Guarino v Guideline (ACT) Pty Ltd
[2023] NSWPIC 482
•18 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Guarino v Guideline (ACT) Pty Ltd [2023] NSWPIC 482 |
| APPLICANT: | Riccardo Guarino |
| RESPONDENT: | Guideline (ACT) Pty Ltd |
MEMBER: | Diana Benk |
DATE OF DECISION: | 18 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; liability was declined by the insurer on the grounds the applicant had not complied with the provisions of section 261; Held – the applicant’s failure to make a claim within time was occasioned by ignorance, mistake or other reasonable cause. |
| DETERMINATIONS MADE: | The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder) and cervical spine arising out of injury on 26 June 2020. 2. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
Guideline (ACT) Pty Ltd (the respondent) denied liability for alleged injuries sustained by Riccardo Guarino (the applicant) in a motor vehicle accident on 26 June 2020. An Application to Resolve a Dispute (ARD) was filed in the Personal Injury Commission (Commission).The matter progressed through the usual pathways ultimately proceeding to Arbitration on 6 September 2023 where I was informed, after conciliation, the only issue that remained in dispute was a threshold issue pertaining to s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)and pending my findings, the matter would need to be referred to a Medical Assessor to assess impairment in response to the claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Grimes of counsel, instructed by Mr Nelson, appeared for the applicant, who was present. Mr Barnes of counsel appeared for respondent, instructed by Ms Munro. Ms Brassington of EML was also present.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) written submissions on threshold issues by both the applicant and respondent, and
(d) Application to Admit Late Documents containing a supplementary statement of the applicant.
CONSIDERATION
The issue before me is now a narrow one, being confined to the interpretation of s 261 of the 1998 Act and specifically how it applies to the circumstances of this case.
Section 261 of the 1998 Act relevantly states;
“261 Time within which claim for compensation must be made
(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….
(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…
(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.”
As the applicant failed to make a claim within the prescribed time period, I must now decide whether the delay was occasioned by ignorance, mistake, absence from the State or other reasonable cause.
The applicant’s evidence
The applicant was not cross examined, therefore his reasons for delay are extracted solely from his statement dated 18 August 2023 and specifically paragraphs 8, 9, 10 and 17 wherein he stated (unedited);
“(8) I first obtained the advice of lawyers in April 2021. I met with Mark Nelson and John Little of BPC Lawyers and Maliganis Edwards Johnson respectively on 15 April 2021.
(9) I was provided written advice of my workers compensation rights under the NSW scheme in April 2021
(10) I gave Mark Nelson of BPC Lawyers formal instructions to act on my behalf on
4 November 2021.(17) I understand that there are concerns regarding the delay in lodging my NSW workers compensation claim. I was unaware and did not know of my rights and obligations under the NSW scheme until I met with solicitors in April 2021.”
Paragraphs 4, 5 and 6 of the statement refer to the applicant’s action taken immediately following the accident to lodge a claim for compensation on the ACT Workers Compensation insurer which was subsequently accepted but ultimately denied on 8 April 2021. Being concerned about his financial future, the applicant approached solicitors to obtain advice about the denial of his claim about one week later.
Submissions by counsel
Written and oral submissions on behalf of the respondent are summarised as follows:
(a) section 261 (1) of the 1998 Act operates to preclude the applicant from recovering compensation unless the requirements of sub-section 261(4) are fulfilled;
(b) the applicant admits that he did not submit his NSW Compensation Claim until some seven months after obtaining legal advice and over nine months since the denial of liability by the GIO;
(c) that I must carefully consider the definition of ‘ignorance’ and was referred to the matter of Hou v Zhen Qi Hou Pty Ltd [2002] NSW PICPD 6 (Hou) and specifically here in circumstances where the applicant has failed to discharge the burden of proof to show that there had been ‘ignorance’ on his part. The circumstances of this case have some distinguishing but also similar characteristics;
(d) that it must be inferred the applicant had been aware of his ability generally to bring a workers compensation claim, noting he had made a claim on the ACT insurer shortly after the injury and so his submissions in relation to ignorance are not persuasive, and
(e) the respondent accepts that there is no issue with the applicant’s credit… ‘he is a man of outstanding character’.
