Reeves v Arrium Ltd - [2015] NSWWCCPD 43

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Reeves v Arrium Ltd [2015] NSWWCCPD 43
APPELLANT:	Terrence Reeves
RESPONDENT:	Arrium Ltd
INSURER:	Self-insured
FILE NUMBER:	A1-6665/14
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	1 April 2015
DATE OF APPEAL HEARING:	24 July 2015
DATE OF APPEAL DECISION:	29 July 2015
SUBJECT MATTER OF DECISION:	Notice of claim; whether particulars of injury entered in employer’s register of injuries; s 261(9) of the Workplace Injury Management and Workers Compensation Act 1998; application of s 59A of the Workers Compensation Act 1987 where claim made before 1 October 2012
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr R Petrie, instructed by Brydens Compensation Lawyers
Respondent:	Mr G Niven, instructed by Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. By consent, the Arbitrator’s finding that, by operation of s 59A of the Workers Compensation Act 1987 (the 1987 Act), the applicant worker has no entitlement to compensation under s 60 of the 1987 Act is revoked. 2. Save for the findings in paragraphs [69] and [70] of the Arbitrator’s decision, which are confirmed, the orders made in the Certificate of Determination issued on 1 April 2015 are revoked and the matter is remitted to the Arbitrator for formal orders to be made consistent with the reasons in this decision.

INTRODUCTION

The issue in this appeal is whether, in respect of an injury to the left upper extremity and left wrist (carpal tunnel syndrome), the worker claimed compensation within the six month time limit in s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Because of the unusual way counsel argued the matter at arbitration, the appeal turns on the interpretation of s 261(9). That provision provides that when particulars of any injury received by a worker are entered in a register of injuries kept by the employer, the making of that entry suffices for the purposes of s 261 as the making of a claim for compensation in respect of the injury.
Essentially, the Arbitrator found that the only injury in the register of injuries was a left shoulder injury and that it was not open to read a medical certificate, which referred to carpal tunnel syndrome, as part of the register. Therefore, the worker failed to satisfy s 261(9). For the reasons explained below, the Arbitrator’s conclusion was erroneous.

FACTUAL AND PROCEDURAL BACKGROUND

The appellant worker, Terrence Reeves, started work for the respondent employer, Arrium Ltd, formerly known as One Steel Ltd, in 1999. He initially worked lubricating machines. After one year, he became a crane driver. Somewhat surprisingly, given the nature of the injury and its cause, both of which are discussed below, Mr Reeves pleaded the dated of injury to be 14 June 2010. On that day, he was referred to see the company doctor, Dr Woolnough.
Though it is unclear from the evidence, the referral to Dr Woolnough appears to have been arranged because of a complaint of left shoulder and left wrist symptoms made by Mr Reeves to his shift leader on or about 14 June 2010. (Mr Reeves’ evidence was that his work caused a lot of stress to his (left) wrist, as he had to bend his wrist because the joystick (in his crane) was not equal in height to the armrest, and he had to force the joystick because of brakes coming on when part of the equipment broke.)
Mr Reeves saw Dr Woolnough on 21 June 2010. Dr Woolnough took a history that Mr Reeves had neck and left shoulder pain related to the manipulation of the controls on a work crane. He also recorded a complaint of occasional paraesthesia in Mr Reeves’ left hand, noticed over the past 12 to 18 months. Dr Woolnough issued a WorkCover certificate (in which he listed the date of injury to be 15 June 2010) diagnosing left acromio-clavicular pain, with degenerative changes on x-ray, mild left shoulder biceps tendinosis, left sided mechanical neck pain, and probable carpal tunnel syndrome in the left wrist and hand.
Dr Woolnough certified Mr Reeves fit for his pre-injury duties and said that it was “unlikely” that employment was a substantial contributing factor to the injury. Mr Reeves was offered a choice of either driving the “casting crane” or “working in ladles”. He chose the latter. Though the evidence does not expressly say so, the inference is that Mr Reeves continued to work with no loss of pay and that he made no claim for compensation in June 2010.
Also on 21 June 2010, Kent Fague, the respondent’s occupation health care professional, and Mr Reeves’ return to work co-ordinator, sent an email headed “Initial Notification for Provisional Liability” to “nswworkerscomp”. (For convenience, I will refer to this email as the initial notification form.) This email included Mr Reeves’ name and contact details, the name and contact details for the work site, and contact details for Dr Woolnough. It also included the following, under “Details of illness and injury”:
“Date of injury: 14-Jun-2010
Details of the injury:
Left Shoulder pain
Description of how the injury occurred:
Terry said said [sic] he had a sore shoulder from driving the scrap crane” (emphasis included in original)
On referral from his general practitioner, Dr Chia, with a diagnosis of tendinitis and bursitis in the left shoulder, carpal tunnel syndrome in the left wrist and osteoarthritis in the left shoulder, Mr Reeves saw Dr Davé, orthopaedic surgeon, on 4 February 2011. On examination, Mr Reeves had a full range of movement of his left shoulder with no impingement, but signs and symptoms of carpal tunnel syndrome with typical paraesthesia and numbness over the radial three fingers with a strongly positive Tinel’s and Phalen’s test.
Dr Davé saw Mr Reeves again on 23 March 2011, following a cortisone injection into the subacromial space and the biceps tendon sheath area. Dr Davé noted that Mr Reeves had no pain in his shoulder and a full range of motion. However, nerve conduction tests confirmed the presence of mild-to-moderate carpal tunnel syndrome, which continued to cause Mr Reeves significant symptoms.
On 5 April 2011, Mr Reeves underwent a carpal tunnel release operation at the hands of Dr Davé. While I assume that Mr Reeves took time off work for this surgery, there is no evidence of how much time he took off, or whether he claimed weekly compensation for his time off for the surgery. I assume that he made no claim for compensation.
On 19 March 2012, relying on an assessment by Dr Davé, Mr Reeves’ solicitors claimed permanent impairment compensation on his behalf in the sum of $4,125 in respect of a three per cent whole person impairment due to carpal tunnel syndrome plus medical expenses of $701.60 (later documents brought this claim to $2,082.05, though it is unclear if the pleadings were formally amended to reflect that fact). The respondent denied liability in a s 74 notice dated 23 April 2012. (Though the claim is under the 10 per cent threshold in the amended s 66, Mr Reeves is not caught by that amendment because he claimed permanent impairment compensation before 19 June 2012 (cl 15 of Pt 19H of Sch 6 to the Workers Compensation Act 1987 (the 1987 Act)).)
After filing two Applications to Resolve a Dispute in the Commission, one in 2012 and one in 2013, both of which were discontinued, Mr Reeves’ solicitors filed the current Application to Resolve a Dispute (the Application) on 8 December 2014. The Application alleged a date of injury of 14 June 2010 and date of compensation claim of 21 June 2010. The following appears under “Describe how the injury occurred”:
“[Mr Reeves] sustained an injury as a result of the repetitive nature of his employment with the Respondent between approximately 1 July 1999 to September 2010. His duties included working as a crane operator which involved use of his arm above shoulder height level, heavy lifting and repetitive movements over time.”
Under “Injury description” the words “Left upper extremity” appear. The Application claimed permanent impairment compensation of $4,125 in respect of a three per cent whole person impairment plus unspecified hospital and medical expenses. Under Pt 5.6 of the Application, the body parts/system claimed was initially pleaded as “AMA 5 – Left upper extremity”, but was amended (by consent) at the arbitration to read, “AMA 5 – Left upper extremity (left wrist – carpal tunnel syndrome)”.
The respondent disputed liability on several grounds. Only one is relevant to the appeal. It is that Mr Reeves failed to make a claim for compensation within six months of the date of injury as required by s 261 of the 1998 Act. (Though the respondent had also disputed whether Mr Reeves had given notice of injury under s 254, that issue was not pressed at the arbitration.)
Mr Reeves argued that his claim was within time because, relying on s 261(9), he had claimed compensation on 21 June 2010. This was because the details in the initial notification form must have come from a register of injures kept by the respondent. Though that document only referred to “Left Shoulder pain”, when read with Dr Woolnough’s WorkCover certificate, which included the diagnosis of “probable carpal tunnel syndrome left wrist and hand”, counsel contended that s 261(9) was satisfied.
Counsel for the respondent, Mr Barnes, conceded (at T26.6) that the particulars of injury relating to the left shoulder were entered in the register of injuries, but contended that the injury to the left wrist, which was the subject of the claim, had not been entered in the register.
In the alternative, Mr Reeves contended that he did not become aware of his carpal tunnel syndrome injury until several days after Dr Davé’s report of 13 September 2011 and his claim was made within six months of the date on which he became aware that he received his injury (s 261(6)).
Dealing with Mr Reeves’ first argument, the Arbitrator felt that it was a fair inference that the details in the initial notification form came from a register of injuries kept by the respondent, and he accepted that the reference to left shoulder pain was entered in the register of injuries. However, he did not accept that the initial notification form should be read with Dr Woolnough’s WorkCover certificate, which was generated seven days after 14 June 2010.
With regard to Mr Reeves’ second argument, under s 261(6), the Arbitrator found that Mr Reeves had become aware that he had received his carpal tunnel syndrome condition by, at the latest, February 2011 when he saw Dr Davé. As Mr Reeves had not claimed compensation until 19 March 2012, the claim was outside the six months in s 261(1). As Mr Reeves did not rely on any of the matters listed in s 261(4) that normally excuse a late claim (ignorance, mistake, absence from the State or other reasonable cause), compensation could not be recovered.
The Arbitrator also found that, because of the operation of s 59A of the 1987 Act, Mr Reeves had no entitlement to compensation for hospital or medical expenses under s 60 of the 1987 Act (s 60 expenses).
If he was wrong in upholding the respondent’s s 261 defence, the Arbitrator addressed the question of injury and whether employment was a substantial contributing factor to the injury. He found in favour of Mr Reeves on both issues and the respondent has not challenged those findings.
Consistent with the Arbitrator’s reasons, the Commission issued a Certificate of Determination on 1 April 2015 in the following terms:
“1. The applicant cannot recover the compensation sought in the current proceedings, as his claim for compensation was not made within six months after the date the injury happened, as provided for in s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998.
2. The applicant has failed to show that:
(a)particulars of the injury in respect of which compensation is sought were entered in a register of injuries kept by the respondent under the Workplace Injury Management and Workers Compensation Act 1998;
b)that he first became aware that he had received an injury after the injury was received within six months of the date on which the claim was made on 19 March 2012, and
(c)that his failure to make a claim within six months after the happening of injury was occasioned by ignorance, mistake, absence from the State, or other reasonable cause.
3. There will therefore be an award for the respondent.”
Mr Reeves has appealed.

PRELIMINARY MATTERS

Initially, Mr Reeves only challenged the Arbitrator’s orders with respect to s 261 and did not challenge the finding that s 59A applied to prevent the recovery of any compensation under s 60. As a result, the respondent’s counsel, Mr Niven, submitted that the monetary threshold in s 352(3) of the 1998 Act had not been satisfied. That subsection provides that there is no appeal under s 352 unless the amount of compensation at issue is both at least $5,000 and 20 per cent of the amount awarded in the decision appealed against.
Mr Niven argued that the monetary threshold had not been satisfied because the value of the permanent impairment compensation ($4,125) was under the $5,000 threshold and, to satisfy the threshold in s 352(3), Mr Reeves had to challenge both the finding with respect to the permanent impairment compensation and the s 60 expenses (worth $2,082.05) and had only challenged the finding relating to the permanent impairment compensation. To resolve this issue, I heard submissions from both sides at a teleconference on 10 July 2015.
At the teleconference, I gave leave to Mr Reeves to challenge the Arbitrator’s finding that s 59A applies in this matter. After a brief discussion, Mr Niven conceded that the Arbitrator erred in finding that s 59A applies. It followed from that concession that the monetary threshold is satisfied. Both concessions were properly made. That is because s 59A only restricts the payment of compensation under s 60, where no weekly compensation was paid or payable, to treatment given or provided more than 12 months after a claim for compensation in respect of the injury was first made (s 59A(1)).
However, if a claim has been made before 1 October 2012, it is deemed to have been made immediately before 1 January 2013 and the 12-month restriction in s 59A commences on 1 January 2013 (cl 5 of Sch 8 to the Workers Compensation Regulation 2010). Given that, on any view, Mr Reeves claimed before 1 October 2012, and the medical expenses were incurred before that date, s 59A does not restrict Mr Reeves’ right to recover those expenses. As the combined value of the claimed permanent impairment and the s 60 expenses exceed $5,000, and the whole of that compensation is “at issue”, the monetary thresholds in s 352(3) are satisfied.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in finding that:
(a) Mr Reeves had not satisfied s 261(9) (section 261(9));
(b) there was no evidence that the injury had been reported in the register of injuries dated 21 June 2010, and
(c) Mr Reeves had not made his claim for compensation within six months of the date of injury, as required by s 261(1).

SECTION 261(9)

The legislation

Section 261 provides:
“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.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

The Arbitrator’s reasons

The Arbitrator said that it was apparent that Mr Reeves first saw Mr Fague complaining of left shoulder pain on 14 June 2010 and that, at that time, he was referred to Dr Woolnough. While there was no direct evidence that the details in the initial notification form came from a register of injuries kept by the respondent, the Arbitrator accepted that that was a fair inference to be drawn. (I note that Mr Barnes made that concession, but only with respect to the left shoulder.)
The Arbitrator therefore accepted that the injury referred to in the initial notification form, namely the left shoulder pain, was entered in a register of injuries kept by the respondent. However, he did not accept that the initial notification form should be read together with the initial WorkCover certificate from Dr Woolnough. That certificate was generated seven days later and contained a diagnosis of probable carpal tunnel syndrome, unlikely to be substantially contributed to by Mr Reeves’ employment with the respondent.
The Arbitrator noted that a worker’s report of an injury to an employer’s medical centre and the written record held by an employer of treatment provided has been held not sufficient, on its own, to satisfy s 261(9) and constitute the making of a claim (Gilarte v Bluescope Steel Ltd [2007] NSWWCCPD 99 (Gilarte)). It was the Arbitrator’s view that the evidence in Dr Woolnough’s WorkCover certificate, that Mr Reeves had probable carpal tunnel syndrome, was not sufficient to satisfy s 261(9) and constitute the making of a claim for compensation. He correctly noted that the claim for permanent impairment compensation was in respect of the carpal tunnel syndrome and not in respect of any injury to the left shoulder.

The Arbitrator did not accept Mr Reeves’ submission that the receipt of Dr Woolnough’s WorkCover certificate sufficed “for the purpose of s 261(9) as the making of a claim for compensation in respect of the injury of carpal tunnel syndrome” ([53]), noting that there was no evidence of the injury (carpal tunnel syndrome) in a register of injuries kept by the respondent under the 1998 Act.

Submissions

Counsel for Mr Reeves, Mr Petrie, who did not appear at the arbitration, argued that the Arbitrator’s reference to Gilarte was irrelevant because it failed to appreciate that Mr Reeves reported the injurious event in the register of injuries. (As noted earlier in this decision, Mr Barnes conceded that the injury to the left shoulder had been entered in the register of injuries but did not concede that the carpal tunnel injury had been entered.)
Relying on Shoalhaven City Council v Schutz [2012] NSWWCCPD 14 at [106] (Schutz), and the cases referred to in that decision, Mr Petrie submitted that the Arbitrator failed to appreciate that Mr Reeves caused the initial notification form to be completed and that the injurious event was recorded in that form (and, therefore in the register of injuries). That was the event, “recorded in the initial register with a date of 14 June 2010”, as having been caused by “driving the scrap crane”. That was a “repetitive strain type injury” affecting the left side of Mr Reeves’ neck, his left shoulder and wrist. Consistent with Schutz, the fact that the register of injury did not specifically refer to the carpal tunnel condition is not a bar to the recovery of compensation “in relation to the injurious event”. He contended that the Arbitrator therefore erred in not accepting the entry in the register of injuries satisfied s 261(9).
Mr Niven argued that it is not open to Mr Reeves to succeed in his submission that the reporting of an event recorded in the register of injuries on or about 15 June 2010 of “left shoulder pain” and “sore shoulder” amounted to a claim within the meaning of s 261 “simply because the WorkCover Certificate reported by Dr Woolnough dated 15 June 2010 [sic, 21 June 2010] referring to ‘probable carpal tunnel syndrome’ (not work related)” could be taken, together with the reference in the injury register, to be a claim for the purposes of s 261 of a report of a work related injurious event of carpal tunnel syndrome. He submitted that the report of injury in the register on 14 June 2010 was for left shoulder pain and had no real connection to the non-work related “probable carpal tunnel syndrome” reported by Dr Woolnough in his certificate of 21 June 2010.
Mr Niven contended, relying on Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29, that there must be a demonstrable “causal connection” between the injurious event and the medical diagnosis as “work related” before it can be contended that there is a “valid claim”. The Arbitrator did not find, as a matter of fact, that this connection between the injurious event and the subsequent injury claimed had been made out for the purpose of satisfying the notice requirements pursuant to ss 254, 255 and 261.
Mr Niven said that if the injury alleged was in the nature of a “disease claim”, and not a frank injury (as pleaded), no deemed date of injury was pleaded. He added that “[i]f there had been a deemed date of injury that would potentially have enlivened the deemed date of injury as the date of incapacity (14 June 2010) and thus the claim would still have been in breach of s 261”.
At the oral hearing of the appeal, Mr Niven submitted that Mr Reeves’ case at the arbitration was that he gave notice of injury in relation to his shoulder and neck, but the medical case upon which he relied was different; it was for the condition of carpal tunnel syndrome. He contended that there has to be a nexus between the medical condition claimed and the event in the register of injuries. He did not deny that Mr Reeves has carpal tunnel syndrome.

Discussion and findings

It is appropriate to commence by considering the purpose of the notice provisions and the objectives of the legislation in general. The notice provisions are designed to enable an employer or insurer to determine whether a claim should be met (Abrahams v Comcare [2006] FCA 1829 at [18]; Schutz at [100]). The objectives of the workers’ compensation system are to, among other things, provide for prompt treatment of injury and provide injured workers with income support during incapacity and payment for permanent impairment (s 3 of the 1998 Act).
Because the Commission is required to operate with as little formality and technicality as the proper consideration of the matter permits (s 354(1)) and without regard to technicalities or legal forms (s 354(3)), the objectives of the Act, which are directed primarily to ensuring compensation for work-related injuries, will not be promoted by a narrow reading of provisions such as s 261.
Moreover, the legislation is beneficial legislation and, as such, should be given a “fair, large and liberal” interpretation (IW v City of Perth [1997] HCA 30; 191 CLR 1 at 12 per Brennan CJ and McHugh J, 39 per Gummow J; quoted and applied in AB v Western Australia [2011] HCA 42 at [24]; 244 CLR 390). Where two constructions are possible, that which is favourable to the worker should be preferred (per Fullagar J in Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335).
It is in light of the above matters that I approach the issue in the present matter.
In Gilarte, Deputy President O’Grady said, at [80]:
“The Appellant further argues that his reports of injury to the Respondent’s medical centre constituted compliance with the notice requirements of the 1998 Act and makes reference in particular to section 261(9) thereof. This submission is not supported by any analysis of the state of the evidence and it is my view that the written record held by the Respondent with regard to treatment rendered to the Appellant at the medical centre is incapable of being construed as being notice of injury, that is the alleged injury as pleaded in the Appellant’s original Application. I reach this conclusion without addressing the question as to whether such argument was available on this appeal given that the Appellant failed to raise this issue at the hearing before the Arbitrator.”
The Arbitrator referred to Gilarte at two places in his decision. Relying on what was said in Gilarte at [80], the Arbitrator said (at [50]) that a worker’s report of an injury to an employer’s medical centre and the written record held by an employer of treatment provided has been held “as not sufficient on its own to satisfy s 261(9) of the 1998 Act and constitute the making of a claim for compensation”. That statement was consistent with Gilarte, but, on its own, it did not determine Mr Reeves’ claim and the Arbitrator did not suggest that it did.
The Arbitrator added (at [59]), when dealing with the s 261(6) argument, concerning when Mr Reeves became aware that he had received an injury, that “[t]he drawing of inferences from evidence as to when a worker first became aware of injury will not likely be sufficient (see Gilarte)”. This statement was also consistent with Gilarte, but dealt with s 261(6) not s 261(9).
It follows that the Arbitrator’s reference to Gilarte was not determinative and can be put to one side.
The Arbitrator’s essential reasoning on the s 261(9) point is found at [51]–[53]. He said that the entry in Dr Woolnough’s clinical notes and the WorkCover certificate “of (probable) carpal tunnel syndrome is not sufficient to satisfy s 261(9) and constitute the making of a claim for compensation” ([51]). He added (at [52]) that it was clear that Mr Reeves’ claim for lump sum compensation is in respect of the carpal tunnel syndrome assessed by Dr Davé to have resulted in three per cent whole person impairment and not in respect of any injury to the left shoulder. Further, at [53] the Arbitrator did not accept that the receipt of Dr Woolnough’s WorkCover certificate sufficed for the purposes of s 261(9) as the making of a claim for compensation in respect of the injury of carpal tunnel syndrome.
The Arbitrator’s approach was erroneous, but understandable given the way the case was argued before him. It is true that the claim for permanent impairment compensation relates to the carpal tunnel syndrome. However, it is also true that, as Mr Barnes conceded, the register of injuries included a complaint relating to the left shoulder and, further, included a description of how the injury occurred, namely, “from driving the scrap crane”. Thus, as Mr Petrie submitted, the register of injuries included clear reference to a repetitive strain type injury, though it did not use that language.
The Commission has consistently held that a worker makes a valid claim even if the notice of claim made has not included every body part or pathology that has been affected by the injury. The point is illustrated in Warwick Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315 (Pietrzak). In that case, the worker gave notice of injury (under s 254) to the employer by providing medical certificates, which described the incident (a blow to the head when a roller door struck the worker) and diagnosed the injury as “laceration of scalp, concussion”.
That was sufficient notice of injury because it put the employer on notice of the relevant incident and allowed the employer to make its own investigations, medical or factual, into the injury and its consequences. A worker is not expected to know, and usually will not know, the full nature and extent of the injury at the time of initial notification.
