Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd

[2005] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSW WCC PD 15

APPELLANT:  Mayne Group Limited

FIRST RESPONDENT:  Deanna Roberts

SECOND RESPONDENT:  Faulding Health Care Pty Ltd

INSURERS:Mayne Group Limited

Allianz Australia Workers Compensation

FILE NUMBER:  WCC1419-04

DATE OF ARBITRATOR’S DECISION:          3 November 2004

DATE OF APPEAL DECISION:  15 March 2005

SUBJECT MATTER OF DECISION: Sections 260, 261 and 282 of the Workplace Injury Management and Workers Compensation Act 1998; distinction between the Appellant and the Second Respondent; findings as to injury, causation or disease; denial of procedural fairness.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:15 December 2004

REPRESENTATION:  Appellant: Astridge & Murray Solicitors

First Respondent: Gerard Malouf & Partners Barristers & Solicitors

Second Respondent: Vardanega Roberts Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

BACKGROUND TO THE APPEAL

1.Ms Deanne Roberts, the First Respondent claims that she suffered injuries while “employed by Faulding Health Care (now known as Mayne Health).”  Mayne Group Limited (‘Mayne’) is the Appellant in this appeal, and Faulding Health Care Pty Ltd (‘Faulding’) is the Second Respondent. Ms Roberts’ period of employment with Faulding, according to her statement of 23 July 2004, was between February 1998 and December 2002, on a casual basis.

2.Ms Roberts says that her first injury occurred and was reported on 25 October 2000 when she was working on picking and packing orders, and restocking shelves.  Before the “accident” Ms Roberts says that she was doing repetitive work and started to get twinges in her right wrist if she reached too high or overextended her arm.  “[T]he pain was intermittent and I was able to ignore it and keep working.”  She volunteered to undertake training in the Receiving Area, which involved constant heavy and repetitive lifting.  She said that the boxes and items were much heavier than she was used to and she started to experience pain in her wrist, especially when she lifted something that was awkward or heavy.  Ms Roberts said that the pain would shoot up her arm and she found that her grip was getting weaker, while the pain became progressively more regular.

3.At some time before or after 25 October 2000 Ms Roberts sought assistance in lifting some of the heavier items.  Ms Roberts said that on that particular date she was working from 10 am to 6 pm in “Receiving”.  She was sorting through the items on a trolley and working at a “steady pace” when she felt a distinctive pain in her wrist.  She was unable to properly grasp a one litre glass bottle and felt a shooting pain.  She said, “The pain felt like my arm was on fire.”  She said that she dropped the bottle and reported the incident.  She was sent to the Pacific Health Medical Centre (now known as Mayne Health) where she saw Dr Tessi Abraham.  She subsequently underwent physiotherapy treatment.

4.Following this she said she used her left arm but then experienced pain and weakness in that arm, also.  She received treatment from her doctor and underwent other medical tests at the request of the Insurer.

5.In her statement, Ms Roberts goes on to outline a history of returning to work on light duties and then some six months later, being placed on normal duties.  She said that she was able to cope but continued to get twinges of pain, whereupon she would ask her work friends to squeeze her wrists to release the pressure, or to massage her arms.  She would also sit on her hands, and slept with her hands “under my bottom or my head.”

6.Ms Roberts says that she experienced severe pain again in October 2002 and underwent further treatment, including medication and further physiotherapy.  She returned to work, again on light duties, with certain restrictions on the nature of the work that she was permitted to do.  She claims that she was constantly without work and felt that she was “in the way”.   She said that she was made to feel guilty when objecting to work that she was not able to do, because of the negative attitude of her supervisors, towards her.   On one occasion she said that she was spoken to by two supervisors, “one of whom attacked me verbally and deride [sic] me.”

7.In due course she had a conference with her superiors who supported the supervisor who had allegedly derided her, and according to Ms Roberts, failed to support her.  Her employment was terminated in December 2002, “on the grounds of attempted theft”.  The circumstances of that incident are set out in her statement.  She considers that the accusation against her  “was just an excuse to dismiss me”.

8.Ms Roberts has received further medical treatment and says that she has received compensation payments for her doctors visits and physiotherapy.  She said that when payments for her physiotherapy ceased, she stopped the treatment, as she could not afford it.  “Since then, my arms have degenerated i.e. the weakness and pain has [sic] increased.”  She says that she is unable to do her housework and other chores properly, and relies upon her two flatmates.  She states that the pain persists, she has no enthusiasm to continue fitness training, she no longer wants to leave the house for social and sporting activities, she is depressed and suffers from extreme mood swings, she has no self confidence and has extremely low self esteem, and her libido has almost completely disappeared.  Ms Roberts further states that her financial position has seriously deteriorated, and that she has “seen a Psychologist from Centrelink and she is referring me to a Psychiatrist in Mount Druitt for an assessment.”

9.Ms Roberts lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission on 21 January 2004 and subsequently, lodged an ‘Amended Application to Resolve a Dispute’ on 17 May 2004. 

10.A determination was made by an Arbitrator on 3 November 2004, and on 24 November 2004, an ‘Appeal Against Decision of Arbitrator’ was lodged in the Commission.

THE DECISION UNDER REVIEW

11.The Certificate of Determination, dated 3 November 2004 records the Arbitrator’s orders as follows:

“1.The Respondents [sic] [Mayne] submissions in respect to non-compliance with ss260, 261 and 282, 1998 Act by the Applicant are dismissed.

2.The Commission as a consequence has jurisdiction to proceed to determine the Application involving the Respondent and the Insurer.

3.The Respondent to pay the Applicant’s and Insurer’s costs as agreed or assessed.”

ISSUES IN DISPUTE

12.The issues in dispute in the appeal are set out in the ‘Grounds for Appeal’ lodged by the Appellant, Mayne Group Limited, and are as follows:

“1.The Arbitrator erred in finding that a claim had been made against the Appellant in respect of injury.

2.The Arbitrator has erred in misapplying section 261…

3.The Arbitrator erred in failing to apply section 282(1)…

4.The Arbitrator erred in failing to understand the distinction between the employers…

5.Findings as to Injury:

In so far as the Arbitrator has made any findings as to either causation, injury or disease, the Arbitrator has erred as the arbitration was solely to determine the threshold issue of whether the worker’s proceedings as against the Appellant could be sustained in light of the worker’s failure to make a proper claim against the Appellant in accordance with the provisions of the legislation and Guidelines.

The Appellant has been denied procedural fairness and denied natural justice.”

HEARING

13.The appeal was heard by way of teleconference before me on 15 December 2004.

LEAVE

14.The appeal was lodged within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Notwithstanding that there has been no immediate award of compensation, the appeal may proceed, given that the effect of the decision has the obvious potential to put the amount of compensation claimed in issue (see Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3; Devine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28; Grimson v Integral Energy [2003] NSW WCC PD 29, and Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).

15.Leave to appeal is granted.

EVIDENCE AND SUBMISSIONS

16.Mayne submits that Faulding employed Ms Roberts until 14 November 2001 when the it “took over as the worker’s employer”.   Faulding’s Insurer was Allianz at the relevant time.  Mayne was a self-insurer.  Mayne further submits that it and Faulding are separate legal entities, each instructing separate legal representatives.

17.Mayne submits that, “The Arbitrator was requested to determine a threshold issue as to whether a claim had been duly made as against the Appellant.”  Mayne contended that Ms Roberts was prevented from commencing proceedings against it because no claim had ever been made and, “if such a claim were made, it was statute barred.”  Mayne states that the Arbitrator held that a claim was duly made against the it and it is from this decision that the review is sought by Mayne.

Written submissions of Mayne Group Limited

18.Mayne submits that Ms Roberts completed and submitted two “actual” claim forms, both of which were in respect of injuries, which occurred during her employment with Faulding.  These forms are dated 27 October 2000 and 4 February 2000, “… and are Compensation Claim forms on MMI letterhead (now Allianz Australia Workers Compensation (NSW) Ltd), the insurer of the first employer.”  The first claim is for an alleged injury to the right hand-wrist-forearm, which allegedly occurred while the worker was in the process of normal duties, and felt pain in her wrist gradually getting worse.  The second claim form “identified as date of injury as 31.01.00 with notice given on the same day”, alleges injury to the left ribs as a result of “opening a ‘fire door with left hand, returning from ladies [sic] room’”.

19.Mayne further submits that the document headed “Employee’s Recurrence Claim Form” on the letterhead of Allianz and signed by Ms Roberts on 31 October 2002 alleges “arms were aching by end of days work burning up inside of arms, tingling & numbness in fingers”.  This form denotes the employer as “Faulding Healthcare (Mayne)” and states the original injury to be 25 October 2000. 

20.Mayne submits that Ms Roberts has never submitted a claim form in respect of the injuries alleged to have occurred while employed by it, that is, the injuries allegedly suffered as a result of the nature and conditions of her employment from 14 November 2001, when she was first employed by Mayne, until October 2002. Consequently, it is submitted, that Ms Roberts is in contravention of section 260 of the 1998 Act, and the WorkCover Provisional Liability and Claims Guidelines (the Guidelines).  It is further submitted that “The Arbitrator…has sought to rationalise the worker’s contravention in paragraph 24 by placing reliance upon the Recurrence form as evidence of the worker having made a valid claim as against the Appellant.”

21.Mayne submits that the reasons and findings of the Arbitrator are flawed and that he has fallen into error for the reasons set out hereunder:

·      The recurrence form as completed, is a document purporting to allege a recurrence of an original injury.

· There is no allegation of any fresh injury as against Mayne, “be it a frank injury or one arising out of the nature and conditions of employment with the Appellant.” A claim pursuant to section 260 cannot be inferred. There must be an actual claim, duly made, and details of the claim must comply with the provisions of section 260 of the 1998 Act and the Guidelines.

·      The recurrence form is an Allianz form and is not a form relevant to Mayne.

·      The statement in the “Proof of Evidence” of Ms Roberts, dated 23 July 2004, makes it “clear that the worker is referring to a recurrence of the original injury occurring on 25 October 2000 whilst the First Employer was insured with MMI/Allianz.”

·      The statement of Ms Mary-Lynn Stuart refers to her records and states that a medical certificate dated 15 August 2002 from Dr Eshragi was received in relation to a recurrence of an injury to Ms Roberts wrist.  The Recurrence Form is the document of 31 October 2002 and refers to the original date of injury as being 25 October 2000 “at which time MMI/Allianz was on risk.”

· The onus of satisfying the provisions of section 260 of the 1998 Act and the Guidelines is on Ms Roberts, and the Arbitrator, in paragraph 25 of his Statement of Reasons for Decision (‘Reasons’), “has, with respect, failed to understand the concept of discharging of onus.” Moreover, “prejudice” as raised by the Arbitrator in “para. 24(7)” is irrelevant as section 260(5) places the onus squarely on Ms Roberts if this section has not been complied with, and prejudice “to the employer does not form any part of this determination.”

·      Ms Roberts did not “appear to” offer any evidence as to why the claim against Mayne was never made, but has only sought to argue that the Recurrence Form can be inferred to be a duly made claim.  Ms Roberts has prior experience of dealing with claim forms as evidenced by the earlier claims made on MMI/Allianz.  The Arbitrator erred in making the inference, but in any event, it is an irrelevant consideration.  The Arbitrator’s reasoning in paragraph 24(6) of his Reasons is flawed since the absence of evidence in a situation where the onus rests upon Ms Roberts, cannot then be used against Mayne. 

· The Arbitrator’s opinion in paragraph 26 of his Reasons is an error, because unless Ms Roberts can discharge the onus by satisfying the requirements of section 260(5) of the 1998 Act, the failure to make a claim in accordance with section 260 of that Act, is a bar to the recovery of compensation.

· The Arbitrator erred in paragraph 29 of his Reasons in finding that Mayne “waived compliance with the claim form requirements of section 260…”. Section 260 of the 1998 Act does not explicitly or implicitly allow waiver by an employer or insurer, of these requirements.

·      The evidence does not support the Arbitrator’s finding that Ms Roberts’ failure to make a claim was occasioned by an honest mistake or ignorance.  “Even if this finding is available, it does not validate the absence of a properly made claim.  All the finding does is permit the worker to make a claim for compensation.”

·      The Arbitrator erred in dismissing the two authorities cited in paragraph 31 of his Reasons.  Both authorities illustrate the importance of compliance with the procedures laid down “by the WIM Act, the Rules and the Guidelines”.  The Arbitrator failed to understand the relevance of these authorities.

·      Notwithstanding the observations made by the Arbitrator as to section 367 of the 1998 Act at paragraph 47 of his Reasons, the objectives of the Commission are met “by, subject to and in the context of the proper application of the various requirements of the legislation and guidelines…”.

·      It is quite clear that Ms Roberts has never made a claim on Mayne in respect to the injuries pleaded in her ‘Application to Resolve a Dispute’.

· Furthermore, Ms Roberts has not made a claim pursuant to section 261(1) and Mayne has not “determined to accept any claim outside of that period pursuant to section 261(5).” It is further submitted that Ms Roberts has presented no evidence in accordance with the provisions of section 261(5) and therefore, the Arbitrator should not have allowed the claim to proceed as against Mayne.

22.Mayne submits further that the Arbitrator erred in failing to apply section 282(1) of the 1998 Act. Injuries, which occurred after 1 January 2002 are “to be assessed in respect of the current Whole Person Impairment (‘WPI’) Guidelines, whilst injuries which occurred prior to 01.01.02 are to be assessed under the previous Table of Maims.” Consequently, it is submitted, that Ms Roberts is required to apportion any claim for permanent loss compensation arising from injuries before and after the commencement of the relevant statutory amendments, and in accordance with these provisions. It is submitted that the Arbitrator has erred in paragraph 35 and 36 of his Reasons. Ms Roberts did not provide full particulars as required by section 281(1)(b) of the 1998 Act, “and the insurer is unable to make a proper assessment of the worker because there has been no apportionment of the permanent loss in accordance with the relevant assessments in respect of injuries before and after 01.01.02.”

23.Mayne submits that the arbitrator erred in failing to understand the distinction between the two employers.  It states that Ms Roberts was employed by two distinct employers and legal entities, being Faulding and Mayne.  Each, it submits is “separately insured and separately represented.”  Mayne submits that the provisions of the legislation apply distinctly to each employer and the Arbitrator has erred in imputing Ms Roberts’ conduct in respect of Faulding, to Mayne.

24.Mayne’s submissions with regard to any findings of the Arbitrator as to causation, injury or disease, are outlined in paragraph 12, above.

25.The Appellant relies on the decisions of Deputy President Fleming in Kurrajong Holdings t/as The Gardeners Inn v Carrett [2004] NSW WCC PD 8 in relation to the correct procedures to be followed, and in Way v Newcastle City Council [2004] NSW WCC PD 17 at paragraph 51, in relation to its submission that the matter ought to be struck out as against Mayne.

Written submissions of Deanna Roberts

26.Ms Roberts submits that the Arbitrator did not err in interpreting and applying sections 260, 261 and 282 of the 1998 Act. Furthermore, she submits that the Arbitrator did not err in his findings or “opinion”; that his reasoning is not flawed, and that the appeal should fail.

27.She submits that Mayne’s failure to provide her with the correct claim form at the time or after receipt of the form amounted to a waiver of compliance with section 260 of the 1998 Act. Alternatively, she submits that her failure to make a claim in accordance with that section was occasioned by honest mistake or ignorance. Ms Roberts also submits that the Arbitrator noted that failure to correctly claim in accordance with section 260 of the 1998 Act is not a bar to recover of compensation.

28.It is submitted that Ms Mary-Lynn Stuart, who was employed by Mayne, was aware of all injuries sustained, including the injury occurring in August 2002, “as evidenced by her statement dated July 19^th 2004”.  “Further Ms Roberts [sic] had the additional information provided by the Respondent workers general practitioner.”  Ms Roberts contends that Ms Stuart nominates Allianz Insurance as the relevant workers compensation insurer for the injury, “however that is incorrect”.  She states that it would appear that this was the error that led Ms Stuart to provide and accept from Ms Roberts, the “Recurrence Form” headed “Allianz”.

29.Finally, Ms Roberts submits that the legislation does not intend to hold a worker responsible for ascertaining the relevant workers compensation insurer and completing the correct claim form. She submits that she provided the relevant information required by section 260 of the 1998 Act, and in the alternative, any failure was occasioned by honest mistake or ignorance. Ms Roberts states that the Arbitrator was correct in his interpretation and application of section 260. She goes on to say that the details provided in the “Recurrence Form” and the oral details and the medical certificate were more than sufficient to satisfy section 260 of the 1998 Act. As the Arbitrator noted, it was open to Mayne or the relevant Insurer to seek further information if they considered that further details were required.

30.Finally, in relation to section 282 of the 1998 Act Ms Roberts submits that the Arbitrator found on the totality of the evidence and that there was sufficient evidence to enable the Insurer to properly assess her entitlements. She submits that the Arbitrator did not err at paragraphs 35 and 36 of his Reasons, as claimed, and that Dr. Conrad’s reports contained sufficient information to allow the Insurer to properly evaluate the claim.

Written submissions of Faulding Health Care Pty Ltd

31.Faulding submits that Mayne’s contention that because Ms Roberts did not submit a document entitled “Claim Form”, she has not complied with section 260 of the 1998 Act, is erroneous. Ms Roberts did not either fail to report the injury orally or in writing, but simply used a document, other than one with that precise title, to report and record the injury. Faulding submits that it is clear from the statement dated 19 July 2004, page 2, last paragraph, that Ms Roberts did report the injury both orally and in writing. She also submitted at least one Recurrence of Injury in relation to her arms, on a form dated 31 October 2002. Faulding further submits that although Ms Stuart asserted that Allianz Insurance was the insurer at that time that is not correct. Mayne, on its own admissions, was a self-insurer at that time.

32.Faulding submits that the material contained in the Recurrence Claim Form was sufficient compliance with section 260 of the 1998 Act and with Part 2.6 of the Guidelines, which relates to the information required from a worker when making a claim. Faulding further submits, that if this information was considered insufficient, Mayne should have informed Ms Roberts at the time that further information was required. If she completed the incorrect form she should have been informed, accordingly.

33.Faulding further submits that while Ms Roberts had previous claims while in its employ, given that the symptoms appear to have been similar, she should not be expected to be able to distinguish between an aggravation injury, a frank injury or a recurrence of an injury.

34.Faulding submits that the Recurrence Claim form dated 31 October 2002 constitutes a claim made within the relevant time frames, referring particularly to section 261(3) of the 1998 Act.

35.      It is further submitted that insofar as the relevant particulars of the claim are concerned, the

letter of claim dated 4 August 2003 in combination with Dr. Conrad’s report dated 23 July 2003, constitutes the provision of relevant particulars for the purposes of section 282 of the 1998 Act. If this is not so, there ought to be a finding that there is no compliance insofar as Faulding is concerned and the matter should be dismissed against both employers.

36.Faulding submits that the submission with regard to Dr. Conrad’s report, and in particular that he has not apportioned those losses is “somewhat misguided”. Faulding indicates that “it has and will argue that the injuries from which the Applicant suffers constitute a disease and that, in those circumstances, Section 15 or 16 of the Workers Compensation Act would apply … Given that the most recent aggravation appears to have occurred on or about 31 October 2002, at that time when the Worker submitted an Employees Recurrence Claim Form, it is submitted that any lump sum compensation she receives pursuant to Section 66 would be assessed in terms of the whole person impairment, which is applicable to injuries received after 1 January 2002. In such circumstances, there would be no apportionment required as the last employer, the Appellant, would be liable to compensate the Worker with respect to any such an impairment in accordance with Sections 15 or 16 of the Act.”

37.In conclusion, Faulding submits that if the Commission grants the appeal on any of the grounds relied upon by Mayne, the Application in its entirety should be dismissed.  In any event, it submits that given the nature of the claim brought by Ms Roberts, both Faulding and Mayne should be parties to any application for compensation, particularly in circumstances where Ms Roberts’s injury may be classified as a disease.

Submissions made at the hearing on 15 December 2004

38.Submissions made at the hearing substantially covered the submissions made above, in terms of the issues in this appeal.  I have taken them into account, along with all written submissions made, and all evidence and documents that were before the Arbitrator.

DISCUSSION AND FINDINGS

39.A Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator.  The review is not a rehearing, nor is the Presidential Member dealing with the matter de novo, nor is he or she arriving at a fresh decision based upon all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.

40.In the circumstances, the issues in this appeal are limited to a review of the decision of the Arbitrator and the issues relevant to that decision, and do not include the merits or otherwise, of the substantive dispute between the parties.

Did the Arbitrator err in finding that a claim had been properly made against Mayne in respect of injury?

41.There is no dispute that Ms Roberts was employed by Faulding until 14 November 2001, at which time Mayne became her employer, or that Allianz was the insurer for Faulding, and Mayne was a self-insurer.

42.According to the evidence before me, Ms Mary-Lynn Stuart who had worked for both Faulding and Mayne gave the Recurrence Claim Form to Ms Roberts to complete when Ms Roberts sought to report an injury.  In her statement of 23 July 2004 Ms Roberts refers to the matter as a “reoccurrence [sic] of the original injury”.  However, whether that was in fact precisely her view or whether she was led to that terminology by reason of the Recurrence Claim Form given to her on behalf of Mayne, by Ms Stuart, is not entirely certain.  Ms Stuart also refers to a “recurrence of injury” in her statement of 19 July 2004.  In any event, Ms Stuart mistakenly gave her a form that related to Faulding, and Allianz as its insurer, instead of a form that related to Mayne as self-insured.  I note however, that the document was headed “Faulding Healthcare (Mayne).”  

43.Mayne submits that an injury cannot be inferred for the purposes of section 260 of the 1998 Act, and that there is no “allegation of any ‘fresh’ injury as against the Appellant, be it a frank injury or one arising out of the nature and conditions of employment with the Appellant’.” However, “injury”, according to the definition in section 4 of the 1998 Act includes:

“(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, …”.

However, whether there was a frank injury or an aggravation, acceleration, exacerbation or deterioration of any disease, or whether what was reported was in fact, a recurrence of a previous injury remains to be determined and is not an issue in this appeal.

44.The Application to Resolve a Dispute and the Amended Application to Resolve a Dispute, both indicate that the disputed claim relates to, “The Nature [sic] and conditions of employment caused to neck, left arm and right arm.”  Furthermore, both documents are endorsed “Notice of claim to employer and insurer dated 4.08.2003”.  This refers to Ms Roberts Solicitor’s letter to the Appellant, dated 4 August 2003, which was accompanied by detailed reports of Dr Conrad, a WorkCover approved specialist.  Dr Conrad’s reports refer to a deterioration of Ms Roberts condition while employed by both Faulding and Mayne.  Dr Conrad’s report also includes supplementary reports that reflect assessments as to whole person impairment as well as permanent impairment or permanent loss of efficient use of the relevant body parts.  It is clear to me that this is sufficient for the Insurer(s) to comprehend in sufficient detail the nature and extent of the claim made.  The issue of liability is not thereby determined and is not an issue in this appeal.

45.The Appellant is correct in asserting that Ms Roberts had an onus upon her to make her claim in compliance with section 260 of the 1998 Act. However, the Arbitrator’s conclusion on the whole of the evidence that the claim was duly made in accordance with section 260 of the 1998 Act is, on balance, a reasonable conclusion. Ms Roberts was employed “seamlessly” by Faulding and Mayne, and had dealings with a number of persons, including Ms Stuart, who dealt with her on behalf of both companies. It was Ms Stuart who gave Ms Roberts the wrong form, that being a Recurrence Claim Form . There is no apparent reason why Ms Roberts would not rely upon Ms Stuart’s directions to her to complete the form. Whether the injury was a frank injury or in fact simply a “recurrence” of a previous injury, or fell within the ambit of the definition in section 4 of the 1998 Act, an “aggravation, acceleration, exacerbation or deterioration” of an injury is, as I have said, yet to be determined. Mayne argues that any failure on Ms Roberts’s part to provide correct and adequate information cannot be construed against it, in terms of the requirement for Ms Roberts to discharge her onus. While this is true, having given her the wrong form, it is reasonable to conclude that if what is contained in that form is insufficient in its view, Mayne ought to have told her so. However, it is semantics to argue that the use of a wrong word in her dealings with Mayne, is fatal to her claim, given that the merits of her claim are yet to be tested. Furthermore, the use of the “wrong” form cannot be construed against Ms Roberts, as it was this form that Mayne gave her, and instructed her to complete.

46.On the facts that were before the Arbitrator, he was entitled in my view, to conclude that the claim had been duly made against Mayne in accordance with section 260 of the 1998 Act. Even if there had not been strict compliance, I agree with the Arbitrator that any failure on Ms Roberts part to make the claim strictly as required by that section, was occasioned by “ignorance, mistake or other reasonable cause”, as provided in section 260(5), having regard to the evidence before him. In any event, it is also reasonable to say that in the circumstances, the completion of the wrong form as directed by Mayne, amounted to “a minor defect in form or style” on the part of Ms Roberts (section 260(5) of the 1998 Act). Mayne has cited Kurrajong Holdings t/as The Gardeners Inn v Carette [2004] NSW WCC PD 8 in support of its submission that the claim was not duly made in accordance with the section. However, that case was decided on its own particular facts and circumstances, which differ markedly from those in the instant case. Similarly, I agree with the Arbitrator that each of the arbitral decisions referred to in paragraph 31 of his Reasons, is quite different from the instant case in terms of their facts and circumstances.

47.Notwithstanding the way in which the Arbitrator’s views were expressed, and without addressing the precise language used in his Reasons, I find that his decision that the claim was duly made could be reasonably drawn, having regard to the whole of the facts and circumstances, and on the evidence that was before him. There was in my view, substantial compliance with section 260 of the 1998 Act.

48.I find that the Arbitrator did not err in finding that a claim had been properly made against Mayne and consequently, this ground of appeal fails.

Did the Arbitrator err in his application of section 261 of the 1998 Act?

49.I am satisfied for the reasons already stated, that Ms Roberts made her claim within the time prescribed by section 261(1) of the 1998 Act, as found by the Arbitrator, and I find accordingly. This ground of appeal is not made out.

Did the Arbitrator err in failing to apply section 282(1) of the 1998 Act?

50.As already found in paragraph 43 above, the information provided to Mayne was sufficient to enable it to make a proper assessment of Ms Roberts’ entitlements, if any, on the claim made by her.  Again, notwithstanding the precise language of the Arbitrator’s Reasons at paragraphs 35 and 36, his conclusion in relation to this issue is reasonably drawn, having regard to the facts and evidence before him.  This ground of appeal is not made out.

Did the Arbitrator err in failing to make a distinction between Faulding and Mayne?

51.There is nothing in the Reasons of the Arbitrator to support this ground of appeal.  The Arbitrator addressed himself to the significance of the completion of the Recurrence Claim Form.  He clearly appreciated that this form was mistakenly handed to Ms Roberts with instructions to complete it, in relation to her employment with Mayne, as a self-insurer, as distinct from Faulding.  On a reading of his Reasons, it is not apparent that the Arbitrator had concluded that he was not dealing with two entities.  Accordingly, this ground of appeal must fail.

Did the Arbitrator err in making findings in addition to his determination of the threshold issue as to whether the proceedings against Mayne could be sustained, and is there a lack of procedural fairness?       

52.On reading the Arbitrator’s Reasons, he makes reference to injury and other terms such as “impairment” and “pre-existing condition or abnormality”. Reading his comments and observations in the context of his Reasons and the issues relating to sections 260, 261 and 282 of the 1998 Act, I am satisfied that he made them in order to facilitate his reasoning and decisions in relation to the matters under consideration. Such comments cannot and should not be construed as findings in relation to liability, fact of injury, nature of injury or disease, causation and other related issues in dispute between the parties. It is clear that the Arbitrator’s comments and observations are not and were never intended to be, “findings” as to these substantive issues. These issues are yet to be addressed and determined, subject of course to any settlement of the dispute between the parties in the meantime.

53.In the circumstances there is no evidence of denial of procedural fairness, and no evidence   of prejudice to the Appellant.

DECISION

54.In this matter the Arbitrator appears to have gone a little beyond what was required in order to arrive at his findings and decision. Nevertheless, he was entitled to arrive at his decision in relation to the relevant issues in dispute, in terms of sections 260, 261 and 282 of the 1998 Act, on the evidence and facts that were before him. It is not necessary to deal with any other particular comments and observations, as there is nothing contained in the Arbitrator’s Reasons that derogate from the substance and basis of his findings, and his ultimate decision in this matter. I can find no error of fact, law or discretion relevant to the Arbitrator’s decision that would justify revocation of that decision.

55.      The decision of the Arbitrator is confirmed.

OTHER

56. The substantive dispute between Ms Roberts, Mayne and Fauling should now proceed to settlement or determination, as appropriate.

Gary Byron

Deputy President  

15 March 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE