any, is not stated.
Accordingly, I have considerable difficulty in determining that leave to appeal should be granted since I am not satisfied that the amount of compensation at issue on the appeal is at least $5,000.00. I am reinforced in my conclusion that leave to appeal should be refused by the clear conviction that the Arbitrator was not in error in dealing with the claim under the disease provisions and, in particular, section 16. I do not think that the Arbitrator erred in taking as the relevant date of injury the date when the claim was made for loss of or impairment of the worker’s sexual organs. The decision by the Arbitrator is in accordance with several decisions of the Court of Appeal.
In Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 (‘Alto Ford’) the Court of Appeal considered a claim under section 66 for increased loss of vision. The injury had been suffered many years before, prior to the 1987 Act. The trial judge held that the relevant date of injury was the time when the claim for further compensation was made, notwithstanding that the worker had left the employ of the relevant employer many years before and had suffered incapacity by reason of an injury in 1992. The Court of Appeal held that the trial judge had not erred in finding as she had.
In Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (‘Stone’) a claim was made in respect of skin damage caused by exposure to sun during the worker’s employment. The trial judge had awarded a sum under the Workers Compensation Act 1926 on the basis that the injury occurred before 30 June 1987. The worker’s employment had ended in December 1985. The trial judge considered that there must have been incapacity for treatment prior to 30 June 1987. It was submitted on behalf of the successful appellant/worker that the relevant ‘injury’ was the loss within section 66(1). (In this regard I would also refer to the provisions of section 16(3) of the 1987 Act which are as follows: “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 Court of Appeal referred to Alto Ford as authority for the proposition that section 16 may fix different dates for incapacity and impairment injuries.
The Court of Appeal in Stone held that the injury was deemed to have occurred when the claim for lump sum compensation was made. That case may be distinguished on the basis that no claim for weekly compensation was made. Nonetheless, it is clear that there may be different dates of injury for weekly compensation and lump sum compensation.
DECISION
Leave to appeal against the decision of the Arbitrator dated 14 February 2006 is refused.
The matter is remitted to the Arbitrator to deal with outstanding issues.
COSTS
Each party is to pay his/its own costs of the appeal.
Anthony Candy
Acting Deputy President
27 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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