Razmovski v NIB Health Funds Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Razmovski v NIB Health Funds Ltd [2024] NSWPIC 540
APPLICANT:	Mary Razmovski
RESPONDENT:	NIB Health Funds Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	1 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment for both upper limbs; dispute as to the deemed date of injury for a disease injury for the claim for permanent impairment; Haddad v The GEO Group Australia Pty Ltd referred to; Held – the deemed date of injury for the claim for permanent impairment is the date of the worker’s incapacity.
DETERMINATIONS MADE:	The Commission determines with the consent of the parties: 1. The applicant has 14% whole person impairment (WPI) as a result of an injury to both upper limbs. 2. An award for the respondent in relation to claim for permanent impairment of the left lower extremity (knee). The Commission determines: 1. The deemed date of injury for the injury to both upper limbs is 21 September 2017 as provided for by s 15 (1)(a)(i) of the Workers Compensation Act 1987. The Commission orders: 1. The respondent is to pay the applicant the sum of $32,460 for 14% WPI as a result of injury sustained in the course of her employment with the respondent with a deemed date of injury of 21 September 2017.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Mary Razmovski, claims that she sustained injury to both upper limbs while employed as a retail consultant with the respondent, NIB Health Funds.
The applicant claims that the repetitive, heavy and forceful use of her hands while undertaking duties including counting and handling cash, and using a mouse and keyboard, were the cause of her injury. The applicant worked on a part time basis for the respondent, doing five hours per day for five days per week.
The applicant underwent bilateral carpal tunnel release surgery performed by Dr Burgess on 17 September 2019.
The applicant returned to work following this surgery. She states that in early 2021 her working hours were reduced to five hours per day for three days per week because the respondent’s retail premises were to be shut down. The applicant was made redundant on 30 June 2021.
The respondent accepts that the applicant sustained a disease injury to both upper limbs as provided for by s 4 (b) of the Workers Compensation Act 1987 (the 1987 Act).
The parties have agreed that the applicant has 14% whole person impairment (WPI) as a result of injury to both upper limbs.
The parties also agree that there is to be an award for the respondent in relation to claim for permanent impairment of the left lower extremity (knee).
The parties remain in dispute as to the date of injury for the payment of the lump sum benefit for permanent impairment.
The applicant contends that the date of injury is 18 October 2023, being the date of the claim for the lump sum benefit for permanent impairment.
The respondent contends that the date of injury is 21 September 2017, being the first date that the applicant was incapacitated as a result of her work injury.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) the date of injury for the payment of the lump sum benefit for permanent impairment (ss 15, 16, 66 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation and arbitration on 18 September 2024. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Stockley appeared for the applicant, instructed by Ms Bolin. Mr Barnes appeared for the respondent, instructed by Ms Ulmer.
The hearing was conducted by video link and was recorded.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Relevant legislative provisions

Section 15 of the 1987 Act relevantly provides:
“(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.
…………….
(4) 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.”

The applicant’s submissions

Mr Stockley on behalf of the applicant refers to several decisions from the Court of Appeal, such as Alto Ford v Antaw [1999] NSWCA 234; 18 NSWCCR 246 (Alto Ford) and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA; 1 DDCR 701 (Stone), which confirm that different dates of injury can be fixed for claims for incapacity and for claims for permanent impairment.
Mr Stockley acknowledges the more recent Court of Appeal decision in Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 (Haddad) wherein Griffiths AJA (with Kirk JA and Stern JA agreeing) states s 15 (1)(a)(i) of the 1987 Act operates to deem the date of injury relevant to a s 66 claim to the time when the worker suffers incapacity. However, he also refers to exceptions to this at [81] of the decision:
“It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.”
Mr Stockley submits that a review of the evidence, especially from Dr Burgess who treated the applicant for over two years, reveals that the injury which results in permanent impairment has developed over a period of time following surgery, treatment and ultimately assessment. He submits that the applicant’s circumstances fit within the description in paragraph [81] of Haddad because the applicant suffered incapacity as a result of injury, but her permanent impairment then developed over a period of time.
Mr Stockley also refers to Scalabrini Village Limited v Sanders [2024] NSWPICPD 36 (Sanders), which was decided after Haddad and in which President Phillips acknowledged Haddad, but where the President did not consider it necessary to disturb the Member’s finding of a date of injury for a s 66 claim which was based on the decision in Stone.

The respondent’s submissions

Mr Barnes submits that Haddad is on point with this dispute and is a binding decision upon the Commission. Mr Barnes submits that the Court of Appeal engages in paragraph [80] with the legislative intention for dates of claims for disease injuries when Griffiths AJA states:
“…where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity…”
Mr Barnes submits that the approach taken in Haddad has now been applied by a Member of the Commission to the date of injury for a s 66 claim in Ellis v Dontarna Pty Ltd [2024] NSWPIC 513 (Ellis), which was determined on 17 September 2024. Principal Member Harris said at [25]:
“I am obliged to apply the principles discussed in the recent decision of the Court of Appeal where that decision differs from prior decisions. As the considered and detailed discussion of Haddad shows, the decision has broad application and is not restricted to a claim for medical expenses. Indeed, the statement by the Court specifically addresses that s 15(1)(a)(i) applies to a claim for permanent impairment where there is a relevant incapacity regardless of whether a claim is made in the proceedings.”
Mr Barnes submits that although Sanders was decided after Haddad, there is no specific reference to Haddad in that Presidential decision.

