NCMC Butchering Pty Ltd v Anderson
[2006] NSWWCCPD 41
•10 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:NCMC Butchering Pty Ltd v Anderson and others [2006] NSWWCCPD 41
APPELLANT: NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd)
FIRST RESPONDENT: Darren Anderson
SECOND RESPONDENT: Northern Co-Operative Meat Company Ltd
THIRD RESPONDENT: NCMC Butchering Pty Ltd (in the interests of both CGU Workers Compensation (NSW) Ltd and Allianz Australia Workers Compensation (NSW) Ltd)
INSURERS:
(1) CGU Workers Compensation (NSW) Ltd (at risk from 1993 to 28 September 1997 in respect of Northern Co-Operative Meat Company Ltd)
(2) CGU Workers Compensation (NSW) Ltd (at risk from 29 September 1997 to 29 September 1999 in respect of NCMC Butchering Pty Ltd)
(3) Allianz Australia Workers Compensation (NSW) Ltd (at risk from 30 September 1999 to 31 January 2003 in respect of NCMC Butchering Pty Ltd)
(4) Self Insured Services Australia Pty Ltd (at risk from 1 February 2003 to date in respect of NCMC Butchering Pty Ltd)
FILE NUMBER: WCC 12330-05
DATE OF ARBITRATOR’S DECISION: 22 November 2005
DATE OF APPEAL DECISION: 10 March 2006
SUBJECT MATTER OF DECISION: Deemed date of injury for claim for compensation for permanent impairment in respect of a disease: section 15(1)(a)(ii) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Eakin McCaffery Cox, Solicitors (for Self Insured Services Australia Pty Ltd)
First Respondent: Bourke Love McCartney Young, Solicitors (for Darren Anderson)
Second Respondent: Moray & Agnew, Solicitors (for CGU Workers Compensation (NSW) Ltd)
Third Respondent: Goldbergs, Lawyers (for Allianz Australia Workers Compensation (NSW) Ltd)
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 November 2005 is confirmed.
The Appellant, NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd), is to pay the costs of the Respondents in this appeal.
BACKGROUND TO THE APPEAL
On 23 December 2005, NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd, at risk from 1 February 2003 to date) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 22 November 2005.
The First Respondent to the appeal is Darren Anderson. Mr Anderson was born on 21 September 1971 and is aged 34. On 25 July 2005, he lodged an ‘Application to Resolve a Dispute’ with the Commission in respect of a claim for medical, hospital or related expenses, and compensation for permanent impairment and pain and suffering, for injuries to his left and right arms and left and right shoulders arising from the nature and conditions of his employment at the Casino Abattoir between 1 January 1995 and 2 December 2003. Mr Anderson was employed by the Northern Co-Operative Meat Company Ltd (‘the Northern Co-Op’) from approximately 1986 to 28 September 1997, and by NCMC Butchering Pty Ltd (‘NCMC’) from 29 September 1997 to date.
The workers compensation insurers involved in these proceedings are: (1) CGU Workers Compensation (NSW) Ltd (‘CGU’) in respect of (a) Mr Anderson’s employment by the Northern Co-Op, at risk from 1993 to 28 September 1997, and (b) Mr Anderson’s employment by NCMC from 29 September 1997 to 29 September 1999, (2) Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’) in respect of Mr Anderson’s employment by NCMC from 30 September 1999 to 31 January 2003, and (3) Self Insured Services Australia Pty Ltd (‘SISA’) in respect of Mr Anderson’s employment by NCMC from 1 February 2003 to 2 December 2003.
On 4 October 2005, the Arbitrator conducted a teleconference with the parties and, on 4 November 2005, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. On 22 November 2005, she made her decision in the terms set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 22 November 2005, records the Arbitrator’s orders as follows:
“1. The claim pursuant to s66 of the Workers Compensation Act 1987 be referred to an Approved Medical Specialist for assessment.
2. The Second Respondent, by Self Insured Services Australia Pty Ltd, to pay to the Applicant any entitlement pursuant to s66, s67 and s60 of the 1987 Act.
3. The Second Respondent, by Self Insured Services Australia Pty Ltd, to pay the costs of the Applicant as agreed or assessed.”
In the Statement of Reasons for her decision, the Arbitrator noted the parties had agreed on the following facts:
“• The Applicant sustained injuries to his right and left shoulders arising out of the course of his employment;
• The Applicant’s employment was a substantial contributing factor to the injuries;
• The injuries are a disease and accordingly s15 of the Workers Compensation Act 1987 applies;
• The Applicant did not suffer any incapacity for work, within the meaning of s15, as a result of the injury or impairment to either the right or left shoulder;• The documents referred to in para 6(c) above relate to a claim for compensation, made in February 1999, in respect of an injury to/the disease of the right shoulder;
• The deemed date of injury to the left shoulder is 7 February 2005 being the date on which the Applicant formally made his claim, pursuant to s66 and s67, of the 1987 Act;
• There is no dispute in respect of s60 expenses.”
The Arbitrator said the only issue in dispute was the deemed date of injury of the right shoulder. SISA submitted the date of injury was February 1999, when Mr Anderson lodged a previous claim for compensation in respect of the right shoulder. CGU and Allianz submitted the date of injury was 7 February 2005. Mr Anderson’s solicitors adopted SISA’s submission.
After referring to various authorities, the Arbitrator determined that, in accordance with section 15(1)(a)(ii) of the Workers Compensation Act 1987 (‘the 1987 Act’), the deemed date of injury to the right shoulder, being a disease, was 7 February 2005.
ISSUE IN DISPUTE
The issue in dispute in the appeal is the deemed date of injury of the right shoulder. SISA submits the Arbitrator made an error of law by failing to find Mr Anderson had made a compensation claim in respect of his right shoulder in February 1999. The parties’ submissions are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
None of the parties sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. Section 352(4) states that “[a]n appeal can only be made within 28 days after the making of the decision appealed against.” Rule 77(1) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that a decision is made when the Commission issues the Certificate of Determination.
In this case, the decision was made on 22 November 2005, when the Certificate of Determination was issued. The appeal therefore had to be lodged by 20 December 2005 - within 28 days after the date of the decision. SISA’s application was first received by the Commission on 13 December 2005 – within 28 days. However, by letter dated 20 December 2005, a delegate of the Registrar of the Commission rejected SISA’s application because the application failed to attach submissions on threshold issues and as to whether the application could be determined on the papers, as required by Rule 77(3) of the Rules. SISA responded by making a new application, received on 23 December 2005, addressing the omissions identified.
Rule 77(8) provides that a Presidential Member may extend the time for making an appeal where the Appellant demonstrates that exceptional circumstances exist, and that they would suffer a substantial injustice if the right of appeal were lost. The onus of proving exceptional circumstances rests with the Appellant.
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, this issue has often been the subject of judicial consideration. A leading case is Gallo v Dawson (1990) 93 ALR 479, where Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (i) the history of the proceedings, (ii) the conduct of the parties, (iii) the nature of the litigation, (iv) the consequences for the parties of the grant or refusal of the application for extension of time, (v) the prospects of the applicant succeeding if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in Commission proceedings: see, for example, Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22, and Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54.
SISA submits that as the new application is identical in content to the original application served on all parties on 13 December 2005, no party will suffer any prejudice by reason of the late filing. However, if an extension of time for filing the application is not granted, there will be significant prejudice to SISA.
Mr Anderson’s solicitors do not oppose the granting of an extension of time. However, an extension of time is opposed by Allianz and CGU (which adopts Allianz’s submissions on this issue). Allianz submits SISA has not addressed the factors that might give rise to the exercise of the discretion in its favour, including not explaining the delay in lodging its application between 21 and 23 December 2005, and also notes that SISA’s prospects of success on the appeal if leave is granted are minimal. Allianz states it relies upon the decisions in Demkowski v Waycon Services Pty Ltd [2005] NSW WCC PD 102 and Department of Education & Training v Mekhail [2006] NSW WCC PD 1.
In my view, the distinction between this case and the two decisions cited above is that here the original appeal was filed within time, but then rejected for failure to attach submissions on threshold issues and as to whether the application could be determined on the papers, as required by Rule 77(3) of the Rules. While such matters are important in terms of the Commission’s procedures, they are not matters of substance. I am also mindful that the delay in lodgement was in part due to the slowness of the Commission’s responding to the original application. That application was received on 13 December 2005 but the Commission did not respond until 20 December 2005, the final day for filing an appeal. SISA received the Commission’s letter on 21 December 2005, and completed a new application on 22 December 2005 that was received on 23 December 2005. Here the extension of time sought – three days - is minimal in comparison to the prejudice that would be suffered by SISA and the denial of procedural fairness that would ensue if an extension of time were not granted. Moreover, the other parties will not suffer any prejudice by reason of service of the original appeal on 13 December 2005. Although on a brief review, SISA’s prospects of success might not seem great, the application of section 15(1)(a)(ii) of the 1987 Act is an important issue that, as far as I am aware, the Commission has not itself specifically considered on appeal. I am also mindful of the fact that, at this stage, the parties will incur no additional costs since my review is one on the papers.
In my view, having regard to the history of the proceedings, the relatively minor procedural defects, the conduct of the parties, and the consequence of denying SISA the opportunity of pursuing an appeal, an extension of time should be granted, and I therefore grant an extension of time for the filing of its application until 23 December 2005.
With regard to section 352(2), SISA states Mr Anderson claims a 15% permanent impairment in respect of both arms representing compensation of $20,000 plus $30,000 in respect of pain and suffering. I am therefore satisfied that the amount of compensation at issue exceeds $5,000 and constitutes more than 20% of the amount claimed.
I am satisfied that although the decision of the Arbitrator did not concern an ‘award’, the decision does “have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21))” (Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7 at page 5). I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
As stated above, the issue in dispute is the deemed date of injury of the right shoulder. SISA submits the Arbitrator made an error of law by failing to find Mr Anderson had made a compensation claim in respect of his right shoulder in February 1999. SISA submits section 15(1)(a)(ii) of the 1987 Act refers to “the time the worker makes a claim for compensation with respect to the injury”. The reference is to “a claim for compensation” and not “the claim for compensation”. The phrase “with respect to” requires only that there be some connection or relation between the claim and the injury (Powers v Maher (1959) 103 CLR 478, at paragraph 10 (per Kitto J)). Mr Anderson made such a compensation claim in respect of his right shoulder in February 1999. The Arbitrator made an error of law when she concluded, contrary to the plain language of the provision, that the reference to “a claim for compensation” means “a claim for compensation giving rise to the proceedings”. Mr Anderson’s solicitors adopt SISA’s submissions.
I note the Arbitrator admitted into evidence a claim for compensation made by Mr Anderson in respect of an injury to his right shoulder on 4 February 1999, a report by NCMC on this injury, and a letter dated 26 February 1999 from FAI Workers Compensation (NSW) Ltd (now CGU) to NCMC confirming that the claim had been accepted.
CGU’s solicitors cite the NSW Court of Appeal decision in Alto Ford Pty Ltd v Antaw [1999] NSWCA 234 (‘Alto Ford’) where the Court upheld the decision at first instance finding that there may be separate dates of injury in respect of claims for weekly compensation and lump sum compensation arising from the same injury. This was cited with approval by Handley JA in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (‘Stone’). Thus, the reference in section 15(1)(a)(ii) to “the time the worker makes a claim for compensation with respect to the injury” means the time at which the claim for section 66 lump sum compensation is made. In Mr Anderson’s case, his claim for section 66 lump sum compensation was made on 7 February 2005, in respect of which the insurer at risk on that date is liable, namely, in this case, SISA.
Allianz’s solicitors also cite Alto Ford and Stone in support of their similar submission. Further, they submit it would be contrary to the intention of the disease provisions of the legislation for the date of injury to be fixed at a time when a claim for compensation is made. Stone determined that it is necessary to look at the type of claim being made at a particular time in order to determine the date of injury.
The Arbitrator considered the decisions in Alto Ford (including the judgment of Ashford CCJ at first instance) and Stone and, in the absence of any authority to support SISA’s submissions, concluded that those decisions supported the submissions made by CGU and Allianz “that when there is no incapacity arising from the impairment, and therefore no claim for weekly compensation, the injury is deemed to have occurred when the claim for lump sum compensation is made”. She therefore found the deemed date of injury to the right shoulder to be 7 February 2005.
DISCUSSION
Section 15(1) of the 1987 Act states:
“15(1) If an injury is a disease which is of such a nature as to be contracted by a
gradual process-(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 to the nature of which the disease was due.”
The parties do not dispute that Mr Anderson’s injuries constitute a disease, that section 15(1) of the 1987 Act applies, and that he did not suffer any incapacity for work as a result of the injury to his right shoulder in 1999. Thus, section 15(1)(a)(ii) applies and the time Mr Anderson made his claim for compensation with respect to that injury is deemed to be the date of injury. While it is not disputed that Mr Anderson lodged a claim for workers compensation in respect of an injury to his right shoulder in February 1999, he did not lodge a claim for compensaton for permanent impairment (and pain and suffering) in respect of that injury until 7 February 2005.
In his statement dated 28 October 2005, Mr Anderson said that he saw the Abattoir doctor on approximately 3 February 1999 and complained of left elbow and right shoulder pain. He is aware that he made a claim for workers compensation in respect of each of these conditions at that time, but does not recall having any time off work or any specific treatment or therapy for his shoulder pain. He was simply suffering from pain due to the constant and repetitive nature of his work. He did this “slicing” work from early 1997 up to 28 April 2000, when he re-injured his low back. He then performed a variety of duties both before and after surgery to his back on 18 February 2001, before the termination of his employment on 12 December 2003. He has not worked at the Abattoir since 3 December 2003.
In Alto Ford, the NSW Court of Appeal approved the conclusion of the trial judge, Ashford CCJ, that while for the purposes of the 1987 Act in relation to incapacity, the injury occurred in 1992, for the purpose of the worker’s claim for permanent impairment under section 66 of the 1987 Act, the injury occurred in 1996. In Stone, a case involving section 16 of the 1987 Act, applicable in cases where the injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease, Handley JA said the Court should follow its earlier decision in Alto Ford where it recognised that different dates can be determined for incapacity and impairment injuries, in the latter case the relevant date being the date of claim. In my view, given that these provisions apply in the case of diseases of gradual onset, it makes good sense for the date of injury in respect of claims for permanent impairment to be at the end of the period during which the nature and conditions of the worker’s employment affected the level of his impairment and at which time the worker lodged a claim for compensation for permanent impairment.
In Mr Anderson’s case, it appears he did not make a claim for weekly compensation for incapacity in February 1999. He merely lodged what I take to have been a “holding claim”, presumably with a view to putting his employer’s workers compensation insurer on notice in the event that he might require time off because of the injury or require reimbursement in respect of medical, hospital or related expenses pursuant to section 60 of the 1987 Act. The fact that no specific claim for incapacity or section 60 expenses was made at that time, does not seem to me to detract from the argument that such a claim should be treated similarly to a specific claim for incapacity in terms of a date of injury, where there can still be recognition of a different date of injury in respect of a later claim for permanent impairment.
I do not find SISA’s submission in relation to the use of the phrase “with respect to” in section 15(1)(a)(ii) to be persuasive. While I agree that the phrase requires some connection between the claim and the injury, and that in Mr Anderson’s case there obviously is such a connection, SISA’s submission does not address the decisions of the NSW Court of Appeal in Alto Ford and Stone where the Court recognised that there may be a separate deemed date of injury in respect of a later specific claim for permanent impairment. In my view, the Commission is bound by these decisions and, therefore, SISA’s appeal must fail and the decision of the Arbitrator must be confirmed. Mr Anderson should now be referred to an Approved Medical Specialist for assessment in accordance with paragraph 1 of the Arbitrator’s determination.
DECISION
The decision of the Arbitrator dated 22 November 2005 is confirmed.
COSTS
The Appellant, NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd), is to pay the costs of the Respondents in this appeal.
Robin Handley
Acting Deputy President
10 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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