Written and oral submissions on behalf of the applicant are summarised as follows:
(a) there has been no request to cross examine the applicant and so prima facie there is no reason not to accept the applicant’s evidence particularly in paragraph 17 of his statement that he was unaware of his rights and obligations under the NSW Scheme;
(b) if I adopt the respondent’s view of the applicant’s credibility, given there is no contrary evidence to rebut his claims of ignorance, the applicant must succeed;
(c) the accident/injury occurred on 26 June 2020 in the ACT at which time a claim was made on the ACT insurer – GIO without delay and was accepted. As a result, s 261 (1) of the 1998 Act has been complied with despite not making the claim on the respondent’s insurer in these proceedings;
(d) following denial of liability by the ACT insurer in April 2021, the applicant sought legal advice promptly. The applicant submits that the delay in lodging a claim on the NSW insurer was due to reasonable cause as at all times he had understood that the ACT GIO was the correct insurer as his accident occurred in the ACT. Further, the applicant submits that his failure to make the claim within six months was due to ignorance of his rights and obligations and failure to appreciate his rights under the NSW Scheme, and
(e) the facts of this case can be distinguished from Hou on a number of levels as in that case the applicant was a working director who obtained advice from his accountant, personally paid premiums and knew of his obligation to have workers compensation coverage. The applicant in that case also obtained medical evidence and discussed with his treating practitioners the possibility of lodging a workers compensation claim within the relevant period. Further, the significant issue in that case was credibility.
FINDINGS AND CONCLUSIONS
In this case, there is no dispute, and I find the applicant did not submit a claim for compensation on the NSW workers compensation insurer within six months.
Section 261 of the 1998 Act places a time restriction on making claims. The provisions are strict however there is a discretionary clause that enables an extension of time where it can be shown that the failure to make a claim within six months is occasioned by ignorance.
The definition of ignorance has been the subject of much debate within this jurisdiction.
I understand that it has been defined as:“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”[1] [my emphasis].
[1] Gregson v L & MR Dimasi Pty Ltd, [para 61] [2000] NSWCC 47; 20 NSWCCR 520.
Submissions of counsel were compelling. The respondent maintains the applicant cannot claim ignorance as he obtained legal advice and did not lodge his claim within six months. Further, the respondent infers that as the applicant had lodged a previous claim in the ACT that he was conversant with requirements relating to compensation. The respondent also asks me to take on board and indeed following the reasoning, particularly with regards to ‘ignorance’ in the matter of Hou as some of the circumstances of this case are similar. In short, he has not discharged the onus.
The applicant maintains credit has not been challenged and nor was there a request for cross examination. The applicant admits he received legal advice but at no stage is there any evidence that he was advised of his obligations, specifically with regards to time frames found in s 261. It follows that ‘ignorance’ was the cause for his delay. The onus has been discharged by the applicant and his evidence is uncontested. The applicant could have argued age, ethnicity, limited education and language barriers prevented earlier claims, all relevant, however, it was his lack of knowledge of his rights and obligations, that is, ‘ignorance’ of the requirement of the Act that resulted in the delay in lodging his claim on the NSW insurer and this was the sole ground he relied on.
I can’t speak for those that drafted the legislation, but it is apparent the legislators sought to protect the rights and interests of workers in circumstances where they are ‘ignorant’ of the complexities of the NSW Workers Compensation System, hence the discretion to extend time to lodge a claim found in sub-section 261(4).
Here, the applicant lives in NSW but sustained injury in the ACT. He notified his employer of his injury, and a claim was made on the ACT insurer, GIO. That claim was accepted but ultimately rejected following a medical assessment. The evidence reveals that the applicant did not sit on his hands and immediately following the denial of liability on 8 April 2021 sought legal advice with such advice being obtained about one week later on
15 April 2021. It is undisputed and the applicant confirms that he obtained advice about his ability to make a claim in NSW but there is no evidence that he was advised of the time frames and obligations to do so within six months. Given the history of obtaining prompt legal advice following the declinature of his ACT claim, I have no doubt that the applicant would have immediately actioned any advice to ensure compliance with the Act had he been made aware. I must for this reason conclude, that ignorance was responsible for the delay in lodging the claim. I further find the applicant to have been credible in his statements throughout these proceedings. It follows that as ‘ignorance’ has been established, s 261(4) is satisfied.The respondent’s submissions were compelling and likely to have been adopted had the facts of the case differed and had credibility been at issue. However, the evidence results in a finding that the applicant was ignorant of his rights and obligations under the Act, and further I find that this is the only reason for his delay in submitting his claim.
SUMMARY
I find that the applicant has discharged his burden and has satisfied me that his failure to lodge a claim was solely occasioned by ignorance, thereby allowing an extension of time with reference to the Act. In short, I find in favour of the applicant. As there are no other matters that I am required to determine, the Commission will accordingly make the findings and orders set out on page 1 of the Certificate of Determination.
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