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

1. 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).

2. 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.

3. 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

1. 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.

2. Though it is unclear from the evidence, the referral to Dr Woolnough appears to have…