Gray v United Disability Care Pty Ltd
[2024] NSWPIC 648
•22 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gray v United Disability Care Pty Ltd [2024] NSWPIC 648 |
| APPLICANT: | Sharon Mariee Gray |
| RESPONDENT: | United Disability Care Pty Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 22 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; the applicant conceded that she had suffered incapacity from a date earlier than the date on which the claim for lump sum compensation was made; however, the applicant claimed that the date of injury for the purpose of the lump sum claim was the date on which such claim was made; the respondent claimed that the date of injury was the earlier date of incapacity, relying on what the Court of Appeal decided in Haddad v The GEO Group Australia Pty Ltd (Haddad), and members of the Commission decided in Ellis v Dontarna Pty Ltd and Razmovski v NIB Health Funds Ltd; earlier authorities, including Alto Ford Ltd v Antaw, SAS Trustee v O’Keefe, and Inghams Enterprises Pty Ltd v Thoroughgood (Thoroughgood) referred to; Held – consistent with Haddad and Thoroughgood, the date of incapacity was the correct date of injury for the purpose of the claim for lump sum compensation; respondent ordered to pay lump sum compensation having regard to the earlier date of incapacity. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained psychological injury arising out of or in the course of her employment with the respondent in or about October 2021. 2. The respondent is to pay the applicant $60,450 compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 as a result of such injury. |
STATEMENT OF REASONS
BACKGROUND
Sharon Maree Gray (the applicant) claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for psychological injury arising out of or in the course of her employment as a support worker for United Disability Care Pty Ltd (the respondent), deemed to have occurred on 6 February 2024.
The respondent does not dispute that the applicant sustained psychological injury. The dispute in the current proceedings is as to the date of such injury, having regard to the recent Court of Appeal decision in Haddad v The Geo Group Australia Pty Ltd,[1] and a decision of Principal Member Harris in Ellis v Dontarna Pty Ltd.[2]
[1] [2024] NSWCA 135 (Haddad).
[2] [2024] NSWPIC 513 (Ellis).
The applicant was independently medically examined by medico-legal experts appointed by the applicant and the respondent who both agreed that she had sustained 22% whole person impairment (WPI) as a result of psychological injury. There is no issue as to that degree of WPI.
The applicant made a claim for lump sum compensation by way of letter dated 6 February 2024 supported by a report of Dr Abdal Khan dated 15 September 2023.[3] The applicant asserts that the date of that letter, being the date that she made a claim for compensation with respect to the injury, is the deemed date of injury in accordance with s 15(1)(a)(ii) of the 1987 Act.
[3] Application to Resolve a Dispute (ARD) p 10.
There is no dispute that the applicant has suffered incapacity since October 2021. This is conceded by her, and forms the basis of the respondent’s submission that the correct date of injury should be deemed to be October 2021.The respondent relies principally on Haddad in support of this position, and in particular on the comments of Griffiths AJA at [80]-[81].
The applicant relies upon earlier Court of Appeal decisions of:
(a) Alto Ford Pty Ltd v Antaw;[4]
(b) P&A Berkeley Challenge Pty Ltd v Alfonzo;[5]
(c) Stone v Stannard Bros Launch Services Pty Ltd,[6] and
(d) SAS Trustee Corporation v O’Keefe,[7]
in support of her submission that the deemed date of injury is the date of her claim for lump sum compensation.
[4] [1999] NSWCA 234 (Antaw).
[5] [2000] NSWCA 214; (2000) 49 NSWLR 481 (Berkeley).
[6] [2004] NSWCA 217 (Stone).
[7] [2011] NSWCA 326 (O’Keefe).
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the correct deemed date of injury for the applicant’s permanent impairment claim in respect of her primary psychological injury should be the date of the permanent impairment claim or the first date of incapacity.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration on 12 November 2024 held via video conference. Mr McManamey of counsel appeared for the applicant briefed by Ms Jones. Mr Stiles of counsel appeared for the respondent briefed by Mr Paterson. Representatives if the respondent and its insurer also attended.
At the preliminary conference held in the proceedings on 8 October 2024 directions were made for the lodgement and service of written submissions in anticipation of the conciliation/arbitration. These have been received and are referred to and summarised hereunder.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attachments;
(c) applicant’s written submissions dated 25 October 2024, and
(d) respondent’s written submissions dated 5 November 2024.
SUBMISSIONS
Applicant
The applicant submits that it is well established that there can be separate dates of injury in respect of a claim for weekly compensation and a claim for permanent impairment in respect of the same disease condition. This proposition was first considered by the Court of Appeal in Antaw.
The applicant notes that Sheller JA said in Antaw that s 15(4) of the 1987 Act provides that a reference to injury includes reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3 of the 1987 Act (compensation for non-economic loss). In that case, which was in respect of a worker’s total or partial loss of sight, the combined effect subs (3) and subs (4) of s 15 means that the condition for the application of subs (1) of s 15 is met. That is, the loss of vision was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is for the purposes of the 1987 Act, if incapacity has resulted and since the worker is alive, deemed to have happened at the time of incapacity; see s 15(1)(a)(i). This incapacity occurred other than for the purpose of s 66, at an earlier date, and for the purpose of s 66, at a later date in accordance with s 15(a)(ii). That is, the time that the worker makes a claim for (lump sum) compensation with respect to the injury.
The applicant notes that the Court of Appeal in O’Keefe (Handley JA, with whom McColl JA agreed) agreed with the approach taken in Antaw.
The applicant notes that in Berkeley, Priestley JA who gave the principal judgement, held that s 16(1) of the 1987 Act, which deals with the aggravation, acceleration, acceleration or deterioration of a disease in terms similar to s 15(1) which deals with the contraction of a disease by gradual process, refers to incapacity creating an entitlement to weekly compensation. His Honour said that s 16(3), the equivalent of s 15(4), appears to serve the function of fixing dates for injuries entitling a worker to compensation under ss 66 and 67.
The applicant notes that in Stone, Handley JA said that even if s 16(1)(a)(i) was capable of operating in that case to fix a date for the worker’s incapacity injury, the Court should nevertheless follow Antaw where the Court specifically held that s 16(1) could fix different dates for incapacity and impairment injuries and, in the latter case the relevant date was the date of claim.
In the same case, Hodgson JA with whom Mason P agreed, said that one must relate the question of the time of death or incapacity under s 16(1)(a)(i) to what is being claimed. The relevant time for a claim for compensation claimed pursuant to s 66(1) of the 1987 Act is the date of claim. Section 16(3) of the 1987 Act means that a claim pursuant to s 66(1) is itself to be treated as an injury, as provided by s 16(3).
In summary, the applicant submits that the abovementioned cases establish that if the claim is for lump sum compensation, any earlier claim for weekly compensation is irrelevant. Any injury by permanent impairment (s16(3)), is deemed to have happened when the lump sum claim is made.
The applicant submits that Griffiths AJA in Haddad did not question the correctness of O’Keefe. His criticism, (at [118] of Haddad), was only that the statement at [96] of O’Keefe went too far, and furthermore, there was no suggestion that there was any error in Antaw, Berkeley or Stone.
The applicant notes that Principal Member Harris in Ellis reasoned that Haddad had overturned the previous decisions in Antaw, Stone and O’Keefe, in that it was said to have held that there is only a different date of injury for permanent impairment where there has been no incapacity resulting from the original injury
The applicant submits that the Principal Member, relying on what is said by Griffiths AJA in the opening sentence of [80] in Haddad, ignores the balance of that paragraph which reconciles the other decisions by agreeing that s 15(1)(a)(ii) is engaged where a disease first causes incapacity and then some time later causes permanent impairment.
The applicant submits that that is the case in the current proceedings and as explained in the other cases, the correctness of which in their outcome was not challenged. That is the consequence of the operation of ss 15(4) and 16(3) that the injury, being the permanent impairment, does not exist until it is assessed, and cannot cause incapacity prior to that date.
The applicant submits that the current case falls squarely within the comments of Griffiths AJA. There is an incapacity from the disease. At a later time, being the time that the impairment is assessed, the disease has given rise to an impairment but no further incapacity. In those circumstances s 15(1)(a)(ii) applies, and the deemed date of injury is the date of claim.
The applicant submits that, properly considered, the decision in Haddad is not authority for the proposition that the deemed date of injury for a claim for permanent impairment compensation is other than the date of claim where there is incapacity. The error made by Principal Member Harris is that he failed to consider ss 15(4) and 16(3), which provide that the injury is the impairment. The correct question is whether the impairment resulted in incapacity, and as explained in Antaw, Berkeley, Stone and O’Keefe, the impairment does not cause incapacity because that exists prior to the date of injury.
For these reasons the applicant submits that the decision in Ellis is wrong and should not be followed.
Respondent
The respondent notes that the issue to be determined is whether the correct date of injury for the applicant’s permanent impairment claim in relation to her primary psychological injury should be the date of the permanent impairment claim or the first date of incapacity.
The respondent notes that both medico-legal experts (Dr Khan and Dr Lim) assessed the applicant as having sustained 22% WPI. As such, there is no dispute regarding the level of impairment and their reports are otherwise of little assistance.
The respondent refers to the reports of the treating general practitioner, Dr Foster, and treating psychologists, Suzan Peak and Lyn Osborne, noting that Ms Osborne in her report dated 21 May 2024[8] confirms that the applicant’s “…psychological condition contributed significantly to the cessation of her employment.”.
[8] Reply p 15.
The respondent notes that the applicant in her statement evidence (dated 5 September 2024) confirms that she last physically went to work in about October 2021 and that she subsequently resigned from her employment in July 2022.[9]
[9] ARD p 3.
The respondent submits that the date of injury for the permanent impairment claim should be deemed to be October 2021, being the first date of incapacity. This is confirmed by the applicant in her written submissions.
The respondent quotes [80]-[81] of Haddad, emphasising what Griffiths AJA says in the first sentence of [80] with reference to Inghams Enterprises Pty Ltd v Thoroughgood.[10]
[10] [2014] NSWCA 166 (Thoroughgood).
The respondent refers to and quotes in part what Principal Member Harris found at [18] and [22] in Ellis.
The respondent refers to a decision of Member Isaksen in Razmovski v NIB Health Funds Ltd,[11] in which Haddad was considered in the context of determining the deemed date of injury for an accepted disease injury in a claim for permanent impairment. Paragraphs 24-27 are relied upon by the respondent. The respondent notes that Member Isaksen referred to earlier Court of Appeal decisions which allowed different dates for a disease injury for claims for incapacity and impairment, but ultimately concluded that he was bound to follow the Court of Appeal’s most recent decision, being Haddad.
[11] [2024] NSWPIC 540 (Razmovski).
The respondent submits that the approach adopted by Principal Member Harris and Member Isaksen is consistent with the Court of Appeal’s reasoning in Haddad.
The respondent submits that the reasoning in Haddad should be applied and that the correct date of injury for the purposes of the permanent impairment claim should be deemed to have occurred at the time the applicant suffered incapacity. This was conceded by the applicant to be in October 2021. As such, the deemed date of injury for the permanent impairment claim should be October 2021.
It follows that the amount payable pursuant to s 66 in respect of 22% WPI would be $60,450.
The respondent concedes that there are cases where ss 15 and 16 can operate such as to result in differing dates of injury, and in particularly looking at decisions like Antaw which deal with situations where there are multiple respondents or employers, and cases where a worker has continued to work and the disease process continues to deteriorate over a period of time. The respondent submits that, obviously, situations will arise where there are differing deemed dates of injury resulting in different employers being exposed to liability.[12]
[12] Transcript 12 November 2024 (T) p 12.15 - 12.25.
Applicant in reply
The applicant submits that in neither its written submissions nor oral submissions has the respondent engaged with the question of the operation of ss 15(4) and 16(3). They are the crucial parts, because they identify what the injury is when applying those sections. They clearly provide that permanent impairment is the injury. The question to be asked is “…what is the injury for the purposes of applying sections 15 and 16 in Haddad.”[13]
FINDINGS AND REASONS
[13] T p 15.15.
Date of injury
The essential element of the applicant’s submission that the date of injury in this matter is 6 February 2024, the date of the letter of claim for lump sum compensation pursuant to s 66 of the 1987 Act, is that s 15(4) or alternatively s 16(3) of that Act create a separate date of injury for the purpose of such claim.
The applicant submits that the respondent has not addressed the operation of those sections in its submissions. The respondent however relies upon the finding of Principal Member Harris in Ellis. At [21] of Ellis the Principal Member addressed the applicant’s submissions in that case which he summarised at [13], including:
(a) “there was no entitlement to impairment compensation until a claim had been made…” [see 13(d)], and
(b) “the incapacity did not result from injury in this case because injury is the notional injury of an impairment.” [see 13(e)].
At [21]-[23] of Ellis the Principal Member stated:
“21. 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.
22. 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.
23. 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. 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.”
In support of the last sentence in [22] of Ellis, the Principal Member relied on what was said by Griffiths AJA at [80] in Haddad. In respect of what is said in [23] of Ellis, the Principal Member relied on what the Court of Appeal said in Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW.[14]
[14] [2020] NSWCA 113 (Hochbaum) at [52].
At [52] of Hochbaum, Brereton JA said (White JA and Simpson AJA concurring):
“Injury and impairment are not necessarily concurrent, and it is well-established that entitlements to compensation such as those created by s 9(1) of the 1987 Act vest upon the occurrence of the injury, even though those entitlements may not be immediately ascertainable. Liability for permanent impairment dates from the injury, regardless of when it is ascertained. In Borovac v Corporate Ventures Pty Ltd t/as Bowsers Ashphalt (‘Borovac’), the worker had suffered injuries to his back in a work accident, and claimed compensation for permanent impairment of his back and for pain and suffering. The degree of permanent impairment was ascertained only after a surgical procedure was performed. The primary judge had awarded interest on the lump sum only from the date of the procedure when the degree of permanent impairment was ascertained, and had regard only to pain and suffering experienced after that date. In overturning this, Clarke JA, with whom Meagher JA agreed, held that the worker’s permanent impairment resulted and dated from the time of the injury, notwithstanding that its degree was not determined until some later time.”
At [80]-[81] of Haddad, Griffiths AJA said:
“80. As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.
81. It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.”
Griffiths AJA went on to discuss GIO Workers Compensation (NSW) Ltd v GIO General Ltd,[15] Antaw, Berkeley, Stone, O’Keefe, and Thoroughgood.
[15] (1995) 12 NSWCCR 187.
As his Honour noted at [120] of Haddad, Thoroughgood concerned a claim for treatment expenses, not a claim for weekly compensation. It dealt with such claim for medical expenses, and whether a claim had been made within the relevant time period.
At [48] in Thoroughgood Basten JA noted, with reference to a statement of Hodgson JA in Stone, that if the claim was for a form of compensation other than for weekly compensation, “the relevant deemed date of injury was… the date of incapacity for which compensation was claimed or entitled to be claimed.”
Any such other claim would include a claim for lump sum compensation, the entitlement for which vests at the time of injury, in accordance with Hochbaum.
In the current proceedings, the applicant was incapacitated and entitled to claim lump sum compensation as at the time of injury, October 2021, notwithstanding the fact that the level of impairment enabling such claim to be made was not determined until a later date.
The applicant concedes that she has suffered incapacity for employment since October 2021. In that circumstance, the correct date of injury is the date from which she suffered that incapacity.
I do not accept in this case that either s 15(4) or s 16(3) of the 1987 Act deem a date of injury as at the date that the claim for lump sum compensation was made.
The respondent in this case also relies on what Member Isaksen decided in Razmovski, in which Haddad was considered in the context of determining the deemed date of injury for an accepted disease injury in a claim for permanent impairment. At [24]-[27] Member Isaksen said:
“24. Haddad involved a dispute regarding a deemed date of injury for an alleged disease injury in a claim for medical expenses, whereas this dispute involves a deemed date for an accepted disease injury in a claim for permanent impairment.
25. Nonetheless, it is clear from paragraph [80] that the Court of Appeal also intended that the approach to be taken to a determination of a deemed date of injury under s 15(1) of the 1987 Act was to include claims for permanent impairment. That approach is ‘to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity’ [at 80].
26. That approach is reinforced elsewhere in Haddad. Griffiths AJA said at [69]:
‘...Putting to one side the circumstance where the disease results in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.’
27. His Honour was even more direct when he said at [105]:
‘It is only if 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.’”
I agree with the approach adopted by Principal Member Harris in Ellis and Member Isaksen in Razmovski as being consistent with the Court of Appeal’s reasoning in Haddad.
The date of injury in this case is the date of incapacity as submitted by the respondent, in or about October 2021.
Compensation payable
The respondent is to pay the applicant $60,450 compensation for permanent impairment pursuant to s 66 of the 1987 Act as a result of psychological injury sustained in or about October 2021.
SUMMARY
The applicant sustained psychological injury arising out of or in the course of her employment with the respondent in or about October 2021.
The respondent is to pay the applicant $60,450 compensation for permanent impairment pursuant to s 66 of the 1987 Act as a result of such injury.
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