Shad v Star City Pty Ltd

[2006] NSWWCCPD 244

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Shad v Star City Pty Ltd [2006] NSWWCCPD 244

APPELLANT:  Ashraf Shad

RESPONDENT:  Star City Pty Ltd

INSURER:Star City Pty Ltd

FILE NUMBER:  WCC 15463-05

DATE OF ARBITRATOR’S DECISION:          5 January 2006

DATE OF APPEAL DECISION:  25 September 2006

SUBJECT MATTER OF DECISION: Arbitrator’s discretion to admit late evidence; leave to admit fresh evidence on appeal; recovery of compensation barred by sections 254(1) and 261(1) of the Workplace Injury Management and Workers Compensation Act 1998

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Buttar Caldwell & Co, Solicitors

Respondent: George Mallos, Lawyer

ORDERS MADE ON APPEAL:  The Arbitrator’s decision of 5 January 2006 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 30 January 2006, Ashraf Shad sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 5 January 2006. The Respondent to the appeal is Star City Pty Ltd (‘Star City P/L’), which is a workers compensation self-insurer.

1. Mr Shad was born in India on 15 August 1945 and is aged 61. He migrated to Australia with his family in July 1989.

1. Mr Shad commenced part-time employment with Star City P/L on 16 October 2001 as part of the “count team” in the Finance Department. He claims that in 2002, he began to experience pain in the left shoulder as a result of lifting heavy cash boxes. Mr Shad resigned on 1 December 2002 in order to accompany his wife to the United Arab Emirates (‘UAE’) where she had obtained employment. He left Australia in December 2002, returning in June 2003. On 5 September 2003, Mr Shad signed a claim for workers compensation on the basis of the nature and conditions of his employment to November 2002, but the claim form was first provided to Star City P/L with a covering letter from Mr Shad’s solicitor dated 28 April 2005. Mr Shad returned to the UAE in October 2003 and, since December 2003, has been employed by the UAE University as an academic editor. He also continues to work on a part-time basis for SBS Radio, for which he has worked periodically since 1992. 

1. On 12 September 2005, the Commission registered Mr Shad’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation of $328.90 from November 2002 to date and continuing, and compensation for permanent impairment and pain and suffering in respect of an injury to his left shoulder, and depression. The Commission received Star City P/L’s ‘Reply’ on 5 October 2005. 

1. On 22 November 2005, the Arbitrator conducted a teleconference with the parties, following which Mr Shad discontinued his claim for weekly payments. On 16 December 2005, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. On 5 January 2006, the Arbitrator made her decision in the terms set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 5 January 2006, records the Arbitrator’s orders as follows:

“1. The Respondent is not liable for the payment of the Applicant’s claim under s66 and s67 of the Workers Compensation Act 1987.
2. No order as to costs.”

1. In the Statement of Reasons for her decision, the Arbitrator found that Mr Shad suffered an injury during the course of his employment with Star City P/L, and that this injury was a disease, namely, repeated “soft tissue injuries of the left shoulder in the form of musculo-ligamentous stretching” (paragraph 29). She found that his duties, involving retrieving money boxes, counting their contents and banking the money, (paragraph 30):

“by their nature and on the balance of probability, provided the source of the multiple traumata in the form of work related stressors over a protracted period of time which led to a recognisable condition of gradual onset within the meaning of s 15 of the Act”.

1. The Arbitrator found that Mr Shad had not proved that any incapacity for pre-injury work arose. In relation to the date of lodging his workers compensation claim form, the Arbitrator noted that no claim had been lodged within six months after the injury. She found that there were no special circumstances explaining the delay in lodging the form: the delay was not as a result of ignorance, mistake, absence from the State or other reasonable cause.

1. The Arbitrator concluded that Mr Shad failed to give notice of the injury as required by section 254 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and had failed to make a claim for his injury within the statutory period prescribed by section 261. As a result, he was not entitled to the lump sum compensation claimed.

ISSUES IN DISPUTE

1. The principal issue in dispute in the appeal is whether sections 254(1) and 261(1) of the 1998 Act bar the recovery of compensation by Mr Shad. Relevant to this issue is whether the Arbitrator should have exercised her discretion pursuant to Rule 38(1) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) to admit as late evidence a letter from Mr Shad’s solicitors to Star City P/L dated 13 December 2004, and whether leave should be granted to admit this letter as fresh evidence in the appeal. These issues are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the 1998 Act states:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by Mr Shad’s solicitors that the matter can be decided ‘on the papers’, Star City P/L having made no submission on this. Having considered the issue, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the compensation at issue, namely the compensation for permanent impairment and pain and suffering claimed by Mr Shad, exceeds $5,000. The Arbitrator having made an award in favour of Star City P/L, the section 352(2)(b) threshold does not apply: Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, at paragraphs 21 to 22. I therefore grant leave to appeal.

FRESH EVIDENCE

1. Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6)     Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

1. Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,
     -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and
     -submissions why the new evidence should be admitted.”

1. Mr Shad’s solicitors seek leave to introduce fresh evidence, firstly, their letter to “Star City Sydney” dated 13 December 2004, which the Arbitrator refused to admit as a late document at the arbitration hearing because she was not persuaded that to do so was necessary for the avoidance of injustice pursuant to Rule 38(3) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) (transcript page 20). Mr Shad’s solicitors submit that no prejudice will be caused to Star City P/L by the inclusion of this evidence, whereas its exclusion will cause substantial prejudice to Mr Shad since it is crucial to his case.

1. Secondly, Mr Shad’s solicitors seek to introduce as fresh evidence a photocopy of Mr Shad’s passport. They submit that no prejudice will be caused to Star City P/L by the inclusion of this evidence which was not in their possession at the time the ‘Application to Resolve a Dispute’ was filed. Mr Shad’s solicitors submit that if the document is not admitted into evidence, “instructions may compel discontinuance of the current claim and the Commencement of a further Application”. Mr Shad’s solicitors do not provide any further explanation.

1. The issue of whether I should grant leave to admit these documents as fresh evidence can most conveniently be dealt with in the context of the other evidence discussed below.

SUBMISSIONS

Mr Shad’s submissions

1. Mr Shad’s solicitors submit the Arbitrator breached the rules of natural justice by refusing to allow the admission of late evidence, namely their letter to Star City Sydney dated 13 December 2004. Had the Arbitrator allowed the admission of this evidence, Mr Shad would not be in breach of section 261 of the 1998 Act and could be referred to an Approved Medical Specialist (‘AMS’) for assessment of his permanent impairment. The admission of this evidence would not prejudice Star City P/L because they were aware of this letter and attached to their ‘Reply’ a copy of their response dated 15 December 2004. The Arbitrator should have exercised her discretion under Rule 38(3) of the 2003 Rules – “for the avoidance of injustice” - to admit the letter of 13 December 2004. Mr Shad’s solicitors submit this letter provides relevant particulars of the claim except that the respondent was referred to as “Star City Sydney” rather than “Star City Pty Ltd”. Star City P/L cannot deny it was put on notice of the claim by this letter within the three year limitation period. A minor mistake or defect of this sort does not bar recovery: section 260(5) of the 1998 Act. The Arbitrator failed to give proper or adequate reasons for refusing to exercise her discretion to admit the letter. Her resulting decision was harsh, unfair and unjust.

1. Mr Shad’s solicitors also submit that special circumstances existed in Mr Shad’s case such that his failure to give notice of the injury is not a bar to recovery: section 254(2). Mr Shad has lived overseas for prolonged periods since he left Star City P/L’s employment. Such absences are also a relevant consideration under section 261(4). Mr Shad only became aware that he could make a claim for workers compensation when he visited a solicitor and completed the claim form on 5 September 2003. His ignorance of the requirements of the workers compensation legislation contributed to the delay.

1. Mr Shad’s solicitors submit the date of injury should be treated as being July or August 2002 as stated by Dr Khalid Qidwai, Surgeon, in his report dated 17 November 2004, rather than April 2002. (Dr Qidwai first examined Mr Shad on 26 August 2003.) Had the Arbitrator accepted July/August 2002 as the date of injury, the claim would have fallen within the three year limitation period. In any event, being a disease, the Arbitrator should have found the date of injury to be 2 December 2002, being the date Mr Shad left Star City P/L’s employment: Giang v Creata Promotions (Aust) Pty Ltd [2005] NSWWCCPD 112 (‘Giang’). The Arbitrator made an error of law but not so finding.

1. Mr Shad’s solicitors submit the Arbitrator erred by allowing cross-examination of Mr Shad on the HIC Statement of History when she refused to admit this document into evidence. She thereby denied Mr Shad procedural fairness.

Star City P/L’s Submissions

1. Star City P/L submits there were no special circumstances that would allow the Arbitrator to apply section 254(2) or section 261(4) of the 1998 Act. Mr Shad became aware of his injury in April 2002 (“approximately six months” after the commencement of his employment – statement dated 22 November 2005, paragraph 16), and failed to lodge a notice of claim within three years of this date.

1. Star City P/L contends the letter dated 13 December 2004 addressed to “Star City Sydney” should not be admitted because, “Star City Sydney is not a party to these proceedings. Star City does not exist.” By letter dated 15 December 2004, Star City P/L informed Mr Shad’s solicitors of the correct legal entity that employed Mr Shad and notified them that it could not process the claim because no claim had been made in accordance with the requirements of the 1998 Act. Following this, no claim was made until 28 April 2005 and no explanation has been given for this delay.

1. Star City P/L submits the Arbitrator erred by finding a temporal and causal connection between Mr Shad’s employment and his alleged injury in circumstances where Mr Shad failed to call any evidence from his treating doctor with respect to any treatment sought. Mr Shad stated that he at first thought his condition was a temporary one (statement dated 22 November 2005, paragraph 16), yet he contradicted this by also stating that he attended four different doctors as he was not getting better.

1. Star City P/L submits Mr Shad’s solicitors’ submissions on the admission of new evidence are clearly wrong. The letter of 13 December 2004 was available for inclusion and discovery before Mr Shad’s ‘Application to Resolve a Dispute’ was filed. It was not fresh evidence and should not be admitted.

EVIDENCE

1. The evidence before the Arbitrator was recorded in her decision. As noted above, Mr Shad provided a statement dated 22 November 2005. In this statement, he said he first noticed that his “left shoulder was painful and the movement restricted” about six months after commencing employment with Star City P/L. He did not report the problem to his supervisor because he thought, “it was a temporary condition and would be okay with time” (paragraph 16). Mr Shad took non-prescription painkillers at first, then consulted Dr Shabbir Haider (whom Mr Shad had known for a long time, in Wollongong, when Mr Shad was there for other activities) who prescribed analgesics, and Dr Selecki (Eastgardens Medical Centre) who recommended laser acupuncture, of which Mr Shad had two to three sessions. None of this helped. After resigning and travelling to the UAE, Mr Shad consulted Dr Kenny Thomas of the Oasis Hospital, Al Ain, who referred Mr Shad for physiotherapy. Mr Shad had six to eight sessions, but stopped when there was no improvement in his condition. According to a Case History attached to his ‘Application to Resolve a Dispute’, Mr Shad also consulted an Orthopaedic Surgeon, Dr Azmat, in Pakistan, who gave him a different prescription. Then during the five months Mr Shad was in Australia between June and October 2003, Mr Shad had approximately three further acupuncture treatments with Dr Susan Pang (Mr Shad’s previous family doctor in Vaucluse).

1. Mr Shad also gave oral evidence at the hearing. In cross-examination, he said that he had also consulted Dr Hart in Broadmeadow, Newcastle, near where he used to live, on one or two occasions. Mr Shad said he told Dr Qidwai that his left shoulder was very painful and restricting the usual things that he does (transcript page 33).

1. Apart from two radiology reports, the only medical evidence was that of Dr Qidwai. In his report dated 17 November 2004, Dr Qidwai said he first saw Mr Shad on 26 August 2003 and Mr Shad told him that he started to feel pain in his left shoulder in July or August 2002. Dr Qidwai said Mr Shad “has become totally disabled with his daily activities and can’t perform day to day activities such as wearing shirt [sic], lifting even a very light item and writing etc”. Dr Qidwai diagnosed “Soft tissue injuries of the left shoulder in form of musculo ligamentous stretching. This has now progressed to degeneration of the supraspinatous tendon”, and said that Mr Shad will experience “a permanent partial disability”. Mr Qidwai confirmed this in a later, supplementary report, dated 4 December 2005.

DISCUSSION AND FINDINGS

Fresh Evidence

1. The Arbitrator found that Mr Shad sustained an injury during the course of his employment and that injury was a ‘disease’. In so finding, noting the absence of contrary evidence from Star City P/L, she relied on the evidence of Dr Qidwai that Mr Shad suffered soft tissue injuries of the left shoulder in the form of musculo ligamentous stretching. Section 15(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) states:

“15(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.”

1. Contrary to Dr Qidwai’s evidence, and relying on evidence of Mr Shad’s travelling and employment after resigning from Star City P/L, the Arbitrator found that Mr Shad was not incapacitated by the injury and did not make a claim for compensation until 20 May 2005, when the claim was formally particularised in accordance with the requirements of section 282 of the 1998 Act. Therefore, the Arbitrator said that the deemed date of injury under section 15(1)(a)(ii) is 20 May 2005.

1. I note Star City P/L responded to Mr Shad’s solicitors’ letter of claim dated 13 December 2004 by letter dated 15 December 2004 (a copy of which was attached to Star City P/L’s ‘Reply’) referring to the earlier letter and rejecting that letter as a claim on the ground that it did not comply with the requirements of the 1998 Act. By letter dated 23 May 2005, Star City P/L also rejected Mr Shad’s solicitors’ letter of claim dated 20 May 2005 - which appears to be identical to that of 13 December 2004 except that in the letter dated 20 May 2005 the employer named is “Star City Pty Ltd” rather than “Star City Sydney” - as a claim for the same reason. Star City P/L submits the letter of 13 December 2004 should not be admitted: “Star City Sydney is not a party to these proceedings ... [and] does not exist”; moreover, Mr Shad’s solicitors have failed to explain the delay between 15 or 16 December 2004 and their next letter to Star City P/L dated 28 April 2005.

1. In my view, the Arbitrator, who had before her Star City P/L’s letter dated 15 December 2004, was on notice of a claim possibly having been made prior to 20 May 2005 and should have admitted the letter dated 13 December 2004, notwithstanding that it was not tendered at the proper time, in order to ensure justice was done and bearing in mind that the workers compensation legislation is to be regarded as beneficial legislation. I regard Star City P/L’s answer to Mr Shad’s solicitors’ letter of claim dated 13 December 2004 stating that the claim was not a proper one because, amongst other things, it was addressed to “Star City Sydney” (presumably, because this is not a legal entity), as specious. As Mr Shad’s solicitors have submitted, a minor defect in the form or style of the claim does not bar recovery (section 260(5) of the 1998 Act). From the “Star City Sydney” letterhead of their letter dated 15 December 2004, it would appear probable that “Star City Sydney” is the business name under which Star City Pty Ltd operates. In my view, the use of this name was sufficient to enable the insurer to make a proper assessment of the claimant’s entitlement on the claim (section 282(1) of the 1998 Act).

1. Rule 38(3) of the 2003 Rules endows the Arbitrator with a discretion to allow an applicant to introduce evidence which he/she would otherwise be prevented from introducing because it was not lodged and served with the ‘Application to Resolve a Dispute’, “for the avoidance of injustice”. This was an occasion when it was appropriate to exercise that discretion and admit the letter of 13 December 2004 as a late document. By not doing so, the Arbitrator made an error of law. I therefore grant leave to admit the letter of 13 December 2004. I am satisfied that not to do so would cause a substantial injustice in the circumstances of Mr Shad’s case.

1. Mr Shad’s solicitors also seek leave to admit a photocopy of Mr Shad’s passport. No explanation has been provided as to why this was not provided in the proceedings before the Arbitrator. Even if it was not in their possession at the time the ‘Application to Resolve a Dispute’ was filed, they could have sought leave to introduce this as a late document and have given notice of their intention to do so. Nor have Mr Shad’s solicitors made any submissions in relation to their application, except to say that “instructions may compel discontinuance of the current claim and the Commencement of a further Application”. I am not therefore satisfied that that failure to admit a photocopy of the passport as fresh evidence would cause a substantial injustice to Mr Shad. Mr Shad’s absences from Australia are clear enough from his written statement and from his counsel’s submissions at the arbitration hearing (referred to in paragraph 45, below).

Notice of the injury

1. Sections 254 of the 1998 Act states relevantly:

“254 (1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:

(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Authority in accordance with this Act.

(4) ...”

1. Although the Arbitrator found Mr Shad’s deemed date of injury (pursuant to section 15(1)(a)(ii) of the 1987 Act) to be 20 May 2005, the date on which his claim was formally particularised in accordance with section 282 of the 1998 Act, the requirement in section 254(1) to give notice of the injury to the employer as soon as possible after the injury happened, should be interpreted in its ordinary literal sense. Mr Shad’s notice of injury accompanied a letter from his solicitors dated 28 April 2005. In my view, he did not give notice of the injury to his employer as soon as possible after becoming aware of it (at the latest in July/August 2002), and there is no dispute that he did not give notice of the injury before he voluntarily left Star City P/L’s employment. Thus, he did not comply with section 254(1), and compensation will only be recoverable if he can establish special circumstances under section 254(2) by reference to section 254(3). I note that each of paragraphs (a) to (d) of section 254(3) can constitute special circumstances.

1. At the hearing, it appears Mr Shad’s Counsel sought to rely on special circumstances constituted by ignorance, mistake, absence from the State or other reasonable cause. This is the same prescription for the exception to section 261(1) contained in section 261(4), and is discussed below.

The date of claim

1. Section 261 of the 1998 Act states relevantly:

“261 (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) ...
(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) ...
(8) ...

(9) ...”

1. There is no dispute that Mr Shad did not make a claim within six months of the injury happening (section 261(1)). However, such a failure is not a bar to recovery of compensation if “the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause” and, in Mr Shad’s case, the claim was made within three years after the injury happened (section 261(4)). Turning first to section 261(6) and the date the injury is taken to have been received, the Arbitrator found Mr Shad became aware of the injury six months after commencing employment with Star City P/L, that is on or about 16 April 2002. In so finding, the Arbitrator relied on Mr Shad’s statement dated 22 November 2005. This contradicts an earlier unsigned “case history” apparently prepared by Mr Shad in which he stated “I started feeling pain in my left shoulder during July or August” 2002, and Dr Qidwai’s report dated 17 November 2004, where he recorded that he first saw Mr Shad on 26 August 2003 and Mr Shad said he first started feeling pain in July or August 2002. Mr Shad’s solicitors therefore challenge the Arbitrator’s finding that the injury happened on or about 16 April 2002. Unfortunately, Mr Shad was not asked about this at the arbitration hearing.

1. In my view, the earlier evidence of Dr Qidwai and Mr Shad supports a finding that on the balance of probabilities the injury occurred in about July/August 2002. Mr Shad’s solicitors submit that the date of injury should be 2 December 2002, being the date Mr Shad left Star City P/L’s employment, in accordance with section 15(1)(a)(i) of the 1987 Act and Giang. However, this provision would only operate if Mr Shad was found to be incapacitated at the time he left Star City P/L’s employment. As mentioned above, the Arbitrator found that Mr Shad had not proved that any incapacity for pre-injury work arose. Thus, section 15(1)(a)(i) does not apply.

1. In my view, Mr Shad’s solicitors’ letter dated 13 December 2004 should be taken to be the date of claim rather than the letter dated 20 May 2005, as the Arbitrator found. Taking 13 December 2004 as the date of claim, it follows that whether the injury happened on 16 April 2002 or in July/August 2002, the claim was made within three years of the injury being received.

1. Having so determined, the next question is whether the failure to make a claim for compensation within six months after the injury happened “was occasioned by ignorance, mistake, absence from the State or other reasonable cause”. The Arbitrator, having determined that the claim was not within the three year period, did not go on to consider this question.

Ignorance, mistake, absence from the State or other reasonable cause

1. At the arbitration hearing, Mr Shad’s Counsel contended that Mr Shad did not initially give notice of his injury or make a claim because he thought it was a temporary condition that would get better with time. Counsel submitted this is “a reasonable excuse” (transcript page 44) within section 261(4). Moreover, Counsel contended Mr Shad has been absent from the State since 1 December 2002 and only back in Australia for a total of eight months: from June to October 2003, from September to October 2004, and from July to September 2005 (transcript page 45).

1. It appears from the date on which Mr Shad signed the workers compensation claim – 5 September 2003 – that Mr Shad consulted a solicitor while he was in Australia at about that time. I note that attached to the ‘Application to Resolve a Dispute’ filed by Mr Shad, there is also a letter from Star City P/L to Mr Shad’s solicitors dated 28 August 2003, in response to Mr Shad’s solicitors letter dated 27 August 2003 (which is not in evidence). In my view, it is reasonable to assume that Mr Shad was made aware, at that time, of the requirements of the workers compensation legislation by his solicitors. Yet no claim was made or notice of injury given until over 15 months later, on 13 December 2004. It seems likely that because of Mr Shad’s connections and interests in Australia, he maintained contact with Australia during that time. I note from his resume, that Mr Shad is highly educated, has worked both as a journalist and academic editor, and describes himself as “a media and marketing specialist”.

1. While I accept that, at first, Mr Shad may have thought his condition might be a temporary one, and that he was absent from the State from December 2002 to June 2003, nevertheless, it was not reasonable for him to delay giving notice of his injury or delay making his claim for workers compensation until December 2004. I am therefore not satisfied that Mr Shad has made out special circumstances under section 254(2). Even if Mr Shad’s failure to make his claim within the six months after the injury, which I found occurred in July/August 2002, was occasioned by ignorance, mistake, absence from the State or other reasonable cause (section 261(4)), this does not excuse his delay in giving notice of the injury.

1. The end result, therefore, is that although the Arbitrator made an error of law in her decision by failing to admit the letter dated 13 December 2004 and, as a result, to recognise that a claim was made on that date, my substituted decision would still be that Mr Shad is barred from recovery of compensation by reason of section 254(1) of the 1998 Act. The Arbitrator’s decision must therefore be confirmed.

DECISION

1. The Arbitrator’s decision of 5 January 2006 is confirmed.

COSTS

1. There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President  

25 September 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE