Hanson v Wilke and Company Pty Ltd
[2023] NSWPIC 242
•26 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Hanson v Wilke and Company Pty Ltd [2023] NSWPIC 242 |
| APPLICANT: | Lloyd Hanson |
| RESPONDENT: | Wilke and Company Pty Ltd |
| senior Member: | Kerry Haddock |
| DATE OF DECISION: | 26 May 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation under Table of Disabilities for injury on 14 September 1998; issues of “notice” and “claim”; application of sections 61 and 261; consideration of Westlake v Sydney Symphony Orchestra Subscribers Committee; Toll Pty Limited v Bartimote; Eason v Bluescope Steel Ltd; Unilever Australia Ltd v Petrevska; Broken Hill Propriety Co Ltd v Kuhna; Peters Ice Cream Pty Ltd v Feeney; Gregson v L & R Dimasi Pty Ltd and Handley v Canterbury City Council; applicant gave notice of injury “as soon as possible after the injury happened”; applicant failed to make a claim within six months after the injury; failure to make a claim not due to ignorance, mistake, absence from the State or other reasonable cause; claim not made within three years after the injury happened; injury did not result in “serious and permanent disablement”; Held – award for respondent. |
determinations made: | 1. There is an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Lloyd Hanson (Mr Hanson), was employed by the respondent, Wilke and Company Pty Ltd (Wilke), as a printer.
Mr Hanson sustained an injury to his dominant right hand on 14 September 1998, when his hand was caught in a printing machine.
The applicant completed a Permanent Impairment Claim Form on 11 May 2022. The claim form provided no detail of the injury, other than that it was claimed to have occurred on 14 September 1998 and it was to the right upper extremity. The percentage loss claimed was 8%.
By letter dated 4 July 2022, the applicant’s solicitors served on the respondent the claim form and a report of Associate Professor Leon Kleinman dated 25 February 2022, making on his behalf a claim for $6,000, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 8% loss of efficient use of his right arm [sic] under the Table of Maims [sic: Table of Disabilities].
On 6 July 2022, the respondent’s insurer, EML, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for the applicant’s claim as he had failed to give notice of his injury within the time prescribed by s 254 [sic] of the 1998 Act; and failed to make a claim within the time prescribed by 261 of the 1998 Act. Liability for weekly benefits and medical treatment was disputed.
EML also disputed that the applicant was entitled to permanent impairment compensation, as his whole person impairment (WPI) was below the threshold of 10% for a physical injury [sic].
The applicant lodged an Application to Resolve a Dispute (the Application) on 6 February 2023.
The applicant claimed to have sustained an injury to his right upper extremity on 14 September 1998, due to his right hand becoming stuck in the printing machine. He claimed the sum of $5,600, pursuant to s 66 of the 1987 Act, in respect of 8% loss of the right hand.
The respondent lodged its Reply on 28 February 2023.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant gave notice of the injury within the prescribed period, and
(b) whether the applicant made a claim for compensation within the prescribed period.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The matter was listed for preliminary conference before me on 9 March 2023. Ms Georges appeared for the applicant, who attended. Ms Doyle and Ms Kassas appeared for the respondent, instructed by Ms Schram of EML.
The applicant confirmed that his claim was for loss of his right hand, not loss of his right arm below the elbow, despite A/Prof Kleinman having assessed loss of efficient use of his right arm “at and below the elbow” [sic].
The matter was listed for conciliation/arbitration hearing on 12 May 2023. Ms Grotte of counsel, instructed by Ms Georges, appeared for the applicant, who was present. Mr Doak of counsel, instructed by Ms Doyle and Ms Kassas, appeared for the respondent. Ms O’Grady of EML attended during the conciliation but was excused from the hearing. She was available to provide instructions had they been required.
The applicant submitted that, if I determined the dispute in his favour, I could determine his claim pursuant to s 66 of the 1987 Act, as the only available assessment of his loss was that of A/Prof Kleinman, the respondent not having arranged an assessment.
The respondent submitted that, if the dispute was determined in the applicant’s favour, I should remit the matter to the President for referral to a Medical Assessor for assessment of his loss.
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 they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 3 March 2023 and attached documents, filed by the respondent;
(d) Application to Admit Late Documents dated 4 May 2023 and attached documents, filed by the respondent, and
(e) Application to Admit Late Documents dated 9 May 2023 and attached documents, filed by the applicant.
Oral evidence
There was no application to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence of the applicant, Lloyd Hanson.
Mr Hanson’s first statement is dated 20 December 2022.
On 14 September 1998, in the employ of Wilke (thereafter PMP Print Pty Ltd (PMP), and now Ovato Print Pty Ltd (Ovato)) he suffered an injury to his right hand when it was caught in a printing machine.
He was driven by taxi arranged by the respondent to Liverpool Hospital and attended its Emergency Department (ED). As the hand surgeon could not see him, he was asked to return the following day.
When he attended the hospital again, he saw an orthopaedic surgeon, who said there was little he could do, given the passage of time since the injury. He was provided with a WorkCover certificate.
He returned to work and handed the certificate to his supervisor. As he was about to take annual leave, his supervisor told him he would be paid for that day and should go home and rest. He then took three weeks planned annual leave.
It was his understanding that the supervisor did not pass on the medical certificate to management at Wilke, though he was well aware of the injury. He also understood that his injury was not reported to WorkCover.
On returning to work following his holiday, he realised his right hand was not as it had been before the injury. In particular, his right index finger was deformed.
Notwithstanding some difficulties using his right hand, he continued to work at Wilke and PMP in his pre-injury employment as a printer.
He was retrenched from PMP in September 2018. Since ceasing work with PMP he had been employed from time to time in casual employment in a supermarket and as a delivery driver.
He continued to suffer pain in his fingers and hand. If surgery was available to straighten them out and correct the deformity, he would consider this.
He had not previously suffered any injury to his right hand but had previously suffered a similar injury to his left hand.
After his holiday, he was seen by Dr Paul Curtin, a hand surgeon, at his rooms at Westmead. Dr Curtin did not recommend any particular treatment.
Prior to his retrenchment in 2018, he noticed he was suffering hearing loss. It was suggested that he should see a lawyer regarding the supply of hearing aids.
At the time, he was not aware that he had any entitlement to compensation arising out of his right hand injury, as he had continued to work at Wilke/PMP without any loss of earnings.
In 2019, during a conversation with his solicitor, he was informed that he might have a claim to lump sum compensation reflecting the loss of use of his right hand, and he should seek an assessment of the loss of use.
At that time, he gave instructions to his solicitors to investigate his claim.
He understood that on 16 October 2019, his solicitors requested claims records and documentation in respect to his right hand injury from Ovato.
Medical records were requested from his treating doctors and Liverpool Hospital in January 2020. The records of Liverpool Hospital were received in May 2020.
He was informed that in August 2020 his solicitors obtained funding from the Independent Review Office to provide advice in respect to his claim.
He was informed that in November 2020, his solicitors obtained further funding to bring a claim for lump sum compensation.
The medical examination arranged by his solicitors, to see Professor William Cummings [sic: Cumming] in July 2021 was cancelled due to the Covid 19 restrictions.
In January 2020, his solicitors were advised that Prof Cumming was still not doing face to face assessments.
On 25 February 2022 A/Prof Kleinman examined him at the request of his solicitors.
He completed the claim form on 11 May 2022, reflecting the assessment of A/Prof Kleinman, and provided it to PMP/Ovato on 4 July 2022.
The applicant made a further statement dated 8 May 2023.
“By way of clarification”, he was scheduled to go on annual leave for a period of three weeks. He took leave as scheduled. After his three weeks leave, he was able to return to normal duties.
Prior to the injury on 14 September 1998, he had injured his left hand/index finger during his employment. He did make a permanent impairment claim for that injury.
The injury to his left hand was particularly bad and involved massive damage. He recalled that his left thumb required three operations because it was so badly dislocated and required fusion. Due to the injury, his left thumb is 1cm shorter than his right.
His left index finger was torn away and dislocated. His left ring finger was also dislocated and ripped in half and required two operations. He was unable to do normal duties for about 17 months.
He did have limitations and disabilities from the injury to his right hand, but it was not as bad as his left hand injury, nor did it limit him to [sic] his job to the same extent as his left hand injury, so he did not think there was a compensation claim available for permanent impairment.
In response to a request for particulars from the respondent’s solicitors, the applicant’s solicitors advised by email on 23 February 2023 that they were instructed that Mr Hanson believed he gave the certificate/paperwork concerning his injury to a Paul Revere.
Evidence of the respondent
On 28 February 2023, Ms Shay Jones, Human Resources Business Partner of IVE Group (assumed to include Ovato) advised the respondent’s solicitors by email that she either did not have access to or could not find any information relating to the injury sustained by the applicant in 1998.
Ms Jones advised that the applicant’s employment ceased on 5 September 2017 by reason of redundancy. This appears to be an error for September 2018, given the applicant’s evidence and the date of his claim for hearing aids.
Ms Jones also advised that Mr Revere was no longer employed with the company.
Applicant’s other claims
13 December 1989
The applicant sustained a laceration to his right middle finger on 13 December 1989, when he was employed by Cambec Press.
Dr David Elliott issued a WorkCover medical certificate on 13 December 1989, recording that the cause of the injury was “chopper blade”.
The applicant was certified as fit for suitable duties from 13 December 1989 to 20 December 1989, with “minimal use (R) hand. To be kept clean and dry”. The applicant signed the certificate.
Ms Heather Chandler of Cambec Press completed an Employer’s Report of Injury (the report) to GIO on 18 December 1989. She reported that on 13 December 1989, the applicant was “pulling paper out of folder and hit chopper blade”. He had lacerated the middle finger of his right hand. He had resumed work.
An employee of GIO has noted on the report “Employer advises no time lost”. There is also a notation “NTL” (no time lost), “approved to pay on photocopies”, “request award wage”, and “sect 60”.
There is in evidence part only of a GIO Compensation Claim Form (the claim form) in respect of this injury.
