Gunnedah Shire Council v Brookes
[2010] NSWWCCPD 68
•28 June 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Gunnedah Shire Council v Brookes [2010] NSWWCCPD 68 | |||||
| APPELLANT: | Gunnedah Shire Council (in the interests of Allianz Australia Workers Compensation (NSW) Limited) | |||||
FIRST RESPONDENT: | Colin Brookes | |||||
SECOND RESPONDENT: | StateCover Mutual Limited | |||||
| FILE NUMBER: | A1-008766/09 | |||||
| ARBITRATOR: | Mr D Nolan | |||||
| DATE OF ARBITRATOR’S DECISION: | 11 February 2010 | |||||
| DATE OF APPEAL DECISION: | 28 June 2010 | |||||
| SUBJECT MATTER OF DECISION: | Disease; deemed date of injury under section 16 of the Workers Compensation Act 1987; Stone v Stannard Brothers Launch Services Pty Limited (2004) 1 DDCR 701 | |||||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Ellison Tillyard Callanan | ||||
| First Respondent: | White Barnes | |||||
| Second Respondent: | Hicksons | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator, dated 11 February 2010, is revoked and the following decision is made in its place: 1. Gunnedah Shire Council, in the interests of StateCover Mutual, is ordered to pay the reasonable medical expenses incurred by the worker, Mr Brookes, in the treatment of his injury, the injury being the aggravation of a disease (skin cancer) to which his employment was a contributing factor. 2. Gunnedah Shire Council, in the interests of StateCover Mutual Pty Limited, is ordered to pay the costs of the appellant, Gunnedah Shire Council, in the interests of Allianz Australia Workers Compensation (NSW) Limited and of the worker, Mr Brookes, of the application and of this appeal. | |||||
BACKGROUND TO THE APPEAL
The respondent, Mr Colin Brookes, was employed by Gunnedah Shire Council (‘the Council’) from 2 April 1986 until his retirement on 1 February 2008. He was then aged 67. For the majority of his employment, he worked in the Parks and Gardens section as a plant operator, maintaining lawns and gardens in public areas.
As a result of exposure to sunlight in the course of his employment, Mr Brookes suffered multiple skin cancers around his face, ears, neck, temple, back and arms. This is not disputed. Nor is it disputed that his employment was a substantial contributing factor to the injuries sustained, namely an aggravation of a disease.
The issue in this case concerns the application of section 16 of the Workers Compensation Act 1987 (‘the 1987 Act’) and the deemed date of injury for the purpose of establishing which of two insurers indemnifying the appellant is liable for the medical expenses incurred by Mr Brookes in the treatment of his injuries.
Gunnedah Shire Council was entitled to indemnity in respect of its liability under the 1987 Act for injuries occurring between 30 June 1987 and 30 June 2004 from the Nominal Insurer by its scheme agent, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) (by the operation of Schedule 6 Part 19A Clause 3 of the 1987 Act).
The appellant was entitled to indemnity in respect of its liability for injury occurring between 30 June 2004 and 1 February 2008, the date Mr Brookes retired, from StateCover Mutual Limited (‘StateCover’), as a specialised insurer.
Mr Brookes has incurred medical expenses in excess of $19,000.00 in the treatment of his injuries between 24 September 2003 and 10 June 2009. His claim for compensation under section 60 of the 1987 Act in late 2008 or early 2009, the precise date of which is unclear, was rejected by both insurers, each alleging the other is liable.
Mr Brookes filed an Application to Resolve a Dispute (‘the application’) in the Commission on 27 October 2009. Whilst he initially claimed weekly payments of compensation and medical expenses, the claim in respect of the weekly payments was discontinued and the matter proceeded in respect of the dispute concerning the expenses claimed under section 60 only. Replies were filed by both insurers on risk, each denying liability for the benefits claim under section 60.
Mr Brookes also claimed lump sum compensation pursuant to section 66 of the 1987 Act. A Medical Assessment Certificate was issued by the Commission on 16 October 2008. Mr Brookes was found to have suffered 13 per cent whole person impairment in respect of his condition. The date of injury for the purpose of the claim under section 66 was deemed to be 1 February 2008.
The matter proceeded to an arbitration hearing on 29 January 2010. Mr Brookes was legally represented and both insurers were separately represented by counsel. Mr Brookes gave brief evidence at the hearing and counsel for both insurers made submissions. The Arbitrator reserved his decision. On 11 February 2010, the Arbitrator issued a Certificate of Determination, together with a Statement of Reasons.
Applying the provisions of section 16 of the 1987 Act, the Arbitrator held that the deemed date of injury was on or about 7 or 8 April 2004, that being the date the worker first ceased work and lost wages as a result of his injuries. On those dates, the worker was absent on sick leave, and was treated by Dr Peek for his skin cancers.
The Arbitrator ordered that the compensation claimed be paid by the insurer “on risk” at the time of the deemed date of injury, namely, Allianz.
The appellant employer, in the interests of Allianz Australia Workers Compensation (NSW) Limited, now appeals that decision.
LEAVE TO APPEAL
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
THE EVIDENCE
Mr Brookes filed an “original statement” on 23 October 2007. The statement was brief and, in a number of respects, incomplete. He stated that he first suffered from skin cancers in about 2004, when skin cancer was diagnosed on his neck. He sought treatment from his general practitioner, Dr R Peek of Darling Street, Tamworth. He was later referred to a surgeon, Dr F Sardelic, also of Tamworth. Mr Brookes stated that he believed he had been off work for two weeks (without stating when) before returning to his old job. He did not make a claim for compensation, and received sick pay.
