Saraya v Saraya Wreckers Pty Ltd
[2024] NSWPIC 370
•10 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Saraya v Saraya Wreckers Pty Ltd [2024] NSWPIC 370 |
| APPLICANT: | Khaled Ahmad Saraya |
| RESPONDENT: | Saraya Wreckers Pty Ltd |
| MEMBER: | John Turner |
| DATE OF DECISION: | 10 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (the 1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); no dispute as to injury; claim for impairment compensation pursuant to s 66 of the 1987 Act; whether the applicant is barred from receiving compensation by section 261 of the 1998 Act; Bluescope Steel Ltd v Eason; Gregson v L & Mr Dimasi Pty Ltd; Broken Hill Proprietary Company Ltd v Kuhna; Held – the applicant is not barred by section 261 of the 1998 Act from recovering compensation; matter remitted to the President for referral to a medical assessor pursuant to section 321 of the 1998 Act for assessment. |
| DETERMINATIONS MADE: | The Commission determines: 1. By consent the Application to Resolve a Dispute is amended by: a. deleting the following from the injury description “head, face, right ear,” and “,left leg, left knee and psychological sequalae”; and b. inserting in injury details “(ring finger, middle finger, little finger and wrist)” after “Left upper extremity”. 2. The applicant is not barred by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 from recovering compensation. 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 13 July 2012 – personal injury. b. Body systems / parts: i. cervical spine; ii. lumbar spine, and iii. left upper extremity (ring finger, middle finger, little finger and wrist). c. Method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. Application to Admit Late Documents lodged by the respondent dated |
STATEMENT OF REASONS
BACKGROUND
Khaled Ahmad Saraya, the applicant, commenced employment with Saraya Wreckers Pty Ltd, the respondent, as an auto dismantler immediately after migrating to Australia in 2000 at 24 years of age. The respondent is operated by the applicant’s brother and sister in-law. The applicant continues to work for the respondent as a tow truck driver.
The applicant alleges that he sustained injury to his neck, back and left hand on 13 July 2012 when whilst working underneath a truck repairing a tail shaft, the breaks on the truck gave way, and the truck rolled over him pinning him underneath the vehicle.
The applicant claims impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
It is the applicant’s evidence that he sustained injury on 13 July 2012 when he was repairing and replacing the tail shaft underneath a truck. The breaks on the truck gave way, and the vehicle rolled over him, pinning him underneath.
ISSUES FOR DETERMINATION
At the time of the conciliation conference/arbitration hearing the respondent withdrew its dispute in respect to injury to the left wrist.
The parties agree that the following issue remains in dispute:
(a) the respondent disputes that the applicant made a claim for compensation within the period required by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and therefore cannot recover compensation.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for conciliation conference/arbitration hearing before me on
12 June 2024. Mr Ross Hanrahan, counsel, instructed by Ms Georgina Morton, solicitor, appeared for the applicant, who was present. Mr Frazer Doak, counsel, appeared for the respondent, instructed by Mr Ross Horvath, solicitor. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. 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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) documents attached to an Application to Admit Late Documents lodged by the respondent dated 5 June 2024.
Oral evidence
Neither party sought leave to adduce oral evidence.
FINDINGS AND REASONS
It is not disputed that the applicant sustained injury on 16 July 2012 whilst in the course of his employment with the respondent.
The evidence also supports that the respondent was made aware on 16 July 2012 that the applicant had sustained injury. It is the applicant’s evidence that his manager who is also his sister in-law, Ms Zanneb Saraya, heard him screaming and called an ambulance and he was subsequently transported by ambulance to Liverpool Hospital for treatment. The employer injury claim form which was completed by Ms Zanneb Saraya on 24 October 2017 records that that the injury was reported on 16 July 2012 and that Ms Saraya and her business partner, Omar, witnessed the injury.
The dispute is limited to weather, as the respondent submits, s 261 of the 1998 Act bars the applicant from recovering compensation.
Section 261 of the 1998 Act states:
“(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.”
It is the applicant’s evidence that on 24 October 2017, with the assistance of the respondent, he submitted a worker's compensation initial notification of injury and employer injury claim form. The employer injury claim form and worker’s injury claim form are both in evidence before me and both forms are dated 24 October 2017. Also in evidence is an undated initial notification of injury form.
There does not appear to be any dispute that the applicant did not formally make a workers compensation claim until on or about 24 October 2017. On that basis the applicant has not made a claim for compensation “within 6 months after the injury or accident happened” as required by s 261(1).
The applicant relies on s 261(4)(b).
The onus is on the applicant to prove that circumstances exist to excuse the failure to claim in time.[1]
[1] Bluescope Steel Ltd v Eason [2007] NSWWCCPD 172.
Mr Hanrahan submitted on behalf of the applicant that the failure to make the claim within six months after the injury or accident happened was occasioned by the applicant’s “ignorance”.
For the purposes of s 261(4) the ignorance referred to “is ignorance of the rights deriving from the Act and the obligations imposed by it.”[2] Those obligations include the making of a claim within the required period.
[2] Burke CCJ in Gregson v L & Mr Dimasi Pty Ltd [2000] NSWCC 47 at [61] (Gregson).
It is the applicant’s evidence that he migrated to Australia from Lebanon in 2000 at the age of 24 years commencing employment with the respondent as an auto dismantler shortly after arriving in Australia.
It is the applicant’s evidence that he has a limited education having only been educated to the equivalent of year 5 level in Lebanon, leaving school at approximately 10 or 11 years of age. That his first language is Arabic and that he is illiterate in English.
It is the applicant’s evidence that he has made no previous workers compensation claims and had no knowledge prior to his accident on 16 July 2012 of the workers compensation system. That there were no notices or information at work regarding workers compensation in the event that somebody was injured. That he was not made aware of his workers compensation rights by the respondent.
It is the applicant’s evidence that on or about 4 October 2013 he engaged the services of Thomas Booler and Co Lawyers who advised him that his injuries had been sustained in a motor vehicle accident and subsequently advised him of his rights in respect to a motor vehicle accident claim. It is the applicant’s evidence that at no point was he advised by Thomas Booler and Co Lawyers of any rights which he may have regarding a workers compensation claim.
It is the applicant’s evidence that the matter remained with Thomas Booler and Co for a period of five years as a motor vehicle accident claim.
It is the applicant’s evidence that after a significant period of time had elapsed it was explained to him by “someone”, unfortunately he cannot recall whom, that he could make a workers compensation claim. Whilst the applicant cannot recall with accuracy when he was advised that he could potentially make a workers compensation claim, it is the applicant’s evidence that it would have been around the time that he lodged his workers compensation claim form on 24 October 2017.
In the respondent’s submission that the applicant’s evidence does not identify when he became aware that he may have a right to claim workers compensation. That whilst it is the applicant’s evidence that a “significant period of time elapsed” there is no evidence as to what the applicant may consider a significant period of time. In the respondent’s submission it is not open to be inferred that the applicant was first told of his potential workers compensation rights in 2017.
In the respondent’s submission the following two factors weigh against the applicant first becoming aware in 2017 of his potential rights to make a workers compensation claim. Firstly, the applicant was legally represented from 2013 and secondly in the respondent’s submission it “beggars belief” that the applicant’s brother, who operated the respondent, would not have said something to the applicant about his workers compensation rights.
I do not accept the respondent’s submissions for the following reasons.
If a worker has failed to claim compensation within six months because of ignorance, mistake, absence from the State or other reasonable cause, it is not relevant that there is a further delay after that six months for which the worker has no excuse. It is the failure to claim within six months that must be explained.[3]
[3] Bluescope Steel Ltd v Eason [2007] NSWWCCPD 172.
Whilst the applicant cannot identify “for certain” when he was advised that he may have a right to make a workers compensation claim he does state at [22] of his statement that “it would have been some time during this period”, being the period during which he lodged his workers compensation claim on 24 October 2017. Given that the period in issue is the six months from the date that the injury was sustained on 16 July 2012 the applicant’s evidence supports that he was not advised of his potential workers compensation rights during the relevant six month period. It is therefore in effect the applicant’s evidence that once he became aware of his rights, he made a claim.
In respect to the applicant being legally represented. It is the applicant’s evidence that on or about 4 October 2013 he engaged the services of Thomas Booler and Co Lawyers. Such legal representation therefore commences over a year after the injury was sustained and not within the relevant six month period.
In respect to the respondent’s submission that the applicant’s brother would have advised him of his rights. The applicant has put on evidence as to when he was advised that he may have the right to make a claim for workers compensation which has been previously discussed. It is also the applicant’s evidence that he was not informed of his workers compensation rights by the respondent. The applicant’s brother operates the respondent. The respondent has put on no evidence disputing the applicant’s evidence. The applicant’s evidence is unchallenged. I have no reason to question the truthfulness of the applicant’s evidence and I therefore accept the applicant’s evidence.
I am of the view that the evidence supports that the applicant was ignorant of his workers compensation rights and that the failure to make a claim in accordance with s 261(1) was occasioned by that ignorance.
In the submission of Mr Hanrahan, the applicant has suffered “serious and permanent disablement” as a result of his injuries.
Mr Hanrahan observed that the applicant is a manual worker who has suffered a hand injury.
The respondent submitted that it depends on the view that one takes of the evidence submitting that Dr Machart doesn’t consider the applicant to be significantly disabled. That the applicant has continued to work and is now working as a truck driver for the respondent.
“Disablement” is to be understood within the employment context. The fact that an injured worker my be able to undertake other work and even undertake more remunerative work does not prevent the disablement from being “serious”.[4]
[4] Broken Hill Proprietary Company Ltd v Kuhna (1992) 8 NSWCCR 401.
In Gregson v L & Mr Dimasi Pty Ltd [2000] NSWCC 47; (2000) 20 NSWCCR 520 Burke CCJ considered the phrase “serious and permanent disablement” in the context of s 65(13) of the 1998 Act making the following obiter observation at [78]:
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.”
In my view, and I find for the following reasons, that the injury has resulted in serious and permanent disablement of the applicant.
As previously noted, the applicant has a low level of education. It is the applicant’s evidence that he is illiterate in English.
It is the applicant’s evidence that he has been employed by the respondent since arriving in Australia in 2000. The work which he has performed for the respondent has been manual in nature initially working as an auto dismantler and subsequently as a tow truck driver. It is the applicant’s evidence, which is unchallenged, and which I accept that the injuries that he sustained on 16 July 2012 rendered him unable to perform his pre-accident work duties as an auto dismantler.
Dr Frank Machart, orthopaedic surgeon, provided a forensic report to the respondent dated
8 December 2022. Dr Machart records that as a result of the accident the applicant suffered injuries to his left hand including a fracture of the left little finger, which was treated by open surgical reduction. He also experienced back and neck pain. Dr Machart took a history that the applicant had not returned to the physical aspects of car wrecking but was working full-time as a tow truck driver.Dr Machart conceded that the applicant had post-traumatic stiffness of the left little finger.
Dr Machart assessed due to injury sustained on 16 July 2012, 14% whole person impairment (WPI) due to injury to the left upper extremity and 5% WPI due to injury to the lumbar spine.
Dr Matthew Giblin, orthopaedic surgeon, provided forensic reports to the applicant dated
7 March 2022. Dr Giblin noted that the applicant’s left hand affected him with strong grip, heavy lifting or repetitive use. In respect to his low back he couldn’t lift heavy weights off the floor, but can if they are conveniently positioned, but where possible he tries to just pick up light weights.Dr Giblin assessed 5% WPI due to injury to the cervical spine, 7% WPI due to injury to the lumbar spine and 17% WPI due to injury to the left upper extremity.
In my view the evidence supports that the applicant as a manual worker has suffered serious and permanent disablement. The physical injuries which the applicant has suffered has rendered him unable to perform his pre-injury duties as an auto dismantler due to his physical restrictions. It is now in excess of 10 years since injury was sustained and the applicant remains incapacitated. The assessments of impairment made by both Dr Machart and Dr Giblin are also substantial.
For the above reasons I find pursuant to s 261(4)(b) of the 1998 Act that the applicant is not barred from recovering compensation as the failure to make a claim for compensation within six months after the accident happening on 16 July 2012 was occasioned by ignorance, and whilst the claim was not made within three years the injury has resulted in serious and permanent disablement.
As there is no dispute in respect to injury I will remit this matter to the President for referral to a Medical Assessor for assessment of impairment.
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