The claim form was obviously completed by the applicant, as it includes the following:
“To: (Full Name of Employer) [Cambec Press has been inserted]. Whilst in your employ I sustained the injury described below and I elect to claim under the provisions of the Workers Compensation Act of N.S.W.”
The claim form, which has been completed in a different hand to the report, included the applicant’s details, that he was married, and his spouse was not working, the names and dates of birth of his dependent children, details of the injury, the name and address of a witness, the name of the person to whom the injury was reported, and Dr Elliott’s name. The applicant has ticked the box that indicated that a medical certificate was attached.
The list of payments shows an amount of $125.80, for public hospital, paid on the claim.
7 March 1995
There are no documents relating to this claim.
The applicant’s solicitors advised the respondent’s solicitors by letter dated 8 March 2023 that the applicant had lasting disabilities from an injury to his left hand on 7 March 1995, but despite this, was able to go back to full time work.
The applicant had filed proceedings only in respect of this injury. They were settled in or about 1997 or 1998, for an amount that was disclosed in the letter, inclusive of costs.
4 May 2014
PMP notified QBE Insurance (Australia) Limited (QBE) on or about 4 May 2014 that the applicant had sustained a left ankle sprain when he stepped off a catwalk onto a roll of tape. The notification was made by Ms Melaina Cook, “National W/Comp Advisor”.
The applicant completed a WorkCover Authority of New South Wales Workers Injury Claim Form (WorkCover claim form) on 19 May 2014.
The applicant had sustained a “badly strained left ankle” when he stepped off a catwalk onto a reel of tape on 4 May 2014. He signed the WorkCover claim form on 19 May 2014, and Ms Cook signed it on 22 May 2014. She noted that the applicant had lost four days’ work.
Ms Cook completed an Employer Injury Claim Report in respect of this injury on 22 May 2014. She noted that the applicant had reported it to his supervisor on 4 May 2014. He had returned to suitable/modified duties on 12 May 2014.
There are WorkCover NSW medical certificates issued by Dr Richard Lin. The applicant was cleared for pre-injury duties on 3 June 2014.
The list of payments recorded a total of $4,142.05, including weekly benefits and medical expenses, paid on the claim.
9 March 2015
On or about 10 March 2015, PMP notified QBE that on 9 March 2015, the applicant suffered a back strain moving rollers. His condition was recorded as “PID” (pre-injury duties).
The injury was notified by Mr Brett Turton, Moorebank WHS Coordinator.
A WorkCover NSW medical certificate was issued by Dr Victor Pasternack, “ED Doctor” on 10 March 2015.
The list of payments recorded a total of $490.22, including hospital expenses and travel, paid on the claim.
8 July 2015
On or about 8 July 2015, PMP notified QBE that the applicant had sustained injury to his lower back on 8 July 2015.
The injury was again notified by Mr Turton.
Mr Turton completed an Employer Injury Claim Form dated 13 July 2015. The applicant had sustained injury to his lower back on 8 July 2015 while re-stacking pallets of printed bundles. He was “currently unfit for duties”.
There is a report of an MRI of the applicant’s lumbar spine on 29 September 2015, on which “WorkCover” is noted.
The applicant was also referred for physiotherapy and CT scan. He was issued with WorkCover NSW certificates of capacity.
The list of payments recorded a total of $27,304.65, including weekly benefits, medical expenses, artificial aid, rehabilitation, and travel, paid on the claim.
7 September 2018
The applicant’s solicitors advised the respondent’s solicitors that Mr Hanson had made a claim for hearing aids in 2021, and the date of injury was 7 September 2018.
Medical evidence
South Western Sydney Local Health District (Liverpool Health Service)
The applicant presented to the ED at 7:15pm on 14 September 1998, with “laceration – finger”.
The triage nurse recorded that the applicant’s right index finger had been caught in a printing machine. There was a laceration across the first knuckle. “Movement and sensation present. Saline soaked gauze applied. Xray ordered”.
The applicant was seen by a doctor (whose name is illegible, but who was an ED intern, and possibly Dr Bonura) at 9:00pm.
It was recorded that at 6:40pm the applicant’s right index finger was caught in a printing machine at work. “Squashed finger”. There was a laceration across the distal and PIP (proximal interphalangeal) joint, “? 3-4cm long”.
The machine was dirty – “dry ink”. It was noted “tetanus – 3 years ago”, assumed to refer to a vaccination.
There is a drawing of the applicant’s finger, with the laceration marked. The tendons were intact – “able to flex joint”. Some of the handwritten notes are illegible, but some appear to read “pin prick – felt distal to [illegible]”. “No [illegible] – flap adjacent to laceration”. X-ray showed no fracture.
The doctor recorded that the applicant would need “Z” suturing by “hands/ortho” to prevent contracture. He did not want analgesia at the moment.
The orthopaedic registrar would be unable to see the applicant, as s/he would be in the operating theatre all night. The applicant was to return in the morning for definitive treatment.
The applicant’s finger was dressed, and he was discharged at 10:20pm with “all doctors’ letters given.”
