Nestoroski v Bluescope Steel Ltd

[2007] NSWWCCPD 151

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Nestoroski v Bluescope Steel Ltd [2007] NSWWCCPD 151
APPELLANT:		Lupco Nestoroski
RESPONDENT:		Bluescope Steel Ltd
INSURER:		Bluescope Steel (AIS) Pty Ltd
FILE NUMBER:		WCC17390-06
DATE OF ARBITRATOR’S DECISION:		1 March 2007
DATE OF APPEAL DECISION:		5 July 2007
SUBJECT MATTER OF DECISION:		Waiver of requirement for worker to make a claim in respect of a further injury; section 260(6) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:		Acting Deputy President Robin Handley
HEARING:		On the papers
REPRESENTATION:		Appellant:		Nikolovski Lawyers
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 1 March 2007 is revoked and the matter is remitted to another Arbitrator for re-determination in accordance with these reasons.
The Respondent is to pay the Appellant, Mr Nestoroski’s costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 29 March 2007, Lupco Nestoroski sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 1 March 2007. The Respondent to the appeal is Bluescope Steel Ltd (‘Bluescope’), which is a workers compensation self-insurer through Bluescope Steel (AIS) Pty Ltd.

1. Mr Nestoroski was born on 7 September 1957 and is aged 49. He has been employed by Bluescope, formerly known as BHP Steel (AIS), since 28 May 1975. For the first 28 years, he was employed as a Platelayer in the traffic department. More recently, he has been employed as an Operator Level 2 in the plate mill. On 25 March 2004, Mr Nestoroski experienced back pain and pain up the right hand side of his body. He notified his supervisor of the injury and, subsequently, had treatment while he was off work. He returned to work in about July 2004 performing less heavy work. In late 2005, Mr Nestoroski experienced pain in his right shoulder while working as a crane chaser. He notified Bluescope of the injury on 2 February 2006, but did not lodge a workers compensation claim in respect of this injury.

1. On 23 February 2006, Bluescope ceased weekly compensation payments for loss of overtime in relation to the back injury of 25 March 2004. On 12 April 2006, Bluescope denied liability for Mr Nestoroski’s claim for weekly compensation and medical expenses in relation to the shoulder injury on the ground that this injury was unrelated to the back injury of 25 March 2004.

1. On 31 October 2006, Mr Nestoroski’s solicitors lodged an ‘Application to Resolve a Dispute’ with the Commission in respect of his claims for (1) weekly compensation, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering. The injury was described as an injury to Mr Nestoroski’s back, right flank, scapular and right shoulder/arm occurring on 25 March 2004, and as a result of the nature and conditions of his employment from in or about 1975 to 24 March 2004, and from 25 March 2004 to 2 February 2006. Bluescope lodged a ‘Reply’ on 16 November 2006.

1. On 23 January 2007, the Arbitrator conducted a teleconference with the parties. On 14 February 2007, conciliation having proved unsuccessful, she conducted an arbitration hearing. The Arbitrator’s decision, dated 1 March 2007, is set out below.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 1 March 2007, records the Arbitrator’s orders as follows:

“1. That the Respondent pay the Applicant weekly compensation at the rate of $119.60 from the 23 February 2006 under s 40 of the Workers Compensation Act 1987.
2. The Applicant’s claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 in respect of the injury to his thoracic spine is to be referred by the Registry to an Approved Medical Specialist for assessment in accordance with the referral provided.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. In the Statement of Reasons for her decision, the Arbitrator said:

“53. The commencement of symptoms in the right shoulder and not the upper back or scapular region occurs after the resumption of the crane chasing duties in 2005. The tasks required by these duties described in the report of Sue Davis [Sue Davies, Occupational Therapist] are of the nature to cause the right shoulder injury. Including frequent lifting from floor to head height and occasional pushing of loads of 15 to 18 kg sometimes above head height and strong pulling.

54. In summary I find that there is insufficient evidence to link the right shoulder symptoms which became acute in January 2006 to the earlier injury on the 24 [sic] March 2004 and I find the Applicant has not discharged the onus of proof to a sufficient level for me to make a finding of injury to the right arm from the March 2004 incident. The Applicant’s report of injury in the earlier claim does not mention any shoulder injury. There is no mention of any shoulder pain for five months after the injury, that is until the 17 August 2004, in any of Dr Iqbal’s notes made at the time. The treating surgeon and physiotherapist in 2004 do not mention any shoulder pain. The description of the shoulder pain in August 2004 is different to that described in November 2005. This difference is highlighted by the fact that no treatment was thought to be necessary for any shoulder injury until late 2005 when the Applicant was immediately referred to Prof Morrell. There is also now a finding of restriction of movement not previously found. Clearly this was a different symptom from the earlier brief complaint, in August/November 2004. On the balance of probabilities I find there is not enough evidence to link the injury to his shoulder to the incident on 25 March 2004. The complaint of shoulder pain and evidence of restriction of shoulder movement and the consequent need for treatment of the shoulder is too remote from the incident.

55. I find that the Applicant’s shoulder condition was more probably due to either an aggravation of an underlying condition or an injury due to the nature and conditions of his employment from August 2005 to January 2006.

56. No claim has been filed in relation to the shoulder. The claim for the injury to the shoulder has not been made in accordance with s 260 of the 1987 Act. I therefore find I have no jurisdiction in regard to the shoulder injury.”

1. The Arbitrator found that liability for the lumbar and thoracic strain arising from the injury on 25 March 2004 had been accepted by Bluescope since July 2004. While Mr Nestoroski had been rehabilitated back into the workforce, he was only able to work overtime on non-roster days. Mr Nestoroski remained partially incapacitated for work because of the injury to his lower thoracic and lumbar spine in March 2004, which arose in the course of his employment and to which his employment was a substantial contributing factor. The difference in earning capacity due to his partial incapacity – his continuing inability to work double shifts - is $119.60 per week.

1. The Arbitrator also found that Bluescope should pay reasonable expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) in relation to the injury on 25 March 2004, but she was unable to make a specific award because the schedule of expenses did not differentiate between that injury and the injury to his right shoulder and there was insufficient evidence for her to decide this issue. Finally, she referred Mr Nestoroski to an Approved Medical Specialist (‘AMS’) for assessment of the permanent impairment of his thoracic spine.

ISSUES IN DISPUTE

1. The grounds of appeal identified by Mr Nestoroski’s solicitors are as follows: (1) it was not open to the Arbitrator to find that Mr Nestoroski did not suffer a shoulder injury on 25 March 2004 given the evidence in support his having suffered such an injury; alternatively, (2) Bluescope waived its right to raise as an issue the requirement for making a claim for compensation for the shoulder injury in accordance with the WorkCover Guidelines; alternatively, (3) the Arbitrator erred by failing to address Mr Nestoroski’s claim under section 38 of the 1987 Act; and (4) the Arbitrator incorrectly applied the legal test for calculating payments under section 40 of the 1987 Act by misdirecting herself as to the correct measure of ability to earn. The parties’ submissions on these issues are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(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.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by the parties. Both parties state that the matter can be dealt with ‘on the papers’, although Mr Nestoroski’s solicitors also state (at paragraph 2 of their submissions) that oral argument is warranted. Having reviewed the relevant material, 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. 

1. Neither party sought to adduce fresh evidence.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and exceeds 20% of the amount awarded in the decision appealed against. Accordingly, the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS AND DISCUSSION

1. Mr Nestoroski’s solicitors’ first submission is that it was not open to the Arbitrator to find that Mr Nestoroski did not suffer a shoulder injury on 25 March 2004 given the evidence in support his having suffered such an injury. Bluescope disputes this, contending that Mr Nestoroski made no contemporaneous complaint in relation to his right shoulder, noting, in particular, that Mr Nestoroski saw his general practitioner, Dr M Iqbal, on 18 occasions between 25 March 2004 and 17 August 2004, and yet at no time made any complaint in relation to his right shoulder. The claim made by Mr Nestoroski on 5 May 2004, in relation to the injury on 25 March 2004, was limited to his right lumbar spine.

1. Mr Nestoroski’s solicitors submit there was ample evidence to support a finding that Mr Nestoroski suffered a right shoulder injury on 25 March 2004. They refer to Dr Iqbal’s clinical notes from 17 August 2004 onwards, and to the WorkCover Certificates dated 11 November 2005, 2 December 2005 and 13 December 2005 in which Dr Iqbal stated the date of injury as 25 March 2004. Mr Nestoroski’s solicitors submit that all of the specialists – Professor George Murrell, Treating Orthopaedic Specialist (reports dated 18 January 2006, 1 February 2006 and 27 February 2006), Dr David Bornstein, Orthopaedic Surgeon (reports dated 13 February 2006 and 15 February 2006), and Dr Richard Deveridge, Surgeon (two reports dated 15 June 2006) – “formed a view that the Applicant injured his shoulder on 25 March 2004”.

1. I have reviewed the reports provided by the three specialists. Professor Murrell, in his brief report to Dr Iqbal dated 1 February 2006, stated: “I think he [Mr Nestoroski] might be developing a frozen shoulder from this injury”, meaning the injury on 25 March 2004. In a his report to Dr Iqbal dated 27 February 2006, Professor Murrell stated his assessment as: “Frozen shoulder secondary to work related injury, which occurred on 25 March 2004.” Dr Deveridge, who examined Mr Nestoroski at the request of Mr Nestoroski’s solicitors, said of Mr Nestoroski’s right shoulder pain and restricted motion: “It is probably a combination of the initial frank injury and the nature and conditions of his employment that has resulted in the current shoulder derangement.” Dr Bornstein, who examined Mr Nestoroski for Bluescope, stated: “Whether his shoulder problem currently is related to the original injury incident is very difficult to say.”

1. My review of these reports suggests that attribution of the right shoulder condition to the injury on 25 March 2004 is not as clear-cut as Mr Nestoroski’s solicitors contend, although I agree there is some evidence supporting this.

1. I have also reviewed Dr Iqbal’s report dated 27 September 2006 and the WorkCover certificates issued by him. Dr Iqbal offers no specific opinion as to attributability in his report, but the certificates nominate the date of injury as 25 March 2004, as does one of the WorkCover certificates issued by Professor Murrell, that of 1 February 2006.

1. The Arbitrator also had a statement from Mr Nestoroski dated 24 October 2006 in which he said that he “had noticed pain extending up my back and also into the right shoulder area” (paragraph 32). Mr Nestoroski said that after the accident, he “was off work for about four to five months and then returned to work on a graded rehabilitation program” (paragraph 35). He said he could only work eight hours a day because after that his body and his back became sore and he needed to go home and rest (paragraph 43).

1. The Arbitrator found “there is insufficient evidence to link the right shoulder symptoms which became acute in January 2006 to the earlier injury on the 24 March 2004” (paragraph 54, Statement of Reasons, quoted at paragraph 7, above). In my view, this finding is not supported by the evidence. As I have said, there is some evidence to link the right shoulder symptoms to the injury on 25 March 2004, although it is not clear-cut, as the opinions of Drs Deveridge and Bornstein indicate. The Arbitrator concluded by finding “that the Applicant’s shoulder condition was more probably due to either an aggravation of an underlying condition or an injury due to the nature and conditions of his employment from August 2005 to January 2006” (paragraph 55, Statement of Reasons, quoted at paragraph 7, above).

1. Because Mr Nestoroski had not filed a claim form in respect of the injury to his shoulder, the Arbitrator determined that she had no jurisdiction in relation to that injury. Section 260 of the 1998 Act states that a claim must be made in accordance with the applicable requirements of the WorkCover Guidelines. These may provide for the form and manner in which a claim is made, as well as providing for the waiving of the requirement for the making of a claim in specified cases, such as cases in which notice of the injury has been given. Subsections 260(5) and (6) state:

“(5) The failure to make a claim as required by this section is not a bar to recovery of compensation or work injury damages if it is found that failure was occasioned by ignorance, mistake, or other reasonable cause or because of a minor defect in form or style.

(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.”

1. The WorkCover Guidelines applicable at the time Mr Nestoroski notified Bluescope of the injury to his right shoulder in February 2006, those made in December 2001, do not address waiver of the need to make a claim. Part 2, rule 1.1.2 requires a worker to make a claim if he or she requires benefits that exceed the worker’s entitlements under provisional liability (weekly payments for more than 12 weeks, or compensation for medical expenses of more than $5,000), and rule 1.1.3 requires a worker to make a claim if the insurer requests a claim to be made. Rule 4 requires that the claim be in writing on a form designed for that purpose, and must, as a minimum, contain the information set out in rule 6.  The current WorkCover Guidelines, effective from 1 November 2006, require a claim form to be completed, although state (Part 2, paragraph 2):

“In some circumstances the need for a claim form may be waived and the claim taken to have been made, eg where the worker is unable to complete the claim form and there is sufficient evidence to make a decision on liability.”

1. The Arbitrator referred to the decision of Deputy President Fleming in Kurrajong Holdings t/as The Gardeners Inn v Carrette[2004] NSWWCCPD 8. The Deputy President held (at paragraph 59) that because no claim had been properly made, the Commission did not have jurisdiction to determine the dispute.

1. Bluescope conceded that Mr Nestoroski made a claim for compensation in respect of his injury on 25 March 2004, nominating the part of the body affected as his right lumbar back and stating the nature of the injury to be “strain to lumbar back”. Bluescope contends that this claim, and its subsequent acceptance of liability, was limited to injury to Mr Nestoroski’s right lumbar spine.

1. Mr Nestoroski’s solicitors submit that Bluescope should be taken to have waived its right to raise as an issue compliance with section 260 of the 1998 Act given the volume of material in Bluescope’s possession relevant to the claim and its not having taken issue with the absence of a WorkCover claim form at any stage of the Commission proceedings prior to the arbitration hearing. They submit that their client will be “exposed to extreme prejudice and delay if the proceedings need to be recommenced”, when apart from a WorkCover claim form, the evidence would be the same.

1. Bluescope submits that Mr Nestoroski’s solicitors have failed to show any extreme prejudice and delay, and counters that it will be prejudiced in defending a claim not hitherto made. The only way in which section 260 could be circumvented is if Mr Nestoroski suffered consequential injury, such as sciatica after a frank low back injury.

1. I have reviewed the documents lodged by the parties and note that in a letter to Mr Nestoroski from Paul Cugaly, Plate Processing Manager with Bluescope, dated 11 April 2006, Mr Cugaly referred to a letter dated 30 March 2006 which he had sent to Mr Nestoroski requesting that he lodge a compensation claim kit. In a further letter dated 12 April 2006, Mr Cugaly referred to the claims officer having forwarded a claims kit to Mr Nestoroski for completion, and that he and the claims officer had both advised that based on the information provided verbally by Mr Nestoroski, he needed to make a written claim in order to take the matter further. In his statement dated 24 October 2006, Mr Nestoroski acknowledged that he had received a letter from the claims department saying they wanted him to lodge a fresh compensation claim. He stated, at paragraph 54: “I tried to explain that I had complained about the shoulder in 2004.” Later in his statement, at paragraph 67, Mr Nestoroski said:

“I received a letter dated 11 April 2006 from the company alleging that I had failed to lodge a compensation claim with them and that I had not been in contact either. I totally disagree with this. I had put the company on notice in relation to the injury and as far as I was aware, the injury had been reported at the original time. Without the benefit of any other medical opinion, I was not prepared to state that this was a further compensation claim.”

1. Bluescope has also provided copies of the notes of meetings between Mr Cugaly and others with Mr Nestoroski on 23 June 2006 and 7 July 2006, during the course of which it was pointed out to Mr Nestoroski that he had not lodged a claim in respect of the shoulder injury.

1. However, despite these requests from Bluescope that Mr Nestoroski lodge a new claim, I note that in the course of the Commission proceedings, in their ‘Reply’ lodged on 16 November 2006, Bluescope did not, in listing the issues in dispute, raise as an issue Mr Nestoroski’s failure to make a claim in respect of the shoulder injury. Moreover, it appears that this was also not raised at the teleconference on 23 January 2007. It was only during the course of the arbitration hearing on 12 February 2007 that Bluescope raised this as an issue.

1. The question this raises is whether Bluescope, by its conduct in these proceedings, has impliedly waived the requirement that a worker must lodge a claim. The context in which this question is raised is one in which it appears likely that Bluescope has been provided with the relevant information that would enable it to make a decision on liability in relation to Mr Nestoroski’s right shoulder injury.

1. In terms of waiver under section 260(6) of the 1998 Act, as I have stated above, the applicable WorkCover Guidelines were, at the time, silent on the question of waiver. In my opinion, waiver was open to the insurer in this matter.

1. In my view, in the light of Bluescope’s conduct in these proceedings – first, its failure, in its ‘Reply’, to identify as an issue in dispute Mr Nestoroski not having made a claim in respect of his right shoulder injury (with the consequence that the Commission would be without jurisdiction) and, second, its failure to raise this issue in the teleconference or, it appears, at any time in these proceedings prior to the arbitration hearing - Bluescope should, pursuant to section 260(6) of the 1998 Act, be taken to have impliedly waived the requirement stated in the WorkCover Guidelines that the worker must lodge a claim.

1. I note that, as a matter of procedural fairness, other than in exceptional circumstances and with the leave of the Commission, a party should not be permitted to rely on an issue at the arbitration hearing where that issue has not previously been raised in the proceedings before the Commission.

1. I also note, in relation to section 260(5), Mr Nestoroski’s evidence indicating that he was convinced that his right shoulder condition was related to his injury in March 2004 and, therefore, he was adamant that he did not need to lodge a further claim. As Deputy President Byron noted in Mayne Health Ltd v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15, at paragraph 45, whether the later injury (in Mr Nestoroski’s case, the right shoulder injury):

“was a frank injury or in fact simply a ‘recurrence’ of a previous injury, or fell within the ambit of the definition in section 4 of the 1998 Act, ‘an aggravation, acceleration, exacerbation or deterioration’ of an injury is, as I have said, yet to be determined”.

1. Even if I am wrong in finding that Bluescope impliedly waived the requirement for the lodging of a claim, it is arguable that Mr Nestoroski was motivated by ignorance or mistake or other reasonable cause when he refused to lodge a claim. However, I do not intend to make a finding on this issue because the parties appear not to have addressed this issue in their submissions and they should have an opportunity to do so, for reasons of procedural fairness, before a determination is made on this issue. I note there is no transcript of the arbitration hearing available and I have been unable to ascertain whether this issue was raised at the hearing, although a review of the Arbitrator’s Statement of Reasons suggests this is unlikely.

1. Returning to the issue of jurisdiction, my having found that Bluescope impliedly waived the requirement for the making of a claim in respect of the right shoulder injury, I therefore conclude that the Commission did have jurisdiction in this matter and the Arbitrator made an error of law by determining otherwise. I do not accept that to so determine will prejudice Bluescope, since it appears to be already in possession of the relevant information and evidence necessary to enable it to make a decision on liability. By contrast, I accept that Mr Nestoroski will be prejudiced if he has to make a new claim because of the consequent delay in resolving this matter.

1. Mr Nestoroski’s solicitors have identified two further alternative grounds of appeal. In the light of my finding that the Arbitrator made an error of law on the issue of jurisdiction, it is unnecessary for me to address these further grounds. Mr Nestoroski’s claim for weekly compensation will need to be re-determined along with his other compensation claims.

DECISION

1. The decision of the Arbitrator dated 1 March 2007 is revoked and the matter is remitted to another Arbitrator for re-determination in accordance with these reasons.

COSTS

1. The Respondent is to pay the Appellant, Mr Nestoroski’s costs of this appeal.

Robin Handley

Acting Deputy President  

5 July 2007

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