Thus, a worker who gives notice of an upper back strain caused by lifting at work will not be in breach of s 254 if he or she later asserts that the incident caused a lower back disc lesion. There may be issues about causation, but not about whether the worker gave notice of injury. The approach in Pietrzak has been followed in Toll Pty Ltd v Bartimote [2007] NSWWCCPD 153 (Bartimote) and Schutz and applied to the notice of claim provisions in s 261.
In Bartimote, the worker submitted a claim form (in which he gave notice of injury and claimed compensation) stating that, as a result of a fall in the course of his employment, he had injured his “scalp, left elbow, left thigh and shoulder, [and] right wrist area”. He later alleged that he had also injured his neck in the fall.
The employer argued that as the worker had not referred to his neck in his claim form, he had failed to give the necessary statutory notice of injury or made his claim (for the alleged neck injury) within the six months as required by s 65(7) (which is in the same terms as s 261(1)). It was held (at [45]) that the worker was not under any obligation to give further notice of the consequences of his injury extending to parts of the body additional to those referred to in the claim form.
The President, Keating DCJ, took a similar approach in Schutz. In that case, the worker suffered injury when a grader he was driving struck a concrete slab causing it to come to a sudden halt. His claim form referred only to an injury to his lower back. The respondent opposed his much later claim that he had also injured his neck in the same incident, arguing that it was outside the time limit in s 261(1).
In rejecting that argument, the President noted that it is important to keep in mind that one of the purposes of the notice provisions is to enable the employer/insurer to determine whether a claim should be met. That purpose was satisfied by the initial claim for compensation and, consistent with Pietrzak and Bartimote, it was of no consequence that that claim did not refer to the worker’s neck symptoms.
Mr Niven has advanced no persuasive reason as to why the reasoning in Pietrzak, Bartimote and Schutz, decisions to which the Arbitrator was not taken, should not apply to s 261(9). I believe that it does. Particulars of Mr Reeves’ injury, namely “left shoulder pain”, and how the injury was caused, namely “from driving the scrap crane”, were entered in the register of injuries. Mr Barnes conceded as much at the arbitration, though maintained that the only “injury” referred to in the register was the left shoulder injury.
In the unusual circumstances of the present case, there is no valid reason for restricting the “injury” in the register of injuries to complaint of “left shoulder pain”. It is clear that, viewing the matter in its proper context, the injury recorded in the register was a repetitive strain type injury caused by operating a crane over time. Mr Reeves was not expected to know, and clearly did not know, that his injury extended further than his left shoulder and included the compression of the median nerve as it travels through the wrist at the carpal tunnel, that is, carpal tunnel syndrome, though he had complained of wrist symptoms at work and to Dr Woolnough.
It follows that, in the circumstances, the making of the entry in the register of injuries of “left shoulder pain”, together with the cause of injury, “driving the scrap crane”, suffices for the purposes of s 261 as the making of a claim for compensation in respect of the injury. In other words, the respondent was, by reason of the register of injuries, properly on notice of a claim even though the entry in the register of injuries did not expressly refer to carpal tunnel syndrome.
Mr Niven’s argument that there must be a demonstrable “causal connection” between the injurious event and the medical diagnosis before it can be contended that there is a valid claim is not correct and, in any event, does not advance the respondent’s position. While, to succeed in recovering compensation, a worker must establish such a connection, it is not necessary that the worker establish that connection at the time the claim is made. In the present case, the evidence established, and the Arbitrator accepted, that Mr Reeves’ duties in driving a crane over time, which involved “intensive movements of the shoulder, wrist and fingers” ([69]), caused the carpal tunnel syndrome. The respondent has not challenged that finding on appeal. Thus, the relevant nexus was established.
It follows that, it having been conceded that the left shoulder injury, and its cause, driving the scrap crane, was entered in a register of injuries kept by the respondent, the making of that entry suffices for the purposes of s 261 “as the making of a claim for compensation in respect of the injury” (s 261(9)). This conclusion is reached without regard to whether Dr Woolnough’s certificate could be read as if it were, in effect, part of the register of injuries. Clearly, it was not. At best, the certificate only provided the context against which to consider the meaning of the entries in the register of injuries.
To the extent that it may be thought that the appeal has turned on an issue not argued before the Arbitrator, and Mr Niven did not suggest that that was so, three things should be noted. First, the respondent did not object to the arguments presented by Mr Petrie on appeal. Second, there is no prejudice to the respondent in allowing the appeal to be argued as it was. Last, it was clearly in the interests of justice that the issue be determined on its merits.
In view of the above reasons, it is not necessary to deal with the remaining grounds of appeal.