Mr Brookes made another statement dated 18 February 2008. He said that his retirement was due to his age and not to the effects of the injuries he sustained. He confirmed that the hospital and medical expenses incurred in the treatment of his injuries were consistent with the Medicare statement of benefits. He confirmed he had been paid sick pay during all absences from work and, as he had now retired, there was no point in pursuing his claim for weekly compensation. Consequently, the claim for weekly compensation was discontinued, with leave and without objection.
Mr Brookes gave brief evidence before the Arbitrator on 29 January 2010. He confirmed that he first sought treatment for skin lesions from a general practitioner, Dr Cooke in Port Macquarie, on 23 September 2003. Dr Cooke referred Mr Brookes to Dr Roderick Peek, a dermatologist in Tamworth, whom he saw for the first time on 24 September 2003. Mr Brookes travelled from Gunnedah to Port Macquarie to see Dr Cooke because of the delay in getting an appointment to see a doctor in Gunnedah. Whilst in Port Macquarie, he took the opportunity to take several days of annual leave from 23 to 26 September 2003.
Dr Cooke treated some of the skin lesions then present when he first saw Mr Brookes and before referring him for specialist treatment. There is no report from Dr Cooke in evidence.
Mr Brookes accepted, although he had no independent recollection of it, that Dr Peek’s records showed that, he attended his surgery on 2 October, 19 December 2003, 10 March, 17 March and 8 April 2004. The journey from his home in Gunnedah to Dr Peek’s surgery took about 50 minutes each way.
Mr Brookes accepted that his leave records showed that he had taken two days of sick leave on 7 and 8 April 2004, although he had no specific recollection of it. He agreed with counsel that the treatment he was given by Dr Peek on 8 April 2004 would have taken approximately three hours, including the travelling time to and from his home.
Mr Brookes agreed that he had surgery to his glands in late December 2004, which required a local anaesthetic, and which would have required him to be in the doctor’s surgery for about an hour. He could not recall if he had an anaesthetic during the treatment in April 2004. He said that, if the treatment was to have the cancer on his face “frozen”, he did not require an anaesthetic.
The surgery in December 2004 took the form of a right partial parotidectomy and upper neck dissection performed by Dr Sardelic. The worker was certified by Dr Sardelic as unfit for work from 2 December 2004 to 3 January 2005.
In December 2006, Mr Brookes submitted to an excision of an invasive skin cancer cell on his right cheek by Dr Sardelic. He was incapacitated from 18 December 2006 to 23 March 2007.
In April 2007, the worker commenced four to five weeks of radiotherapy at the Prince of Wales Hospital, which resulted in him being absent from work from 28 April 2007 to 5 June 2007. He was certified unfit for work by a medical officer at Tamworth Base Hospital during this period.
Mr Brookes rejected the proposition that he would have been incapacitated after receiving treatment for his skin cancers in April 2004, even if he had required an anaesthetic. He regarded the treatment in the same way as visiting a dentist (T12.40) and stated that he had been able to work in greater pain than he was in after the treatment (T13.57).
Medical evidence
Dr William Lobel is an Approved Medical Specialist. Mr Brookes was referred to Dr Lobel by the Commission for an assessment of whole person impairment. Dr Lobel issued a Medical Assessment Certificate on 23 October 2008. He certified that Mr Brookes suffered actinic elastosis (solar-induced skin damage) to his face, neck, hands, forearms and legs. He certified that Mr Brookes suffered from 13 per cent whole person impairment. The deemed date of injury for the purpose of the injury was 1 February 2008.
Dr Roderick Peek, dermatologist, prepared a report dated 4 January 2008. He first saw Mr Brookes on 2 October 2003 on referral from Dr David Cooke of Port Macquarie. He recorded Mr Brookes’s history of outdoor work, including farming and driving a concrete truck. For the 21 years prior to his retirement, he worked for Gunnedah Shire Council as a plant operator. This work involved him being outdoors for approximately eight hours each day, mostly operating a tractor to mow public areas, which he felt resulted in him sustaining sunburn on many occasions. He recorded that Mr Brookes only used sunscreen agents on any regular basis in the last three or four years of his employment. He did, however, always wear a hat. When first seen by Dr Peek, Mr Brookes had a number of skin cancers on the right side of his face and on his left hand. He also had numerous solar hyperkeratoses.
Dr Peek noted that, over the last few years (prior to 2008), Mr Brookes had skin cancers removed from his right temple, right cheek, right arm, upper back and left forearm. The most significant of those were “poorly-differentiated SCCs”, which I take it is a reference to squamous cell carcinomas, on his right jawline and right temple, treated in April and July 2004 respectively.
When seen by Dr Peek in October 2004, Mr Brookes had a small, firm lymph node in the right side of his neck. Ultrasound suggested it was a metastatic skin cancer and he was referred to Dr Frank Sardelic. Dr Peek reported that a neck dissection in early December 2004 confirmed the presence of metastatic SCC within the lymph node and parotid gland. Dr Peek stated that Mr Brookes was subsequently reviewed by Dr Sardelic, A/Prof Robert Smee (radiation oncologist, Prince of Wales Hospital) and himself on a regular basis. In December 2004, following a further biopsy, Dr Sardelic excised further squamous cell carcinomas from the right cheek. Mr Brookes subsequently had radiation treatment at Prince of Wales Hospital. Dr Peek regarded the lengthy period of Mr Brookes’s employment with the Gunnedah Shire Council (without differentiating between pre- and post-July 2004) as having undoubtedly aggravated his condition.
A/Prof Robert Smee, radiation oncologist, provided a report dated 25 February 2008. He first examined Mr Brookes on 22 December 2004. He stated that there were two significant events for Mr Brookes in the time that he had been treated by him. First, there was the management of his metastatic squamous cell carcinoma to the lymph node with the right parotid gland from a previously-managed right facial squamous cell carcinoma and, secondly, there was the more recent incision of a multi-focal squamous cell carcinoma of the skin of the right cheek. The former was addressed surgically; the latter by excision and post-operative radiotherapy.
A/Prof Smee noted that Mr Brookes had considerable sun exposure throughout his life, both in the working and non-working environment. He stated that it was the totality of all his sun exposure that created his current circumstance. Any circumstances, be they at work or outside of work, that place the patient out in the sun for significant periods throughout his life increased the risk of developing significant actinic damage, which includes the development of skin cancers. The work environment was a contributing feature, but so was the non-work environment.
StateCover relied on a report of Dr Susan Freeman, dated 27 March 2008. Dr Freeman provided details of the history she obtained and her physical examination. She opined that Mr Brookes’s condition was caused by sun exposure at work. She assessed his whole person impairment at 14 per cent.
Other evidence
The section 74 notice issued by StateCover Mutual on 11 September 2009 initially indicated that it rejected the claim because it had not been lodged within the six months required by section 261 of the 1998 Act. Ultimately, that was not pursued by StateCover. However, it also indicated that the dispute concerned the deemed date of injury which it asserted was 19 December 2003, which was prior to StateCover’s period of risk.
A section 74 notice was issued by Allianz on 11 February 2009. It denied liability, relying on the provisions of section 15(1)(a)(ii) and (b) of the 1987 Act, alleging that, at the time the worker made a claim for compensation, his employer was insured by StateCover which was, according to Allianz, responsible for the claim for medical expenses. Allianz issued a further section 74 notice on 28 April 2009 after reviewing its earlier decision. It confirmed its decision to decline compensation for the reasons stated. On 6 August 2009, a further section 74 notice was issued by Allianz, which again declined liability, relying on both section 15 and 16 of the 1987 Act.
Mr Brookes’s history of claims on the Health Insurance Commission up to 31 October 2008 was in evidence. The treatment of the worker’s condition prior to 30 June 2004, as drawn from the Medicare history statement, is as follows:
Date Doctor Brief Item Description 24.09.03 Dr Cooke Surgery Consultation, Premalignant Skin Lesion 25.09.03 Dr Cooke Surgery, Removal of BCC or SCC 25.09.03 Dr Taylor Pathology 02.10.03 Dr Peek Initial Attendance and removal of cancer 19.12.03 Dr Peek Removal of skin cancer 10.03.04 Dr Peek Removal of skin cancer and biopsy 17.03.04 Dr Peek Subsequent specialist attendance 08.04.04 Dr Peek BCC or SCC
There are numerous attendances throughout the period between 30 June 2004 and 1 February 2008.
Mr Brookes’s leave records whilst in the employ of Gunnedah Shire Council showed his absences prior to 30 June 2004 as follows:
Date Nature of Leave 23.09.03 – 26.09.03 Annual Leave 29.09.03 – 03.10.03 Annual Leave 19.12.03 Sick Leave 10.03.04 Sick Leave 17.03.04 – 19.03.04 Annual Leave 07.04.04 – 08.04.04 Sick Leave
There are also numerous absences from work for which sick leave was claimed after 30 June 2004, up to the date of Mr Brookes’s retirement.
Mr Brookes included in his application a detailed schedule of medical expenses totalling $19,136.99, for treatment between 24 September 2003 and 10 June 2009, together with supporting documents.
Dr Lobel noted the worker required treatment in 2006 for an unrelated condition, namely, for prostate cancer. Mr Brookes required a course of deep x-ray therapy, which I infer accounts for the substantial absences in 2006, although the precise period of incapacity referable to this condition is unknown.
THE ARBITRATOR’S DECISION AND REASONS
The Arbitrator noted that the worker’s claim for weekly benefits had been discontinued. He noted that neither insurer disputed the worker’s entitlement to payment of the claimed expenses under section 60. He noted the parties’ agreement that Mr Brookes sustained skin cancer injuries to his face, ears, neck, temple, back and arms arising out of or in the course of his employment, to which his employment was a substantial contributing factor.
The Arbitrator dealt with the remaining dispute, which concerned which of the two insurers was liable for the medical expenses claimed under section 60. The Arbitrator held that incapacity for the purposes of section 16 was a reference to incapacity for which compensation was claimed. He held that the relevant date was the commencement of the worker’s inability to earn the wages he would otherwise have earned but for the injury, and that this occurred on the day he first ceased work and lost wages, and his claim for weekly compensation commenced. This, he determined, deemed the date of injury for the purposes of section 16 of the 1987 Act, to be on or about 7 or 8 April 2004, when Mr Brookes was absent on sick leave and treated by Dr Peek for significant skin cancer removal. He ordered that the compensation to be awarded to Mr Brookes be payable by the insurer “on risk” at the time, which was Allianz.
RELEVANT LEGISLATION
Section 9 of the 1987 Act provides:
“a worker who has received an injury … shall receive compensation from the worker’s employer in accordance with this Act.”
Section 4 contains a definition of “injury” for the purposes of the Act, as follows:
“injury –
(a)means personal injury arising out of or in the course of employment,
(b)includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …”
Section 15 of the 1987 Act relevantly provides:
“(1) If an injury is a disease which is of such a nature as to be contracted by a
gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii)if the death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in
employment to the nature of which the disease was due …
(3)Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.
(4)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 …”
Section 16 of the 1987 Act relevantly provides:
“(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury – at the time
the worker makes a claim for compensation with respect to the
injury, and(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration …
(3)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.”
SUBMISSIONS – ALLIANZ
Skin disease caused by prolonged exposure to the sun in the course of employment falls within section 16 of the 1987 Act if contracted prior to the commencement of employment, but aggravated by it (Stone v Stannard Brothers Launch Services Pty Limited (2004) 1 DDCR 701 (‘Stone’)).
A/Prof Smee confirmed that the worker’s employment was a contributing factor, but so too was his exposure to the sun in non-work-related environments. Consequently, it is submitted that, as the worker’s employment aggravated his disease, section 16 of the 1987 Act applies.
In Alto Ford Pty Limited v Antaw (1999) 18 NSWCCR 246 (‘Antaw’), the Court of Appeal held that section 15 could operate to:
1. deem one date of injury for the purpose of payment of compensation under section 66 and section 67 of the 1987 Act, and
2. deem another date of injury for the purpose of payment of weekly compensation.
Antaw was approved in Stone by the Court of Appeal, which applied the same reasoning to an injury to which section 16 applied.
The decision in Antaw has been applied in Visy Board Pty Ltd v Ali [2007] NSWWCCPD 22 9 (‘Ali’). In each of the three cases cited, the worker either did not suffer any compensable incapacity or suffered only one period of incapacity.
The Court of Appeal considered a situation where there was more than one period of incapacity in P & O Berkeley Challenge Pty Ltd v Alfonzoand ors (2004) 49 NSWLR 481; 20 NSWCCR 554 (‘Alfonzo’). Allianz submits that the decision in Alfonzo is a clear acceptance by the Court of the fact that the aggravation of a disease, which is contributed to by employment, may result in more than one period of incapacity, and that liability to pay weekly compensation for all periods of incapacity resulting from the aggravation of disease is not imposed on the employer/insurer at the time the worker was first incapacitated, but on the employer/insurer at the time of each period of incapacity of the worker (depending when that incapacity occurs).
Allianz submits that section 16 does not deem only one injury to happen when the worker is first incapacitated, having the effect that the worker may not suffer further injury deemed to happen on a later date. The section deems injury to have happened at the time of each incapacity.
Where the worker is in employment which contributes to the aggravation of a disease, the worker suffers injury (being an aggravation of the disease) and that injury is deemed by section 16(1)(a)(i) to happen at the time when incapacity occurs or, in the absence of incapacity, the date of claim. Where the worker continues in that same employment, and the worker suffers a further injury (being an aggravation of the disease), that further injury is deemed by section 16(1)(a)(i) to happen at the time that the incapacity next occurs.
Allianz submits that the finding by the Arbitrator that there was only one injury in the nature of aggravation of disease, the date of which was fixed by the first date of incapacity found by him, was an error. It submits that the Arbitrator should have found that the worker suffered deemed injuries by section 16(1)(a)(i) to have happened:
·in December 2004, when Dr Sardelic carried out a right partial parotidectomy and upper neck dissection, resulting in incapacity from 1 December 2004 to 31 December 2004;
·in December 2006, when Dr Sardelic excised an invasive skin cancer cell on the worker’s right cheek, which resulted in an absence from work from 18 December 2006 to 23 March 2007, and
·in April 2007, when the worker commenced four or five weeks of radiotherapy at Prince of Wales Hospital, which resulted in his absence from work from 28 April 2007 to 5 June 2007.
Allianz submits that the Commission should find that the worker is deemed by the application of section 16(1)(a)(i) to have suffered injury on each of these dates, as on each of these dates the worker ceased work to undergo treatment which was incapacitating in its nature.
It is submitted that, although the worker abandoned his claim for weekly compensation, the fact that he abandoned the claim does not affect his entitlement to an award of weekly compensation for incapacity.
Allianz submits that the Arbitrator was in error in making a finding that the injury was deemed to have occurred in April 2004 because:
1. There is no evidence from the worker or Dr Peek as to the nature of the treatment the worker received in April 2004;
2. The worker did not, in his Medicare list of benefits attached to the Application, identify the treatment with Dr Peek in April 2004 as being treatment which resulted from injury;
3. There is no evidence from the worker or from Dr Peek that the treatment which the worker received in April 2004 was causative of incapacity;
4. The worker made no claim for weekly compensation for any period in April 2004;
5. There was no evidence that the worker was incapacitated in April 2004, and
6. In the absence of evidence of incapacity in April 2004, it was not open to the Arbitrator to find injury in April 2004 pursuant to section 16(1)(a)(i).
Further, it is submitted, if the worker suffered the injury before 30 June 2004 and one or more further injuries after 30 June 2004, the Arbitrator should have apportioned liability under section 22 of the 1987 Act.
Relief sought
Allianz submits that the following decision should be substituted for the Arbitrator’s decision:
(a) a finding that the respondent worker was not incapacitated as a result of injury prior to 30 June 2004;
(b) a finding that the respondent worker was incapacitated as a result of injury after 30 June 2004; in December 2004; from December 2006 to March 2007; and from April 2007 to June 2007;
(c) a consequent determination that the dates of injury deemed by the application of section 16 of the 1987 Act are 1 December 2004, 18 December 2006 and 28 April 2007, and
(d) a consequent order that any compensation payable under section 60 is payable by StateCover Mutual Pty Limited.
In the alternative:
(a) a finding that the respondent worker was incapacitated as a result of injury prior to 30 June 2004;
(b) a finding that the respondent worker was incapacitated as a result of (further) injury after 30 June 2004 in December 2004, and from December 2006 to March 2007, and from April 2007 to June 2007;
(c) a consequent determination that there are at least two injuries, one of which is deemed by the operation of section 16 of the 1987 Act to have occurred prior to 30 June 2004, and three which are deemed by the operation of section 16 of the 1987 Act to have happened on 1 December 2004, 18 December 2006 and 28 April 2007, and
(d) a consequent order that any compensation payable under section 60 be apportioned between the nominal insurer by its scheme agent, Allianz Australia Workers Compensation (NSW) Limited, and the specialised insurer, StateCover Mutual Limited, pursuant to section 22 of the 1987 Act.
SUBMISSIONS – STATECOVER
StateCover agrees with Allianz’s submission that the application of either section 15 or 16 of the 1987 Act requires a finding that the worker suffered an injury which fell within the definition of section 4(b) of the 1987 Act. StateCover concedes that the worker’s injury leading to the treatment of skin cancers was an injury as defined by section 4(b)(ii) of the 1987 Act. In so far as the appellant’s submission that there was no relevant incapacity prior to 30 June 2004, the appellant’s analysis is in error by reason of the following facts:
· the treatment of the worker’s condition prior to 30 June 2004, as drawn from the Medicare history statement (see [37]).
· the appellant’s submissions overlook the fact that, although the worker took sick leave on 7 and 8 April 2004, he also took other leave prior to 30 June 2004 for the purpose of attending for medical treatment (see [39]).
· the assertion by the appellant that there is no evidence from the worker or Dr Peek as to the nature of the treatment the worker received in April 2004 is contrary to the evidence, specifically:
(a) the worker’s oral evidence that he only saw Dr Peek for the removal of skin cancers (T6.6-14), and
(b) Dr Peek’s evidence that poorly-differentiated squamous cell carcinomas were removed from the right jawline in April 2004.
The worker’s failure to identify, on the Medicare list of benefits, all of the visits to Dr Peek as being concerned with the treatment of his injuries is merely an error and inconsistent with the worker’s own evidence that he only saw Dr Peek for the removal of skin cancers (see T1.53 and 1.57). Accordingly, the Arbitrator, with the consent of the parties, made a general order, as opposed to an order pursuant to section 60 for a specific sum.
StateCover submits that a proper interpretation of the medical evidence would reveal that the worker was incapacitated for work and sought medical treatment on the following dates: 24 September 2003 (Dr Cooke), 25 September 2003 (Dr Cooke), 2 October 2003 (Dr Peek), 19 December 2003 (Dr Peek), 10 March 2004 (Dr Peek), 17 March 2004 (Dr Peek), and 8 April 2004 (Dr Peek). The Medicare statement indicates that on each of these occasions, with the exception of 17 March 2004, medical treatment involved the removal of skin cancers. Dr Peek’s report of 4 January 2008 confirmed that the treatment in April 2004 was “most significant” involving the removal of “poorly-differentiated SCCs”.
It is submitted that the worker had an incapacity giving rise to an entitlement to claim weekly compensation on any of the dates referred to in the preceding paragraph. Whilst the worker did not seek to claim weekly compensation, it is submitted that the facts of the case are compelling that the worker could not and did not work on the respective dates in the period from September 2003 to April 2004, as he was travelling substantial distances to, and receiving treatment from, medical practitioners for the removal of skin cancers, and was accordingly unable to work and entitled to weekly compensation (see Stone and Alfonzo).
In so far as the appellant’s assertion of multiple deemed dates of injury is concerned, it is submitted that the submission is not supported by the evidence of continuing aggravations of the disease. Whilst some courts acknowledge that more than one date of injury can arise when the disease provisions are invoked, a finding of further injury is dependent upon a finding of a further injury by way of an aggravation of the disease (Sunbuster Sportswear Pty Ltd v Way [2006] NSWWCCPD 247 (‘Sunbuster’)).
In his report of 25 February 2008, A/Prof Smee describes the condition as “the management of his metastatic squamous cell carcinoma to lymph node within the right parotid gland from a previously managed right facial squamous cell carcinoma”. It is submitted that the view expressed by A/Prof Smee is supportive of an opinion that the treatment in late 2004 was attributable to a previous facial squamous cell carcinoma undertaken in April 2004 and was, in effect, the same disease.
The treatment in late 2006 and into 2007 was for “multifocal squamous cell carcinoma of the skin of the right cheek”. It is submitted that the history of sunscreen protection over the last three or four years as provided by the worker to Dr Peek is consistent with the fact that the worker was finally taking positive action to “cover up” and use sunscreen after receiving treatment for skin cancers in late 2003. Further, it is submitted that the subsequent treatment is for the same disease diagnosed in late 2003/early 2004.
Further, it is submitted that the “multiple injury” argument is inconsistent with the manner in which Dr Lobel assessed the section 66 impairment and the parties’ subsequent agreement with this loss.
Accordingly, Statecover submits that, in the circumstances of this case, there is no proper evidence that there were further aggravations of the disease after 1 July 2004. The treatment after the relevant date arose “from”, to use the words of A/Prof Smee, the same injury as was found to have occurred by (at least) April 2004.
It is submitted that the case presented on appeal differs significantly from the case argued at the arbitration hearing. At the hearing, Allianz argued that the deemed injury should be the date fixed for the purposes of the section 66 claim and/or there was no incapacity during the period up to the relevant date. The alternative submission that there are a series of incapacities and a series of claims was made "at the heel of the hunt" and was not developed before the Arbitrator.
THE WORKER’S SUBMISSIONS
The appellant concedes that the worker sustained injury by way of aggravation of a disease condition and is entitled to compensation pursuant to section 16 of the 1987 Act.
There is no evidence upon which to base a finding that the worker was not incapacitated as a result of any injury prior to 30 June 2004.
The evidence supports a finding that the worker was treated in October and December 2003, and again in April 2004, by a general practitioner in Coffs Harbour, which would entail a period of time away from work in order to attend that surgery.
The worker did not abandon his claim for weekly compensation during the course of the arbitration, but sought leave to discontinue that aspect of the claim, which was granted without objection.
The appellant’s reference to incapacity prior to 30 June 2004 appears to be broadly addressed to an incapacity for employment. The worker submits that the appellant’s reference to a particular type of incapacity in the broad sense as an incapacity for employment as opposed to what might properly be more strictly confined. If the appellant’s submissions are accepted, the difficulty a worker such as the respondent may encounter will be repeated denials of liability in circumstances where a claim for medical expenses is unaccompanied by a claim for incapacity for employment or, alternatively, a claim for lump sum compensation.
The worker submits that, given the nature of this disease condition and many others that may be contracted or aggravated in the workplace, treatment is generally afforded on numerous occasions throughout the course of a working life. The confusion that exists in relation to fixing a deemed date of injury inevitably leads to increasing costs to the worker, and employers, and potential danger to the worker if treatment is delayed due to his impecunious state, as the responsible party becomes increasingly difficult to identify.
In the worker’s submission, where a claim is made for medical expenses, the “incapacity” is the pecuniary loss incurred by the worker for the provision of the relevant treatment, and the deemed date is the date upon which the medical expenses are incurred, that is, the loss is the payment of moneys (or the obligation to pay) for treatment of the conceded injurious condition.
DISCUSSION AND FINDINGS
The parties have agreed that Mr Brookes suffered an injury within the meaning of section 4(b)(ii) and that he is entitled to an order for the payment of his medical expenses reasonably incurred in the treatment of his injuries, subject to a determination of the deemed date of injury pursuant to section 16 of the 1987 Act.
The issue for determination on this appeal is whether the Arbitrator was correct to deem the date of injury, for the purposes of section 16 of the 1987 Act, to have occurred on or about 7 or 8 April 2004, when Mr Brookes was absent on sick leave and treated by Dr Peek for a significant skin cancer excision.
Incapacity referred to in section 16(1)(a) does not mean physical incapacity for work in the sense explained in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 117 (‘Arnotts’), but means incapacity for which weekly compensation is claimed, per Handley JA in Stone at [5].
In Antaw, the Court of Appeal held that section 15 could operate to deem one date of injury for the purpose of a payment of compensation under section 66 and section 67 of the 1987 Act, and deem another date of injury for the purpose of payment of weekly compensation. It is common ground in this appeal that the deemed date of injury in respect of the claim for lump sum compensation is 1 February 2008. Antaw was approved in Stone by the Court of Appeal, which applied the same reasoning to an injury to which section 16 applied.
In Alfonzo, the worker developed painful symptoms in her arms and neck in the course of her employment between 1981 and February 1996. In that period, she worked for two employers: the Government Cleaning Service from 1 January 1981 to 28 January 1994, and P & O Berkeley Challenge Pty Limited (‘Berkeley’) from 29 January 1994 to 11 February 1996. Berkeley had two insurers: one for the period up to 31 December 1995 and another from 1 January 1996. Her symptoms deteriorated over time, resulting in her being put off work and paid compensation from April 1993 to August 1993. On her return to work, her symptoms again deteriorated, and she was off work for five weeks over the holiday period at the end of 1995. She worked again for three weeks in 1996, but stopped on 11 February 1996 and did not work again. By 1 January 1996, her employer had changed insurers. She claimed weekly and lump sum compensation in a case to which section 16 of the 1987 Act applied. The issue was which of the two insurers was responsible for its liability.
The trial judge held that incapacity in section 16 was a reference to incapacity for which compensation was claimed. Therefore, the relevant date was the commencement of the worker’s inability to earn wages she would otherwise have earned but for the injury (per Priestley JA at 484). This meant that the deemed date of injury under section 16 was 12 February 1996 and the insurer on risk at that time was liable to indemnify Berkeley. In addition to claiming weekly compensation, Ms Alfonzo also claimed lump sum compensation, although that claim was not made until 30 July 1997. The trial judge held that the deemed date of injury fixed by section 16(1)(a)(i) (12 February 1996) was also the date for the purpose of the lump sum claim. On appeal, Priestley JA, with whom Clarke A-JA agreed, affirmed that conclusion.
At [49], Fitzgerald JA stated:
“Mrs Alfonzo’s material ‘incapacity’ was not the first impairment of her working ability as a result of the aggravation of her disease by her employment but the incapacity which resulted from her material injury, which was the injury which entitled her to the compensation which she was awarded. That incapacity was Mrs Alfonzo’s permanent partial incapacity on or after 11 February 1996. The ‘time’ of that ‘incapacity’ was 11 February 1996. That is the deemed date of Mrs Alfonzo’s material injury. [10]”
StateCover acknowledges that, whilst there is an acceptance that there may be more than one date of injury when the disease provisions are invoked, a finding of further injury is dependent upon a finding of a further injury by way of aggravation of the disease (see Sunbuster).
In Stone, the worker’s claim was for lump sum compensation pursuant to section 66 and section 67 of the 1987 Act. There was, and could not have been, any claim for weekly compensation, and therefore it was held that section 16(1)(a)(i) did not fix the date on which the permanent impairment injury happened. Accordingly, section 16(1)(a)(ii) applied, and the deemed date of injury was held to have occurred when the claim for lump sum compensation was made.
Handley JA noted at [7]:
“The evident purpose of s 16(1)(a) is to fix a precise date for a section 16 injury. Where the worker claims or could claim weekly compensation for incapacity the section enables this to be done. Where the worker suffers gradually increasing incapacity but makes no claim for weekly compensation the section cannot do this.”
In Stone, at [36], Hodgson JA cited with approval GIO Workers Compensation (NSW) Pty Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (‘GIO’). He said, “GIO shows that one must relate the question of the time of death or incapacity under section 16(1)(a)(i) to what is being claimed”. At [37] he added:
“Berkeley Challenge (Alfonzo) shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purpose of section 16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had been previous incapacity in the Arnotts sense, not resulting in any loss of wages.”
For reasons best known to himself, Mr Brookes elected not to claim weekly compensation whilst he was incapacitated during periods of treatment and recuperation. It is clear, however, that, had he sought compensation in respect of the aggravation injury when incapacitated by it, he would have been entitled to weekly compensation. The fact that he included in his application a claim for weekly payments which he subsequently withdrew (without objection) does not, in my view, alter the position. His reason for withdrawing the claim is understandable. Having already been paid sick pay and having retired from his employment with the Council, the recovery of compensation at that point was of no utility. It should also be noted that, in Alfonzo, Fitzgerald JA recognised at [50] that section 16(1)(a)(i) is capable of operation when an injury results in an incapacity for which no compensation is claimed.
The only disputed claim before the Commission is a claim for medical expenses under section 60. The total of the expenses claimed in accordance with the schedule of medical expenses amounted to $19,136.99. Of that sum, only $371.25 is alleged to have been incurred before 30 June 1994.
StateCover submits that any incapacity after 30 June 1994 is irrelevant for the purpose of fixing of a deemed date of injury. It submits that there has been only one injury, namely, the condition generically described as skin cancer, which first gave rise to treatment in September 2003 or April 2004, and all other treatment required by Mr Brookes has resulted from that condition.
StateCover relies on the remarks made by A/Prof Smee at the foot of page 2 of his report of 25 February 2008 under the heading “Treatment”, where he noted the management of the metastatic squamous cell carcinoma to the lymph node within the right parotid gland from a previously-managed right squamous cell carcinoma.
This submission arises from a selective reading of A/Prof Smee’s report. Firstly, it overlooks the remaining portion of the passage in which A/Prof Smee refers to two significant events, the first of which is described in the preceding paragraph and the second concerning the more recent excision of a carcinoma on the right cheek which (by inference) he did not relate to a prior condition.
Furthermore, in the passage headed “Causation”, referred to at [33], A/Prof Smee clearly expresses the opinion that it is the totality of all sun exposure that has led to Mr Brookes’s “current circumstance”, being multiple skin cancers around the face and neck. It is clear in my view that, in A/Prof Smee’s opinion, the disease injury suffered by Mr Brookes was aggravated by exposure to sunlight which continued beyond 30 June 2004, and indeed for several more years before Mr Brookes retired in February 2008.
The submission is also inconsistent with the opinions of Dr Freeman and Dr Peek, both of whom agreed that the totality of exposure to sunlight (both before and during his employment with the Council) would have contributed to Mr Brookes’s condition.
During the course of the oral hearing on appeal, Mr Harris declined to concede that Mr Brookes’s duties contributed to the aggravation of his disease throughout the whole of the period of his employment with the Council. He submitted there was evidence, which he said was “vague”, regarding the worker’s attempts to cover exposed areas of skin by using sunscreen agents on a regular basis. The only evidence of such an attempt is to be found in the report of Dr Peek dated 4 January 2008 (see [29]), where he said that it was in the last three or four years of employment that Mr Brookes used sunscreen agents on a regular basis, yet these had been supplied by the late 1990s. That evidence is in stark contrast to the evidence of A/Prof Smee, who recorded that, notwithstanding his encouragement to Mr Brookes to wear sunscreen agents when out in the sun, Mr Brookes told him that he didn’t use sunscreen.
Mr Brookes’s evidence in his first statement was that the only protective measures he took to guard against direct sun exposure was the wearing of a hat. The evidence considered as a whole supports only one finding and that is that, in summer months, Mr Brookes wore shorts and short-sleeved shirts whilst at work and a broad-brimmed hat, but had no other protection from the sun.
For these reasons, I find that during the whole of Mr Brookes’s employment with the Council he continued to suffer direct sun exposure from which he was largely unprotected, except by wearing a hat and the clothing described. It was this exposure that contributed to the aggravation of his disease (skin cancer). I am satisfied that his employment with the Council up to 1 February 2008 was a substantial contributing factor to the aggravation of a disease, namely skin cancer.
Mr Brookes’s disease manifested itself in various forms at various times. The first manifestation was in September 2003. Although the precise nature of the disease at that time is unclear in the absence of a report of Dr Cooke, the Medicare records suggest he suffered premalignant skin lesions. In April 2004, the manifestation of it was in the form of squamous cell carcinoma on his right jawline. In July 2004, the same condition appeared over the right temple. In December 2004, he required surgery to the neck and, in December 2006, he required excision of an invasive skin cancer on the right cheek.
Apart from the need to seek treatment for his condition, Mr Brookes was not incapacitated by it until December 2004. At that time, he was incapacitated from 1 December 2004 to 31 December 2004, following his treatment in the form of a right partial parotidectomy and upper neck dissection.
Mr Harris submitted that the worker was incapacitated on each of the occasions referred to at [37]. On those occasions, the worker took time off work to attend the various medical practitioners for treatment of his condition. Mr Harris submits that, by reason of the necessity to take time off work to attend for treatment, the worker must have been incapacitated.
The difficulty in accepting that submission is that there is no evidence of incapacity on any of those occasions. No medical certificates or reports have been tendered to support a finding that the worker was incapacitated on those occasions. Moreover, the submission is contrary to the worker’s evidence. At T13.55, Mr Brookes clearly said that he was not incapacitated for work by reason of the treatment undertaken by Dr Peek, even on those occasions when an anaesthetic was administered. The worker likened the sensation to attending at the dentist and he expressly stated that he felt that he could have worked on, adding that he had worked in more significant pain than was suffered on the occasions that he recieved treatment for his skin cancers.
Particular reference has been made in StateCover’s submissions to alleged incapacity occurring on 7 and 8 April 2004. Whilst I accept that Mr Brookes was treated by Dr Peek on 8 April 2004, there is no evidence concerning his absence from work, on sick leave, on 7 April 2004.
Even if I were to accept that the worker was incapacitated by reason of the need to attend for treatment prior to 30 June 2004, it would not make any difference to the outcome of this appeal for the following reason.
The facts in this case are very similar to the facts in Stone. In that case, the worker had taken time off work for treatment of his injuries, which Burke AJ found at first instance must have involved incapacity. This is the same argument Mr Harris urges upon me in this appeal. However, in Stone, the Court of Appeal held that the finding by Burke AJ amounted to an error of law. The Court held, applying Alfonzo, that where there is incapacity, the relevant incapacity for the purpose of section 16(1)(a)(i) is incapacity giving rise to an entitlement to weekly compensation. Thus, at [37] the Court held that in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had been incapacity in the Arnotts sense, not resulting in any loss of wages.
Thus it seems to me that, in accordance with the authorities cited, and Mr Brookes’s evidence, he was not incapacitated for work on the occasions when he received treatment in 2003 and early 2004. The loss of time from work to attend a doctors surgery for treatment does not, in the circumstances of this case, constitute a relevant incapacity when applying the provisions of section 16.
In my view, the first material incapacity occurred on 2 December 2004 when Dr Sardelic undertook the surgery of the right parotid gland and Mr Brookes was incapacitated for a one-month period. Therefore, I that find the deemed date of Mr Brookes injury is 2 December 2004, in accordance with the provisions of section 16(1)(a)(i) of the 1987 Act.
Although it was submitted that there may be multiple dates of deemed injury occurring on the commencement of each subsequent period of incapacity, in a practical sense, as StateCover was the only insurer on risk after 2 December 2004, being the deemed date of injury, consideration of whether there should be multiple deemed dates of injury is, as Mr Harris conceded, irrelevant if there is a finding of deemed date of injury after 30 June 2004, when his client came on risk. For that reason, that issue need not be considered further.
It follows that the Arbitrator fell into the error made by Burke AJ in Stone, in that he equated incapacity with the worker consulting his doctor, rather than by reference to incapacity giving rise to an entitlement to weekly compensation. That incapacity did not occur until December 2004. Whilst the receipt of medical treatment may often involve an incapacity for work, having regard to the whole of the evidence, in particular Mr Brookes’s evidence that he was not incapacitated by his treatment in 2003 and 2004, and the absence of any medical evidence that he was incapacitated, that is not the case in the present matter. For that reason, the Arbitrator’s decision must be revoked.
CONCLUSION
Having conducted a review on the merits (State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286), I have concluded that the true and correct decision is that the deemed date of injury pursuant to the provisions of section 16(1)(a)(i) of the 1987 Act is 2 December 2004.
The insurer on risk at the deemed date of injury, StateCover Mutual Pty Limited, shall be liable for the reasonable expenses incurred under section 60 of the 1987 Act in respect of the worker’s skin cancer condition.
DECISION
The Arbitrator’s determination of 11 February 2010 is revoked.
Gunnedah Shire Council, in the interests of StateCover Mutual, is ordered to pay the reasonable medical expenses incurred by the worker, Mr Brookes, in the treatment of his injury, the injury being the aggravation of a disease (skin cancer) to which his employment was a contributing factor.
COSTS
Gunnedah Shire Council, in the interests of StateCover Mutual Pty Limited, is ordered to pay the costs of the appellant, Gunnedah Shire Council, in the interests of Allianz Australia Workers Compensation (NSW) Limited and of the worker, Mr Brookes, of the application and of this appeal.
Judge Keating
President
28 June 2010
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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