Inghams Enterprises Pty Ltd v Thoroughgood
[2013] NSWWCCPD 29
•27 May 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| Status: Leave to appeal to the Court of Appeal refused – Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 | |||
| CITATION: | Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 | ||
| APPELLANT: | Inghams Enterprises Pty Ltd | ||
| RESPONDENT: | Brett Thoroughgood | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-4147/12 | ||
| ARBITRATOR: | Mr M Douglas | ||
| DATE OF ARBITRATOR’S DECISION: | 18 January 2013 | ||
| DATE OF APPEAL HEARING: | 14 May 2013 | ||
| DATE OF APPEAL DECISION: | 27 May 2013 | ||
| SUBJECT MATTER OF DECISION: | Aggravation of disease of varicose veins; meaning of incapacity in s 16 of Workers Compensation Act 1987; application of principles in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701; notice of injury; notice of claim; WorkCover Provisional Liability and Claims Guidelines issued December 2001; whether Arbitrator entitled to refer to findings by Delegate of the Registrar in an Application for Expedited Assessment; procedural fairness; ss 74, 254, 255, 260 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; cl 46 of the Workers Compensation Commission Regulation 2010 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr D Saul, instructed by Leigh Virtue & Associates | |
| Respondent: | Mr T Edwards, instructed by Bale Boshev Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 18 January 2013 is revoked and the matter remitted to a different Arbitrator for re-determination of the deemed date of injury. 2. The appellant employer is to pay part of the respondent worker’s cost of the appeal, assessed at $1,750 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration. | ||
INTRODUCTION
Section 16(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) deems an injury within that section (an aggravation of a disease) to have happened either at the time of the worker’s incapacity or, if incapacity has not resulted from the injury, at the time the worker makes a claim for compensation. This appeal concerns the meaning of “incapacity” in that section and, in particular, the correct deemed date of injury where the worker has claimed compensation for a whole person impairment, but not claimed weekly compensation for an alleged incapacity to perform his pre-injury work.
The appeal also raises issues about notice of injury, notice of claim, whether an Arbitrator is entitled to take into account comments made by a Delegate to the Registrar in a direction issued in response to an Application for Expedited Assessment, procedural fairness arising from the refusal to admit into evidence research articles relied on by a medical expert but not served with that expert’s report, and whether the Arbitrator determined the matter on a basis different to that put by the worker.
BACKGROUND
The respondent worker, Brett Thoroughgood, worked for the appellant employer, Inghams Enterprises Pty Ltd (Inghams) between 2003 and 10 October 2006. His duties required him to stand (essentially in the one spot) for eight hours a day, five days a week, on a wet concrete floor to hang chickens. Water would get into his boots and his feet would sweat.
In mid-2006, he noticed swelling in his left foot, his “veins were popping out” and his legs were painful. He saw his general practitioner, Dr Walter, who gave him a certificate stating that he needed proper comfortable waterproof boots to protect his feet. Mr Thoroughgood spoke to Cindy Holloway, the return to work coordinator at Inghams, and told her he had swollen feet from standing all day and that his doctor suggested that Inghams provide him with proper boots. She replied that the gumboots provided were good enough.
On 10 October 2006, Mr Thoroughgood stopped work after Inghams refused to provide proper footwear. He started work on 12 October 2006 for H L Mullane & Sons (Mullane) as a plumber’s labourer and trades assistant. He said this work did not aggravate his leg condition. He had to stand still for long periods with Inghams, while with Mullane he said he was “always on the move” and “that type of employment does not make it worse”. While he worked at Inghams, his legs would “swell gigantically every night after work” and that did not happen while working for Mullane. In his statement, dated 13 May 2009, Mr Thoroughgood said his leg was no worse than it was when he worked at Inghams.
Mr Thoroughgood alleged that, because of prolonged standing in the course of his work for Inghams, he suffered an injury arising out of his employment in the form of an aggravation of varicose veins in his left leg, and that his employment with Inghams was a substantial contributing factor to that aggravation. In other words, his injury was alleged to be an aggravation injury under s 4(b)(ii) of the 1987 Act.
In 2008, Mr Thoroughgood made an Application for Expedited Assessment against Inghams for past weekly payments and medical expenses. That Application was discontinued at a teleconference on 16 December 2008. An application by Inghams that Mr Thoroughgood pay its costs was refused in a decision by a Delegate of the Registrar, John Cahill, on 27 January 2009.
Mr Thoroughgood filed a second Application for Expedited Assessment in 2009, in which he initially sought weekly compensation from 8 September 2006 to 15 September 2006, and medical expenses in the sum of $305 relating to a scan of his left leg in July 2007. The claim for weekly compensation was discontinued and, in a decision delivered on 25 March 2006, a Delegate of Registrar, Eleanor Lynch, declined to make an Interim Payment Direction for the medical expense claimed. (Ms Lynch’s decision is in evidence and the Arbitrator’s reference to it is the subject of the third ground of appeal.)
On 18 January 2012, Mr Thoroughgood’s solicitors claimed $7,500 lump sum compensation in respect of a six per cent whole person impairment said to have resulted from the aggravation injury. Inghams disputed liability on several grounds.
The Application to Resolve a Dispute (the Application) initially alleged a date of injury of “August 2003 to August 2006”, described the injury as “[v]enous injuries to the left lower extremity”, and described how the injury occurred with the words “[n]ature and conditions of employment”.
At the arbitration on 16 August 2012, counsel for Mr Thoroughgood, Mr Tony Edwards, was granted leave, over objection by the solicitor appearing for Inghams, Mr Paul Macken, to amend the Application to:
(a) allege a date of injury of 10 October 2006;
(b) describe the injury as an “aggravation or worsening of varicose veins in the left lower extremity”, and
(c) describe how the injury occurred as “standing on feet for lengthy periods of time in wet conditions”.
Because of the late amendments, which deprived Inghams the opportunity to raise certain issues at the earlier teleconference, the Arbitrator adjourned the matter until 25 October 2012, later changed by consent to 1 November 2012, to allow Inghams the opportunity to obtain further medical evidence. Before the matter was adjourned, the parties discussed the future conduct of the case and Mr Macken said he would “at least be seeking to call Dr Potter to give some additional evidence to address the allegations now made” (T21.10, 16 August 2012).
On 1 November 2012, Mr Edwards objected to Dr Potter being called to give oral evidence because Mr Macken had not complied with the Commission’s Rules or Practice Direction No 3. The matter was again adjourned until 7 December 2012 to give Mr Macken time to obtain a further report from Dr Potter. That report was to be served on or before 9 November 2012. (A further report was obtained from Dr Potter, dated 12 November 2012, which was not served until 19 November 2012. Though it was served late, the Arbitrator admitted it into evidence, Mr Edwards objecting but not pointing to any prejudice: T6.25, 7 December 2012.)
The Arbitrator identified the issues in dispute to be:
(a) whether, arising out of or in the course of employment, Mr Thoroughgood suffered an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease, being varicose veins in his left leg;
(b) if so, whether his employment with Inghams was a substantial contributing factor to that injury;
(c) if so, whether Inghams was the last employer who employed Mr Thoroughgood in employment that was a substantial contributing factor to the injury;
(d) whether Mr Thoroughgood gave notice of the injury to Inghams as soon as possible after the injury happened and before he voluntarily left his employment with Inghams and, if not, whether any of the special circumstances specified in s 254(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) exist, and
(e) whether Mr Thoroughgood made a claim for compensation within six months after the injury happened and, if not, whether he is barred from recovering compensation under s 261(1) of the 1998 Act.
In a decision delivered on 18 January 2013, the Arbitrator found:
(a) Mr Thoroughgood received an injury in the form of an aggravation, exacerbation and deterioration of varicose veins in his left leg from his employment with Inghams ([61]);
(b) Mr Thoroughgood’s employment with Inghams was a substantial contributing factor to that injury ([62]);
(c) if Mr Thoroughgood’s employment with Mullane was a substantial contributing factor to the aggravation of the varicose veins in his left leg, Inghams would not be liable to pay compensation to him ([64]);
(d) Mr Thoroughgood’s injury caused an incapacity while working for Inghams ([65]);
(e) Mr Thoroughgood’s employment with Mullane did not aggravate his condition ([67]) and was not a substantial contributing factor to the aggravation of the varicose veins in his left leg ([70]);
(f) it followed that, so long as Mr Thoroughgood had given notice of injury and notice of claim within the terms of the legislation, Inghams was liable to pay him compensation for any permanent impairment he may have as a result of his injuries;
(g) Mr Thoroughgood gave notice of injury to Ms Holloway when he told her that he had swollen feet from standing up all day ([73]);
(h) even if that were not so, Inghams had not been prejudiced in respect of the proceedings because it had Mr Thoroughgood almost immediately investigated by a doctor of its choice, Dr Beiers ([74]);
(i) Mr Thoroughgood made a claim for compensation when (on or about 8 September 2006) he requested his employer to provide him with appropriate footwear. That was so because he was making a claim for compensation for proposed treatment for his injury in the form of therapeutic treatment given at the direction of his general practitioner ([76]);
(j) further, s 16 of the 1987 Act allows for different dates to be deemed for the occurrence of injury for lump sum claims and for incapacity claims. As Mr Thoroughgood was unable to perform his work for Inghams between 8 and 11 September 2006, and after 10 October 2006, because of the effects of his injury, he had a partial incapacity for work resulting from his injury ([77]), and
(k) even if it were not the case that Mr Thoroughgood had made a claim for compensation under s 60 on or about 8 September 2006, it would be open to find that the injury was deemed to have happened on “12 January 2012 [sic, 18 January 2012]”, (the date on which he claimed lump sum compensation), and he “would not be prevented under s 262(1) [sic, 261(1)] of the 1998 Act from recovering compensation under s 66 of the 1987 Act from Inghams” ([77].
The Commission issued a Certificate of Determination on 18 January 2013 in the following terms:
“The Commission determines:
1.That the matter be remitted to the Registrar for the purposes of referring it to an Approved Medical Specialist to assess the medical dispute regarding the degree of permanent impairment of the applicant resulting from an injury of aggravation and deterioration of varicose veins in the left lower extremity deemed to have happened on 8 September 2006.”
Inghams has appealed the Arbitrator’s determination.
INTERLOCUTORY
As the Arbitrator’s decision was interlocutory, because it did not finally determine the parties’ rights, but merely decided that the matter could be referred to an AMS, the appellant requires leave to appeal. In view of the issues raised in the appeal, it is necessary for the proper and effective determination of the dispute that the Commission grant leave to appeal and I do so (s 352(3A) of the 1998 Act; DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly [2011] NSWWCCPD 43 at [13]).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) determining that Mr Thoroughgood was relevantly incapacitated in accordance with s 16 of the 1987 Act (incapacity);
(b) his consideration and determination of the issue of whether Mr Thoroughgood had given notice of injury and made a claim for compensation in accordance with the requirements of the Act (notice of injury and notice of claim);
(c) considering as evidence a statement of the Delegate of the Registrar (statement of the Delegate of the Registrar);
(d) denying Inghams procedural fairness (procedural fairness), and
(e) determining the matter on a basis different to that put on behalf of Mr Thoroughgood (determining the matter on a basis different to that put by Mr Thoroughgood).
It is important to note that Inghams has not challenged the Arbitrator’s findings on injury, substantial contributing factor and last relevant employer, though those issues were very much in dispute and were the subject of evidence and lengthy submissions.
INCAPACITY
The legislation
All references to the legislation in this decision are to the legislation as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012. Section 4 of the 1987 Act defined “injury” as follows:
“4 Definition of ‘injury’
(cf former s 6(1))
In this Act:
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, and
(c) …”
Relevantly, s 16 provides:
“16 Aggravation etc of diseases – employer liable, date of injury etc
(cf former ss 7(4A), (5), 16 (1A))
(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.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) …
(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.
(4) This section does not apply to an injury to which section 17 applies.”
Background
The pleading of a deemed date of injury of 10 October 2006, and the concession by Mr Edwards at the arbitration that he could not win if there was no incapacity, strongly suggests that the Arbitrator was invited to find a deemed date by reference to the date of incapacity, that is, the date on which Mr Thoroughgood stopped work for Inghams.
While Mr Edwards has not resiled from his concession, on appeal he has argued that the Arbitrator’s finding of incapacity was open on the evidence and that it supports a deemed date of injury of 10 October 2006. He agreed, as I understand his position, that he relied on no other deemed dated of injury, such as the date of claim on 18 January 2012, or the date on which Mr Thoroughgood requested proper footwear in September 2006.
It is unclear which deemed date of injury the Arbitrator found.
Dealing with incapacity, the Arbitrator found (at [65]) that Mr Thoroughgood’s injury caused an incapacity for work between 8 September 2006 and 11 September 2006, and from 10 October 2006, when he ceased employment because Inghams had not provided him with appropriate footwear.
At [77], the Arbitrator said that, due to the effects of his injury, Mr Thoroughgood was unable to perform his work for Inghams between 8 and 11 September 2006 and after 10 October 2006, and accordingly had a partial incapacity for work. He added that “the date of his injury could be deemed to have happened on that date, [and] this same injury can under s 16(1)(a)(ii) be deemed to have happened on 12 January 2012 [sic, 18 January 2012] for the purposes of his claim for compensation under s 66 of the 1987 Act”.
I have assumed that the Arbitrator’s reference to “that date” in the passage quoted in the preceding paragraph was a reference to 10 October 2006, which was consistent with the pleadings and with the submissions by Mr Edwards, and I have approached the appeal on that basis.
Submissions
Mr Saul referred to the Arbitrator’s finding on incapacity and, relying on Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 (Muratore) and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone), submitted that “incapacity for work” is only relevant where it produces an economic incapacity. In the present case, as there was no claim for weekly compensation, and no evidence of loss of wages, there was no evidence upon which a finding of incapacity could be made, and the Arbitrator erred in fixing a deemed date of injury “on or about 8 September 2006”.
Dealing with the incapacity issue in general, Mr Edwards made the following points:
(a) Inghams appeared to concede injury and aggravation;
(b) the s 74 notice of 7 March 2012 did not put incapacity in issue;
(c) Inghams now wishes to run a different argument on appeal;
(d) Mr Thoroughgood’s incapacity occurred when he ceased work on or about 10 October 2006 and the deemed date of injury under s 16(1)(b) is 10 October 2006;
(e) the employer who last employed Mr Thoroughgood before 10 October 2006 was Inghams and later employment was irrelevant to the finding of injury;
(f) if Mr Thoroughgood was to succeed, the Arbitrator had to find an injury under s 4(b)(ii), a date of incapacity (that is, a date where there is a physical incapacity resulting in some loss of wages: P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA; 49 NSWLR 481 (Alfonzo)), and which employment, if any, prior to the deemed date of injury, was the last employment that was a substantial contributing factor to the aggravation injury;
(g) the Arbitrator’s findings confirm that he applied s 16 in an appropriate manner;
(h) Inghams called no evidence that:
(i)contested the conditions of Mr Thoroughgood’s employment;
(ii)contradicted that the last day of employment with Inghams was 10 October 2006;
(iii)contradicted that Mr Thoroughgood ceased work because of the effects, directly or indirectly, of his worsened varicose veins, or
(iv)contradicted the proposition that employment with Inghams was employment that substantially contributed to the aggravation of the disease (there was evidence to promote the proposition that later employment may have caused an aggravation, however, that was not the proper question before the Arbitrator).
Mr Edwards submitted that the Arbitrator properly analysed the evidence and determined that the worker was incapacitated at the time he ceased employment with Inghams on 10 October 2006. He said that Mr Saul’s submissions did not put in issue any of the factual evidentiary material relied upon by the Arbitrator.
Mr Edwards relied on the following statement by Handley JA in Stone, at [7]:
“The evidence purpose of s 16(1)(a) is to fix a precise date for a s 16 injury. Where the worker claims or could claim weekly compensation for incapacity the section enables this to be done.” (emphasis added)
He distinguished the facts in Stone by noting that, in that case, the injury for which Mr Stone claimed lump sum compensation was not an injury that caused incapacity, he having ceased work on 16 December 1985 due to a back injury, which was an unrelated condition.
He added that, as Inghams never put incapacity in issue, it was not incumbent on Mr Thoroughgood to establish incapacity to the extent now suggested on appeal. He contended that, to establish liability for injury, it was sufficient for Mr Thoroughgood to establish that he had ceased work as the result of the injury sustained. In effect, Inghams was seeking a re-trial on a different basis to that run at the arbitration.
Mr Edwards said the emphasis Mr Saul placed on Muratore was too constricted and that, in Moran Health Care Services v Woods (1997) 14 NSWCCR 499 (Woods), the Court of Appeal affirmed that incapacity related to the employment in which the worker was employed when he or she suffered injury.
Discussion and findings
I accept that Mr Macken did not argue the incapacity issue in the way presented by Mr Saul on appeal and did not refer to any of the authorities cited by Mr Saul. However, incapacity was in issue at the arbitration because, on the approach taken by Mr Edwards, it was necessary to determine that issue to decide the deemed date of injury. In that context, Mr Macken submitted that there was no evidence of incapacity (T65.16, 7 December 2012). Thus, the issues of incapacity and the correct deemed date of injury were raised at the arbitration and Inghams is entitled to challenge the Arbitrator’s finding on appeal, albeit on the basis of authorities that were not cited to the Arbitrator. The latter point is relevant to costs of the appeal, which is discussed below.
The submissions by Mr Edwards are inconsistent with binding authority on the accepted meaning of incapacity in ss 15 and 16. It is necessary to review those authorities in detail.
In GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO), the worker was exposed to sunlight in the course of his employment over 19 years. As a result, he developed a melanoma on his right cheek. Doctors removed the melanoma in 1983. This treatment resulted in a short period of incapacity. The worker subsequently developed a number of metastases of the melanoma. In 1993, he died from a brain tumour, which was a metastatic melanoma that had resulted from his original melanoma in 1983.
His widow claimed compensation under the 1987 Act and succeeded. The insurer on risk in 1993 appealed. It argued that, as the operation on the melanoma in 1983 had caused a period of incapacity and, as the worker’s death had resulted from the 1983 melanoma and there was no evidence that exposure to sunlight since 1983 had played any role in the worker’s death, s 15(1) deemed the injury to have happened at the time of the incapacity in 1983.
Sheller JA said (at 195F–G) (Priestley and Clarke JJA agreeing):
“But, if the injury resulted in incapacity for work and the worker’s death, is it deemed to have happened at the time of the worker’s death or at the time of the worker’s incapacity for work? The appellant submitted that the answer was incapacity for work if that resulted. The injury is only deemed to have happened at the time of the worker’s death if it did not result in incapacity for work before death. In 1983, the operation on the melanoma resulted in incapacity for work. The appellant submitted that, pursuant to section 15(1), the injury was deemed to have happened at that time and that, accordingly, within the meaning of Part 3, clause 2(1), the worker’s death resulted from an injury received before the commencement of Division 1 of Part 3 and the amount payable was that under the former Act.” (emphasis added)
In rejecting this argument, Sheller JA held at 196G that “for the purpose of the widow’s claim, the worker’s injury is deemed to have happened at the time of his death”. His Honour said at 196B:
“In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed. Section 15(1)(b) provides that ‘compensation is payable by the employer in whose employment the worker is or who last employed the worker’. That means the employer in whose employment the worker is at the time the injury is deemed to have happened, or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn (1961) 105 CLR 177 at 196 and 199.” (emphasis added)
Mr Edwards argued that the above passage should not be read in isolation and that one must look at the facts of that case. He referred to the following passage by Sheller JA, at 196E:
“In my opinion, if on a worker’s claim, the injury is deemed to have happened at the time of incapacity and the employer liable to compensate is the employer at the time, or who last employed the worker before that time, it follows logically and sensibly that, on a dependant’s claim, if death results from the injury and the employer liable to compensate is the employer at the time, or who last employed the worker before that time, the injury should be deemed to have happened at the time of death. In neither case does it matter that there were earlier periods of incapacity resulting from the injury.”
This passage does not assist Mr Thoroughgood and does not expand on or restrict his Honour’s earlier statement about the meaning of “incapacity” in the context of s 15.
Mr Edwards added that Mr Thoroughgood’s claim for lump sum compensation is a claim that results from the injury that caused the incapacity. Accepting that to be so does not assist Mr Thoroughgood. The question is: what is the meaning of “incapacity” in the context of the disease provisions? If Sheller JA’s statement was the only comment on the subject, it may well be open to distinguish the facts of GIO, a death claim, from the present claim for lump sum compensation. However, his Honour’s statement that the reference to incapacity in s 15 is a reference to the incapacity for which compensation has been claimed has been considered and applied in subsequent authorities (discussed below) that are binding on the Commission.
In Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 (Antaw), the worker was a motor mechanic who was injured in 1976 while working for Alto Ford when a metallic particle struck his left eye. He settled his claim under s 16 of the Workers’ Compensation Act 1926 (the 1926 Act) for 10 per cent loss of sight in the left eye. The worker moved to different employers and, in 1992, he had further surgery to his eye and was incapacitated for a period but returned to work. In April 1996, he ceased full-time work as a mechanic because of his loss of vision.
Mr Antaw claimed weekly and lump sum compensation on 29 July 1996 against Alto Ford and was awarded weekly compensation from 10 August 1993 (incapacity having arisen in January 1992 when he had time off work for surgery and was paid voluntary compensation) and lump sum compensation in respect of a further 40 per cent loss of sight in his left eye calculated on a deemed date of injury of 29 July 1996.
Alto Ford appealed. It argued three points: first, that it was not the employer who last employed Mr Antaw in employment to the nature of which the disease was due; second, that the injury should have been deemed to have happened on or before 30 June 1987 and lump sum compensation calculated under s 16 of the 1926 Act, and; third, as the trial judge found an incapacity in January 1992, that was the deemed date of injury under s 15(1)(a)(i) and the section did not permit her Honour to deem the date of injury for the purpose of s 66 to be 29 July 1996.
Before considering the Court of Appeal’s decision, it is important to understand that, though the initial injury was a one-off traumatic event that occurred when a piece of metal entered the worker’s left eye, the injury was, for the purposes of s 15(1), deemed to be a disease of such a nature as to be contracted by gradual process (s 15(3)).
Sheller JA (Meagher JA and Cole AJA agreeing) delivered the judgment of the Court.
Alto Ford’s first point is irrelevant to the current appeal and need not be considered.
As to its second point, counsel for the appellant argued that no practical purpose was to be served by applying s 15 of the 1987 Act where the worker had suffered a frank traumatic injury and there was no difficulty in identifying the date of the injury from which the incapacity arose. It was also argued that the evidence established a deemed date of injury under s 15 before 30 June 1987 because the worker had been incapacitated for work in 1976 and when he first stopped work because of his vision in 1985.
The Court held that the trial judge’s finding that the injury was deemed to have happened at the time of incapacity in 1992, when the worker was unable to work as a motor mechanic, was open to her. By 1996, the worker had sustained a further 40 per cent loss of vision. The worker’s incapacity had not resulted from that additional loss of vision and the appropriate date to determine the further lump sum entitlements was the time when the worker made his claim for lump sum compensation.
In rejecting the employer’s second point, Sheller JA said at [15]:
“Section 15(4) [which is in the same terms as s 16(3)] provides that in s15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3 [of the 1987 Act]. Loss of vision is such a loss; see s66 and the Table to Div 4 of Pt 3 therein referred to. The combined effect of subs(3) and subs(4) means that the condition for the application of subs(1) of s15 is met. The respondent suffered an injury within the meaning of s15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity; s15(1)(a)(i). Her Honour found that this incapacity occurred, other than for the purpose of s66, in 1992 and for the purpose of s66 in 1996.” (emphasis added)
His Honour observed (at [18]) that s 15(1)(a) speaks of incapacity that has resulted from “the injury”, that is, “the injury referred to in the condition which makes the subsection applicable”. His Honour added:
“Thus, if the injury is loss of vision measured by Dr Higgins in September 1991, and the incapacity is that described by Dr Higgins in March 1992 when he said that the respondent found himself unable to work on motor vehicles, then that is the incapacity which determined fictionally when the injury happened. That must have been after 30 June 1987.”
Critically, the incapacity in 1992, when Mr Antaw found he was unable to work on motor vehicles, was an incapacity that resulted in an economic loss. This is to be contrasted with Mr Thoroughgood’s situation where, accepting that he has an incapacity in the Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 (Yacob) sense, he has no economic loss from his incapacity and has not claimed weekly compensation.
Dealing with Alto Ford’s third point, his Honour said (at [25]) that, because the relevant incapacity had not resulted from the additional loss of vision, the trial judge had not erred in finding a deemed date of injury in 1996 in respect of the claim for additional lump sum compensation. His Honour rejected the argument that the purpose of s 15(1)(a) was to fix “one date for the happening of the injury” (the injury being a loss of vision of such a nature as to be contracted by a gradual process). If that argument were correct, his Honour observed that compensation for the further loss of vision after 1992 would be denied.
His Honour said that the trial judge correctly fixed the date of injury for the claim for additional lump sum compensation, adding at [25]:
“As the evidence shows, by 1996 there was a further 40 per cent loss of vision since a lump sum award was made in 1978. Her Honour fixed the date of injury on the basis contemplated by s15(1)(a)(ii) that incapacity had not resulted from that additional loss of vision and accordingly the appropriate time was the time that the respondent made his claim for compensation with respect to the injury.”
Mr Edwards relied on this passage as providing support for his argument that, notwithstanding that Mr Thoroughgood made no claim for weekly compensation and suffered no economic loss when he left Inghams, he had an incapacity at that time. The quoted passage does not support the submission put by Mr Edwards. It deals with the unusual circumstances in that case, which is authority that there can be different deemed dates of injury for weekly compensation claims and for lump sum claims. It does not assist Mr Thoroughgood because he has not claimed weekly compensation.
The next relevant authority is Alfonzo. In that case, the worker developed pain in her arms and neck in the early 1990s while working for the first employer. Her doctor put her off work in 1993 and the insurer paid weekly compensation (the first incapacity). She moved to the second employer, where her symptoms worsened and she again had time off work in 1995 and was paid compensation (the second incapacity). She worked for two weeks in February 1996 but ceased work again and did not return (the incapacity for which the worker claimed compensation). The second employer changed insurers after 31 December 1995.
Mrs Alfonzo claimed weekly and lump sum compensation from both employers in an application filed in the Compensation Court on 30 July 1997. The trial judge held, relying on Sheller JA’s statement in GIO (quoted at [40] above), that incapacity for the purposes of s 16 was a reference to incapacity for which compensation was claimed. On the facts, that date was the commencement of the worker’s inability to earn the wages she would otherwise have earned but for the injury and that occurred on the day she ceased work in February 1996 and her claim for weekly compensation commenced. That was the deemed date of injury for both weekly and lump sum compensation.
The issue on appeal was which of the second employer’s insurers should bear its liability.
Relying on Yacob, the appellant argued that incapacity for work meant a physical incapacity for doing work in the labour market though the incapacity might not necessarily attract weekly compensation because it resulted in no immediate loss of earning power. It said that incapacity in that sense had befallen Mrs Alfonzo in 1993 and that the injury was deemed to have happened at that time.
Priestly JA (Clarke JA agreeing) said (at [19]) that the appellant’s submission might have been acceptable, were it not for the fact that “incapacity” is “given a particular significance in an important and relevant part of the Act”. Reviewing the legislation (as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012), his Honour noted (at [24]) that s 34 of the 1987 Act “makes it plain that incapacity, for the purposes of Division 2, is incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity”. His Honour added, at [29]:
“As the particular purpose of both ss 15 and 16 is to assist in some aspects of making orders for weekly payments of compensation under Div 2 of Pt 3, it seems clear that incapacity has the same meaning in the two sections as it does in Div 2.”
Priestley JA said (at [30]) that, in GIO, Sheller JA reached “substantially the same conclusion in regard to the meaning of incapacity in s 15 as I have done in regard to s 16”. The relevant deemed date of injury was therefore not the date of the first incapacity but was the date of the incapacity for which compensation was claimed or entitled to be claimed. The relevant deemed date of injury for the claim for lump sum compensation was not the date of claim (30 July 1997) but the date of incapacity for which compensation was claimed or entitled to be claimed (February 1996).
Mr Edwards relied on the reasoning of Fitzgerald JA at [50] in Alfonzo, where his Honour said that s 16(1)(a)(i) is “capable of operation when an injury results in an incapacity for which no compensation is claimed”. While this statement supports Mr Thoroughgood’s position, as it is inconsistent with the clear view of the majority, I do not accept it as a correct statement of the law and I decline to follow it.
The next relevant authority is Stone. In that case, the worker developed skin cancer as a result of prolonged exposure to sun in the course of his employment with the respondent up to 16 December 1985, when he stopped work for unrelated reasons. Prior to stopping work, he was aware of sunspots, which his doctor burnt off. The worker’s condition deteriorated and he claimed lump sum compensation in respect of severe facial disfigurement in December 2001, which he amended on 10 June 2003. The trial judge held that the treatment given before 30 June 1987 would have involved some incapacity for work and therefore the deemed date of injury was before 30 June 1987 and the provisions of s 16 of the 1926 Act applied in assessing the quantum of compensation recoverable.
The Court of Appeal held that the trial judge had erred. As there was no claim or entitlement to claim weekly compensation, s 16(1)(a)(i) did not fix a date on which the impairment injury happened. That date was, in the circumstances of the case, fixed when the worker claimed lump sum compensation in December 2001 or on 10 June 2003. Handley JA noted (at [8]) that Antaw is authority for the proposition that s 16 of the 1987 Act “may fix different dates for incapacity and impairment injuries” (emphasis added).
In respect of Alfonzo, his Honour noted at [9] and [10]:
“... the appeal did not require the Court to choose between 11 February 1996 and 30 July 1997 as the date of injury for the purposes of the ss 66 and 67 claims but between dates before and after 31 December 1995 when the appellant insurer came on risk.
In the present case where there was and could be no claim for weekly compensation s 16(1)(a)(i) did not fix a date on which the impairment injury happened. Accordingly s 16(1)(a)(ii) applied and this injury is deemed to have occurred when the claim for lump sum compensation was made.” (emphasis added)
Mr Edwards relied on the highlighted part of the above passage and submitted that it distinguished Stone from the present matter. I do not agree. As Mr Thoroughgood has not claimed weekly compensation, I infer that, like Mr Stone, he could not do so because he had no entitlement to that compensation, presumably because he suffered no economic loss as a result of his aggravation injury.
Hodgson JA (Mason P agreeing) put the matter beyond doubt at [37] and [38]:
“Berkeley Challenge [Alfonzo] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s 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 previously been incapacity in the Arnotts sense, not resulting in any loss of wages.” (emphasis added)
There is no incapacity giving rise to an entitlement to weekly compensation in the present case.
Handley JA’s comments at [7] (see [32] above), relied on by Mr Edwards, do not assist. His Honour’s comments must be read with his statement (at [5]) that:
“Incapacity referred to in s 16(1)(a) does not mean physical incapacity for work in the sense explained in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 but means the incapacity for which weekly compensation is claimed.”
Just as no claim for weekly compensation was made in Stone, Mr Thoroughgood made no such claim. It follows that the incapacity found by the Arbitrator could not support a deemed date of injury of 10 October 2006 and nothing in Woods or the above authorities (apart from the minority decision of Fitzgerald JA in Alfonzo) supports the argument that, accepting that Mr Thoroughgood has an incapacity in the Yacob sense, his deemed date of injury is 10 October 2006.
It follows that the first ground of appeal succeeds. However, that does not lead to an award in favour of Inghams. That is because there are clearly alternative deemed dates of injury that may be appropriate that have not been properly considered, though they were referred to in the evidence (see generally T82, 7 December 2012).
While it will often be open to an Arbitrator to find an alternative deemed date of injury, as the Arbitrator did at [77], and that will be a practical and sensible approach in most cases, even if the alternative date was not pleaded, that was not open in the present case because Mr Edwards based his case on a deemed date of injury of 10 October 2006 (relying on incapacity at that time) and did not rely on an alternative date. (This issue is discussed further at [176] below.)
However, the concession by Mr Edwards that he could not win if there was no incapacity was based on an incorrect view of the authorities. It is clear without doubt that a claim for lump sum compensation can succeed if there is no relevant incapacity. To determine the deemed date of injury in such a case one merely looks to the date of claim. As there were several claims for compensation in this matter, it is necessary that the matter be remitted to a different Arbitrator for that question to be re-determined.
If, at the re-determination, it is considered appropriate to amend the deemed date of injury, any application for such an amendment will be a matter for the next Arbitrator to consider in light of the fact that the Commission is not a tribunal bound by strict pleadings (Far West Area Health Service v Radford [2003] NSWWCCPD 10) and has a statutory duty to act according to equity, good conscience and the substantial merits of the case (s 354(3) of the 1998 Act). Moreover, matters are determined on the evidence and the submissions, not on the pleadings (Dawson J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 296–7). I note, in passing, that Mr Macken expressly submitted at the arbitration that the claim in the present matter had been made on 18 January 2012 (T14.25, 7 December 2012) and dealt at length with the question of the identity of the last relevant employer.
NOTICE OF INJURY AND NOTICE OF CLAIM
The legislation
Notice of injury is dealt with in ss 254 and 255 of the 1998 Act. Those sections provide:
“254 Notice of injury must be given to employer
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is 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) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)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,
(d) the injury has been reported by the employer to the Authority in accordance with this Act.
(4) In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances:
(a)the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b)the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the WorkHealth and Safety Act 2011 ,
(c)the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.
255 How notice of injury is given
(1) A notice of injury must state:
(a) the name and address of the person injured, and
(b) the cause of the injury (in ordinary language), and
(c) the date on which the injury happened.
(2) A notice of injury may be given orally or in writing.
(3) If there is more than one employer, a notice of injury may be given to any one of those employers.
(4) A notice of injury is taken to have been given to an employer:
(a) if it is given to any person designated for the purpose by the employer, or
(b) if it is given to any person under whose supervision the worker is employed.
(5) A written notice of injury may be served by delivering it to, or by sending it by post to, the residence or any place of business of the person on whom it is to be served.
(6) If the regulations so require (and despite anything to the contrary in this section), a notice of injury must be given in the manner, and contain the particulars, prescribed by the regulations.”
Notice of claim is dealt with in ss 260 and 261 of the 1998 Act. Those provisions provide:
“260 How a claim is made
(1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
(2) The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form part of a claim,
(f) such other matters as may be prescribed by the regulations.
(3) Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.
(4) The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim:
(a)waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,
(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
(7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.
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 Guidelines
The WorkCover Guidelines applicable in September 2006 were the WorkCover Provisional Liability and Claims Guidelines (the Guidelines) issued in December 2001, which came into effect on 1 January 2002. Relevantly, Pt 2, rr 4, 5 and 6 provided:
“How does a worker make a claim?
4 To make a claim, a worker must serve the information listed in Part 2, rule 6 on the relevant person which is either:
4.1. the employer from whom the worker claims compensation; or
4.2 the insurer responsible for covering the worker for compensation.The information must be in writing on a form designed for making a claim for workers compensation benefits pursuant to the Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998.
How may a worker serve a claim?
5. A worker may serve a claim in any of the following ways:
5.1 by giving it in writing personally to the relevant person, see Part 2 rule 4.
5.2by having it delivered or sent by post to the current residence of the relevant person or to any current place of business of that person
5.3by sending it by email or facsimile to the relevant person
5.4by leaving it at, or posting it to, the relevant company’s registered office
5.5by having it delivered to a director of the company who resides in Australia
5.6if a liquidator or administrator of the company has been appointed, by leaving it at, or posting it to, the address of the liquidator’s or administrator’s office
5.7if the claim is for only medical expenses up to $5,000, the worker may make the claim verbally to the employer or the insurer, or the employer may make the claim verbally to the insurer. Supporting documentation of the amount claimed must be provided for payment to be made.
What is the minimum information required to make a claim?
6. To make a claim, the worker must provide certain information depending on what the worker is making a claim for. An employer can provide any information about the claim to the insurer but a suggested minimum amount of information is listed in Part 2, rule 6.8.
If a worker has provided information in relation to one claim for an injury, that information is relevant for any other claim the worker makes for the same injury.
What information form the worker is needed to make a claim?
6.1Information about the worker:
· Given and family names
· Residential address
· Date of birth
· Occupation
· Interpreter required, if yes language.
· Country of birth
6.2Information about the employer
· Name
· Current business address
· ABN if known
· Policy number if known
6.3Information about the treating doctor
· Name
6.4Information about the worker’s employment
· Full time or part time
· Permanent or causal
· Gross pay per week
· Total hours worked per week
· Normal working hours
· Details of enterprise or workplace agreement or an award if known
· Date the worker started employment with the employer
· 2nd employers name and contact details if applicable
· gross pay per week from 2nd employer
· hours worked per week for 2nd employer
6.5 Information about the workplace injury
· Date and time of the workplace injury
· How the injury happened
· What part of the body is injured?
· Was this part of the body normal before the workplace injury?
· The address where the workplace injury happened
· Name of any witness to the workplace injury
· Name of person at workplace the injury was reported to
· Date the workplace injury was reported to the employer
6.6Additional information
· Details of any previous similar injuries or conditions
· That may assist when determining the claim
· Worker’s declaration, see Part 2, rule 6.7.
What must the ‘worker’s declaration’ include?
6.7A declaration must be signed by the worker and must say words that mean the same as:
I certify that the information I have provided is correct. I consent to my insurer and its appointed service providers collecting personal information about me and using it for the purpose of assessing and managing my worker’s compensation claim, including determining liability and whether my claim is true. I consent to my insurer disclosing my personal information to medical practitioners, rehabilitation providers, investigators, legal practitioners and other experts or consultants for the purposes of assessing and managing my claim. I also consent to my insurer disclosing my person details to the WorkCover Authority which is authorized to use this information to fulfil it’s functions under the NSW workers compensation legislation. I understand that if any information I have given is untrue, that may claim may be denied and that I may be prosecuted
What information is required from the employer?
6.8 The information the insurer may obtain from the employer is:· Name
· Current business address
· Policy number
· ABN
· Number of people at the workplace
· Details of enterprise or workplace agreement or an award
· Confirmation that the information the worker provided about their employment in Part 2, rule 6.4 and their workplace injury in Part 2, rule 6.5 is accurate.
· Additional information that may assist in determining the claim
· Employer’s signature, name and position
What if the claim is for weekly benefits?
6.9To make a claim for weekly benefits the worker must:
· provide the minimum information listed in Part 2 rule 6.1 to 6.7; and
· provide a WorkCover medical certificate. (if one has not already been given to the insurer or employer, or a medical report that includes the same information)
What if the claim is for medical expenses?
6.10To make a claim for medical expenses compensation the worker must:
· provide the minimum information listed in rule 6.1 to rule 6.7” (formatting, spelling and punctuation as per original)
The Arbitrator’s reasons
Dealing with the notice of injury issue, the Arbitrator said (at [73]) that Mr Thoroughgood gave notice of injury to Inghams when he told Ms Holloway that he had swollen feet from standing up all day. As Ms Holloway knew Mr Thoroughgood, by notifying her, he was in effect giving notice of his name and address. His statement also apprised her of the method by which his injury occurred and, because his injury occurred from the type of work he did over a period of time, he provided notice of the date on which his injury occurred.
The Arbitrator was therefore satisfied that Mr Thoroughgood had provided notice of injury in accordance with s 254(1) as soon as possible after the injury happened and before he had voluntarily left his employment with Inghams.
Dealing with the notice of claim issue, the Arbitrator found (at [76]) that, when Mr Thoroughgood requested Inghams in September 2006 to provide him with appropriate footwear, which request he made on the recommendation of Dr Walter, he was making a claim for compensation for proposed treatment for his injury in the form of therapeutic treatment given at the direction of his general practitioner. Relying on Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 (Barrow) and Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363 (Tan), he said that what was relevant was the substance of the claim for compensation being made, not the form in which it was made.
In other words, on or about 8 September 2006, Mr Thoroughgood claimed compensation from Inghams under s 60 for the cost of proposed medical treatment. Therefore, in accordance with s 261(3), Mr Thoroughgood had made a claim for compensation under s 66 at that time.
Submissions
Mr Saul submitted that it was not open to the Arbitrator to find that the statutory requirements had been met (as to notice of injury) when Mr Thoroughgood told Ms Holloway that he had swollen feet from standing up all day because “[t]hat statement [was] not sufficient in any respect to satisfy the requirements of these sections in respect [of] either notice or claim of an injury”.
He said that the notice of claim provisions had not been satisfied when Mr Thoroughgood requested “appropriate footwear” on or about 8 September 2006: simply asking for boots did not discharge the onus to make a claim for compensation and Mr Thoroughgood had certainly not made a claim for lump sum compensation. He said that Mr Thoroughgood conceded that he had not completed a claim form or written in the accident book. There was no notice given or claim made (as prescribed by the Act) on 8 September 2006 and the authorities relied on by the Arbitrator (Barrow and Tan) did not assist in elevating the “request” into either a notice of injury or a claim for compensation.
He contended that the Arbitrator should have found that Mr Thoroughgood was “aware” of his injury (under s 261(6)) as at mid-2006 when he spoke to Ms Holloway after consulting his general practitioner and obtaining various medical certificates. If he first became aware of his injury at that time, he has failed to prove that he made a claim for compensation within the statutory time limit (six months) and his claim must fail.
The Arbitrator therefore erred in not considering and applying s 261(6) for the purpose of determining when the clock starts running for the six-month time bar in s 261(1). As there is no evidence, or no sufficient evidence, to prove that Mr Thoroughgood made a claim for compensation on Inghams within six months after becoming aware of the injury, Mr Saul said he is barred from recovering compensation.
Mr Edwards submitted that Mr Thoroughgood gave notice of injury under s 254(1) when he told Ms Holloway that he had swollen feet from standing up all day. The reporting of injury was confirmed by Inghams requiring Mr Thoroughgood to be examined by Dr Beiers in September 2008. He said that Mr Thoroughgood made a claim for compensation under s 261 when he requested Inghams to provide him with appropriate footwear, which was a claim pursuant to s 60 of the 1987 Act.
Mr Edwards argued that both these findings were open to the Arbitrator and that Mr Saul’s submissions ignored Inghams’ own actions in writing to Dr Walter and referring Mr Thoroughgood to Dr Beiers. He said that Inghams could not deny notice of injury when Ms Holloway did not require completion of a notice in the register of injuries or the accident book. He added that a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury concerned, even if the person’s claim did not relate to the particular compensation in question (s 261(3)).
Discussion and findings
Notice of injury
The notice of injury issue was considered in Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315, where I said at [56]–[57]:
“The term ‘injury’ in the 1998 Act means ‘personal injury arising out of or in the course of employment’ (section 4 1998 Act). In the context of section 254 ‘injury’ means ‘injurious event’, not the pathology said to have resulted from the injurious event. A worker is not expected to know the exact nature and extent of his injury at the time of initial notification. Any other interpretation of ‘injury’ in this section would lead to the unsatisfactory situation of a worker who gives notice of an upper back strain being barred from claiming compensation in the event that medical investigations subsequently reveal that he or she in fact sustained a lumbar disc injury. There may well be arguments about causation, but provided the evidence supported a connection between the injurious event and the subsequently discovered lumbar disc lesion, the worker would not be barred from recovering compensation because he or she did not initially give ‘notice of injury’ for the correct body part.
In the present case the ‘injurious event’ sustained by Mr Pietrzak was the blow to his head when the roller door struck him. If that event was reported then that is sufficient compliance with section 254. It puts the employer on notice and allows the employer to make its own investigations, medical or factual, into the incident and its consequences. If it is later alleged that a worker sustained more extensive or more serious injuries than were initially reported, then whether those injuries are the result of the original injury will be a matter to be determined on the evidence. However, the fact that a particular body part has not been referred to in the initial notification is not a bar to making a claim for compensation in respect of that body part.”
This approach has been followed in Toll Pty Ltd v Bartimote [2007] NSWWCCPD 153 and in Shoalhaven City Council v Schutz [2012] NSWWCCPD 14.
The evidence on notice of injury is in Mr Thoroughgood’s statement of 13 February 2009, where he said that he told Ms Holloway (presumably in or about September 2006) that he had swollen feet from standing up all day. That conversation occurred at work before Mr Thoroughgood stopped working for Inghams and has not been challenged by Ms Holloway. As Ms Holloway knew Mr Thoroughgood, it was not necessary for him to formally give her his name and address. As the legislation expressly provides that notice of injury may be given orally (s 255(2)), it is of no consequence that Mr Thoroughgood did not complete a claim form.
If Inghams felt that the information provided in the verbal notice of injury (the initial notification) was defective, and the missing information was “materially necessary” for it to decide about Mr Thoroughgood’s entitlement to provisional liability, it was under an obligation, within three working days, to inform Mr Thoroughgood that the notification had not been made (Pt 1 r 7.2 of the Guidelines). There is no evidence that Inghams did that and it is not open to Inghams to now claim that Mr Thoroughgood did not give notice of injury.
In these circumstances, the Arbitrator’s conclusion on notice of injury was open to him and discloses no error. I reject this ground of appeal without resort to Ms Lynch’s reference to Mr Thoroughgood seeing Dr Beiers.
As Mr Thoroughgood gave notice of injury in September 2006, it must be accepted, as Mr Saul submitted, that he was aware he had received an injury at or about that time. Therefore, compensation cannot not be recovered unless a claim for compensation has been made within six months after he first became aware he received the injury (s 261).
Notice of claim
The question is then whether Mr Thoroughgood made a claim for compensation within six months of September 2006. The Arbitrator held that he did when he asked for proper shoes. In his statement of 13 February 2009, Mr Thoroughgood said:
“In mid 2006 I noticed a problem with swelling in my left foot and my veins were popping out and my legs were painful. I saw Dr Walter and he wanted Inghams to provide proper shoes for me. I spoke to Cindy Holloway at Inghams. I told her that I had got swollen feet from standing up all day and my doctor suggested that they provide me with proper boots. She told me that the gum boots that were provided were good enough. She did not suggest that I complete a claim form or write in the accident book.”
In his statement dated 13 May 2009, Mr Thoroughgood said he ceased work for Inghams “after they refused to provide proper footwear”.
The evidence from Dr Walter on this issue is in a certificate dated 8 September 2006, which states:
“This is to certify that Mr Brett J Thoroughgood attended this surgery today and was suffering from severe varicose veins.
Notes: needs to wear proper comfotable [sic, comfortable] water proof boots to protect his geet [sic, feet], gum boots are unacceptable, as he has severe varicose veins” (emphasis included in original)
Dr Walter wrote a further certificate on 12 September 2006 as follows:
“This is to certify that Mr Brett J Thoroughgood attended this surgery today and is fit for work and has been fit for work since Monday 11-9-06. He was sent home from work on Monday by his employee [sic] in relation to the certificate I gave him in relation to proper footwear he should be wearing for work. At no stage have I put him off on sick report and this is clear in the certificate and it has also been explained to your OH&S officer. Whilst it is clear that Brett has varicose veins in both feet, it is well known that working on concrete and in wet environments makes these varicose veins worse. The certificate was issued in the hope that someone with some commonsense at Inghams would agree to let Brett wear more protective and comfortable footwear to prevent his varicose veins from becoming worse.”
Ms Holloway said on 17 November 2006:
“Summary of events relating to Brett Thoroughgood
· Superintendent Paul Andrews presents with medical certificate stating requires suitable footwear to wear as is suffering from varicose veins in feet
· I consulted OHS Coordinator Sean Starkey informing him of the certificate he [sic] was in agreeance [sic] to send Brett Home [sic] as NWR. Informed Brett would need a clearance fit normal duties
· Informed plant manager Ian George of situation
· Following day received phone call from Brett stating his NTD would like to discuss his request for Brett to wear suitable footwear.
· Contacted Brett’s Dr who states is unsure if varicose veins are work related but would like Brett to wear alternate footwear
· Consulted plant manager of phone conversation with Dr who then consulted with OHS Manager Sharyn Buck
· Company forwarded letter to Brett’s NTD
· RTW ND sent to DR’s for further R/V
· Asked Brett if [sic] following Dr’s Suggestion [sic] of wearing T.E.D. stockings. Brett states he looked into buying some [a] couple of years ago but were expensive so [sic] & would be more so now.
Relevant Information
· Have personally known Brett for approximately 10 years outside of any employment with Inghams Enterprises Pty Ltd
· I am aware Brett suffered from Varicose Veins pryor [sic] to his commencement at Inghams” (punctuation as per original)
Mr Saul’s submissions really come down to four main points: first, simply asking for boots did not discharge the onus to make a claim; second, Mr Thoroughgood had not made a claim for lump sum compensation (within six months of September 2006); third, Mr Thoroughgood had not completed a claim form or written in the accident book; and, last, there was no evidence, or no sufficient evidence, to prove that Mr Thoroughgood made a claim for compensation on Inghams within six months of becoming aware of the injury.
I do not accept Mr Saul’s submissions.
The first and fourth points can be dealt with together. The assertion that Mr Thoroughgood simply asked for boots, and therefore made no claim within six months of becoming aware of the injury, was an inaccurate summary of what happened. Advising Inghams that he had swollen feet from standing up all day, and armed with a certificate from his treating general practitioner that he needed “proper comfo[r]table water proof boots to protect his [f]eet”, as gumboots were unacceptable, and a second certificate from the same doctor stating that working on concrete and in a wet environment makes varicose veins worse, Mr Thoroughgood asked Inghams to provide him with “proper boots”. That was clearly a claim for “medical or related treatment”, namely, therapeutic treatment, at the direction of a medical practitioner under s 59(b) and s 60 of the 1987 Act.
As to the second point, the fact that Mr Thoroughgood did not make a claim for lump sum compensation within six months of September 2006 is of no consequence. Section 261(3) provides that, for the purposes of s 261, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury concerned, “even if the person’s claim did not relate to the particular compensation in question”. Therefore, though the claim for medical or related treatment did not relate to the claim for lump sum compensation that is the subject of the current dispute, it was nevertheless sufficient compliance with s 261.
As to the third point, the fact that Mr Thoroughgood had not completed a claim form is of no consequence. Though there is no evidence of the cost of the boots sought, it is clear beyond doubt that they would have been less than $5,000. In that situation, a worker “may make the claim verbally” (Pt 2 r 5.7 of the Guidelines) and it does not matter that the claim was not in writing. In any event, the claim was substantially in writing in Dr Walter’s two medical certificates.
All of the other information required by Pt 2 r 6 of the Guidelines, such as Mr Thoroughgood’s name and address, and information about his employment and the injury, was either known to Inghams or included in the certificates from Dr Walter. If the claim was defective, because it was not made as required by the Guidelines, it was, in the circumstances, a minor defect in form or style and not a bar to the recovery of compensation (s 260(5)). As observed by Basten JA (Bell JA agreeing) at [38] in Tan, “s 260 clearly envisages that a claim may not be made as required by the Guidelines and may yet constitute a ‘claim’”.
Basten JA added, at [42]:
“The objectives of the Act, which are directed primarily to ensuring compensation for work-related injury, will not be promoted by a narrow reading of a provision which allows for recovery of compensation in circumstances where procedural requirements have not been followed. It was not in dispute in the present case that the Commission was bound to accord procedural fairness to each party. Accordingly, an inadequate, defective or even non-existent claim might require the adjournment of proceedings, or part thereof, and the provision of further information by the worker to the insurer. The adoption of a flexible procedure, expressly provided for by s 354, would be more conducive to the purposes of the legislative scheme than the adoption of a technical approach to a procedural requirement. It was, therefore, not correct to dismiss s 260(5) as unavailable in circumstances where there is ‘no claim at all’.”
It is also instructive to consider the wording of Pt 2 r 5.7 of the Guidelines. In addition to allowing a claim to be made verbally (where the claim is only for medical expenses up to $5,000), it only requires supporting documentation of the amount claimed “for the payment to be made”. It does not require supporting documentation for a claim to be made. Thus, Inghams would have been entitled to require supporting documentation of the amount claimed before it paid the claim. However, that did not arise because it disputed liability for the boots in any event.
STATEMENT OF THE DELEGATE OF THE REGISTRAR
Background
The Arbitrator referred to the decision by Ms Lynch delivered on 25 March 2009 (see [8] above). Noting that Ms Lynch’s reasons recounted evidence that was before her, but not before him, the Arbitrator said (at [17]) that that evidence was evidence of the facts to which it related and that he was able to take into account in the proceedings before him because “the rules of evidence do not apply” and he was satisfied that Ms Lynch’s recount of that evidence was “reliable”.
The Arbitrator added, at [18]:
“The registrar’s recount of this part of the evidence is that:
(a) Mr Thoroughgood’s position with H L Mullane & Sons is a plumber’s labourer and trade assistant;
(b) Mr Thoroughgood’s work for H L Mullane & Sons requires him to restore the ground.
(c) Mr Thoroughgood’s delay until 17 July 2007 in consulting Dr Simon Thibault for treatment of his varicose veins was that he could not afford to do so earlier, and
(d) Inghams has no record of Mr Thoroughgood taking sick leave because of venous disease between the time Mr Thoroughgood commenced his employment in 2003 and September 2006.”
The Arbitrator said (at [74]) that, even if (contrary to his finding) Mr Thoroughgood had not given notice of injury as he alleged in September 2006, it seemed to him that special circumstances applied such that s 254(1) would not prevent Mr Thoroughgood from recovering compensation. That was because the employer had not been prejudiced in respect of the proceedings because Inghams had Mr Thoroughgood almost immediately examined by a doctor of its choice, namely Dr Beiers. (The only evidence of Mr Thoroughgood having seen Dr Beiers was in Mr Lynch’s decision.)
Submissions
Mr Saul submitted, relying on s 91 of the Evidence Act 1995, that the Arbitrator erred in finding that Ms Lynch’s reasons constituted evidence and that it was not open to him to take into account matters that were not before him and to “elevate those matters into evidence and then facts”.
He said that the Arbitrator erred in stating that the rules of evidence do not apply. Section 354(2) of the 1998 Act states that the Commission is “not bound by the rules of evidence”, but this does not mean that the Arbitrator should ignore the rules of evidence.
Mr Saul contended that, in assessing the evidence, an Arbitrator must have regard to matters in Pt 15 r 15.2 of the Workers Compensation Commission Rules 2011 (the Commission’s Rules) and must apply the principles of fairness, procedural fairness and natural justice, and act according to equity and good conscience (Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) [2010] HCA 1; 5 DDCR 286 (Kirk); State Transit Authority (NSW) v Chemler [2007] NSWCA 249 (Chemler).
He referred to McColl JA’s decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42 (Edmonds), where her Honour said (at [128]) that Rule 70 (the predecessor of Pt 15 r 15.2) broadly reflected the fundamental principles of the common law concerning the admissibility of evidence.
He also referred to Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (Zheng) (at [24]), where Fleming DP said that, where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to the principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case.
He contended that, applying these principles, the Arbitrator should not have “elevated the Delegate’s reasons into ‘evidence of the fact’ in the absence of actual evidence before him because”:
(a) the proceedings before the Registrar involved consideration of issues in a context that was different to the issues in dispute in the proceedings before the Arbitrator;
(b) Inghams had no opportunity to challenge or put in issue those matters that were not in evidence before the Arbitrator, but in the decision of the Delegate;
(c) Mr Thoroughgood had the opportunity to adduce evidence he wished to rely on, but sought not to adduce this evidence, and
(d) Inghams had no opportunity to test the “reliability” of the material in the Delegate’s reasons.
Further, Mr Saul submitted that the Arbitrator did not given any reasons as to why he was “satisfied that the delegate’s recount of that evidence is reliable”.
Mr Edwards assumed that Mr Saul was referring to [74] of the Arbitrator’s decision, where he said that if, contrary to his finding, Mr Thoroughgood had not given notice of injury to Ms Holloway, Inghams had not been prejudiced because it had Mr Thoroughgood “almost immediately investigated by a doctor of its choice, namely Dr Beiers”. He said that, though that information was obviously hearsay, under s 354(2), the Arbitrator was permitted to obtain information or inform himself in such manner as appropriate.
He said it was appropriate for the Arbitrator to inform himself of that examination because:
(a) it was within the knowledge of the employer;
(b) the statement was part of the material in the Application and it did not appear to have been suggested by the employer before Ms Lynch that Mr Thoroughgood had not been examined by Dr Beiers, and
(c) it was a matter raised in submissions before the Arbitrator but not denied by Mr Macken.
Discussion and findings
The Arbitrator’s statement that the rules of evidence do not apply in the Commission was perfectly consistent with s 354(2) of the 1998 Act and with appellate authority. Section 354(2) states that the Commission “is not bound by the rules of evidence”. In Edmonds, McColl JA (at [93]) (Tobias JA agreeing) expressed it as an “absence of an obligation to abide by the rules of evidence”. It follows that s 91 of the Evidence Act 1995 does not apply to proceedings in the Commission.
While it is correct that McColl JA also observed (at [128] in Edmonds) that Rule 70 (now Pt 15 r 15.2) “broadly reflects fundamental principles of the common law concerning admissibility of evidence” and that Zheng held (in a statement cited with apparent approval in Edmonds) that, where the rules of evidence do not apply, fairness must guide the weight to be given to evidence, that does not provide any support for Mr Saul’s submission.
There was no unfairness in the Arbitrator referring to Ms Lynch’s reasons. Those reasons were admitted into evidence without objection and, once admitted, were admitted for all purposes (Walker v Walker (1937) 57 CLR 630; Jones v Sutherland Shire Council [1979] 2 NSWLR 206, and Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 569B). That Mr Thoroughgood intended to rely on them was obvious from the fact that they were attached to the Application. If they contained matters that were seriously in issue, it was open to Inghams to put on evidence in response. It did not do so.
Ms Lynch’s reasons dealt with issues concerning the same parties over the same general subject matter, namely, a claim for compensation by Mr Thoroughgood as a result of an alleged aggravation of his varicose veins while working at Inghams. Inghams would have been well aware of the content of the reasons and the factual circumstances surrounding the decision.
The matters the Arbitrator referred to at [18] of his decision (quoted at [111] above) were not contentious and clearly played no role in the outcome.
The only possibly relevant matter in Ms Lynch’s decision that the Arbitrator relied on was the reference to Inghams having Mr Thoroughgood almost immediately investigated by a doctor of its choice, Dr Beiers. As I have not relied on that evidence in upholding the Arbitrator’s finding on notice of injury, it is of no consequence to the outcome of the appeal.
However, as the Commission is not bound by rules of evidence and, as there was clearly no unfairness to Inghams in the Arbitrator referring to Ms Lynch’s decision, the Arbitrator did not err in referring to the fact that Inghams had sent Mr Thoroughgood to Dr Beiers when he considered the issue of notice of injury. Nothing in Kirk or Chemler supports Mr Saul’s submissions.
The failure by Inghams, and Mr Macken, to serve any report from Dr Beiers is discussed below under “other matters”.
PROCEDURAL FAIRNESS
Background
This ground of appeal originally concerned the refusal to admit into evidence three articles referred to by Dr Potter in his reports. In the submissions that were ultimately filed, the ground was expanded to include a complaint about the refusal to allow Dr Potter to give oral evidence. To properly understand this ground, it is necessary to set out more of the proceedings before the Arbitrator.
The matter was first listed for conciliation and arbitration on 16 August 2012, when Mr Edwards sought and was granted leave, over objection, to amend the Application to change the date of injury, the particulars for injury description, and the particulars for how the injury occurred. The Arbitrator then adjourned the matter until 1 November 2012 “to provide Inghams with the opportunity to obtain further medical evidence” ([10]).
The following exchange took place, starting at T21.9 on 16 August 2012:
“Mr Macken: Arbitrator, I would expect that we will at least be seeking to call Dr Potter to give some evidence to address the allegation now made. He is unfortunately overseas until the 17th of October which is a Wednesday and his preferred time is Wednesday afternoon so that would make it 2.00pm on the 24th or some Wednesday thereafter.
Arbitrator: Has he got a second preference for times. The reason why I ask is that I’m employed as a part-time Arbitrator who works Thursdays and Fridays. If that’s a crucial problem, it will just have to be reallocated to a different Arbitrator I suppose but those are my limitations, you know, I’d have to get permission by a Registrar to be employed for an extra day, I don’t know whether that will be forthcoming, but if he can be accommodated on a Thursday or a Friday then I’ll …
Mr Macken: I’ll ring him and ask him.
Arbitrator: Okay.
Mr Macken: He can do it Thursday afternoon.
Arbitrator: Okay, great. So he’s back on the 17th so I’ll just make a note, back the following week.
Mr Macken: Yep, the 25th or something like that.
Arbitrator: Yep, that’s fine.
Mr Macken: 2.00 is his preference if possible.
Arbitrator: Okay, okay, 2.00.
Mr Macken: You might just list it for 1.00 just in case there’s issues beforehand but if he can’t get here til 2.00, that’s fine.
Arbitrator: That’s okay. 25th of the 10th, that’s fine at 1.00pm, and as I said before he (15:47) procedural stuff and what not, no problem.
Mr Macken: 25th, afternoon, 1.00pm.
Mr Edwards: Sorry.
Mr Macken: 25th, afternoon, 1.00pm.
Mr Edwards: Of October.
Mr Macken: Yeah, October, although, sorry, go on, is it okay.
Mr Edwards: Yeah, yeah.
Arbitrator: Dr Potter may not be here til 2.00pm but we can sort of deal with preliminary stuff or what not.
Mr Edwards: Why can’t we do it by phone.
Mr Macken: That would be our preference to do it by phone.
Arbitrator: Yeah, yeah, that should be okay, yeah, yeah, yeah, I just need to make, yeah, yeah…
Mr Edwards: I’ve done it here before using a mobile phone.
Arbitrator: Yeah, we’ll, yeah, we’ll, yeah, I mean certainly yeah.
Mr Macken: Yeah, I think it would be preferable for us if we could do it.
Arbitrator: Okay.
Mr Macken: Great and thanks Arbitrator.”
On 1 November 2012, Mr Edwards said that, if Mr Macken wanted to make an application to call Dr Potter to give oral evidence, he had to do so in a manner that identified “the particular evidence that the doctor intends to give and to what point the evidence goes before I can make a proper application to deny him the right to call Dr Potter” (T1.45, 1 November 2012).
Referring to the adjournment granted on 16 August 2012, the Arbitrator said, at T4.42 on 1 November 2012:
“The reason the adjournment was granted is because whatever application you could have made at the telephone conference, that is the only prejudice you have suffered, in my view, your client has suffered, in my view, as a consequence of the Applicant refining the particulars. Not expanding them, not changing the nature of the injury, but refining the particulars of injury and narrowing them down from the very broad injury as defined in the – its letter as – in 18 January 2012. In other words, narrowing down the dispute in terms of injury as articulated and defined by the parties by the process of the letter of 18 January 2012 and the Notice of Dispute by way of your letter.
That is what occurred so I held any prejudice to you would have been any application you could have made at a TC in normal events, in normal circumstances and that prejudice could be overcome by making the application. That’s why it was adjourned. You made an application for an adjournment. Mr Edwards, as I record here, consented to that adjournment, the matter was stood over.
Now what is being discussed at the moment, as I understand it, is you’re seeking leave to – lead evidence orally from Dr Potter. Mr Edwards, as I understand it, is asking well what is the nature of that evidence to be, what is that you’re seeking to put. He will then determine whether he will consent or object to that evidence being given.
I’ve asked the question: why wasn’t the evidence between 16th of August to now reduced to writing? That’s normally what happens in the terms of experts. So, why?”
After some further exchanges, Mr Macken was about to answer that question when the recording stopped because of an equipment failure. As a result, there is no transcript of Mr Macken’s submission. Neither side has attempted on appeal to supplement the incomplete transcript with a summary of what Mr Macken said. In his decision, the Arbitrator merely recorded that the matter was again adjourned to 7 December 2012.
On 7 December 2012, Mr Macken submitted that Dr Potter had been available to give oral evidence on 1 November 2012, but the application to call him was rejected because a report should have been obtained from him. That report, dated 12 November 2012, was obtained and served on 19 November 2012.
In the course of submissions on 7 December 2012, Mr Edwards submitted (at T7.26, 7 December 2012) that Dr Potter’s reports could not be given any weight because the articles on which his opinion was based had not been attached and the reports were therefore incomplete.
In the course of Mr Macken’s submissions, the Arbitrator raised the question that, if he could not see the material on which Dr Potter relied in formulating his opinion, that would affect the “cogency of his explanation relevant to the other submissions” (T16.9). Mr Macken submitted to the contrary. The Arbitrator raised the question again at T17.8, when the following exchange took place:
“Arbitrator: So I don’t, so that’s what I’m saying. If those articles are not in evidence, won’t that then affect how I can assess or weigh up the cogency of the explanation that Dr Potter’s provided and thereby, which is a relevant factor in determining what weight I place on Potter’s report?
Mr Macken: Well with respect, no.
Arbitrator: Why?
Mr Macken: Because it is the very point that they don’t deal with the question of work being an aggravating or longstanding on concrete floors or wet floors being an aggravating factor, that’s what Dr Potter says. He’s reviewed them to see if there was any evidence. In the journals and in the studies on this condition to support that contention and the answer is they don’t support that contention.”
After further exchanges, Mr Macken said he was happy to seek leave to have admitted the articles that were “attached to Dr Potter’s report” (T20.14). Mr Edwards objected to the tender of the articles, on the ground that he could not deal with them, and the Arbitrator rejected them “if that’s going to cause some prejudice to [Mr Thoroughgood]”, which the Arbitrator thought was a legitimate complaint (by Mr Edwards) (T21.11).
In his decision, the Arbitrator said at [60], among other things, that
“because the articles are not in evidence, and because Dr Potter has repeatedly emphasised that he has used the articles to formulate and confirm his opinion with respect to the relationship between Mr Thoroughgood’s varicose veins and his employment with Inghams, the weight that I can place on Dr Potter’s opinion is diminished. This is simply because the fullness of his reasoning cannot be examined and therefore the cogency of his reasoning is not fully revealed.”
Submissions
Mr Saul submitted that the refusal to admit the articles was a denial of procedural fairness and an error in the exercise of the Arbitrator’s discretion. He complained that the Arbitrator failed to set out what occurred in respect of the adjournments and the reasons for them. He said that the adjournment on 16 August 2012 was granted “to enable [Mr Macken] to arrange witnesses” (T20.13, 16 August 2012) and to allow Inghams to “call Dr Potter to give some evidence to address the allegation now made” (T21.10, 16 August 2012), noting that the doctor was overseas until 17 October 2012.
Mr Saul contended that the discussion between Mr Macken and the Arbitrator (on 16 August 2012) was on the basis that arrangements were to be made by Mr Macken to call Dr Potter to give evidence and to set a new arbitration date for that purpose. To that end, dates were canvassed and discussions took place to accommodate the doctor’s availability to give oral evidence by phone. Mr Edwards did not object to this course and suggested that Dr Potter give evidence by phone (T22.34, 16 August 2012).
According to Mr Saul, on 1 November 2012, the Arbitrator and Mr Edwards changed their positions. Mr Edwards objected to Dr Potter giving oral evidence and the Arbitrator refused to allow Dr Potter to give oral evidence. The matter was adjourned so Dr Potter’s further evidence could be reduced to writing.
On 7 December 2012, Mr Macken said that Dr Potter had been available to give oral evidence on 1 November 2012, but Mr Edwards had opposed that, and the application to call him was rejected because the Arbitrator said a report should be obtained. The Arbitrator then refused to allow the tender of the articles because it would cause “prejudice” to Mr Thoroughgood.
Mr Saul submitted that there did not “appear to have been any objection taken to these articles that had been served with this report at any time prior to 07.12.12 by [Mr Thoroughgood], or any indication by the Arbitrator that they would not form part of the doctor’s evidence”. (At the oral hearing of the appeal, Mr Saul corrected this submission and conceded that the articles had not been served with the reports.) But he submitted that no point had been taken about the fact that the articles had not been served prior to 7 December 2012 and it was therefore the late objection that caused the problem.
He said that, had Dr Potter been permitted to give oral evidence, as was the original intention of the parties and the Arbitrator, he would have had the opportunity of giving his opinion as to injury, causation and Mr Thoroughgood’s medical condition, by reference to material contained in the articles, and Mr Edwards would have had the opportunity to test the doctor’s evidence through cross-examination.
Mr Saul added that, as an expert witness, Dr Potter was entitled to draw from whatever sources he felt might assist him in providing the best opinion he could proffer. Having disallowed the tender of the articles, the Arbitrator “emasculated Dr Potter’s evidence” and denied Inghams procedural fairness.
Mr Saul referred to [60] of the Arbitrator’s decision, which is partly quoted at [140] above. The Arbitrator then said (at [61]) that, for “these reasons, I prefer the evidence of Dr Niesche, Dr Thibault and Mr Thoroughgood’s GP, Dr Walter over the opinion of Dr Potter”. This led the Arbitrator to make a finding of injury, which Inghams vigorously contested.
Mr Saul concluded that Inghams had been denied procedural fairness by the Arbitrator:
(a) refusing to allow Dr Potter to give oral evidence when the original adjournment was for that purpose;
(b) rejecting the three articles upon which Dr Potter relied in forming his opinions;
(c) diminishing the weight of Dr Potter’s reports because the articles were not before him, and
(d) preferring Mr Thoroughgood’s medical evidence over that of Dr Potter.
Mr Edwards submitted that he did not consent to the calling of Dr Potter to give oral evidence. He noted Mr Macken’s submission to the Arbitrator on 16 August 2012 that he would be “seeking to call Dr Potter to give some evidence”. He said that his suggestion of evidence by phone was “made to assist both the Arbitrator and Mr Macken as to the availability of such a course in Newcastle, and nothing more”.
Mr Edwards referred to the appropriate procedure for calling witnesses set out in Practice Direction No 3, which must be read with Pt 14 r 14.2 of the Commission’s Rules, neither of which Inghams complied with. He said that the appellant’s “abuse of the procedures of the Commission ought not sound in a finding that there has been procedural unfairness”. As Mr Thoroughgood did not know what Dr Potter was going to say in evidence, he could not meet it.
If the rejection of the application to call Dr Potter was unfair, any unfairness was redressed by allowing a further adjournment to enable Inghams to obtain a report in proper form. A report was obtained and tendered, notwithstanding that it had been served outside the timetable the Arbitrator set.
Dealing with the refusal to admit the articles into evidence, Mr Edwards said that Mr Saul was incorrect in submitting that the articles had been annexed to the Dr Potter’s report dated 1 March 2012: the articles were not annexed and had not been served prior to the attempt to rely on them on 7 December 2012. He said the appellant could not blame the Arbitrator or Mr Thoroughgood for its own incompetence.
Discussion and findings
I will deal first with the refusal to allow Dr Potter to give oral evidence.
The procedure for calling oral evidence in the Commission is set out in Pt 14 rr 14.2 and 14.3 of the Commission’s Rules, and Practice Direction No 3. The relevant Rules provide:
“14.2 Calling of witnesses
(1)Where a party proposes to rely on the oral evidence of a witness, the party must lodge and serve a document containing:
(a)the name of the witness, and
(b)a written statement of the evidence to be given by the witness, signed by the witness, with the information and documents required under rule 10.3 to be lodged and served by the party.
(2) Subject to subrules (3) and (4), a party may not in proceedings call a witness to give oral evidence that has not been included in a document lodged and served as required by subrule (1) unless:
(a)the party has lodged and served with the information and documents required under rule 10.3 a statement revealing:
(i) the specific nature of the evidence, and
(ii) the reliance the party intends to place on the evidence, and
(iii) the reasons why the evidence has not been included in a statement as required by subrule (1), and
(iv) the time the evidence is expected to be so included, and
(b)the evidence is included in a written statement lodged and served on all other parties as soon as practicable after that statement can be obtained.
(3) Where:
(a) a person refuses to sign a statement of the oral evidence to be given in proceedings by the person, and
(b) the party wishing to adduce the evidence has served a summons issued under rule 13.13 in respect of the person, this rule does not prevent the party from calling the person to give the evidence.
(4) The Commission may, for the avoidance of injustice, allow a party to introduce oral evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2).
(5) Where a party proposes to give oral evidence, this rule applies to the party as though the party were the party’s witness as well as being the party.
14.3 Expert witness
(1) Rule 14.2 applies in respect of an expert witness as it applies in respect of any other witness.
(2) A party proposing to call a witness to give evidence as an expert witness has a duty to ensure that the witness is aware of and adheres to any Practice Direction in force with respect to expert witnesses.
(3) Expert evidence that does not comply with any Practice Direction referred to in subrule (2) is not admissible in any proceedings unless the Commission otherwise orders.”
Relevantly, Practice Direction No 3 provides:
“Where a party proposes to rely on the oral evidence of a witness, the party must lodge with the Commission and serve on the other parties a document containing the name of the witness and a written statement by the witness outlining the evidence to be given in accordance with Pt 14 r 14.2 of the Workers Compensation Commission Rules 2010. This rule applies to expert witnesses. The Registrar has the power to issue a summons, requiring the attendance of a person at any conference or hearing before the Commission (s 359 of the 1998 Act).”
Mr Macken did not comply with the above Rules or Practice Direction and was not entitled to call Dr Potter to give oral evidence without leave. All that happened on 16 August 2012 was that Mr Macken indicated that he would be “seeking” to call Dr Potter. That did not remove the obligation to comply with the Commission’s Rules.
Allowing Dr Potter to give oral evidence without Mr Macken having complied with the Commission’s Rules would have been prejudicial to Mr Thoroughgood (because he would not have known what evidence the doctor was going to give and would not have been in a position to effectively cross-examine the doctor) and the Arbitrator was right to refuse to allow oral evidence from Dr Potter. The Arbitrator addressed any potential prejudice to Inghams from that ruling by allowing an adjournment for a further report to be obtained from Dr Potter, which was done, though outside the time limit the Arbitrator set.
Dealing with the rejection of the three articles referred to in Dr Potter’s reports, I do not accept that the rejection involved any procedural unfairness or denial of natural justice to Inghams.
The basic principles are not in doubt:
(a) natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power (McHugh J in Muin v Refugee Tribunal [2002] HCA 30; 190 ALR 601 at [123];
(b) the concern of the law is to avoid practical injustice (Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]);
(c) when a claim is made that natural justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and the law regulating the conduct of the proceedings (Bryson JA (Handley JA and Bell J agreeing) in Zheng at [20]), and
(d) the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth (Tucker LJ in Russell v The Duke of Norfolk (1949) 1 All ER 109 at 118; cited with approval by Gibbs CJ in National Companies and Securities Commission vNews Corporation Ltd [1984] HCA 29; 156 CLR 296 (National Companies) at 312, and in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546, at 552.
Applying the above principles to the present matter, the first point to consider is the statutory context in which the Commission operates. When a dispute is referred for determination by the Commission, each party to the dispute must provide to the other party, and to the Registrar, as and when required to do so by the Commission’s Rules, such information and documents as the Commission’s Rules require (s 290(1) of the 1998 Act). A party to a dispute who fails without reasonable excuse to comply with a requirement under s 290 is guilty of an offence (s 290(2)).
The Commission’s Rules provide in Pt 10 r 10.3:
“10.3 Material to be lodged with application or reply
(1) For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve with:
(a) the application to resolve the dispute, if the party is the applicant, or
(b) the reply required by rule 10.4 (1), if the party is a respondent, or
(c) the reply required by rule 11.1 (7), if the party is a party joined under rule 11.1 (4), all information and documents on which the party proposes to rely and that are in the possession or control of the party, and that have not been lodged by a party in the current proceedings.
(2) Subject to subrules (3)–(5), a party may not in proceedings introduce evidence that has not been lodged and served as required by subrule (1) or has not been provided to any other party as required by the 1998 Act or any Regulation or Guideline made under that Act.
(3) The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where a party wishes to rely on a document produced pursuant to a direction issued under rule 13.4 or a notice for production served under rule 12.2, or inspected in response to a notice of objection served under rule 12.4 (1) (b) (i), and claims that the party was:
(a) unaware of the relevant information in the document, or
(b)unable to obtain possession of the document,
at the time the party lodged the application to resolve the dispute or reply, the party must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings:
(c) a copy of the document, or
(d)if the document was inspected in response to a notice of objection served under rule 12.4 (1) (b) (i), a description of the document.
(5) Without limiting subrule (3), where a party complies with subrule (4) in respect of any information, the Commission may allow the party to introduce evidence of that information.”
In compliance with the Commission’s Rules, Dr Potter’s first report, dated 1 March 2012, which (wrongly) referred to the articles as being “attached”, was attached to the Reply filed by Mr Macken on 11 May 2012. The articles were not attached or served at any time until Mr Macken sought to tender them during submissions on 7 December 2012.
The application to tender the documents called for the exercise of the Arbitrator’s discretion. To succeed on appeal on this issue the appellants must demonstrate that the Arbitrator erred in exercising his discretion in that he:
“(a) made an error of legal principle;
(b) made a material error of fact;
(c) took into account some irrelevant matter;(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.” (Heydon JA (Sheller JA and Studdert AJA agreeing) at [45] in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, applying House v The King (1936) 55 CLR 504 at 160.)
In exercising that discretion, the Arbitrator had regard to the lateness of the application, which was made during addresses on the third occasion on which the matter had been listed for arbitration, and the prejudice to Mr Thoroughgood, because it would be impossible for him to respond to them.
The Arbitrator did not err in taking these matters into account. Inghams had every opportunity to serve the articles in time under the Commission’s Rules. No explanation has been offered, either at the arbitration or on appeal, for why the articles were not served in time. It may be that a forensic decision was made not to serve them. It may be that Mr Macken did not serve them because he made a mistake.
Given the late attempt to rely on the previously unserved articles, Mr Thoroughgood was clearly prejudiced, as he had no opportunity to have his experts address the full articles, rather than just Dr Potter’s summary. To obtain that evidence would have required yet another adjournment in circumstances where the matter had already been adjourned twice.
A further adjournment would have prejudiced Mr Thoroughgood because it would have further delayed the resolution of the matter. More importantly, because costs in the Commission are strictly regulated and it had no power to order that Inghams meet the costs thrown away because of the adjournment, Mr Thoroughgood would have been prejudiced as to costs. Bearing in mind the modest compensation claimed (at most $7,500), the prejudice of a further adjournment far outweighed any potential prejudice to Inghams, which came about through the default of its solicitor.
The Arbitrator did not reject Dr Potter’s evidence solely because of the missing articles, though that was a factor. He analysed the doctor’s reports and noted that, according to Dr Potter’s summaries, only one of the articles dealt with the issue of whether the symptomatic experience of varicose veins was made worse by a patient by virtue of the patient standing. It revealed that it did. The other articles seemed to deal with matters of diagnosis, causation and treatment of varicose veins, but not with factors that may aggravate it. This analysis was open and provided a sound basis for discounting Dr Potter’s evidence regardless of the missing articles.
Mr Saul’s submission that, if the Arbitrator had permitted Dr Potter to give oral evidence on 1 November 2012, the problem with the missing articles could have been solved misses the point. The proposal was that Dr Potter give evidence from Sydney by phone when the arbitration was in Newcastle. If Mr Macken was in possession of the articles on 1 November 2012, as this submission has assumed, then it merely highlights the default in not serving them in time under the Commission’s Rules, or at an earlier time.
More importantly, an attempt to tender the articles on 1 November 2012 would have left Mr Thoroughgood with the same difficulties he faced on 7 December 2012: as he had not seen them before and had not had the opportunity to have his doctors comment on them, he would have been severely restricted in cross-examination of Dr Potter and unfairly prejudiced in the presentation of his case.
I reject Mr Saul’s submission that it was for Mr Thoroughgood, or the Arbitrator, to raise the issue of the missing articles before 7 December 2012. It was for Inghams to prepare its case, not the worker or the Arbitrator.
Taking all matters into account, in particular, the non-compliance with the Commission’s Rules, the lack of explanation for the non-compliance with the Commission’s Rules, the extreme lateness of the attempt to tender the articles, the prejudice to Mr Thoroughgood, the modest amount of compensation involved, and the fact that the missing articles were not the only reason the Arbitrator preferred Mr Thoroughgood’s medical evidence, the Arbitrator did not err in the exercise of his discretion in refusing to admit the articles on 7 December 2012, and that refusal caused no procedural unfairness to Inghams.
DETERMINING THE MATTER ON A DIFFERENT BASIS TO THAT PUT BY MR THOROUGHGOOD
Background
At [77], the Arbitrator said, among other things:
“Notwithstanding that under s16(1)(a)(i) of the 1987 Act, the date of his injury could be deemed to have happened on that date, this same injury can under s16(1)(a)(ii) be deemed to have happened on 12 January 2012 for the purposes of his claim for compensation under s 66 of the 1987 Act. Hence, even if it were not the case that Mr Thoroughgood made a claim for compensation under s 60 of the 1987 Act on or about 8 September 2006, it would be open to me to find that his injury for the purposes of the current proceedings is deemed to have happened on 12 January 2012, and on that basis too he would not be prevented under s 262(1) of the 1998 Act from recovering compensation under s 66 of the 1987 Act from Inghams.”
Submissions and findings
Mr Saul submitted that the Arbitrator found “an alternate date that was not submitted by” Mr Thoroughgood. Mr Thoroughgood only relied on an injury in or about September 2006, on the basis of “incapacity”, and his counsel’s submissions were confined to that alone. To the extent that the Arbitrator decided the case on an alternative basis to that articulated by Mr Edwards, he denied Inghams natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 at [81]).
Mr Edwards agreed that he did not rely on the date of claim for lump sum compensation (18 January 2012) as the deemed date of injury, and conceded that it was therefore not open to the Arbitrator to make the alternative finding he made. It follows that, given the way Mr Edwards presented the case, it was not open to the Arbitrator to make an alternative finding for the deemed date of injury.
OTHER MATTERS
Two other matters require comment.
The first concerns the failure by Inghams, or Mr Macken, to serve any report from Dr Beiers in the s 74 notice prepared by Mr Macken on 7 March 2012 (or earlier), which involved a clear breach of the legislation. Section 74 notices “must contain” a “statement identifying all reports of the type to which clause 46 applies that are relevant to the decision [to dispute liability], whether or not the reports support the reasons for the decision” (cl 43 of the Workers Compensation Commission Regulation 2010 (the 2010 Regulation).
Clause 46 of the Regulation applies to a decision to dispute liability in respect of a claim in circumstances requiring the insurer to give the worker a notice and reasons under s 74. Its terms applied in this matter to require the insurer (or its solicitor) to provide to Mr Thoroughgood a copy of any “relevant report” to which the clause applied, as an attachment to a notice under s 74.
A “relevant report” includes, among other documents, medical reports, medical certificates and, significantly in the present case, “reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made” (cl 46(h) of the 2010 Regulation). The obligation to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision (to dispute the claim) relates, “whether or not the report supports the reasons for the decision” (cl 46(4) of the 2010 Regulation). Dr Beiers’s report clearly fell in this category.
When this issue was raised at the appeal hearing, Mr Saul said he had no instructions and did not attempt to seek any.
The second concerns Mr Macken’s conduct at the arbitration. In the course of his submissions about why he had wanted to call Dr Potter (T78.24, 7 December 2012), the following exchange occurred, starting at T79:
“Arbitrator: Well, I want to correct something here Mr Macken.
Mr Macken: Well I’d like to complete my submission …
Arbitrator: Lower your tone. Do not shout at me, do not hector me.”
The Arbitrator then (again) explained the reason for the adjournments on 16 August 2012 and 1 November 2012.
It was unsatisfactory and unacceptable that the Arbitrator had to reprimand Mr Macken for his conduct. Practitioners are reminded that the Registrar’s Guideline to Standards of Conduct During Proceedings in the Commission expressly provides that representatives or agents appearing in the Commission must:
“Behave courteously and respectfully to the opposing party, and his or her representative, to any witnesses called during the proceedings, to the Arbitrator, and to Commission staff.”
CONCLUSION
Inghams has succeeded on only one of its several grounds of appeal, namely, the meaning of incapacity in s 16, and, as a result, the question of deemed date of injury must be re-determined before a different Arbitrator in light of the reasons in this decision. As the issues of notice of injury and notice of claim have been determined on appeal, they are no longer in dispute. The Arbitrator’s findings on injury, substantial contributing factor and last relevant employer have not been challenged on appeal and have not been disturbed. They remain binding according to the usual principles of issue estoppel.
It is difficult to see how a different deemed date of injury could, in the circumstances of this matter, “change entirely the nature of this case”, as Mr Saul submitted at T48.5 of the appeal hearing. However, if the deemed date of injury is amended at the next arbitration, the question of whether there is a need for further evidence to meet that amendment will be a matter for the next Arbitrator.
DECISION
The Arbitrator’s determination of 18 January 2013 is revoked and the matter remitted to a different Arbitrator for re-determination of the deemed date of injury.
COSTS
While Mr Macken submitted at the arbitration that there was no evidence of incapacity (T65.16, 7 December 2012), he did not do so on basis of the arguments and authorities Mr Saul relied on in the appeal. That being so, and given that the appeal was otherwise unsuccessful, it is appropriate that Inghams pay part of Mr Thoroughgood’s costs of the appeal.
The appellant employer is to pay part of the respondent worker’s cost of the appeal, assessed at $1,750 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.
Bill Roche
Deputy President
27 May 2013
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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