Puffett v Leighton Contractors Pty Ltd

[2014] NSWWCCPD 24

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Puffett v Leighton Contractors Pty Ltd [2014] NSWWCCPD 24
APPELLANT:	Tom William Puffett
RESPONDENT:	Leighton Contractors Pty Ltd
INSURER:	CGU Workers Compensation (NSW) Limited
FILE NUMBER:	A1-2447/13
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	28 January 2014
DATE OF APPEAL DECISION:	30 April 2014
SUBJECT MATTER OF DECISION:	Notice of claim, s 261 of the Workplace Injury Management and Workers Compensation Act 1998; weight of evidence; absence of direct evidence of relevant facts
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	PK Simpson & Co
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determinations and findings found in the Certificate of Determination dated 28 January 2014 are confirmed. 2.       No order as to costs of this appeal.

BACKGROUND

1. This appeal concerns a challenge to an Arbitrator’s finding that Mr Tom William Puffett (the appellant) had failed to make a claim for compensation against his former employer Leighton Contractors Pty Ltd (the respondent) within time as is required by the provisions of s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant’s failure to comply with that provision had the consequence that an award was entered by the Arbitrator in favour of the respondent.

2. The appellant had been employed by the respondent as a yardman between September 2003 and August 2007.

3. It is clear on the evidence, and indeed there is little dispute, that the appellant ceased work on 14 August 2007 by reason of ongoing pain and disability which he experienced in both his knee joints. It is also apparent, having regard to the expert medical evidence which is before the Commission, that the appellant had for a number of years prior to cessation of work, suffered from the condition of osteoarthritis in each knee. That evidence reveals that the appellant underwent total knee replacement at the hands of Professor John Ireland, orthopaedic surgeon, to the left knee in August 2009 and the right in November 2010.

4. There is no dispute that the appellant received an unrelated injury in the course of his employment with the respondent on 8 May 2007. That injury and its consequences have been the subject of numerous applications made before the Commission. That injury, which came about as a result of a fall on stairs at the respondent’s premises, involved a laceration to the appellant’s right leg, a fracture of his left arm and, on the medical evidence, aggravation of the degenerate condition of the knees. Proceedings commenced on behalf of the appellant concerning that injury were settled by agreement and the proceedings were discontinued. Whilst the history of those proceedings has no direct relevance to the present matter, it is clear that the numerous claims made, and the unexplained multiplicity of proceedings commenced on behalf of the appellant, have given rise to some confusion concerning the relevant history of the present claim.

5. On 19 December 2012, the appellant’s solicitors forwarded a notice of claim to the respondent and its insurer seeking payment of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) and for hospital, medical and other expenses, detail of which was not particularised. The notice made reference to “Industrial Accident: 17 September 2003, 10 March 2005, 21 November 2006, 8 May 2007 and from September 2003 to August 2007”. That correspondence omitted any reference to the nature of the injuries in respect of which the claim was made; however, a copy of a medical report of Dr Elias Matalani, consultant occupational physician, dated 14 September 2012 was enclosed. It was clear, having regard to Dr Matalani’s report, that the frank injuries particularised in the solicitor’s correspondence involved an injury to the right foot, injury to the back, injury to the left ear, as well as the injuries received on 8 May 2007 said by Dr Matalani to involve injury to the left elbow, both knees, laceration to the left leg and aggravation of pre-existing degenerate changes of the appellant’s knees.

6. The respondent disputed the claim and a notice issued pursuant to s 74 of the 1998 Act was forwarded to the appellant’s solicitors by the respondent’s solicitors. That notice asserted, inter alia, that the alleged injury “caused by the employment duties from September 2003 to 14 August 2007” had not been the subject of notice as required by ss 254 and 255 of the 1998 Act, nor had a claim been made as is required by the provisions of ss 260 and 261 of the 1998 Act.

7. An Application to Resolve a Dispute was filed with the Commission by the appellant in February 2013. That Application was subsequently amended at the hearing, which came before Arbitrator Glenn Capel, on 13 January 2014. The amendment, which was not opposed by the respondent, concerned the injuries as alleged at Part 4 of the Application. As amended the only allegation of injury was that of aggravation of the osteoarthritic condition of the appellant’s knees as a result of the “nature and conditions of [the appellant’s] employment with the respondent”. The date of such injury, following amendment, was particularised as being “on and prior to 14 August 2007” (at Part 4) and as being “18 August 2007” (at Part 5.6). An updated report from Dr Matalani, dated 19 December 2012 had been obtained and served upon the respondent. That report addressed the alleged injury as particularised following the amendment.

8. Following submissions put on behalf of each party, the Arbitrator reserved his decision. A Certificate of Determination, accompanied by the Arbitrator’s Statement of Reasons, was issued on 28 January 2014. The following determinations and orders were recorded in that certificate:

   “The Commission determines:

   1.   The applicant sustained injury to his knees during the course of his employment from 1 September 2003 to 14 August 2007.

   2.   The applicant’s employment was a substantial contributing factor to his knee injuries.

   3. A notice of claim was not duly made on the respondent in accordance with section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998.

   4. The applicant has not discharged the onus on the balance of probabilities to allow him to rely on section 261(4)(b) and section 261(6) of the Workplace Injury Management and Workers Compensation Act 1998.

   The Commission orders:

   5.   Award for the respondent in respect of the claim for lump sum compensation and medical expenses relating to the knee injuries sustained during the course of the applicant’s employment from 1 September 2003 to 14 August 2007.

   6.   No order as to costs.

   A brief statement is attached to the determination setting out the Commission’s reasons for the determination.”

PRELIMINARY MATTERS

Thresholds  

1. Notwithstanding the absence of particulars concerning the quantum of medical expenses claimed and the ambiguity which attends Dr Matalani’s assessment of whole person impairment resulting from the aggravation of the underlying disease which is stated to have resulted in “two per cent WPI for each knee”, the parties each submit that the threshold requirement as to quantum as found in s 352(3) of the 1998 Act has been met. There is no dispute between the parties that the threshold requirement as to time as prescribed by s 352(4) of the 1998 Act has been met.

On the papers

1. Both parties submit that the appeal can proceed to be determined “on the papers” as is permitted by s 354(6) of the 1998 Act. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, 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.

ISSUES IN DISPUTE

1. It is reasonably clear, having regard to the submissions which have been made in support of the two grounds of appeal upon which the appellant relies, that the Arbitrator’s finding that the statutory requirements as to the giving of notice of claim had not been met is challenged. Both the grounds and the accompanying submissions make reference to s 254 of the 1998 Act. As is discussed below, compliance with that section was not in issue before the Arbitrator. It is apparent that the appellant has erroneously referred to s 254 rather than the provisions of s 261 of the 1998 Act.

2. It seems that the issues raised on this appeal suggest error on the part of the Arbitrator in the following respects:

   (a) finding that the appellant had failed to comply with the provisions of s 261 of the 1998 Act concerning notice of claim, and

   (b)     failing to find that the appellant was “not aware of [the subject injury] until the notice was served on 12 October 2012 [sic]”.

THE ARBITRAL PROCEEDINGS

1. Each party was represented before the Arbitrator and the proceedings were recorded. A transcript (T) has been produced and a copy has been made available to each of the parties. The Arbitrator noted that the Application had been amended, as noted above (at [7]). The documentary evidence which was before the Arbitrator was recorded by him at T1.30. No oral evidence was adduced at the hearing.

2. Submissions put on behalf of the respondent before the Arbitrator made it clear that three distinct issues arose on the evidence, those being whether the appellant had made out a case that injury as alleged had been received; that the provisions of s 9A of the 1987 Act, that employment was a substantial contributing factor to any injury proven, had not been made out, and reliance was placed upon the provisions of s 261 of the 1998 Act in support of the respondent’s contention that the appellant had failed to meet the requirements concerning notice of claim.

3. As may be seen from the terms of the Arbitrator’s findings noted at [8] above, he determined the question of the occurrence of injury and those matters raised by the provisions of s 9A in the appellant’s favour. Those findings are not the subject of any dispute on this appeal. In the circumstances it is unnecessary to examine the evidence tendered and argument raised before the Arbitrator in respect of those matters.

The parties’ submissions concerning alleged failure to make a claim (s 261 of the 1998 Act)

1. Counsel for the appellant was first to address the Arbitrator. The transcript records very brief argument put by counsel which was said to be directed to matters raised by the provisions of s 261 (at T2–3). Those submissions directed attention to the evidence which supported the proposition that the respondent would, on the probabilities, have been aware of the injured state of the appellant’s knees at about the time of his resignation in 2007. It must be said that those submissions failed to address the requirements of s 261 concerning making of a claim. Counsel’s argument appeared to have more relevance to issues raised by s 254 of the 1998 Act concerning requirements as to giving notice of injury. The respondent had placed no reliance upon that provision in defence of the claim.

2. The respondent’s solicitor submitted that the evidence established that “the claim was first made by letter dated 19 December 2012”. That claim, it was argued, was the first such claim made concerning injury “prior to 14 August 2007” resulting from the nature and conditions of employment. The notice was thus, it was argued, out of time (s 261). It was further argued that the only basis upon which the bar to the recovery of compensation could be overcome was to place reliance upon, and establish the requirements of, s 261(4) of the 1998 Act. The evidence, it was put, did not permit a finding that the appellant could rely upon that subsection. Particular emphasis was placed in argument upon the absence of evidence to support a finding that the subject injury had resulted in serious and permanent disablement of the appellant.

THE ARBITRATOR’S DECISION

1. The Arbitrator summarised the evidence concerning the history of claims made and related litigation which had taken place prior to the commencement of these proceedings (at [2]–[9] of Reasons). Those matters are not controversial. The issues in dispute were identified at [10] of his Reasons. The only matter determined by the Arbitrator with which the Commission is concerned on this appeal relates to his findings concerning the issue in dispute noted at [10(a)] of his Reasons which is as follows:

   “whether [the appellant] failed to comply with s 261 of the 1998 Act”

2. Following a detailed consideration of the evidence the Arbitrator made findings that the appellant had “suffered an injury in the form of an aggravation of the pre-existing osteoarthritic changes in both knees during the course of his employment at the respondent from September 2003 until 14 August 2007” (at [87] of Reasons). A further finding was made that the appellant’s employment with the respondent was a substantial contributing factor to those injuries in terms of s 9A of the 1987 Act (at [98] of Reasons).

3. The Arbitrator, before addressing those questions raised by the application of s 261 of the 1998 Act, noted that the respondent placed no reliance upon the provisions of ss 254 and 255 of the 1998 Act concerning the requirements of notice of injury. The only defence raised was an assertion that the provisions of s 261 of the 1998 Act had not been complied with concerning the making of notice of a claim. That section provides, relevantly:

   “261   Time within which claim for compensation must be made

   (1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.

   (2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.

   (3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.

   (4)  The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:

   (a)  the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or

   (b)  the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

   (5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.

   (6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.

   ….”

4. A finding was made by the Arbitrator that the first occasion on which notice of a claim in respect of the subject injury was given occurred on 19 December 2012. That fact led the Arbitrator to conclude “…[the appellant] did not comply within six months as required under s 261(1) of the 1998 Act nor within three years of the injury as required by s 261(4)(a) of the 1998 Act”.

5. Notwithstanding the absence of any submission having been made by the appellant before the Arbitrator in which reliance was placed upon the provisions of s 261(4), the Arbitrator proceeded to consider the evidence to determine whether the appellant could place reliance upon that subsection.

6. The Arbitrator found that there was an absence of evidence concerning relevant ignorance and relevant mistake and further that there was no evidence of “any other reasonable cause for failing to bring the claim in time” (at [106] of Reasons). A further finding was made (at [107] of Reasons) that the appellant had failed to establish any entitlement to place reliance upon the terms of s 261(4). The Arbitrator, again in the absence of any argument having been advanced on behalf of the appellant, proceeded to consider the question as to whether the subject injury had resulted in serious and permanent disablement in terms of that subsection. Following consideration of the relevant medical evidence, in particular that of Dr Matalani and Dr Millons, the Arbitrator concluded that he was not satisfied that the appellant had established that the injury had, in terms of s 261(4)(b), resulted in serious and permanent disablement.

7. The Arbitrator, in conclusion, considered the state of the evidence and found that the appellant had not established the date on which he first became aware of the subject injury. In those circumstances it was found that the provisions of s 261(6) had no application and that the appellant’s failure to comply with the notice of claim requirements defeated his claim. The Arbitrator proceeded to make the determinations and orders as noted at [8] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. 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):

   “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.”

2. The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(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.”

3. The grounds upon which the appellant relies appear in Annexure C to his Appeal Application as follows:

   “1.     The Arbitrator erred in finding that s 254 had not been satisfied.

   2.       The Arbitrator erred in not accepting that circumstantial evidence could not by itself prove that notice was given and in particular that the applicant was not aware of the injuries until the notice was served on 12 October 2012.”

4. It is proposed firstly to deal with the second ground. The appellant, as is noted in submissions put on behalf of the respondent, erroneously makes reference in submissions to the provisions of s 254 of the 1998 Act. It is clear that little, if any, care and skill has been brought to the task of preparation of the appellant’s submissions. Notwithstanding the deficiencies found in those submissions relevant to ground two, it appears that the appellant intended to suggest error concerning the manner in which the Arbitrator determined the matters raised by s 261 of the 1998 Act.

5. I have earlier, when summarising the Arbitrator’s Reasons for his decision, noted that no explicit argument had been put on behalf of the appellant before the Arbitrator that s 261 had relevance to a determination of his rights under the Acts. Submissions, terse in their terms, put at that time, appeared to address evidence which tended to support the proposition that the respondent was aware of the injury alleged at the time the appellant ceased work. As earlier noted those submissions, as recorded in the transcript, appear to address those matters raised by s 254 of the 1998 Act, a section not relied upon by the respondent.

1. Notwithstanding the confusion and shortcomings concerning the manner in which the appellant’s case had been presented and argued before the Arbitrator, careful consideration had been given by him to all relevant questions raised by the provisions of s 261. The error suggested by the appellant is that the Arbitrator, when considering the question concerning proof of the date upon which the appellant first became aware of the subject injury (s 261(6)) had failed to take into consideration circumstantial evidence concerning such fact.

2. It should be noted that there is no suggestion made by the appellant that there was before the Arbitrator any direct evidence of the appellant or his solicitor concerning matters relevant to his state of knowledge of injury. That state of affairs was acknowledged by the Arbitrator when making the relevant finding which, in ground two, is challenged on this appeal (at [121] of Reasons):

   “The evidence is sadly lacking as to the [appellant’s] awareness of his injury and this is crucial to his success under this section. The evidence can be interpreted in a variety of ways and I do not believe that it is appropriate to make inferences in the absence of direct evidence from the applicant and/or his solicitor. In my view, the [appellant] has not discharged the onus to rely on s 261(6) of the 1998 Act.”

3. It seems to be argued that “circumstantial evidence” existed before the Arbitrator concerning the state of the appellant’s knowledge of injury and that the Arbitrator had erred in not drawing from that evidence an inference that the appellant was unaware of relevant injury until some date, unspecified in those submissions, following a notice forwarded to the appellant on 18 October 2012 (misstated by the appellant as being 12 October 2012).

4. The appellant’s argument gives rise to a number of difficulties:

   (a)     the reference to the notice given on 18 October 2012 has no relevance to the matters complained of. That notice related to “an industrial accident [on] 8 May 2007”. Leaving aside any criticism of the appellant’s description of injury, the appellant is incorrect to assert that that notice was in respect of a claim “for a Nature and Conditions of [sic] injury for the knee [sic]”;

   (b)     the argument as advanced does not acknowledge the absence of any direct evidence from the appellant as to the state of his knowledge, and

   (c)     nowhere in the submissions is there identification of the suggested probable date upon which the appellant first became aware of injury.

5. It was a matter for the Arbitrator to determine the weight of the evidence before him. The Arbitrator had earlier (at [107] of Reasons), having regard to the absence of any direct evidence from the appellant concerning relevant matters, determined that he was not satisfied that the appellant had “discharged the onus of showing that his failure a [sic, failure to] bring a claim out of time can be excused by reason of ignorance, mistake, absence from the State or other reasonable cause pursuant to s 261(4)(b) of the 1998 Act”. Nothing raised on this appeal demonstrates relevant error on the Arbitrator’s part in so concluding. Nothing put on behalf of the appellant seeking to challenge the Arbitrator’s conclusion concerning s 261(6) noted at [31] above is in any manner suggestive of relevant error.

6. I accept the respondent’s submission that ground one, which suggests error concerning s 254 of the 1998 Act is misconceived.

7. Both grounds have been rejected and the appeal must be dismissed. Appropriate orders appear below.

DECISION

1. The Arbitrator’s determinations and findings found in the Certificate of Determination dated 28 January 2014 are confirmed.

COSTS

1. No order as to costs of this appeal.

Kevin O'Grady
Deputy President

30 April 2014

I, KATHRYN CAMP, 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