The ED intern wrote a report “To ED”, recording the applicant’s presentation. S/he advised that when the applicant arrived, “please call doctor on for ‘hands’”.
The emergency registrar on 14 September 1998 believed that, due to the site of the laceration, simple suturing would lead to contractures/loss of joint function. The applicant needed “plastics or ortho” review.
The X-ray report recorded considerable soft tissue deformity in the distal aspect of the right index finger. No underlying fracture or joint abnormality was seen.
On 15 September 1998, the applicant again presented at the ED at 8.08am.
The triage nurse recorded that the applicant had been seen last night and needed orthopaedic review of a finger injury.
The doctor recorded a crush injury of the right index finger with laceration over the PIP joint, “workers comp.”
There was increased swelling of the finger and it was difficult to get the edges together. Dr Toh was to review the applicant.
Dr Toh recorded that the applicant’s right index finger had been caught in a printing machine at about 7pm last night.
The applicant needed oral antibiotics for five days, and the wound was to be dressed. His LMO (local medical officer) was to arrange daily dressings, “community RN” (registered nurse).
An unsigned and undated WorkCover NSW medical certificate was issued. It recorded the employer as Wilke Colour and the date of injury as 14 September 1998. No other detail was recorded.
Dr Paul Curtin – plastic and reconstructive surgeon
Dr Curtin emailed the applicant’s solicitors on 10 January 2020. He advised that he was able to confirm that Mr Hanson was his patient in 1998 but had not been able to access any records.
Dr Curtin asked if the applicant could remember the hospital at which he was treated, which would have been either Westmead Hospital, Auburn Hospital, or Westmead Private Hospital.
Dr Curtin had looked at the digitised online records for Westmead Hospital, which only went back about three years, and showed only a “minor domestic injury last year”.
Westmead Hospital had microfiche records that probably went back to 1998, and Dr Curtin suggested the applicant’s solicitors contact it.
A/Prof Leon Kleinman – orthopaedic surgeon
A/Prof Kleinman reported on 25 February 2022.
A/Prof Kleinman recorded a history that the applicant worked three twelve hour shifts a week and worked for PMP for 21 years. Following his return from leave after the injury to his right index finger, he continued working until he was retrenched in September 2018.
The applicant then spent time caring for his wife. In August 2020, he commenced casual work as a delivery driver for an auto parts business, driving a utility vehicle to make the deliveries.
A/Prof Kleinman recorded a history of the injury to the applicant’s left hand in December 1990 [sic]. The applicant caught his hand in a press, injuring the index, ring, and middle finger, lacerating the palm, and injuring the interphalangeal joint of the thumb. He had surgery to arthrodese the joint of the thumb and had a flexion contracture of the left index finger.
A/Prof Kleinman noted other work injuries in 2014 and 2015. The applicant also had industrial deafness.
A/Prof Kleinman recorded that on 14 September 1998, the applicant was clearing paper that had fallen from a conveyor belt when he caught the index finger of his right hand in the moving belt. He lacerated the dorsum of his finger, distal to the interphalangeal joint.
The applicant was taken by taxi to Liverpool Hospital, where he was seen in the ED. He waited until midnight when he was told he could not be seen that night, and to return the following day.
A/Prof Kleinman reviewed and noted the records of Liverpool Hospital.
The applicant returned to the hospital the next day, but the doctor who saw him said it was a “bit too late” to treat his finger and the laceration should be left to granulate itself.
That Monday was the applicant’s last night at work before he went on holiday for three weeks. He arrived back at work at 1:30am, and apparently the paperwork for his injury was never filled in.
While he was on leave, the applicant dressed the wound on the back of his index finger. The skin did heal, but he was left with a permanent deformity of the distal phalangeal joint of the index finger.
The applicant saw Dr Curtin, who had treated his left hand.
The applicant was aware of his disability due to his right finger, but because he was so busy, he did not do anything about it and just worked around the condition. He had worked around it for so long that it was difficult for him to recall what he could not do because of it.
The applicant had now developed pain in the distal interphalangeal joint of the middle finger of his right hand, which was crushed at the same time. He had never reported the pain in his middle finger but had had it ever since the incident. He was not having any treatment for his right hand.
A/Prof Kleinman recorded complaints of intermittent pain in the right index finger; permanent deformity of the tip of the index finger; pain in the distal interphalangeal joint of the middle finger; sometimes catching of the deformed right finger; and slight feeling of weakness in the finger. The applicant used the middle finger and thumb of his right hand to perform a pinch grip so that he did not get pain in the index finger.
The applicant was able to help with the housework; go shopping; mow the lawn; and do the gardening. He was a keen golfer, but after he injured the index finger of his right hand, he had difficulty holding a golf club. He had given up playing cricket because of excruciating pain in his index finger when he was hit by a ball. He was no longer able to fish using a hand line because the line ran over the right index finger. He had had to stop making model cars and doing mechanical work on his vehicle.
On examination, A/Prof Kleinman noted an obvious mallet deformity of the index fingers of both hands. The applicant had an unobtrusive scar across the dorsum of the right index finger. He had a 40 degree flexion deformity of the distal interphalangeal joint of the finger. He was able to passively straighten the distal interphalangeal joint of his index finger to 0 degrees. He could make a full fist with his right hand.
The applicant had a 60 degree flexion deformity of the distal interphalangeal joint of his left index finger. The joint was unstable on ulnar valgus stress. The applicant could make a full fist with his left hand.
A/Prof Kleinman reported that the findings on examination were consistent with a laceration of the extensor tendon of the distal interphalangeal joint of the right index finger, which must have occurred when the applicant caught his hand in the conveyor belt but was missed when he was assessed at Liverpool Hospital. It was possible he had sustained a crush injury to the middle finger, which had left him with ongoing pain in the distal interphalangeal joint of that finger, but he had a full range of motion.
A/Prof Kleinman opined that if the applicant wished, he could have surgery to arthrodese the distal interphalangeal joint and correct the deformity.
The applicant was going to have a permanent flexion deformity of the distal interphalangeal joint of his right index finger. A/Prof Kleinman did not believe he would develop post-traumatic osteoarthritis of the joint.
A/Prof Kleinman assessed the applicant with 8% loss of efficient use of his right arm at and below the elbow [sic]. His whole person impairment was 4%.
SUBMISSIONS
The submissions have been recorded, so I will not repeat them in detail.
Applicant
The applicant submitted that I would be satisfied he gave notice of the injury. There is no reason not to accept his evidence, which was very particular in its detail, and very logical and plausible. If I am against him in that, he is covered by s 254(3)(a).
The applicant submitted that he realised on his return from holidays that his hand was not the same. He was able to continue working, with some difficulty, until he was retrenched in September 2018. He is now able to do some work.
As regards making a claim, the applicant referred to his evidence regarding the delay. He did not realise he could make a permanent impairment claim for this injury. The injury to his left hand was massive, he was off work for a considerable period, brought a common law claim, and received a payout.
The applicant submitted he had a disability from this injury in relation to his work, but it was nowhere near the injury to his left hand. There is no evidence he made a permanent impairment claim for that injury.
As regards “serious and permanent disablement”, the applicant referred to his evidence and that of A/Prof Kleinman. He submitted it is incorrect that there was no damage to the tendon, because of the development of deformity. There is 42% loss of use of the finger.
The applicant submitted he had satisfied the requirements of s 261(4); s 261(6); and s 261(3) of the 1998 Act.
In reply to the respondent, the applicant submitted that A/Prof Kleinman had said that he had a deformity of his hand. He had a permanent loss of his hand.
As regards the other reports of injury and notices of claim, the applicant submitted that the notification was made by Mr Turton, and not by him. The employer in this matter had not made the notification and had not honoured its obligation.
The applicant submitted that it beggared belief that he went to the hospital, went back to work, and did not tell his employer where he had been. The respondent was notified.
The applicant submitted that he had made a claim of sorts. The employer arranged a taxi to the hospital, which had to be covered by s 60 of the 1987 Act.
The applicant submitted that the respondent was not prejudiced, as he was not claiming weekly benefits or s 60 expenses.
The applicant submitted, on the authority of Gregson v L & R Dimasi Pty Ltd [2000] NSWCC 47; (2000) 20 NSWCCR 520 (Gregson), that the ability to work was not determinative. A/Prof Kleinman has set out all the things he was not able to do, and he had adapted.
Respondent
The respondent submitted that there was no claim at any stage until 2022. There was a report of injury, but not a claim. If notice of injury was sufficient, s 254(3) would be redundant.
The respondent submitted that, although the applicant attempted to distinguish this injury from the more significant injury to his left hand, he made a claim for a cut to his finger in 1989, which was not a major injury, and on which only $125.80 was paid.
The respondent submitted I would not accept the applicant was “ignorant” of his right to make a claim. He may have chosen not to make a claim.
The respondent referred to the applicant’s evidence that he had not previously sustained injury to his right hand, submitting that he had turned his mind to it. There is no evidence to suggest he had forgotten about it, and his second statement did not address it. Given that he made a statement about matters in 1995, it is remarkable that he would not remember having cut the same finger in 1989.
The respondent submitted that the applicant’s evidence about giving notice of the injury was not powerful evidence. He did not say how he knew who arranged the taxi to take him to hospital, he did not name the supervisor, or say how he knew he did not pass on the certificate. His statement was less powerful because he made a false statement about a prior claim. The respondent submitted I was being asked to gloss over that.
The respondent submitted that the applicant, pursuant to s 254(2) of the 1998 Act, had to establish special circumstances. It submitted it cannot be accepted on the evidence that the applicant was ignorant of his rights. He was well aware of them.
The respondent submitted that the applicant was aware in 1998 that he had injured his right index finger. He went to hospital, saw Dr Curtin, and had a WorkCover certificate.
The respondent did not concede that the applicant had serious and permanent disablement. He was able to secure and perform work post this injury. The respondent referred to Gregson.
Referring to s 261(4) and s 261(6) of the 1998 Act, the respondent submitted that the applicant was aware that he had an injury and, he said, a disability, in September 1998. It referred to Warwick Hobart trading as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315. The respondent submitted that there is no basis on which s 261(6) of the 1998 Act has any work to do.
As regards s 261(4), the respondent submitted that the applicant had to establish the element of s 261(4)(b). He was not “ignorant”, as he knew he could make a claim, and had done so for a cut finger. That was a claim eight years before this injury, about which there was objective evidence, as opposed to the applicant’s self-serving evidence.
The respondent submitted that A/Prof Kleinman said the applicant was “going to have” a permanent deformity. Whether or not, is not clear.
The respondent submitted that, because the applicant did not know the precise compensation he could claim, it did not follow that he was ignorant of the right to claim compensation – Visy Board Pty Ltd v Nguyen [2010] NSWWCCPD 101.
The respondent submitted that I would not be satisfied that the applicant has serious and permanent disablement. On his evidence, he kept working after the injury before being retrenched, and has had other work since. He failed on both “ignorance” and s 261(4)(b) of the 1998 Act.
The respondent referred to the decision in Eason v Bluescope Steel Ltd [2006] NSWWCCPD 265 (Eason). on the issue of “serious and permanent disablement”. The applicant put up with the injury and continued to work. It “wondered” if the applicant still played golf after the injury to his left hand.
In reply to the applicant’s submission regarding s 261(3), the respondent submitted that his evidence was that it arranged the taxi. If the applicant was seeking to run a case that this was a claim, he had to put on evidence. There was no evidence from him that s 60 expenses were covered by the employer.
SUMMARY
The issues in this matter are whether the applicant gave notice of the injury within the time provided by the legislation; and whether he made a claim for compensation within the time provided by the legislation.
Depending on the outcome of those disputes, there is then the further issue of whether the applicant’s impairment should be assessed by a Medical Assessor.
Notice of injury
Neither party adverted to the fact that, given the date of the injury, s 254 of the 1998 Act does not apply to this matter.
Section 60A of the 1998 Act provides:
“60A Application of Division
(1) Sections 61- 64 apply only in respect of an injury received before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001 ).
(2) Sections 65 and 66 apply only in respect of the making of a claim before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001 ).
Note : Chapter 7 (New claims procedures) provides for notice of injury and making of claims in all other cases.”
Sections 61 to 64 apply to injuries received before 1 January 2002.
Section 61 of the 1998 Act is in substantially similar terms to s 254 of the Act.
Acting Deputy President O’Grady considered in Westlake v Sydney Symphony Orchestra Subscribers Committee [2009] NSWWCCPD 12 (Westlake) that the arbitrator had erred in applying s 254 of the Act to an injury that was deemed to have occurred on 17 March 1998.
O’Grady ADP said at [59]:
“Notwithstanding the error…I am of the view that the Arbitrator’s ultimate conclusions concerning the Appellant’s failure to comply with the notice provisions and her determination that such non-compliance should not, on the facts, be excused were correct. I have reached this conclusion for the reasons stated hereunder and having regard to the fact that section 61 and section 254 of the 1998 Act are in substantially similar terms”.
I have applied s 61 of the 1998 Act in determining whether the applicant complied with the notice provisions of the Act.
Section 61 provides:
“61 Notice of injury to be given to employer
(1) Compensation may not be recovered under this Act unless notice of the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) Notwithstanding subsection (1), the absence of, or any defect or inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation--
(a) that the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings, or
(b) that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause, or
(c) that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, or
(d) where the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop--
(i) that the summary referred to in section 231 (as in force at the time of the injury) has not been posted up in accordance with that section or the employer has otherwise contravened that section, or
(ii) that the injury has been reported by or on behalf of the employer to an inspector of mines or factories, shops and industries, or
(iii) that the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop, or
(e) that the injury has been reported by the employer to the Nominal Insurer in accordance with this Act.”
I am satisfied that the applicant gave notice of the injury “as soon as possible after the injury happened”.
The applicant’s evidence, which I accept, is that the respondent arranged for a taxi to take him to hospital after the injury occurred.
The records of Liverpool Hospital show that the applicant attended the ED on 14 September 1998 and provided a consistent history of the injury. It was recorded on 15 September 1998 as “workers comp” and he was given a WorkCover certificate.
It appears from the applicant’s evidence that it was on 15 September 1998 that he gave notice of the injury to his supervisor and gave him the certificate. He has stated that when he returned to the hospital, he was told there was little the surgeon could do and given a WorkCover certificate. He then returned to work and gave the certificate to his supervisor.
“As soon as possible after the injury” has not been interpreted in any decision to mean “immediately”. The rest of the phrase requires that notice be given before a worker has voluntarily left the employment, which indicates a more extended timeframe.
The applicant has provided the name of the supervisor to whom he believes he gave notice of the injury. The respondent has not said it has no record of Mr Revere having been employed. It advised its solicitors that he was no longer employed.
It appears that, for whatever reason, Mr Revere either did not pass on the notification of injury to the respondent’s insurer, or the notification has been lost, due to the effluxion of time.
Claim for compensation
Section 261 of the 1998 Act does apply to this injury. That is because the relevant date is the date of the claim, rather than the date of the injury. If the claim was made on or after 1 January 2002, it does not matter that the injury was received before that date: Toll Pty Limited v Bartimote [2007] NSWWCCPD 153 and Westlake.
Section 261 of the 1998 Act provides:
“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.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
The applicant has submitted that he has made a claim, so as to satisfy s 261(3) of the 1998 Act, because the respondent arranged for a taxi to take him to hospital, and that must have been covered by s 60 of the 1987 Act.
I do not accept that submission. The applicant’s evidence is that the respondent arranged for the taxi. He did not say it arranged and paid for the taxi. At a time before many, if not most, people owned a mobile phone, and when the applicant was not working in an office environment, it may be the case that someone with access to a telephone made the call for a taxi on his behalf. I am simply not in a position to know.
In the absence of any further evidence from the applicant on this point, I am not prepared to find that he made any claim before the claim for permanent impairment compensation was made on 4 July 2022.
The applicant also relied on s 261(6) of the 1998 Act, submitting that he was not “aware” that he could make a claim for permanent impairment compensation until he saw solicitors.
In Unilever Australia Ltd v Petrevska [2013] NSWCA 373, Macfarlan JA (Meagher JA and Tobias AJA agreeing) said at [21]-[23]:
“The context and purpose of a statutory provision are important in determining its proper construction, as well as its text (Certain Lloyd's Underwriters v Cross [2012] HCA 56; 87 ALJR 131 at [23] and [24]; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 87 ALJR 588 at [47]). However, none of the text, context and purpose of s 261(6) in my view provides any support for Mrs Petrevska's argument. The text makes the question of causation relevant (through the definition of ‘injury’) but does not refer to other matters. Nor does the context of the provision assist her. The purpose of it is no doubt to avoid the unfairness that would be caused to a worker if the worker became time barred before he or she became aware of the injury and its cause. However that does not mean that the sub-section should be construed as directed to awareness of all the matters required for the lodgement of a claim, as once the worker is on notice of the injury and its cause, he or she has six months in which to acquire that information and lodge a claim, with the possibility of a longer period being available as a result of the application of s 261(4).
What is awareness?
The concept of awareness in ordinary English, and in the context of s 261(6), may in my view be equated, at least in a general sense, with the concept of knowledge. The awareness to which s 261(6) refers is clearly actual awareness, as distinct from constructive notice…” (Emphasis added).
The applicant was “on notice of the injury and its cause” (that is, became aware) immediately it occurred. He sustained a laceration to his right index finger when it was caught in a machine that he was operating as part of his duties in the employ of the respondent. He sought medical treatment, apparently advised those who treated him at the hospital that it was a “workers comp” injury, and was issued with a WorkCover certificate, which he has stated he provided to the respondent.
Section 261(6) does not assist the applicant, and the submission that he was not aware of the injury until he became aware that he could make a claim for permanent impairment compensation is rejected.
The applicant also relied on s 261(4) of the 1998 Act, submitting that his failure to make a claim within the period required was occasioned by “ignorance”. I do not understand him to rely on “other reasonable cause”.
The onus is on the applicant to prove that circumstances exist that excuse the failure to claim in time – Eason. If a worker fails to make a claim within six months, it is not relevant that there was a further delay after that six months for which the worker has no excuse (Eason at [51]). It is the failure to claim within the six months that must be explained.
“Ignorance” means ignorance of legal rights and obligations and includes ignorance of the time limits.
Burke CCJ said in Gregson:
“[t]he 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.” (at [61]).
I do not accept the submission that the applicant was ignorant of the requirement to make a claim because other notifications of injury were made by his employer on his behalf, or because the injury to his right hand was less serious than that to his left, in respect of which there is no evidence that he made a claim for permanent impairment.
The applicant himself completed a claim form with respect to the injury to his right middle finger on 13 December 1989. This was clearly a minor injury, as he lost no time from work, and the total paid on the claim was $125.80.
The applicant’s evidence is that he was not aware that he had any entitlement to compensation for the injury on 14 September 1998 because he continued to work without loss of earnings. However, it was also the case that he had no loss of earnings as a result of the injury in 1989, but he nonetheless made a claim.
There are no documents that relate to the claim for the injury on 7 March 1995. However, the applicant has stated that he made a permanent impairment claim for that injury.
The applicant stated that, on his return to work after taking leave, he was aware that his right hand was not as it had been. In particular, he noticed that his right index finger was deformed. This was within about three weeks of the injury having occurred.
The applicant’s evidence is that he did not think he could make a claim for permanent impairment as a result of injury to his right hand because it was not as bad as the injury to his left hand; and it did not limit him to the same extent as that injury. The fact that he may not have been aware that he could make a claim for permanent impairment compensation does not mean that he was “ignorant” of his rights.
I am not persuaded that the applicant’s failure to make a claim was occasioned by ignorance. He had made a previous claim, in respect of which he lost no time from work, and on his own evidence his right hand was not as it had been before the injury, and his index finger was deformed. He consulted Dr Curtin, according to the doctor, in 1998. The applicant’s evidence is that Dr Curtin did not recommend any treatment, but he was obviously sufficiently concerned about the symptoms and deformity to again consult the specialist who had treated his left hand.
Had I accepted that the applicant’s failure to make a claim within the applicable time was occasioned by ignorance, I would nonetheless not accept that the injury has resulted in serious and permanent disablement.
The leading authorities on “serious and permanent disablement” are Broken Hill Proprietary Co Ltd v Kuhna [1992] NSWCA 30 (Kuhna) and Gregson, although, strictly speaking, Burke CCJ’s consideration of the phrase in Gregson was obiter.
In Kuhna, the Court of Appeal considered the meaning of “serious and permanent disablement” in the context of s 14(2) of the 1987 Act.
Section 14(2) of the 1987 Act is concerned with a situation in which a worker has sustained injury as a result of his or her “serious and wilful misconduct”. In that situation, compensation is not payable in respect of the injury unless it has resulted in “serious and permanent disablement”.
Cripps JA in Kuhna agreed with the employer’s submission that “disablement” in s 14(2) of the 1987 Act is to be understood in an employment context (at [405E]). His honour added, “that is to say, it is not sufficient merely to conclude that a worker suffers an impairment”. His honour referred to Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125, in which Jacobs JA, dealing with the same phrase in the Workers Compensation Act 1926, said:
“The condition required under the section now being considered would be satisfied provided there is evidence that the disability was both serious and permanent. In the context it is correct, I think, to apply those words to employment situations, and it seems to me that that is what the medical evidence did in this case”. (At [127]).
Cripps JA then continued:
“In the present case, there was evidence that the worker not only suffered an impairment but that that impairment affected his physical capacity to undertake work. The argument, as I understand it, on behalf of the employer is that the disablement cannot be said to be serious because, before such a finding could be made, it was necessary for the learned trial Judge to consider the whole range of the worker’s activity and, it is submitted, that was not done,” (at [406B]).
That submission was rejected by the Court. Cripps JA added that the fact that the worker may have been earning as much as he would have been earning had he remained an underground miner “did not mandate a conclusion that he had not been seriously and permanently disabled”. (at [406G]).
Mahoney JA agreed with Cripps JA, adding:
“No doubt the word ‘disablement’ primarily refers to disablement in respect of capacity to perform work. But provided the disablement or interference with capacity is ‘serious’, the provision may be satisfied notwithstanding that other work may be undertaken and even undertaken more remuneratively.” (at [402B]).
Gregson concerned the meaning of “serious and permanent disablement” in s 65(13) of the 1998 Act. Burke CCJ said:
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.” (at [78]).
Wood DP said in Handley v Canterbury City Council [2020] NSWWCCPD 59 that “the determination of whether the appellant suffers a serious and permanent disablement is a factual determination which is very much dependent upon the facts of each case” (at [168]).
Wood DP went on to say:
“It is not sufficient for the appellant to show that he has a disablement in respect of his capacity to perform work. The disablement must be serious. Adopting the approach taken by Burke CCJ in Gregson, it is the degree of incapacity that must be assessed.” (At [173]).
The applicant sustained the injury in 1998. He continued to perform the same work until he was retrenched 20 years later. He has given evidence that he had some difficulties using his right hand, without providing any detail of those difficulties. He also referred to “limitations and disabilities” from the injury, again without providing any detail of what they may be.
A/Prof Kleinman reported that the applicant was aware of his disability due to the injury, but he worked around it, and it was difficult for him to recall what he could not do. That, together with the fact that the applicant continued in the same employment for 20 years, does not suggest to me that he had any difficulty performing the work.
The applicant has had other employment since leaving the respondent’s employ. He has given no evidence of any difficulty performing this work. He stated he worked casually from time to time, but not that this was due to any limitations as a result of the injury to his right hand.
A/Prof Kleinman recorded that the applicant commenced casual work in August 2020, after some time spent caring for his wife. He has not reported that the applicant is restricted in any way in his employment activities, or the hours he can work, due to the injury.
A/Prof Kleinman recorded that the applicant could perform household activities and do the shopping. He has difficulty holding a golf club, although it appears to me that the “massive damage” to his left hand may also have affected his ability to hold a club. As the applicant himself has given no evidence about this, I do not know when he ceased playing golf.
A/Prof Kleinman has also recorded that the applicant gave up cricket because of the pain in his index finger when he was hit by a ball; no longer went fishing; and had had to stop making model cars and doing work on his vehicle.
Once again, the applicant himself has given no evidence about any of these activities, or how the injury to his right hand has affected them. I have no reason not to accept A/Prof Kleinman’s evidence, but I do not accept that it establishes that the applicant has a serious disability.
Considering what Burke CCJ said in Gregson, the applicant has a disability; I do not accept that it is serious; it is permanent; and it does not impinge adversely on his capacity to work.
I have determined that the injury to the applicant’s right hand on 14 September 1998 did not result in serious and permanent disablement.
The order is set out in the Certificate of Determination.
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