OTHER MATTERS

It should be noted that the way this case was presented at the arbitration would not be a model to be followed in the future. Carpal tunnel syndrome cases are normally presented and determined under the disease provisions (Perry v Tanine Pty Ltd t/as Ermington Hotel & Ors [1998] NSWCC 14; 16 NSWCCR 253).
Accepting that to be so, and noting that the alleged cause of injury was “the repetitive nature of [Mr Reeves’] employment” between approximately 1 July 1999 and September 2010, the correct deemed date of injury is the date of incapacity or, if no incapacity resulted from the injury, the date when Mr Reeves made a claim for compensation with respect to the injury (s 15(1)(a)(ii) and s 16(1)(a)(ii); Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone)).
Excluding the period when Mr Reeves was off work while recovering from the surgery to his wrist, for which he made no claim for weekly compensation, and applying Stone, the correct deemed date of injury should have been 19 March 2012, the date on which he claimed permanent impairment compensation. Once that is accepted, no breach of the time limit in s 261 arises because Mr Reeves claimed on the date his injury was deemed to have happened. Though Mr Barnes made a passing reference to Stone, counsel for Mr Reeves did not rely on it at the arbitration and Mr Petrie did not seek leave to rely on it on appeal. Thus, I have determined the appeal on the issues presented.

CONCLUSION

For the reasons explained above, and despite the unusual way the case was argued at arbitration, the particulars of Mr Reeves’ injury having been entered in the register of injuries kept by the employer and the making of that entry suffices for the purposes of s 261 as the making of a claim for compensation in respect of the injury. The respondent therefore fails in its allegation that Mr Reeves had not made a claim for compensation within the time required by s 261.
As the Arbitrator found in favour of Mr Reeves on the injury and nexus issues, and those findings having not been challenged by the respondent, the claim for permanent impairment compensation will be remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment. Further, the respondent having conceded that the claim for s 60 expenses is not caught by s 59A, Mr Reeves is entitled to recover his s 60 expenses.
The parties’ submissions on the orders to be made in the event of the appeal succeeding were unhelpful. The matter will therefore be remitted to the Arbitrator to hear brief submissions on the formal orders to be made as a consequence of the determination of the appeal in favour of Mr Reeves.
It should be clearly understood that all liability issues have been determined against the respondent and all that remains is for the assessment, by an AMS, of the permanent impairment that has resulted from the injury, and the appropriate order for the payment of s 60 expenses.

DECISION

By consent, the Arbitrator’s finding that, by operation of s 59A of the Workers Compensation Act 1987 (the 1987 Act), the applicant worker has no entitlement to compensation under s 60 of the 1987 Act is revoked.
Save for the findings in paragraphs [69] and [70] of the Arbitrator’s decision, which are confirmed, the orders made in the Certificate of Determination issued on 1 April 2015 are revoked and the matter is remitted to the Arbitrator for formal orders to be made consistent with the reasons in this decision.

Bill Roche
Deputy President

29 July 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE