Lucre v State of NSW (South Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lucre v State of NSW (South Western Sydney Local Health District) [2024] NSWPIC 537
APPLICANT:	Catherine Mary Lucre
RESPONDENT:	State of NSW (South Western Sydney Local Health District)
MEMBER:	Cameron Burge
DATE OF DECISION:	30 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation; dispute surrounding delay in making claim pursuant to section 261; Held – the applicant’s argument that the provisions of section 261(1) did not apply as she had made a claim within time in or around 2013 is not supported by the evidence; the applicant’s argument that the provisions of section 261(1) did not apply as the applicant only received requisite knowledge of her injury being compensable when her present solicitors obtained a report from an independent medical examiner (IME) is also not supported by the evidence and contradicts the submissions made by the applicant; the applicant’s failure to make a claim within the relevant period in section 261(1) was brought about by her ignorance and/or mistake and as such she has a valid reason to enliven the provisions of section 261(4); matter remitted to the President for referral to a Medical Assessor to determine the applicant’s degree of permanent impairment arising from the injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her cervical spine and lumbar spine in the course of her employment with the respondent, with a deemed date of injury of 1 February 2013. 2. The applicant's failure to make a claim within the period required by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 was occasioned by the applicant's ignorance and/or mistake. 3. The applicant's injury has resulted in serious and permanent disablement. 4. The claim for permanent impairment is remitted to the President for referral to a Medical Assessor to assess the permanent impairment arising from the following: Date of injury: 1 February 2013. Body systems referred: cervical spine and lumbar spine. Method of assessment: whole person impairment. 5. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments. 6. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

There is no issue the applicant, Catherine Mary Lucre suffered injury to her neck and low back in the course of her employment with the State of New South Wales (South Western Sydney Local Health District) (the respondent) as a result of the nature and conditions of her employment over many years as a nurse.
The applicant seeks payment of her medical and treatment expenses, together with permanent impairment compensation for injuries to her cervical spine and lumbar spine, together with scarring. There is no question the first date of claim was 9 March 2023.
The respondent denies liability by way of s 78 notice dated 30 April 2024 pursuant to
s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
There is no question that the claim for permanent impairment compensation will be referred for medical assessment should there be a finding in the applicant's favour on the defence raised by the respondent.

ISSUE IN DISPUTE

The only issue in dispute between the parties is whether the applicant is precluded from recovering compensation by virtue of the operation of s 261 of the 1998 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 3 September 2024. The applicant was represented by Mr Parker instructed by Mr Frisana. The respondent was represented by Mr Perry instructed by Mr Kreig.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attachments, and
(b) Reply and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

The defence pursuant to s 261 of the 1998 Act

Section 261 of the 1998 Act relevantly provides:
“(1) compensation cannot be recovered unless a claim for the compensation has been made within six months after the injury or accident happened, or, in the case of death, within six months after the date of death…
(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 three years after the injury or accident happened, or, in the case of death, within three years after the date of death, or
(b)the claim is not made within that three years, but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”
Neither party raised any issue as to whether the subject injury had caused serious and permanent disablement of the applicant. In the circumstances of this matter, I find the injury plainly did. The applicant’s independent medical examiner (IME) Dr Khong, neurosurgeon and spinal surgeon assessed the applicant as suffering from a 31% whole person impairment. The respondent's IME, Dr Millons assessed the applicant as suffering from a 28% whole person impairment. In my view, those assessments of whole person impairment plainly fall within the range which would satisfy the Commission that the injury had caused serious and permanent disablement.
The applicant asserted the provisions of s 261(1) do not apply on three bases.
The first submission by the applicant is she had made a claim on a date close to the deemed date of injury, as evidenced by an entry in her general practitioner’s (GP) notes of
30 May 2011 and 29 June 2011. The GP’s note of 30 May 2011 recorded low back problems and noted the applicant was unfit for general work together with an entry “WC 1 mn”, which is taken to mean Workers Compensation one month.
That interpretation of the entry is reinforced by the contents of the next entry on 29 June 2011 which states “low back pain - slow improvement. Can drive, still problems doing day-to-day tasks. Work certificate for job 1m. May decide on long-term future after that.”
Mr Parker submitted this was evidence of the applicant having made a claim, and as such the provisions of s 261(3) had been satisfied. Relevantly, that section provides a person is considered to have made a claim for compensation where any claim is made in respect of the injury concerned, even if the claim did not relate to the particular compensation sought in the relevant proceedings.
Mr Parker submitted that assertion was supported by the statement of the applicant’s co-worker Ms Goulding, who stated she was aware in approximately 2012 or 2013 the applicant was having difficulty with her work owing to it exacerbating her back condition. Additionally, the applicant relied on an email which she forwarded to Ms O'Connor at the respondent's workplace in which she noted the respondent had concerns the applicant's back condition would render her a risk of injury and questioned the applicant's ability to undertake future employment.
Mr Parker submitted this evidence was sufficient to satisfy the Commission a claim had been made, particularly the GP notations of work certificates having been forwarded to the respondent. He submitted the lack of any evidence in reply by the respondent would be sufficient to give rise to an inference pursuant to Jones v Dunkel that the evidence would not be of assistance to the respondent. He noted there was no statement evidence from the respondent to the effect that it had searched for evidence of any earlier claim by the applicant to no avail. Mr Parker submitted such evidence may have satisfied the Commission no claim had been made, however, its absence was a sufficient basis to draw an appropriate inference.
The applicant's evidence in relation to her making an earlier claim is set out in her statement as follows:
“109. My NUM, Linda Goulding was aware of my back injury as I had discussed this with her and I have described how we worked together in the maternity ward when I was an educator, above.
110. A few friends told me that I may have a Workers Compensation claim against the South Western Sydney Area Health Service [SIC].
111. I did give it some thought as I knew that I had a serious injury to my low back. Also the treatment that I needed was very costly.
112. I decided to seek legal advice about making a workers' compensation claim.
113. The legal firm I consulted was Law Partners, at their Campbelltown office on 8 February 2013.
114. I instructed Law Partners to act for me in relation to making a Workers Compensation claim for my low back injury. I have attached their letter to me dated 5 March 2013.
115. I was asked to provide them with some x-ray reports and scans, and I did provide them with the information that I had at the time.
116. After this I basically did not hear from them again. I followed up about six months later and I was told that they were not going to pursue my claim.
117. I was not given an explanation and it made me believe that perhaps I did not have a claim.
118. I did not go any further with it at that time.”
The letter from the applicant's former solicitors dated 5 March 2013 is attached to the Application. The letter sets out the range of entitlements under the Workers Compensation system before referring to the next steps to be taken as follows:
“Within the next week we will:
(1)Notify the insurer of our involvement in your claim and request a copy of their file for our review.
(2)Request a copy of your clinical notes and any other relevant medical reports from your treating doctors and specialists. These documents normally take between three to four weeks to receive. We will be in contact with you to discuss the next steps to be taken in your case following our review of this documentation.
As your condition has stabilised we will arrange for you to be medically examined by one of our medicolegal specialists. The specialist will provide us with an assessment of your permanent impairment which will determine whether you have any entitlement to lump sum compensation. We will provide you with more information about this process in due course.”
For the respondent, Mr Perry noted there was no evidence of a claim having been made in or about 2013. He submitted a notation in GP records together with a reference in the letter from the applicant's former solicitors as to steps which would be taken is insufficient to support a finding that a claim had been made.
With respect, I find favour with that submission. The applicant does not suggest in her statement that she made a claim on the respondent in 2013. Moreover, there are no Workers Compensation medical certificates from that time found in any of the clinical records which would support a finding of a claim having been made.
I have no difficulty in accepting the applicant discussed with her co-workers and supervisors the effects of her back condition, nor do I have any difficulty in finding that it was caused by her employment. However, the enquiry with which I must concern myself is whether a claim was made at that time. On balance, I am not satisfied that the applicant's evidence establishes this is so.
Mr Parker also submitted the provisions of s 261(1) were not enlivened because the applicant only received requisite knowledge of her injury being compensable when she received legal advice from her present solicitors and a report from her IME in 2022, and as such the claim was made in time. In making this submission, Mr Parker relied on the provisions of s 261(6) which provides:
“(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.”
This submission was opposed by the respondent, and I am not inclined to accept it. The applicant's own evidence makes clear that she was aware she had suffered a low back injury in the course of her employment. Indeed, her submission that s 261(6) applies because the applicant was not aware of an injury stands in contrast with her own submissions that she had in fact made a claim in 2013 for that very injury. Likewise, the statement evidence of Ms Goulding also supports a finding the applicant had knowledge in 2012 or 2013 that her employment was exacerbating her back condition.
Lastly, the applicant submits that she has a relevant reason for the delay in making a claim such as to satisfy the terms of s 261(4).
As noted, I have no difficulty in finding the applicant suffered serious and permanent disablement as a result of her injury. The IME evidence relied on by both parties supports that finding.
The respondent submitted it could not be said the applicant had ignorance or mistake in this matter, as she had sought legal advice in 2013. However, it is apparent from the applicant's uncontested evidence that the solicitors whom she retained at that time did not provide her with further advice and she therefore formed the apparently erroneous view that she did not have a claim. Of even greater importance in the context of this matter, the letter of initial advice from the applicant’s former solicitors does not provide any information on time limits for the making of a claim. I do not make this observation by way of criticism of those solicitors, rather, the lack of such advice merely supports the applicant being ignorant of and mistaken in her rights and obligations with regards to the need to bring her claim in accordance with the provisions of s 261.
By any measure, the applicant was plainly ignorant and mistaken of her ongoing rights and the requirement to bring a claim within a set period of time until she saw her current solicitor in 2022 and could not be said to be capable of being aware of her rights to make a claim for permanent impairment compensation until receipt of her IME opinion.
The requirements under s 261(4) do not require an applicant to demonstrate that they had taken reasonable steps to bring an action or a claim within time. The ignorance of a worker is sufficient. The applicant's uncontested evidence is that she took some steps to obtain legal advice, received an initial letter of advice from solicitors but then nothing further and accordingly, her state of mind was plainly one where she was not aware of her entitlement to claim and, indeed, formed the view that an absence of response from her former solicitors meant she did not have a valid claim at that time.
In my view, the applicant's state of mind satisfies the requirements of s 261(4) and accordingly, the provision the defence under s 261(1) is not made out.

SUMMARY

As noted, the only matter in dispute in this proceeding was the operation of s 261 of the 1998 Act. Having found, as I have, in favour of the applicant on that defence, it follows her claim for permanent impairment compensation will be remitted to the President for referral to a Medical Assessor to determine her permanent impairment. Her claim for medical and treatment expenses will be the subject of a general order for payment of those reasonably necessary treatment expenses by the respondent.
The Commission will accordingly make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 537

30 September 2024