DETERMINATION

Haddad involved a dispute regarding a deemed date of injury for an alleged disease injury in a claim for medical expenses, whereas this dispute involves a deemed date for an accepted disease injury in a claim for permanent impairment.
Nonetheless, it is clear from paragraph [80] that the Court of Appeal also intended that the approach to be taken to a determination of a deemed date of injury under s 15 (1) of the 1987 Act was to include claims for permanent impairment. That approach is “to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity” [at 80].
That approach is reinforced elsewhere in Haddad. Griffiths AJA said at [69]:
“…Putting to one side the circumstance where the disease results in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.”
His Honour was even more direct when he said at [105]:
“It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”
Mr Barnes states that the first Certificate of Capacity received by the respondent was dated 21 September 2017. That Certificate of Capacity is not in evidence, but the applicant did not dispute this, and the clinical notes from Dr Roy at Charlestown Medical and Dental Centre on 21 September 2017 refer to bilateral wrist pain and “NSW Workcover – Progress”, which indicates that a certificate for workers compensation purposes was issued by Dr Roy.
The clinical notes from Dr Giles at Charlestown Medical and Dental Centre record the applicant having hand and wrist pain in August 2019 and Certificates of Capacity being issued. There are references to bilateral wrist pain in the clinical notes from Charlestown Medical and Dental Centre during 2020 and 2021.
Dr Roy records on 6 October 2022: “hands, wrist remains same.”
Dr Roy records on 20 July 2023: “Both hands pain.”
Dr Roy records on 12 October 2023: “pain hands persisting.”
Dr Burgess records in a report dated 2 September 2019 that the applicant had an episode of bilateral arm pain two years ago and: “Since then she has had intermittent flare ups of her pain in her arms but nothing which has been very severe.”
The applicant underwent bilateral carpal tunnel release on 17 September 2019, but
Dr Burgess records in a report dated 20 October 2021 that the applicant “feels that her thumbs have deteriorated to the point where she has returned to see me again.”
Professor Ghabrial writes in a report to the applicant’s lawyers dated 3 July 2023 that “both hands will prevent her from activities involving excessive gripping or moderate gripping with both hands and excessive use of both wrists and thumbs”.
The applicant’s evidence in her statement dated 31 May 2022 is that: “I have had symptoms in both of my hands for many years which I am unable to attribute to any cause other than my employment.” The applicant stated on 29 May 2024 that she has constant pain, soreness and swelling in her hands and wrists.
It is apparent from the applicant’s evidence and the medical evidence that the applicant became incapacitated due to an injury to both hands and wrists in September 2017 and she has continued to be incapacitated due to that work injury. This disease injury which has caused incapacity also gives rise to other entitlements under the 1987 Act, including a claim for permanent impairment compensation.
The applicant’s subsequent permanent impairment, which is reached after the applicant has undergone extensive treatment and which the parties have agreed amounts to 14% WPI, is therefore relevant to (Haddad at [80]) and related to (Haddad at [105]), the incapacity which the applicant has had since September 2017.
The applicant is not able to fit the exception referred to in [81] of Haddad. Firstly, that exception is prefaced by Griffiths AJA stating it “is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged”, whereas in this dispute sub-clause (a)(i) is engaged because the applicant became incapacitated as a result of a disease injury in September 2017. The date of 21 September 2017 becomes the date of injury for both the claim for incapacity and the claim for permanent impairment.
Secondly, the applicant’s own evidence and the opinion of Prof Ghabrial is that the applicant continues to be incapacitated due to her work injury, which is contrary to the exception of there being “no further incapacity” referred to in Haddad at [81].
Contrary to a submission made by Mr Barnes, there is a reference to Haddad in Sanders at [109]. The President referred by footnote to Haddad when he said:
“Often times there is not a temporal correlation, on the facts, between incapacity and permanent impairment. That is the case in this matter and that is why the various statutory provisions dealing with date of injury attempt to address these differing factual circumstances.”
Both Haddad at [69] and Sanders at [109] acknowledge that the determination of a deemed date of injury for a disease injury is a question of fact to be determined by the relevant evidence. However, it is the approach set out in Haddad, in particular at [80], which must be applied to determine the deemed date of injury for a particular entitlement sought by a worker under the 1987 Act.
Although there have been several decisions of the Court of Appeal in the past which
Mr Stockley referred to in his submissions which allow for different dates for a disease injury for claims for incapacity and impairment, I agree with Principal Member Harris in Ellis that I am obliged to apply this most recent decision of the Court of Appeal.
The approach taken in Haddad means that the deemed date of injury for the applicant’s claim for permanent impairment will be 21 September 2017 and the award for 14% WPI will be for the amount applicable as at that date.

[2024] NSWPIC 540

1 October 2024