Milburn v Veolia Environmental Services (Australia) Pty Ltd
[2012] NSWWCCPD 26
•23 May 2012
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Milburn v Veolia Environmental Services (Australia) Pty Ltd [2012] NSWWCCPD 26 | |||||
| APPELLANT: | Gregory Milburn | |||||
| FIRST RESPONDENT: | Veolia Environmental Services (Australia) Pty Ltd | |||||
| SECOND RESPONDENT: | Transpacific Industrial Pty Limited | |||||
| INSURERS: | Self-insured (first respondent) | |||||
| QBE Insurance (Australia) Ltd (second respondent) | ||||||
| FILE NUMBER: | A1-4125/11 | |||||
| ARBITRATOR: | Ms E Beilby | |||||
| DATE OF ARBITRATOR’S DECISION: | 9 January 2012 | |||||
| DATE OF APPEAL HEARING: | 15 May 2012 | |||||
| DATE OF APPEAL DECISION: | 23 May 2012 | |||||
| SUBJECT MATTER OF DECISION: | Deemed date of injury; incapacity; s 16(1)(a)(i) of the Workers Compensation Act 1987; entitlement to weekly compensation; annual holiday leave, sick leave and rostered days off work whilst incapacitated; ss 49 and 50 of the Workers Compensation Act 1987; application of the decision in Steggles Pty Ltd v Vandenberg [1987] HCA 35; 163 CLR 321; s108A(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth); application of the Commonwealth Act and exclusion of the State law. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr S Hickey, instructed by Steve Masselos & Co | ||||
| First Respondent: | Mr L Morgan, instructed by Bartier Perry | |||||
| Second Respondent: | Mr C J Callaway, instructed by Gillis Delaney | |||||
ORDERS MADE ON APPEAL: | 1. The determination of the Arbitrator as found in paragraph 1 of the Certificate of Determination dated 9 January 2012 is revoked and in its place the following determination is made: “1. Mr Milburn’s hip injury is deemed to have occurred on 26 May 2008.” 2. The determination made in paragraph 2 of the Certificate of Determination dated 9 January 2012 that there be an award for each respondent is revoked. 3. The following further order is made: “2. The respondents are to pay the applicant’s costs.” 4. The matter is remitted to the Arbitrator for the purpose of determining the quantum of Mr Milburn’s entitlement to weekly compensation. Appropriate orders concerning the claims for lump sums and medical expenses are to be made. 5. The respondents are to pay the appellant’s costs of this appeal. | |||||
BACKGROUND
1.Mr Gregory Milburn has, since 1990, been employed as a high pressure water blaster. Whilst Mr Milburn’s duties remained constant over the years, the identity of his employer has changed on a number of occasions. His employer at relevant times up to 30 June 2007 was Veolia Environmental Services (Australia) Pty Limited (Veolia). It seems the business was then taken over by Transpacific Industries Pty Limited (Transpacific) which company employed Mr Milburn from 1 July 2007. It is of particular significance that Transpacific, on 1 July 2008, was granted a licence pursuant to Pt VIII of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), from which date Transpacific was no longer subject to the provisions of the New South Wales workers compensation legislation.
2.Mr Milburn alleges that on 22 May 2006, and as a result of the nature and conditions of his employment, he received an injury to his left hip being an aggravation of a disease diagnosed as osteoarthritis affecting that joint.
3.In May and June 2008, WorkCover NSW medical certificates were issued by Mr Milburn’s general practitioner, Dr Albert Tran, which concerned injury to his left hip. The certificates stated that the injury was caused by years of use of the left hip for support whilst high pressure water blasting. Dr Tran certified that Mr Milburn’s employment was a substantial contributing factor to the left hip injury. The diagnosis was that of severe osteoarthritis. Mr Milburn was certified as fit for suitable duties from 26 May 2008 to 26 July 2008. Medical certificates in respect of total incapacity were subsequently issued by Dr Tran.
4.Suitable duties were provided to Mr Milburn by Transpacific for four weeks commencing 26 May 2008. Workers compensation benefits were paid by Transpacific during this period being make up pay in the sum of $311.88 for the pay period ending 17 June 2008. The evidence concerning Mr Milburn’s duties following this period is somewhat unclear.
5.Mr Milburn ceased work by reason of hip pain on 23 August 2008. He underwent left hip replacement surgery on 27 March 2009 and remained absent from work until 5 July 2010. Claims made by Mr Milburn against both Veolia and Transpacific in respect of compensation benefits have been declined.
6.An Application to Resolve a Dispute (the Application) concerning payment of benefits filed with the Commission came before Arbitrator Elizabeth Beilby for conciliation and arbitration on 11 August 2011. The claim concerned entitlement to weekly benefits from 26 May 2008 to 4 July 2010, medical expenses and lump sums.
7.The Application proceeded to arbitration, at the conclusion of which the parties were given leave to file supplementary submissions. The Arbitrator reserved her decision. A Certificate of Determination accompanied by a Statement of Reasons for her decision (Reasons) was issued by the Arbitrator on 9 January 2012 following conclusion of submissions. A finding was made that the deemed date of Mr Milburn’s injury was 23 August 2008, a time at which the employer Transpacific was licensed pursuant to the SRC Act. The Certificate of Determination was in the following terms:
“The Commission determines:
1. For the purposes of the Workers Compensation Act 1987 the injury is deemed to have happened on 23 August 2008.
2. There be an award for the respondents.”
ISSUES IN DISPUTE
8.The issues in dispute are whether the Arbitrator erred:
(a) in determining that the deemed date of injury was 23 August 2008;
(b) in failing to find, upon a proper application of s 16 of the Workers Compensation Act 1987 (the 1987 Act), that the deemed date of injury was either 26 May 2008, 11 June 2008 or 17 June 2008, and
(c) in determining that the deemed date of injury was such that the 1987 Act had no operation by reason of the application of s 108A of the SRC Act.
HEARING
9.Having regard to the state of the evidence and, in particular, the need to determine the relevance or otherwise of detailed wage records tendered on behalf of Mr Milburn, a hearing was appointed. That was conducted on 15 May 2012 at which time each party was represented by counsel.
10.The parties, in response to an earlier direction, produced a copy of the relevant Enterprise Bargaining Agreement (EBA) and the industrial Award to which that Agreement makes reference. It was agreed that those documents may be treated as being before the Commission to facilitate proper information as to relevant matters (s 354(2) of the Workplace Injury Management and Workers Compensation Act (the 1998 Act)).
THRESHOLD MATTERS
11.There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.
THE ARBITRAL PROCEEDINGS
12.The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. The documentary evidence which was before the Arbitrator is noted at [21] and [22] of her Reasons. There was no oral evidence presented at the hearing.
Mr Milburn’s evidence
13.There are four written statements by Mr Milburn in evidence. Those statements are, to an extent, repetitive and are in some respects contradictory. The primary facts may be summarised as follows:
(a) duties performed by Mr Milburn are described as “difficult work”. After 15 years performing that work he “gradually started to have pain in [his] hips [sic] and pain in [his] groin”;
(b) treatment for that pain was first provided by Dr Tran in May 2005;
(c) Mr Milburn received treatment for left hip pain in May 2006;
(d) Mr Milburn had been employed by Veolia up to 30 June 2007;
(e) from 1 July 2007, on which date Transpacific became Mr Milburn’s employer, he performed light duties for a period of three months by reason of a hand injury received at work. He resumed normal duties which he performed until he was placed on suitable duties in May 2008;
(f) Mr Milburn ceased work on 23 August 2008 by reason of his hip disability and remained off work until 5 July 2010 at which time he returned to his normal duties;
(g) Mr Milburn had reported his hip injury to Robyn Smith “prior to [M]ay 2008”. Mr Milburn understood Ms Smith to be a rehabilitation officer employed by Veolia. He understood that Veolia was not prepared to accept his compensation claim;
(h) Dr Tran issued a WorkCover medical certificate stating that Mr Milburn was fit for suitable duties for one month from 26 May 2008 which was presented “to [his] employer”. Transpacific responded by letter dated 27 May 2008 offering suitable duties. An Injury Management Plan was arranged, and
(i) a payslip for the week ending 17 June 2008 indicates that Mr Milburn did no overtime and had received a “workers compensation payment of $311.88”. Mr Milburn believed that the payment was made “because of [his] restrictions with [his] left hip”. He had been advised by his employer that the payment related to his left hip disability “but they would not make any further payment as they did not think they were liable” (statement dated 22 April 2011).
Evidence of fellow workers
14.It is stated by Mr Shaun Faunce, who was employed as an industrial services supervisor by Veolia up until March 2007, that his duties included liaising with the employer’s occupational health and safety officers and rehabilitation officers at the Condell Park Depot.
15.Mr Faunce states that Mr Milburn presented “medical reports and documentation” to him concerning Mr Milburn’s injured hip. Mr Faunce states that the documentation was forwarded to Ms Robyn Smith, Rehabilitation Officer, and that copies of the documents were “placed in [Mr Milburn’s] employment files that were stored at our depot”.
16.Mr Faunce states that he recalls a conversation with Ms Smith concerning Mr Milburn’s “claim that the injury was as a result of his work activities with Veolia and its previous entity Collex”. He further states that the report provided stated the condition may be degenerative, and that Ms Smith “was of the opinion that the injury was not work related”.
17.Mr Robert Hapgood, who was employed by Transpacific as a driver/operator states that he remembers “seeing Greg Milburn in May 2008 with problems with his left hip. I remember he was on light duties at that time”.
18.Mr Ian Wilson, a fellow worker of Mr Milburn’s employed by Transpacific, states that he recalls Mr Milburn “walking with a limp when I first observed him on 1 July 2007 in the Transpacific yard at 7 Daisy Street, Revesby”.
Evidence of claims made by or on behalf of Mr Milburn and of provision of an Injury Management Plan
19.The insurer of Transpacific, QBE Workers Compensation (NSW) Ltd (QBE), in correspondence dated 18 June 2008 acknowledged notification of a claim given by Mr Milburn on 2 June 2008 and cites a date of injury as 22 May 2006. That correspondence contained a rejection of the claim and an assertion that Veolia was liable. A similar letter was sent again on 18 October 2008.
20.There is in evidence a document dated 28 August 2008 headed “NSW Compliance – Self Insurance Employee Claim Form”. Whilst that document has above that heading a corporate logo and the title “Veolia Environmental Services”, the first hand written entry nominates the title of the employer as being “Transpacific Industrial Solutions”.
21.That claim form identifies the date of injury being “over years”. It is noted that the matter was reported to Robyn Smith in May 2006. The injury was described as “wear and tear due to HPW and vacum [sic, vacuum]”. The following description was given as to “what happened”:
“In May 2006 I had x-rays to my left hip. I spoke to Robyn Smith about these x-rays. She told me to fill out a first notification certificate. I said to her that I would need a hip replacement within two to three years time and when it got closer to the date I would fill out the appropriate paperwork”.
22.A copy of correspondence forwarded by Mr Milburn’s solicitors to QBE dated 17 December 2008 claiming lump sum compensation against its insured, Transpacific, is in evidence. Enclosed with that correspondence was a report from Dr P Endrey-Walder dated 24 November 2008 and a Permanent Impairment Claim Form. Correspondence of the same date in the same form but addressed to Veolia is also in evidence.
23.There are in evidence three letters each dated 29 September 2010 addressed to Veolia, QBE and Transpacific from Mr Milburn’s solicitors claiming lump sums and weekly compensation. Weekly compensation is claimed at the rate of $868 per week from 23 August 2008.
24.Copies of correspondence from Mr Milburn’s solicitors to Veolia, QBE and Transpacific dated 18 March 2011 are in evidence. Those letters also make claims in respect of weekly compensation and lump sums. Again the claim for weekly compensation is made from 23 August, but is particularised as being in respect of $1,226 per week to 4 July 2010. Also claimed is $311 per week from 26 May 2008 to 30 June 2008.
25.Correspondence sent to Mr Milburn by Veolia and QBE denying liability is in evidence.
26.There is a copy of correspondence dated 27 May 2008 from Transpacific to Mr Milburn which makes reference to a WorkCover certificate issued by Dr Tran dated 26 May 2008. That correspondence contains an offer to Mr Milburn of suitable duties.
27.A copy of an Injury Management Plan prepared by Transpacific, start date 26 May 2008, is in evidence. That document, which had been forwarded by fax to Dr Tran on 3 June 2008, makes reference to “date of injury” as being 22 May 2006. Detail of this plan is addressed below.
Medical evidence
28.There are a number of WorkCover NSW medical certificates relied upon by Mr Milburn in evidence. These certificates, where relevant, are addressed below.
29.Mr Milburn tendered in evidence a number of medical and x-ray reports. The content of those reports supports the allegation that Mr Milburn’s hip condition had been caused and/or aggravated by his work duties and that his employment was a substantial contributing factor to his injury.
30.It is to be noted that counsel appearing for Mr Milburn at the hearing before the Arbitrator elected to rely upon the evidence of Dr Endrey-Walder to the exclusion of that evidence contained in reports by Dr James Bodel. That election was made having regard to the provisions of reg 49 of the Workers Compensation Regulation 2010 which places a restriction upon the number of medical reports that may be admitted into evidence.
31.There are three reports from Dr Jayker Davé dated 22 September 2008, 20 October 2010 and 17 January 2011 in evidence. Mr Milburn first consulted Dr Davé on 22 February 2008. Left hip arthroplasty was carried out on 20 March 2009. Dr Davé attributed development of his arthritic condition to the nature of his duties as a high pressure water blaster. The view was expressed that Mr Milburn was totally incapacitated post operatively until 30 November 2009. Dr Davé considered that Mr Milburn was then fit to resume work but it is recorded that he should not participate in very heavy work, should avoid deep squatting, heavy lifting and should avoid “rotating and twisting on weightbearing legs”.
32.Mr Milburn tendered a large number of additional documents including the clinical notes of Dr Tran. Those notes were also tendered by Veolia and are discussed below. A number of payslips issued to Mr Milburn by Transpacific between July 2007 and August 2008 (which are not a complete record of weekly payments) are in evidence and are addressed below. Other material tendered by Mr Milburn is not directly relevant to issues raised on this appeal and need not be summarised.
The respondents’ evidence
Evidence tendered on behalf of Veolia
33.A report by Dr Donald Jones, consultant orthopaedic surgeon, dated 27 January 2009 is in evidence. Dr Jones examined Mr Milburn before he underwent total hip replacement surgical procedure. In that report Dr Jones expresses the view that Mr Milburn has a 20 per cent whole person impairment by reason of the arthritic condition of his left hip. No opinion is expressed as to any relationship between the condition of the hip and Mr Milburn’s work. However, Dr Jones records that Mr Milburn attributes his hip problems to the heavy nature of his work.
34.The clinical notes relating to Dr Tran’s treatment of Mr Milburn have been tendered in evidence. Those notes record an attendance by Mr Milburn on 22 May 2006 when a history of left groin pain after lifting timber was given during the consultation. On examination Dr Tran noted “left hip: tender, restricted ROM, restriction present”. The “reason for visit” is noted as being “left hip pain”. An x-ray was arranged which is recorded on 24 May 2006 in the notes as revealing “left hip osteoarthritis – moderate”.
35.Dr Tran’s notes record numerous consultations in the first half of 2008 concerning left hip pain. Diagnosis was recorded as “left hip osteoarthritis-advanced”. Mr Milburn was referred to Dr Davé in February 2008. Total hip replacement was advised. Mr Milburn’s acceptance of that advice is recorded by Dr Tran at a consultation on 23 March 2008. Dr Tran was consulted by Mr Milburn on three occasions in June 2008 concerning hip pain. It is recorded on 26 June 2008 that his patient was “still in pain. Job accommodating”. A consultation on 26 May 2008 is recorded on which occasion Mr Milburn complained of left hip pain and Dr Tran issued an ‘initial” workers compensation certificate. That certificate is in evidence.
36.There is in evidence a copy of an email dated 7 May 2008 sent by Mr Peter Nicholas, NSW Group Services Manager of Veolia, addressed to a number of employees of Veolia. That email records Mr Milburn’s statement that he had reported a hip injury to Veolia in 2006. Mr Nicholas’s email records that “we have been through all our records relating to injury reports. We have been unable to find any notification of a hip injury being reported to Veolia Environmental Services, by Greg, in 2006 or at any other time”.
37.Veolia formally declined liability in respect of Mr Milburn’s claim by letter dated 11 February 2009. It appears from the notice, which had been prepared in accordance with s 74 of the 1998 Act, that the denial of liability was in response to Mr Milburn’s claim made on his behalf by his solicitors in December 2008.
38.There is a short statement in evidence made by Robin [sic] Smith dated 31 January 2011. Ms Smith was employed by Veolia as the return to work and injury management co-ordinator. Ms Smith states that Mr Milburn had made three claims in respect of workers compensation, but that a review of his relevant file demonstrates that there was “no notification of a hip injury prior to August 2008.”
39.A large number of documents relating to Mr Milburn’s employment by Veolia have been tendered in evidence. Those documents are not directly relevant to the matters raised on appeal and need not be summarised.
Evidence tendered on behalf of Transpacific
40.The following documents were tendered on behalf of Transpacific:
(a) a report by Dr John Stephen, orthopaedic surgeon, dated 25 November 2010. Dr Stephen expressed the view that Mr Milburn had experienced aggravation and acceleration of his osteoarthritic condition in the course of his employment as a high pressure water blaster. Dr Stephen calculated a 16 per cent whole person impairment resulting from that disease following total hip replacement. Dr Stephen also expressed the view that there was “a large constitutional component to Mr Milburn’s complaints”. Dr Stephen estimated that component as being “50 per cent”. He proceeded to express the view that “final work related whole person impairment therefore is eight per cent”;
(b) a report from Dr N Loutfy, dated 1 February 2010 addressed to Transpacific’s occupational health and safety co-ordinator, Ms Belinda Green. The examination conducted by Dr Loutfy had been arranged by Transpacific to determine whether Mr Milburn was fit to return to full duties. Dr Loutfy expressed the view that he was not fit for such work but that he was “fit for a physically less demanding position”;
(c) a report from Dr James Powell, orthopaedic surgeon, dated 28 May 2010, addressed to Dr Tran. Mr Milburn had been referred to Dr Powell for a second opinion concerning the state of his hip and return to work. Dr Powell noted that Mr Milburn was keen to return to his work and expressed a cautious view that, with appropriate care taken, it would be reasonable for Mr Milburn to return to his pre-injury duties. It was stated by Dr Powell that “his return to work largely depends upon resolving this risk management issue more than anything else”. The risk management referred to by Dr Powell was the risk of slipping and falling. I note that there is a second report of Dr Powell’s in evidence dated 23 June 2010 addressed to Ms Green. Dr Powell again expressed a cautious view that a return to work by Mr Milburn would be appropriate, and
(d) correspondence dated 20 December 2010 from QBE to Mr Milburn. That correspondence is a notice issued in accordance with the provisions of s 74 of the 1998 Act declining liability. It is suggested in that correspondence that, having regard to Dr Stephen’s opinion, application of the disease provisions of the 1987 Act would have the consequence that relevant injury was deemed to have occurred in August 2008. It is pointed out in that correspondence that Transpacific “became self insured through Comcare at this time”.
Submissions before the Arbitrator
Mr Milburn’s submissions
41.Mr Milburn’s case as presented before the Arbitrator alleged injury by way of aggravation of an underlying osteoarthritic condition of his left hip. Reliance was placed upon the provisions of ss 15 and 16 of the 1987 Act. It is reasonably clear, having regard to argument as recorded in the transcript, that Mr Milburn’s fundamental argument was that the evidence supports the conclusion that he became partially incapacitated for his pre-injury work in May 2008 and that he remained partially incapacitated thereafter until such time as he ceased employment on 23 August 2008.
42.It was put in argument that the evidence supports a finding that, upon application of s 16 of the 1987 Act, the work performed by Mr Milburn up until May 2008 had been a substantial contributing factor to aggravation of his osteoarthritis and that liability in respect of entitlement to compensation thereafter was the responsibility of the second respondent, Transpacific.
43.It seems to have been acknowledged by counsel in the course of submissions that, following the grant of the licence to Transpacific pursuant to the SRC Act, the terms of the New South Wales legislation would have no application. However, reliance was placed upon the decisions of the Court of Appeal in Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 (Russo) and A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41 (Civitarese). Those authorities, it was argued, would permit a finding that liability under the New South Wales legislation must be assumed by the last employer whose liability was regulated by the State legislation who employed Mr Milburn in work to the nature of which the disease was due (s 15) or, in the alternative that employer who employed the worker in employment that was a substantial contributing factor to the aggravation of the subject disease (s 16).
44.Mr Milburn’s claim concerning weekly benefits was one brought pursuant to s 40 from 26 May 2008 to 22 August 2008. Reference was made by counsel to the payslips which, it was argued, supported a finding of relevant wage loss during that period. The claim thereafter was brought pursuant to s 36 up until 23 February 2009. Counsel submitted that Mr Milburn’s entitlement thereafter would be pursuant to s 37 until 30 November 2009 and thereafter pursuant to s 40 up to 4 July 2010.
Transpacific’s submissions
45.Reliance was placed by counsel appearing on behalf of Transpacific upon the decision in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 (Alfonzo) in support of an argument that, on the facts, the deemed date of injury was August 2008. At that time Transpacific was licensed under the SRC Act and, having regard to the operation of relevant provisions not specified in the submissions, Transpacific had no liability under the New South Wales legislation.
Veolia’s submissions
46.At the outset of submissions, counsel made it clear that whilst there had been an allegation of injury to Mr Milburn’s left wrist and hand, such injury had not been relied upon as giving rise to any relevant entitlement to compensation. Counsel proceeded to address the nature of injury as otherwise alleged in the Application and argued that the appropriate characterisation of any injury would be the aggravation of a disease.
47.The decision of Alfonzo and other relevant authority were referred to in the course of submissions. The argument was advanced that, having regard to the reasoning expressed in Alfonzo, the conclusion should be reached on the present facts that injury is deemed to have occurred in August of 2008. Counsel’s submission on this point was as follows:
“[T]he relevant deemed date of injury… was 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 the claim but the date of the incapacity which compensation was claimed” (at T23).
48.It was argued that the facts did not support the claim for weekly benefits prior to Mr Milburn’s cessation of work on 23 August 2008.
49.Counsel concluded submissions by noting the allegation of the frank injury to Mr Milburn’s hip on 22 May 2006. It was put that there was no evidence before the Commission that such injury, as recorded by Dr Tran, “occurred at work”. Reference was also made to the evidence of Dr Endrey-Walder who had recorded that there was no specific history of injury to the hip.
Supplementary submissions
50.The Arbitrator granted the parties leave to provide written submissions to supplement those oral submissions presented at the hearing concerning questions raised by the application of the provisions of the SRC Act and, in particular, the relevance or otherwise of the decisions of the Court of Appeal in Russo and Civitarese. Counsel appearing on behalf of Mr Milburn took the opportunity to reiterate and, to some extent, expand on his submissions generally. The parties’ submissions on these subjects are before the Commission and do not require a detailed summary. The Arbitrator later invited submissions concerning the decision of Senior Arbitrator Snell, being Makowski v National Wealth Management Services Ltd [2010] NSWWCC 367 (Makowski) and of Senior Arbitrator Grotte in Horsey v Linfox Transport Pty Ltd [2011] NSWWCC 219 (Horsey). Argument advanced by the parties is, where relevant, discussed below.
The Arbitrator’s decision
51.The evidence of Dr Endrey-Walder and Dr Davé was accepted by the Arbitrator concerning the aggravation of Mr Milburn’s osteoarthritic condition caused by the nature of his work duties. The Arbitrator stated that the injury “is clearly a disease which falls within the definition of injury pursuant to s 4 of the [1987 Act]”. A further finding was made that “the claim falls clearly within the ambit of s 16 of the 1987 Act”. The Arbitrator noted that such conclusion was “not disputed by any party to this claim”. The Arbitrator identified the task before her as being “fixing of a date of injury and a determination as to the mechanism of compensation”.
52.The Arbitrator proceeded to consider those authorities relevant to “the predominant issue ... being the deemed date of injury”. Those decisions included the judgments of the Court of Appeal in Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 (Antaw), Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone), Alfonzo and GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO).
53.The Arbitrator noted that Mr Milburn had argued that the deemed date of injury was either 18 June 2008, from which date economic incapacity commenced or, in the alternative, 26 May 2008 being the commencement of the return to work plan or, further in the alternative, 3 June 2008 being the date Dr Tran signed that plan.
54.The arguments advanced by Mr Milburn were rejected by the Arbitrator. She proceeded to determine the question of deemed date of injury by the application of s 16(1)(a)(i). Her conclusion was, upon reliance of that stated in Alfonzo and GIO, that “the deemed date of injury in respect of the claim for weekly compensation would be 23 August 2008, this being the date [Mr Milburn] ceased work” (at [43] of Reasons).
55.The Arbitrator proceeded to determine that given the circumstance that Transpacific had “from 1 July 2008 ... ceased to participate in the NSW WorkCover scheme, and had ‘joined the Comcare scheme’” its “workers compensation obligations were governed by [the SRC Act]”.
56.The decisions of the Court of Appeal in Russo and Civitarese which were relied upon by Mr Milburn were considered by the Arbitrator. Those authorities were distinguished from the present matter upon the facts. The Arbitrator proceeded to conclude that “Section 108A(7) [of the SRC Act] prevents the application of the NSW legislation to [Transpacific]”. In so concluding the Arbitrator noted that her decision was consistent with the reasoning found in the decision of Senior Arbitrator Snell in Makowski.
57.The Arbitrator proceeded to make the determination which is noted above at [7].
SUBMISSIONS, DISCUSSION AND FINDINGS
58.This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
59.The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Mr Milburn’s submissions on appeal
60.There are three “grounds” of appeal enumerated in Mr Milburn’s written submissions put on this appeal. It is reasonably clear that the complaint made is that the Arbitrator has erred in determining that, upon application of the provisions of s 16 to the facts, the deemed date of injury is 23 August 2008. It is also reasonably clear that Mr Milburn argues that the Arbitrator has erred in determining that there was no relevant “incapacity” within the meaning of s 16 on a date prior to 1 July 2008, being the date Transpacific became licensed pursuant to the SRC Act. It is also argued that the decisions of Russo and Civitarese are relevant to the present facts. It seems to be argued that, even in circumstances where a deemed date of injury is determined to be at a time when the SRC legislation regulated Transpacific’s liability, the terms of s 16(1)(b) “permits [Mr Milburn] to claim under the [NSW Compensation legislation]”.
61.In oral submissions at the hearing of the appeal, counsel amplified those arguments relied upon before the Arbitrator concerning the relevance of the wage records to the questions of economic incapacity and determination of deemed date of injury (s 16 of the 1987 Act). It was put that the payslips relevant to the period during which Mr Milburn was engaged in the Injury Management Plan demonstrate that he was often absent from his workplace on annual leave, sick leave, rostered days off or other leave. It was put that it was open to inference that such absences were “evidence of incapacity”.
The respondents’ submissions on appeal
62.Both respondents accept that the injury alleged by Mr Milburn is one being aggravation of a disease and that the question of the deemed date of injury is governed by the provisions of s 16 of the 1987 Act.
Veolia’s submissions
63.Written submissions filed by Veolia state that “the main issue ... was the date of injury”. Such was to be determined, it is argued, by a proper application of s 16. It was put that the Arbitrator’s reliance upon the decision in Alfonzo and her determination that the deemed date of injury was 23 August 2008, the date Mr Milburn ceased work, were correct.
64.Veolia asserts that Mr Milburn “ceased to be a worker on 30 June 2008”. That submission is not elaborated, but it is reasonably clear that what is intended is an argument that, from 1 July 2008, Mr Milburn’s employer, Transpacific, ceased to be subject to New South Wales compensation legislation given that it was on that day licensed under the SRC Act which provides in s 108A:
“The consequences of a licensee's authorisation to accept liability
(1)If:
(a)a licensee is authorised to accept liability to pay compensation and other amounts under this Act in respect of particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees; and
(b) such injury, loss, damage or death occurs;
then:
(c)the licensee is liable to pay compensation and other amounts under this Act in respect of that injury, loss, damage or death; and
(d)Comcare is not liable to pay compensation or other amounts under this Act in respect of that injury, loss, damage or death.
(2)Nothing in subsection (1) affects Comcare's liability to pay compensation or other amounts under this Act in respect of a particular injury, loss, damage or death for which Comcare would have been liable, but for the operation of the licence, to the extent that the liability is not a liability that the licensee is authorised to accept.
(3)The fact that a licensee is authorised to accept liability to pay compensation and other amounts under this Act in respect of a particular injury, loss, damage or death does not render the licensee liable to have any proceedings (including proceedings under Part VI) brought against it in respect of that particular injury, loss, damage or death other than proceedings for the recovery of that compensation and those other amounts.
Note: If licensees are authorised to manage claims, proceedings may be brought against them in respect of the management of those claims (see subsection 108C(7)).
(4)If proceedings have been brought against Comcare in respect of a particular injury, loss, damage or death for which a licensee is liable to pay compensation or other amounts under this Act, Comcare must inform the licensee, in writing, as soon as practicable, that the proceedings have been brought.
(5)On being informed that proceedings have been brought against Comcare in respect of a particular injury, loss, damage or death, the court or tribunal before which the proceedings have been brought must, on application of the licensee, join the licensee as a party to the proceedings.
(6)A decision in any proceedings referred to in subsection (4) is binding on Comcare and on the licensee concerned, whether or not the licensee has made application to become a party to the proceedings.
(7) If a licensee who is a corporation is authorised to accept liability to pay compensation and other amounts under this Act in respect of a particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees after the licence comes into force then:
(a)no law of a State or Territory relating to workers compensation applies to a licensee in respect of such injury, loss, damage or death; and
(b)any liability or obligation of the corporation under a law of a State or Territory in respect of such injury, loss or damage suffered, or death occurring, before the licence came into force is unaffected. ”
65.It is argued by Veolia that s 108A(7) prevents any recovery by Mr Milburn pursuant to NSW compensation law given that “the injury of 23 June 2008 [sic, 23 August 2008] is a date beyond the time when the second respondent’s workers compensation liabilities were governed by [the New South Wales legislation]”.
66.At the hearing of the appeal Veolia adopted those arguments concerning the identification of the deemed date of injury advanced by Transpacific which are summarised below.
Transpacific’s submissions
67.Transpacific, in written submissions, does not dispute that Mr Milburn “experienced symptoms, that surgery was proposed and that his duties were restricted at various points prior to 30 June 2008”. It is asserted that the payment by Transpacific of $311.88 in June 2008 was, as stated by the Arbitrator in her Reasons, “said to be made in lieu of overtime”.
68.It is argued that the worker’s evidence establishes that the disease suffered by him was aggravated during August 2008. The argument is put that such aggravation “gave rise to physical and economic incapacity from 23 August 2008”.
69.Transpacific further argues that the following finding (at [13] of Reasons) was open to the Arbitrator on the evidence:
“In the immediate time leading up to 22 August 2008 Mr Milburn was working a significant number of hours. From Monday to Friday he was working 6am to 2.30pm and then worked on a Saturday from 6am to 4pm. He says that he averaged approximately 60 hours per week.”
70.The Arbitrator’s finding that the deemed date of injury was 23 August 2008 is said to be a finding of fact which followed a proper application of principle as found in the relevant authorities. It was put by Transpacific that no error has been demonstrated.
71.Transpacific further submits that the consequences at law of the Arbitrator’s finding that the deemed date of injury was a date at which time it held a license pursuant to the SRC Act are that the Commonwealth legislation governs its liability for an employee’s work related injury and that the New South Wales legislation can have no application. The decisions of Russo and Civitarese may, it is argued, be distinguished, as the Arbitrator concluded, upon the facts. It is also emphasised in argument that Russo and Civitarese each concerned claims for industrial deafness governed by s 17 of the 1987 Act. That section, which in part makes provision for a deemed date of injury, is “in very different terms” to s 16.
72.Transpacific argues that the decision of Senior Arbitrator Snell in Makowski was correctly decided and, further, that the decision of Horsey, a conflicting decision of Senior Arbitrator Grotte “has no application to the facts [of the present matter]”. These cases had been addressed in supplementary submissions before the Arbitrator as noted earlier.
73.In oral submissions counsel for Transpacific drew attention to the payslips which, it was argued, demonstrated a pattern of absences on leave during the second half of 2007 and during the first half of 2008. Careful attention was given in argument to the number of hours of work performed and the suggested frequency of leave taken by Mr Milburn. It was put that those records demonstrated a pattern similar to that seen in the period post dating the provision of suitable duties. It was argued that it was clear that Mr Milburn had never regularly performed sixty hours work on a weekly basis as alleged. The argument was developed that, upon acceptance of that consistent pattern of work performance, no inference should be drawn that his regular leave taking from June 2008 demonstrates incapacity.
74.Counsel further argued that it was significant that Dr Tran’s certificate dated 22 May 2008 concerning Mr Milburn’s capacity for suitable work made no provision for time limitation and that the Injury Management Plan signed by that practitioner made provision for a 38 hour week. The conclusion should be reached, it was argued, that there was then no economic incapacity and therefore no right to weekly payments.
75.In reply counsel for Mr Milburn drew attention to the hours of work performed during the four week period immediately preceding 27 May 2008. Those hours, being 61 (including public holiday), 58.5, 60.5 [sic, 60] and 50 [sic 49], it was argued, demonstrate a pattern of work before the manifestation of economic incapacity immediately thereafter.
Did the Arbitrator err in determining that the deemed date of injury was 23 August 2008?
76.As there was no dispute concerning the occurrence of injury by way of aggravation of a disease, the date of such injury was, as found by the Arbitrator, to be determined having regard to the provisions of s 16 which provide:
“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) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case:
where:
C is the contribution to be calculated for the particular employer concerned.
T is the amount of compensation to which the employer is required to contribute.
A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
(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.”
77.The present facts do not concern the death of the worker hence, having regard to the provisions of 16(1)(a)(i), it becomes necessary to determine whether incapacity has resulted from the admitted injury. If so the date of relevant incapacity is to be determined in accordance with those principles stated in the authorities. Leaving aside, for the moment, the difficulties demonstrated in those authorities concerning the ascertainment of that date, it is necessary to examine relevant factual matters before consideration is given to the correctness or otherwise of the Arbitrator’s conclusion.
78.At [5.2] of the Application Mr Milburn claims weekly compensation from 26 May 2008. That claim appears to be made pursuant to s 40 at the rate of $426.00 per week until 22 August 2008. Thereafter Mr Milburn ceased work and his claim is made as noted at [44] above.
79.It must be said that the evidence is in a confused state, as is the manner in which the Application has been drafted. The Application at Part 4 (page 5b) particularises a number of dates “of compensation claim”. It is of significance that the first dates particularised are 20 May 2006 and 26 May 2008. The 26 May 2008 date corresponds approximately with the commencement date of Transpacific’s Injury Management Plan noted at [27] above. That Plan which concerns the left hip injury records date of injury as 22 May 2006, a date before Mr Milburn’s commencement of work for Transpacific.
80.It is reasonably clear that Transpacific, through its insurer QBE, who was on risk relevantly between 1 July 2007 and 30 June 2008, initially declined liability in June 2008 as stated in their correspondence to Mr Milburn dated 18 June 2008, upon the following basis:
“We have since [receiving notice of claim] conducted a number of enquiries in relation to your claim and wish to confirm the following:
-You first sought treatment in relation to your left hip injury on 22 May 2006;
-On that day, you consulted your treating doctor, Dr Tran, and were prescribed medication (anti-inflammatories and pain killers) and referred to an x-ray of your pelvis and hip;
-The x-ray report, dated 22 May 2006, confirmed ‘marked osteoarthritic changes of the left hip are present’;
-You advised reporting your injury to your employer, Robyn Smith of Veolia Industrial Services, at this time however Veolia have indicated they have no record of this;
-We note your ‘Employee Report of Injury’ claim forms, signed by you on 27 May 2008, where you have stated ‘had x-rays of hip in 2006 and 2008, reported to Robyn Smith’;
-We also note your initial WorkCover Medical Certificate, issued by Dr Tran, dated 26 May 2008, which quotes your Date of Injury as 22 May 2006;
-You have been employed as a High Pressure Water Blaster for 18 years with Veolia, until they were acquired by Transpacific Industrial Solutions on 1 July 2007;
-We note that when Transpacific purchased Veolia on 1 July 2007, this purchase did not include taking on any prior liabilities of Veolia;
-For workers compensation purposes, QBE’s and Transpacific’s period of risk is from 1 July 2007 to date;
-Transpacific have advised that your solicitor has indicated Veolia would be liable for your injury.
Based on this information, it is our opinion that Veolia are [sic, is] liable for any work–related left hip condition you have sustained as a result of your employment. We note there was no frank incident, rather a gradual onset of your hip symptoms, which were first identified by you on 22 May 2006, when you first attended your treating doctor, Dr Tran, and were referred for x-rays. As this is the date you first sought treatment, this is considered your deemed date of injury for the purposes of workers compensation.
In accordance with sections 15 and 16 of the Workers Compensation Act (1987) your deemed date of injury therefore is 22 May 2006, the date you first sought treatment. At that time, Transpacific was not your employer and QBE was not the relevant insurer on risk. Accordingly, we recommend you lodge your claim for workers compensation on Veolia.”
81.It is clear that QBE’s correspondence is in response to a claim made against its insured on 27 May 2008, of which it received notification on 2 June 2008. The relevant documentation concerning such claim is not in evidence.
82.What is established on the evidence is that before the insurer’s rejection of the claim, Transpacific had, in May 2008, offered Mr Milburn suitable duties. That offer was accepted by him.
83.The nature of the duties performed by Mr Milburn between 27 May 2008, the commencement date of the Injury Management Plan, and 22 August 2008, the date he ceased work, and his earnings at that time are of particular relevance to the determination of the deemed date of injury. Unfortunately these matters, having regard to the state of the evidence, are not immediately clear.
84.Mr Milburn’s four statements contain, as earlier noted, some contradictions. It is clear that his statement made in August 2009 that he “continued on with work as best [he] could until August 2008” omits detail of Dr Tran’s certification concerning unfitness for normal duties and also omits detail of the Injury Management Plan. That evidence, and his subsequent statement made in November 2009 concerning the work he performed is, I conclude, unreliable. I have reached that conclusion for the reasons stated below.
85.In his statement dated 24 November 2009 Mr Milburn said (at [27] and [28]):
“For the last few months up to 23 August 2009 [sic, 2008] I was working as follows:
. Monday to Friday from 6.00am to 2.30pm;
. Saturday from 6.00am to 4.00pm.
There was a good deal of overtime work, and would average about 60 hours a week”.
86.In that statement Mr Milburn proceeds to describe the nature of his duties at that time, all of which were particularly physically demanding.
87.Mr Milburn’s statement made 19 August 2010 commences with the words “I wish to clarify, correct and update my earlier statements”. He states that he
“performed [his] usual normal duties from October 2007 ... until roughly about three weeks before I ceased work on or about 23 August 2008. In the period of about three weeks prior to 23 August 2008 I performed light duties which did not involve any water blasting or the use of high pressure hoses and I simply performed light duties around my employer’s yard”.
88.The confusion concerning the nature of Mr Milburn’s duties in the months before 23 August 2008 is to some extent resolved by those matters found in his statement dated 22 April 2011. That statement includes reference to the following matters of significance:
(a) by May 2008 Mr Milburn had consulted Dr Tran concerning a worker’s compensation claim concerning his left hip condition;
(b) Dr Tran, on 26 May 2008, issued a WorkCover medical certificate stating that Mr Milburn was fit for suitable duties for one month;
(c) that certificate was presented to Transpacific;
(d) Transpacific, on 27 May 2008, wrote to Mr Milburn offering suitable duties in accordance with the certificate of Dr Tran;
(e) an Injury Management Plan was put in place;
(f) Mr Milburn is not sure “when or if [he] returned to normal duties prior to going off work in August 2008”;
(g) Mr Milburn presented to Transpacific a further WorkCover NSW medical certificate concerning his fitness for suitable duties for the period 26 June 2008 to 26 July 2008, and
(h) Mr Milburn expressed the view “I think that I must have continued with the suitable duties as certified”.
I note in passing that at the time of preparation of this statement, the conduct of Mr Milburn’s claim had been taken up by a senior solicitor.
89.That statement addresses the detail of payslip records concerning work performed by Mr Milburn from 28 May 2008. Those matters are addressed below where consideration is given to evidence of economic incapacity.
90.It is, in my opinion, clear that the statements made by Mr Milburn, dated 11 August 2009, 24 November 2009, and 19 August 2010 are deficient in that there is an absence of detail concerning the issue of WorkCover certificates by Dr Tran, a provision of the Injury Management Plan and the nature of Mr Milburn’s duties between 26 May and 22 August 2008. The wages records relied upon by Mr Milburn demonstrate that from the week ending 3 June 2008 to the pay period ending 26 August 2008, he was paid not only in respect of hours actually worked, but also for days regularly taken off being annual leave or rostered days off and sick leave. The following table demonstrates the hourly work performance and absences of Mr Milburn for which he was paid during that period:
Week ending Hours worked (including overtime and double time) Hours not worked (leave, RDO etc) Gross pay (including allowances) 3/06/2008 23.5 24 $1,324.66 10/06/2008 20.5 24
including public holiday$1,563.29 17/06/2008 32 8 $1,262.97 24/06/2008 36 8 $1,178.89 1/07/2008 27.5 16 $1,169.48 8/07/2008 54 $1,569.85 15/07/2008 46.5 $1,232.43 22/07/2008 39 8 $1,262.85 29/07/2008 36.5 8 $1,192.60 5/08/2008 22 20 $868.92 12/08/2008 18 24 $1,089.16 19/08/2008 22 24 $1,082.37 26/08/2008 18 $462.44
91.As is demonstrated by the table above, Mr Milburn, with the exception of the weeks ending 8 July, 15 July, and 22 July 2008, had consistently (in the relevant period) worked considerably fewer hours than the average of 38 hours per week stipulated in the Metal Engineering and Associated Industrial Award 1998 (the Award). His gross pay includes payments to which he was entitled by way of annual leave, sick leave or rostered days off. Of significance, Mr Milburn was also paid, as noted by the Arbitrator, the sum of $311.88 being workers compensation in the week ending 10 June 2008. In addition to the paid leave noted above, Mr Milburn, in the relevant period, took two days leave without pay (16 hours).
92.Hours of work under the EBA are those hours as stipulated in the Award. The Award states at 6.1.1(a) that “the ordinary hours of work for day workers are to be an average of 38 hours per week but not exceeding 152 hours in 28 days.” From the payslips in evidence it appears that Mr Milburn was required to work 40 ordinary hours per week, and that two of those ordinary hours would be deducted from his pay and accrued towards a rostered day off (8 hours). Whilst this inference is open on the evidence, the method of calculation and detail of any agreement for this practice is not evident in either the Award or the EBA.
93.I have reached the view that the lay and medical evidence, including the certificates of Dr Tran dated 26 May 2008 and 26 June 2008, establishes that Mr Milburn had been and remained physically incapacitated from, at least, 26 May 2008. The Arbitrator, when considering the question of deemed date of injury, correctly (at Reasons [36] and [37]) relied upon the decision of Stone where, as stated by Hodgson JA with reference to the decision of Alfonzo:
“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.”
94.Whilst it is clear that the Arbitrator has adopted the correct legal test relevant to the determination of the deemed date of injury, Mr Milburn argues that error has been committed in finding that that date was 23 August 2008. That finding, being one of fact, may only be disturbed on appeal in those circumstances stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, which decision has been addressed by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 in the context of Commission appeals. It must be shown that the Arbitrator was wrong. Such error may be established by showing that, as stated by the Chief Justice (at 506):
“[M]aterial facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn; or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellant court that the trial judge’s decision is wrong.”
95.At the hearing before the Arbitrator Mr Milburn argued that relevant incapacity, that is incapacity giving rise to entitlement to weekly compensation, occurred, relevantly, in the week commencing 26 May 2008. Counsel’s argument is recorded at T8. The thrust of the argument was that a loss, which was “not great”, was demonstrated by the earnings as recorded in the wage records tendered by his client (which are to be found at page 195, and following, of the Application).
96.In rejecting counsel’s argument it appears that the Arbitrator has taken into account Mr Milburn’s evidence as found in his statement made 24 November 2009. The observation was made by the Arbitrator, by way of background to her Reasons (at [13]):
“In the immediate time leading up to 22 August 2008 Mr Milburn was working a significant number of hours. From Monday to Friday he was working 6am to 2:30pm and then worked on a Saturday from 6am to 4pm. He says that he averaged approximately 60 hours per week.”
97.When addressing Mr Milburn’s argument that a finding should be made that the deemed date of injury was “26 May 2008 / 3 June 2008” the Arbitrator stated (at [41] and [42] of Reasons):
“The applicant also puts a proposed date of 26 May 2008 being the start of the respondent’s return to work plan at 38 hours per week (or alternatively when Dr Tran signed the plan on 3 June 2008).
I do not accept that this creates a new deemed date of injury. The worker must show that there has been an economic incapacity and this has not been done. I was not taken to any
evidence that disclosed an economic reduction in a real sense as required by the authorities.”
98.The Arbitrator’s conclusion concerning deemed date of injury is found (at [43] and [44] of Reasons):
“To fix the date for weekly compensation [sic, incapacity] pursuant to s 16(1)(a)(i) is ‘a reference to the incapacity for which compensation is claimed’ (GIO at 196 per Sheller JA; Alfonso). It appears to me, that when applying these authorities, that the deemed date of injury in respect of the claim for weekly compensation would be 23 August 2008, this being the date the applicant ceased work.
Quite simply, the applicant was able to work until 23 August 2008, and it is at that time that the monetary incapacity commenced. It is on this basis that I find that the deemed date of injury is 23 August 2008.”
99.I have earlier (at [90]) expressed my views concerning the reliability of the earlier statements of Mr Milburn which have been relied upon by the Arbitrator. Whilst it is perfectly clear that the Arbitrator was afforded little, if any, assistance during submissions concerning the proper evaluation of that evidence, I have reached the view that, in concluding that relevant incapacity occurred on 23 August 2008 she has erred in that she has overlooked or has given too little weight to the following matters:
(a) Mr Milburn had been certified as being fit only for suitable duties as at 25 May 2008;
(b) suitable duties had been provided;
(c) Mr Milburn’s actual working hours for the week ending 3 June 2008 were reduced to 23.5 hours. During the week ending 10 June 2008 his gross pay was in respect of 20.5 hours actual work (some 12.5 of which was paid as overtime and double time), 16 hours annual leave, 8 hours public holiday and 8 hours being a rostered day off;
(d) liability for weekly compensation payments was, at first, accepted by Transpacific and $311.88 was paid in respect of that admitted liability in the week ending 17 June 2008;
(e) liability was subsequently denied by Transpacific and payments ceased at a time Mr Milburn was performing suitable duties in accordance with a Return to Work Plan;
(f) that between weeks ending 27 May 2008 and 1 July 2008 Mr Milburn’s actual working hours had been significantly reduced (as demonstrated by the Table at [90] above);
(g) whilst it is the case, as found by the Arbitrator, that overtime had been performed by Mr Milburn, such overtime was not, prior to the week ending 8 July 2008, in addition to a full weeks work of normal time, and
(h) the overtime for which Mr Milburn was paid at this time is explained in his evidence at [9] of his statement made 22 April 2011 where it was said:
“I think that while I was doing suitable duties as I was advised to do them on site with other workers I simply could not leave while they were doing their overtime and I had to remain and I was paid the overtime, despite being in a lot of physical pain and having a lot of restrictions”.
100.A significant feature of the evidence before the Arbitrator is the very substantial periods of leave taken by Mr Milburn by way of annual leave, sick leave and rostered days off following Dr Tran’s certification that he was fit for suitable duties. The evidence establishes, and I find on this appeal, that a significant proportion of his weekly earnings, as evidenced by the wage records, represents payment for such leave. At that time Mr Milburn was in significant pain, had considerable physical disability and I infer that those periods of leave were, on the probabilities, taken by him by reason of that pain and disability.
101.In so concluding I have taken into account the argument advanced on behalf of Transpacific concerning the earlier “pattern” of work/leave hours. That argument, which I reject, is in stark contrast to the earlier argument advanced that the Arbitrator’s finding, noted at [69] above, was open to her on the evidence. It is clear on the evidence that in late 2007 and early 2008 Mr Milburn was experiencing significant disability in his hip, had again consulted Dr Tran and had, in February 2008, been referred to Dr Davé who had advised surgical intervention. That “pattern” of work demonstrated on the payslips is, in my view, not surprising taking into account all relevant circumstances.
102.Compensation is payable in respect of any period of incapacity even though the worker has received payment by way of annual holiday leave as has Mr Milburn on the present facts (s 49 of the 1987 Act).
103.So far as the rights and liabilities concerning weekly payments are concerned in circumstances where sick leave has been paid by an employer to an incapacitated worker, s 50 of the 1987 Act has application. That section provides that compensation is payable in respect of a period of incapacity even though the worker has received or is entitled to receive sick leave in respect of that period (s 50(1)). Section 50(2) provides:
“(2) If a worker is paid compensation by the employer in respect of any period of incapacity for work in respect of which the employer is, or but for this section would be, liable under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment to pay to the worker any wages for sick leave:
(a)that liability shall, to the extent of the compensation so paid, be deemed to have been satisfied by that payment notwithstanding the terms of that Act, award, agreement or contract, and
(b)the amount of that compensation shall, for the purposes of subsections (4) and (5), be deemed to have been paid as compensation and not as wages.”
104.The rostered days off taken by Mr Milburn from 26 May 2008 may be described as being similar to the “rostered leisure day” which was considered by the High Court in Steggles Pty Ltd v Vandenberg [1987] HCA 35; 163 CLR 321 (Vandenberg). That authority was raised at the hearing of the appeal and no argument was put which suggested that a worker was not entitled to payment of compensation in respect of incapacity suffered on a day taken as a rostered day off.
105.It is clear, in my view, that the reduction of actual working hours performed by Mr Milburn during weeks between that ending 3 June 2008 and that ending 1 July 2008 establishes that he had suffered economic loss by reason of his physical incapacity on a date earlier than 23 August 2008 as found by the Arbitrator. The fact that he had received payment for hours not worked as earlier discussed does not affect his right to claim compensation in respect of wage loss by reason of those absences. It is apparent that the Arbitrator’s error in finding no economic incapacity earlier than 23 August 2008 was founded upon her reliance upon the figures which appear in the column of the table headed “gross pay”.
106.Mr Milburn’s wage loss is apparent in the week ending 3 June 2008 and such loss followed the issue of Dr Tran’s first WorkCover certificate on 26 May 2008. That wage loss was occasioned by Mr Milburn’s physical incapacity as a result of the subject injury. He claims and is entitled to weekly payments from 26 May 2008. I find on this appeal that the date of incapacity within the meaning of s 16(1)(a)(i) was 26 May 2008 and that that date is the deemed date of injury (Alfonzo per Priestley JA at [28]). Transpacific was at that time an employer whose liability in respect of workers compensation benefits was regulated by the 1987 and the 1998 Acts. Transpacific had earlier been the employer who had last employed Mr Milburn in employment that was a substantial contributing factor to the aggravation of his diseased hip. Any compensation to which he is entitled is payable by Transpacific (s 16(1)(b)).
107.The liability of Transpacific under the New South Wales Acts extends, in my view, to not only weekly payments but also medical expenses and lump sums as claimed by Mr Milburn. Whilst it is correct that the lump sums were claimed by Mr Milburn on a date after 26 May 2008 (the earliest such claim having been made on 17 December 2008) the date of such claim is, in my view, not relevant to the question of deemed date of injury. I reach this conclusion following consideration of the decisions in GIO, Antaw, Alfonzo and Stone. Those authorities have, in the past, given rise to some confusion as to the proper approach to be taken when applying the provisions of ss 15 and 16 to relevant facts where a claim is made for benefits upon death brought by a widow or one made by a worker in respect of, not only weekly payments, but also lump sum compensation.
108.Each case must be determined on its own facts. The difficulties which might arise in such claims are well illustrated by the decision of Roche DP in Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31 (Collingridge). Discussion in that matter relevant to the “deeming” provisions is to be found between [61] and [87]. I respectfully agree with the reasoning there expressed and the conclusion reached.
109.The present matter is, on the facts, not a case such as GIO where the claim was brought by a dependant in respect of the death of a worker who had earlier suffered incapacity. That circumstance led the Court of Appeal to conclude that “for the purposes of the widow’s claim, the worker’s injury is deemed to have happened at the time of his death” (per Sheller JA, with whom Priestley and Clarke JJA agreed, at 196).
110.The facts in the present matter and those in Antaw may also be distinguished. In Antaw, a matter which concerned a claim for weekly compensation and lump sums, the Judge at first instance found different deemed dates in respect of each of those claims. Those findings were upheld by the Court of Appeal. The factual circumstances concerned a frank injury to the worker’s eye in 1976 at which time he had been incapacitated and paid compensation benefits. In 1978 he was paid lump sum compensation in respect of 10 per cent loss of sight of the eye. The worker left the appellant’s employ in approximately 1985 and worked in his trade subsequently with at least six employers. By 1992 he had further problems with his eye and had further surgical treatment. In April 1996 he ceased full-time work.
111.The claim for lump sums in Antaw was in respect of a further 40 per cent loss of sight in the eye. Reliance was placed upon the provisions of s 15 of the 1987 Act (which has deeming provisions in terms similar to s 16). The Judge’s finding that incapacity had occurred in 1992 and that such date was the deemed date of injury with respect to the claim for weekly benefits was, as earlier noted, upheld on appeal. The finding that the deemed date of injury with respect to the lump sum claim was 29 July 1996, the date when such claim was made, was also upheld. Her Honour’s reasoning when determining those dates was expressly approved by Sheller JA (Meagher JA and Cole AJA agreeing). His Honour stated (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 s 15(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. I can see no error in this approach, which accords with the terms of s 15. Accordingly, in my opinion, this ground of appeal fails.”
112.In the present matter, as was the case in Alfonzo, also a matter concerning claims for both weekly compensation and lump sums, a finding of deemed date of injury in respect of both claims may be fixed by reference to s 16(1)(a)(i), that is by reference to date of incapacity. The choice of date of claim to determine the deemed date of injury (s 16(1)(a)(ii)) may be chosen, as stated by Sheller JA in GIO “only ... if the injury giving rise to the claim has not resulted in the worker’s death or incapacity for work” (at 195E–F). The difficulty which was presented in GIO was that the worker had suffered incapacity for work and, subsequently, died as a result of the subject disease. In such circumstances, as stated by Sheller JA, “incapacity” as it appears in the relevant provision “is a reference to incapacity for which compensation is claimed” (at 196). As was stated by Roche DP in Collingridge, that statement by his Honour “is undoubtedly correct, but it does not apply where a worker has made a claim, had that claim determined, suffered no further injury, and then brings a claim for additional lump sum compensation as a result of the original injury”. The difficulty presented in GIO is not here present. The present facts concern a loss being whole person impairment suffered as at 26 May 2008 being the date of relevant incapacity and the deemed date of injury. There being no relevant injury or further loss thereafter, that date is the deemed date of injury in respect of each claim.
113.The Arbitrator’s error concerning the finding as to the deemed date of injury has affected her decision. The significant consequence of that finding was that, by reason of the application of s 108A(7) of the SRC Act, the 1987 and 1998 Acts had no application to Transpacific, a licensee under the Commonwealth Act. In the circumstances the award entered by the Arbitrator in favour of Transpacific must be revoked. The award in favour of Veolia should, on this appeal, also be revoked given that it may be argued that Veolia is liable to make contribution pursuant to s 16(2) of the 1987 Act to any compensation payable. Appropriate orders appear below.
114.I have reached the view that the state of the wages records which are in evidence is such that clear analysis needs to be made by the parties concerning the quantum of Mr Milburn’s entitlement pursuant to s 40 of the 1987 Act up until he ceased work on 23 August 2008. That analysis will no doubt give rise to the need for further argument to be put concerning the matters touched upon during argument on this appeal. In the circumstances it is appropriate that the matter be remitted to the Arbitrator for determination of the quantum of Mr Milburn’s entitlement to weekly benefits. Appropriate orders may then be made concerning the outstanding claims made in respect of lump sums and medical expenses.
115.Argument was presented both before the Arbitrator and on this appeal concerning the operation of the SRC Act. Should I be in error in my conclusion concerning the deemed date of injury, it is appropriate that I consider those arguments.
116.Mr Milburn submits that, should the deemed date of injury be found to be a date later than 30 June 2008, s 108(A)(7) of the Commonwealth Act does not operate to bar recovery by him pursuant to the New South Wales legislation. Reliance is placed upon the decision of Beazley JA in Civitarese. That matter concerned a worker’s claim pursuant to s 17 of the 1987 Act in respect of hearing loss. The worker had been employed in New South Wales by the appellant between 1976 and 1988 in a noisy environment. Thereafter he worked in the Northern Territory in his son’s business which was found by the trial Judge to be employment to the nature of which the worker’s injury was due. The worker returned to New South Wales and resumed work with the appellant in the same noisy conditions but was then provided with ear muffs. He relocated thereafter to the Northern Territory and resumed work for his son’s business for a period. Subsequent employment was found by the trial Judge to be not relevantly noisy. Beazley JA (with whom Handley and Sheller JJA agreed) concluded (at 44) that:
“In the present case, the last noisy employment was in the Northern Territory. However, the Act does not have extra-territorial operation so as to make T & G Refrigeration liable as the last employer under s 17: see Mynott v Barnard (1939) 62 CLR 68. That being so, s 17 operates so as to make the appellant the last employer. In other words, the appellant is the last employer to whom the legislation applies and is thus liable to pay compensation. This construction of s 17 is confirmed by this Court’s decision in Russo v World Services and Constructions Pty Ltd. In that case, the Commonwealth was the last noisy employer and the respondent the noisy employer before that. It was held that, as the Commonwealth was not bound by the provisions of the New South Wales legislation, the respondent was the last noisy employer for the purposes of s 17 and thereby liable to pay compensation.”
117.It is Mr Milburn’s further argument that Transpacific is liable under the New South Wales legislation, given that the relevant law is “socially beneficial legislation” and that it “should be interpreted in a way that promotes its purposes” as was stated by Senior Arbitrator Grotte in Horsey. Reliance was placed upon the decision of Horsey and argument was advanced that the decision of Senior Arbitrator Snell in Makowski may be distinguished from the present matter on the facts. I note that no express challenge to the correctness of the decision in Makowski is made in submissions.
118.Mr Milburn’s arguments concerning the relevance and operation of s 108A(7) must be rejected. The matters raised in argument have been recently considered by Keating P in Lennon v TNT Australia Pty Ltd [2012] NSWWCCPD 18 (Lennon). In that matter the President dealt with a question of law referred by an Arbitrator concerning the operation of s 17(1)(a)(i) of the 1987 Act in circumstances where relevant injury was deemed by the State law to have occurred on a date when the employer was licensed under the SRC Act. In that matter his Honour rejected arguments which had been put in terms similar to Mr Milburn’s in the present matter, which had placed reliance upon the decisions in Russo and Civitarese. His Honour accepted that Russo and Civitarese were able to be distinguished from the circumstances in Lennon in that, unlike the facts in those matters, the facts of Mr Lennon’s matter did not involve a subsequent Commonwealth or interstate employer to whom the State legislation had no application. His Honour concluded that the provisions of s 108A(7) of the SRC Act exclude the operation of any State or Territory law, including the 1987 Act and the 1998 Act, in respect of injuries received after a licence is granted to an employer under the SRC Act. That is a conclusion with which I respectfully agree. His Honour stated (at [123] and [124]):
“Once it is established that the worker has sustained an injury and the deemed date of the injury has been determined, s 17(1)(c) is applied to determine the employer liable to pay the compensation. When a claim is made under the State legislation, as in Mr Lennon’s case, unless the claim is assessed by the application of these provisions, it is impossible to determine whether there is a liability for compensation and where the liability for it should fall.
If, as in the circumstances of this case, the deemed date of injury occurs at a point in time when the employer is insured under the SRC Act, s 108A comes into play to determine whether or not the liability falls under the State or the Commonwealth legislation. There is no inconsistency in that approach. It should be remembered that s 108A had not been enacted when Russo was decided.”
119.It follows that, should I be wrong in my conclusion earlier expressed as to the deemed date of injury, and upon the acceptance that the Arbitrator’s determination as to such deemed date is correct, Mr Milburn’s claim must fail by reason of the application of s 108A(7) of the SRC Act. The Arbitrator’s findings concerning the arguments raised with respect to that Commonwealth provision are correct as was her preference for the reasoning found in Makowski to that in Horsey.
DECISION
120.The determination of the Arbitrator as found in paragraph 1 of the Certificate of Determination dated 9 January 2012 is revoked and in its place the following determination is made:
“1. Mr Milburn’s hip injury is deemed to have occurred on 26 May 2008.”
121.The determination made in paragraph 2 of the Certificate of Determination dated 9 January 2012 that there be an award for each respondent is revoked.
122.The following further order is made:
“2. The respondents are to pay the applicant’s costs.”
123.The matter is remitted to the Arbitrator for the purpose of determining the quantum of Mr Milburn’s entitlement to weekly compensation. Appropriate orders concerning the claims for lump sums and medical expenses are to be made.
COSTS
124.The respondents are to pay Mr Milburn’s costs of this appeal.
Kevin O'Grady
Deputy President
23 May 2012
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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