Saad Bros Motor Pty Ltd v Simon - [2014] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Saad Bros Motor Pty Ltd v Simon [2014] NSWWCCPD 22
APPELLANT:	Saad Bros Motor Pty Ltd
RESPONDENT:	Peter Simon
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-11490/12
ARBITRATOR:	Mr G Egan
DATE OF ARBITRATOR’S DECISION:	7 January 2014
DATE OF APPEAL DECISION:	23 April 2014
SUBJECT MATTER OF DECISION:	Disease injury; claim for lump sum compensation; whether correct deemed date of injury is the date of incapacity or date of claim; principles in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 applied; s 15 and cl 3 of Pt 18C of Sch 6 to the Workers Compensation Act 1987; non-compensable impairment
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	Turner Freeman
ORDERS MADE ON APPEAL:	1. Save for amending paragraph 2(b) to delete “Left hip” and to insert “Left lower extremity”, the Arbitrator’s determination of 7 January 2014 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

Prior to 1 January 2002 (but after 1987), claims for lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) were assessed under a Table entitled “Compensation for permanent injuries”, commonly referred to as the Table of Disabilities or Table of Maims. Under that scheme, workers were compensated for the loss, or partial loss, of a “thing” mentioned in the Table of Disabilities, as assessed by a judge or commissioner of the former Compensation Court of NSW, based on the medical and other evidence tendered, and by reference to the percentages in the Table of Disabilities and the nature of the injury.
For injuries received on or after 1 January 2002, workers were (and still are) compensated for the degree of whole person impairment that has resulted from the injury, as assessed by an Approved Medical Specialist (AMS) applying the WorkCover Guidelines and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5^th ed, (AMA5) (see Sch 3 to the Workers Compensation Legislation Amendment Act 2001 and
Sch 2 to the Workers Compensation Legislation Further Amendment Act 2001 (the 2001 amending Acts)).
In the present appeal, the worker suffers from a disease that he contracted in the course of his employment with the appellant between 1973 and 1996, namely, non-Hodgkin’s lymphoma, which caused an incapacity for work in 1997. He claimed and was paid weekly compensation from 1997 until he turned 66 in August 2009, but made no claim for lump sum compensation under s 66 until 30 September 2011.
The issue on appeal is whether, in a claim for lump sum compensation arising out of a disease injury to which s 15 of the 1987 Act applies, the correct date of injury is the date of incapacity (14 July 1997), as the appellant contends, or the date…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWWCCPD 22
Decision Date: 23 April 2014

CaseChat Overview and Summary

Saad Bros Motor Pty Ltd appealed against a decision by an arbitrator that they were liable to pay the worker, Mr Simon, a lump sum compensation for his injuries. The dispute arose under the provisions of the Workers Compensation Act 1987. The primary issue before the court was whether the deemed date of injury for the purposes of compensation was the date of incapacity or the date of the claim. The court had to interpret and apply sections 15 and 16 of the Workers Compensation Act 1987, and clause 3 of Part 18C of Schedule 6 of the same Act, in light of the principles established in Stone v Stannard Brothers Launch Services Pty Ltd and Antaw v The State of New South Wales.

The court considered the principles established in Stone and Antaw, which held that sections 15 and 16 can “fix different dates for incapacity and impairment injuries”. The court held that the deemed date of injury for the purposes of compensation was the date of the claim, not the date of incapacity. The court held that the worker’s disfigurement was the injury, and that it occurred on 5 March 2003, when it was assessed by Dr Lobel. The court held that the primary judge had erred in law by holding that the deemed date of injury was the date of incapacity, and that the appeal must be upheld.

The court confirmed the arbitrator’s determination, with some amendments, and ordered that the employer pay the worker’s costs of the appeal.

Orders

Orders of the court

1. Save for amending paragraph 2(b) to delete “Left hip” and to insert “Left lower extremity”, the Arbitrator’s determination of 7 January 2014 is confirmed.

2. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Hodgson JA (Mason P agreeing) reached the same conclusion, adding at [36]–[38]:“36. In my opinion, the decision in GIO shows that one must relate the question of the time of death or incapacity under s.16(1)(a)(i) to what is being claimed. Where, as in GIO itself, what is being considered is not a worker’s claim based on incapacity, but a dependant’s claim based on death, the fact that there was incapacity prior to the worker’s death is irrelevant. The relevant time for the purposes of s.16(1)(a)(i) is the time of death. 37. Berkeley Challenge [Alfonzo] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s 16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.38. In the present case, the claim for facial disfigurement is a claim for a loss of a thing as the result of an injury, within s 66(1), which loss is itself to be treated as an injury within s 16(1), as provided by s 16(3). The same applies to the claim in respect of bodily disfigurement. Each such loss or injury was the disfigurement assessed by Dr Lobel on 5 March 2003, and included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 30 June 1987: in my opinion, this plainly follows from Antaw at par [18]. For that reason, in my opinion the primary judge did make an error of law, and the appeal must be upheld.” (emphasis added) Applying the principles in Antaw, as explained in Stone, s 16 (and, I would add, s 15, which is relevantly in the same terms) can “fix different dates for incapacity and impairment injuries” (per Handley JA in Stone at [10]). The Court of Appeal again considered the disease provisions in O’Keefe. In that case, the worker, a former Sergeant in the NSW Police Service, was discharged from the Police Service in July 2006 because he was incapable of performing ordinary police duties due to a degenerative condition in his lumbar spine. A certificate issued, in April 2006, under s 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 (NSW) (the Superannuation Act), certified that the infirmity was caused by Mr O’Keefe being “hurt on duty”, with dates of injury specified as 1 April 1998, 21 January 1999 and a final incident on 31 May 2005. On 8 November 2007, Mr O’Keefe applied for a “gratuity”, being a lump sum compensation payment. Such gratuities are calculated in accordance with provisions in Divs 3, 4 and 5 of Pt 3 of the 1987 Act (which include s 66 of the 1987 Act). The 2001 amending Acts were relevant and, given the nature of Mr O’Keefe’s condition (a degenerative condition of the spine), so too were the disease provisions. On 19 January 2009, the Commissioner’s delegate decided, under s 12D(4) of the Superannuation Act, that Mr O’Keefe’s back injury had been caused by him being hurt on duty. The date of injury was described as “Nature and Conditions of employment between 28 July 1988 and 24 November 2005”. Handley AJA held (at [65]) that the delegate’s hurt on duty decision identified a single injury caused by the nature and conditions of Mr O’Keefe’s employment over a 17 year period and that was the only injury for which he was entitled to compensation. This was so notwithstanding that he had suffered back injuries in several incidents between 28 July 1988 and 24 November 2005, some of which caused incapacity for work for which Mr O’Keefe received compensation.