Skilled Group Limited v Anning
[2014] TASSC 40
•11 August 2014
[2014] TASSC 40
COURT: SUPREME COURT OF TASMANIA
CITATION: Skilled Group Limited v Anning [2014] TASSC 40
PARTIES: SKILLED GROUP LIMITED
v
ANNING, Adam Samuel
FILE NO: 275/2014
JUDGMENT
APPEALED FROM: Skilled Group Limited v A [2014] TASWRCT 13
DELIVERED ON: 11 August 2014
DELIVERED AT: Hobart
HEARING DATE: 17 June 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Workers' Compensation – Proceedings to obtain compensation – Claims for compensation – Generally – Amendment of claim – Whether new injury asserted – Procedure on application for amendment.
Workers Rehabilitation and Compensation Act1988 (Tas), s44.
State of Tasmania v Beadle (2001) 10 Tas R 302, distinguished.
Aust Dig Workers' Compensation [296]
REPRESENTATION:
Counsel:
Appellant: D J Barclay
Respondent: R J Phillips
Solicitors:
Appellant: Page Seager
Respondent: Phillips Taglieri
Judgment Number: [2014] TASSC 40
Number of paragraphs: 32
Serial No 40/2014
File No 275/2014
SKILLED GROUP LIMITED v ADAM SAMUEL ANNING
REASONS FOR JUDGMENT BLOW CJ
11 August 2014
This appeal concerns an amendment to a claim for workers compensation. The respondent, Adam Anning, made a claim for compensation dated 4 December 2012. His employer was the appellant, Skilled Group Limited. The background to this appeal can be summarised as follows:
· In his claim the worker said that he was suffering from a "golden staph infection"; that the infection had spread through his "complete body"; and that it happened as a result of "pumping flood waters from drains".
· The employer did not initially dispute the claim for compensation. Weekly payments of compensation commenced.
· On 3 September 2013, the employer referred the matter to the Workers Rehabilitation and Compensation Tribunal pursuant to s81A(5) of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), seeking a determination that it was not liable to continue making weekly payments of compensation.
· On 20 January 2014, when that application was pending, the worker's solicitors applied to amend his claim for compensation pursuant to s44 of the Act so as to state that his condition was caused by "Pumping floodwaters from drains and/or being exposed to the risk of abrasions, cuts, puncture wounds or other types of skin vulnerability during his employment between the 9th November 2012 and 19th November 2012".
· That application was opposed. It was heard by the tribunal's Chief Commissioner, Mr S R Carey, on 11 March 2014.
· On 21 March 2014 the learned chief commissioner delivered a decision allowing the amendment: Skilled Group Limited v A [2014] TASWRCT 13.
This is an appeal from that decision. By virtue of s63(1) of the Act, a party may only appeal from a decision of the tribunal on a point of law. There are six grounds of appeal.
Ground 1 – Medical reports
This ground reads as follows:
"1The Tribunal erred in law in considering materials that were not in evidence before it, namely:
(a) a report of Dr Peter Stevenson dated 19 February 2013 and
(b) a report of Dr Ben McCulloch dated 5 December 2012,
for the purposes of determining, the following:
(a) That the Employer was not prejudiced by the application to amend the claim for compensation; and
(b) That the Employer was well aware of the description of the causative process since early 2013."
Section 49(1) of the Act provides as follows:
"(1) The following provisions apply to a proceeding before the Tribunal:
(a) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit."
During his oral submissions at the hearing of the amendment application, counsel for the worker handed up to the learned chief commissioner copies of the two medical reports referred to in this ground. Each contained information relevant to the cause of the worker's infection. Dr McCulloch, a gastroenterologist, said that the bacterium in question could contaminate the skin "through small cuts on the skin and thus infect the knee joint". Speaking of the worker, he said, "He tells me that his job requires him to be kneeling down in dirty situations and I suspect a sub-clinical skin injury in this situation has precipitated staphylococcal septic arthritis, septicaemia and T11 discitis". Dr Stevenson, a consultant physician, said that the sort of infection in question "can arise through small cuts on the skin and infect joints". Speaking of the worker, he said, "His job requires kneeling in dirty situations and it was likely that sub-clinical skin injury precipitated the septic arthritis".
The two reports shed light on the reasons the amendment was sought, the nature of the worker's case, and the timing of the revelation of his case to the employer and/or its insurer. They were relevant to the question of whether the employer and/or the insurer had suffered any prejudice that would weigh against allowing the amendment. They were therefore relevant to the amendment application. Their authenticity was not disputed. In receiving them from the plaintiff's counsel and taking them into account, the tribunal, in accordance with s49(1), informed itself in a manner that it thought fit, and proceeded without undue formality and technicality, and with expedition. There was no need for the reports to be formally tendered as exhibits, nor for the tribunal to announce that they would be taken into account. In receiving and considering them, it did not err in law.
The submissions of counsel for the employer in relation to most of the grounds of appeal concerned the tribunal's procedure during the hearing of the amendment application. Medical reports were handed up by the worker's counsel, not marked as exhibits, and discussed. Counsel for the employer submitted that there had been a denial of procedural fairness because the reports were not "in evidence", and because it was not notified that the tribunal intended to have regard to them. It was argued that the employer did not have a sufficient opportunity to respond to the material in the reports, or to challenge it. I reject those submissions. The reports were provided to the tribunal for the purpose of explaining the basis of the worker's case and the reasons why the amendment was sought. The correctness or otherwise of the facts and opinions asserted in the reports was a matter for the final hearing of the s81A(5) referral, not a matter for determination in the context of the amendment application. After counsel for the worker made submissions about the contents of the reports, the learned chief commissioner gave counsel for the employer an opportunity to respond. He made a forceful submission that addressed the contents of the reports, and did not seek an adjournment. In fact he relied on a report by another doctor, Dr McGregor, that his firm had provided to the tribunal when it filed the s81A(5) referral. In my view there is no basis for any assertion that the employer was denied procedural fairness.
For these reasons, ground 1 must fail.
Ground 3 – Employer's knowledge of contents of medical reports
This ground reads as follows:
"3In the alternative, the Tribunal erred in law in inferring that the Employer had available to it:
(a) the report of Dr Peter Stevenson dated 19 February 2013 and
(b) the report of Dr Ben McCulloch dated 5 December 2012,
when there was no evidence that the Employer had knowledge of the contents of those reports – those reports being addressed to CGU."
The learned chief commissioner's findings as to the employer's knowledge of Dr Stevenson's report appear in par[9] of his reasons. The relevant passage in that paragraph reads as follows:
"I consider upon the information before the Tribunal that the employer knew either in its own right or by its authorised agent, the insurer CGU Workers Compensation, the true nature of the asserted means of causation by February 2013 at the latest. A report of 19 February 2013 from Dr Peter Stevenson addressed to 'CGU' was tendered upon objection that there was no evidence the contents of this was known to the employer. I reject that proposition as contrary to a clear general understanding of the nature of the relationship between an employer and their licensed insurer as agent or even as exercising subrogated rights in the administration of a claim for compensation. Dr Stevenson's report is addressed to 'CGU'. It marks on its face that the employer was 'Skilled Group Limited' and it gives a reference number which I note is endorsed as the claim number for CGU entered on the employer's details page of the claim for compensation. In the referral to the Tribunal by the employer (Skilled Group Limited), CGU Workers Compensation is entered as the licensed insurer. I therefore accept for the purposes of this application that the content of Dr Stevenson's report was known to the employer or the agent for the employer at some time shortly after 19 February 2013."
The report from Dr McCulloch was addressed "To Whom It May Concern". The learned chief commissioner's impugned findings as to the employer's knowledge of that report appear at the beginning of par[10] of his reasons, in the following passage:
"Dr Stevenson makes reference to having been provided with a report from Dr Ben McCulloch dated 5 December 2012. A clear inference is that this report was in the possession of CGU Insurance. Given his description of what is addressed in that report I accept that it was likely to be the report provided to the Tribunal from Dr Ben McCulloch, Gastroenterologist, dated 5 December 2012 addressed to 'To Whom It May Concern'."
This ground can succeed only if it identifies an error in point of law. An important aspect of the distinction between an error of fact and an error of law was explained by Jordan CJ, with whom Davidson and Stephen JJ concurred, in McPhee v S Bennett Ltd (1935) 52 WN(NSW) 8 at 9, as follows:
"The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd ([1931] 1 KB 539 at 544) and Mersey Docks and Harbour Board v West Derby Assessment Committee ([1932] 1 KB 40 at 110, 111). But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact."
That passage was cited with approval by Glass JA, with whom Samuels JA agreed, in Azzopazrdi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155. Glass JA went on to say, at 155 – 156:
"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act [the Workers' Compensation Act 1926 (NSW)] does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law."
In the passages I have quoted from pars[9] and [10] of the reasons of the learned chief commissioner, he accurately identified evidence that tended to suggest that the employer was aware of each of the medical reports. The question whether the information relating to each report was sufficient to warrant such an inference is a question of fact, not a question of law. This ground must therefore fail.
Grounds 2 and 4 – Prejudice
These two grounds read as follows:
"2The Tribunal erred in law in determining that the Employer was not prejudiced by the amendment to the Worker's claim for compensation when there was no evidence before it which allowed it to make that determination.
…
4The Tribunal erred in law in that it failed to consider at all in the exercise of its discretion that:
(a) The amendment of the claim for compensation meant that the Employer/Appellant lost the opportunity to dispute the claim for compensation pursuant to section 81A of the Act;
(b) The Worker/Respondent could file a new claim for compensation; and
(c) That the onus of proof on the application by the Appellant meant that the Appellant was required to negative matters at a hearing under section 81A(5) on a claim for compensation put on a different basis to that which had previously existed."
The employer contends that it has been prejudiced by the amendment in the manner outlined in ground 4. No other prejudice was asserted by its counsel on the hearing of this appeal. To understand the argument about prejudice, it is necessary to understand the scheme of the Act in relation to claims for weekly payments of compensation. The relevant statutory provisions can be summarised as follows:
· A worker is not entitled to compensation under the Act for an injury unless he or she has made a claim for compensation within six months after its occurrence: s32(1)(b).
· The word "injury" includes a "disease", which in turn means "any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development": s3(1).
· When an employer receives a claim for compensation in relation to an injury to a worker employed by it, it must commence making weekly payments to the worker: s81(1).
· If the employer disputes liability to pay compensation by way of weekly payments, it must, within 84 days of receiving the claim, serve the worker with written notice that it disputes liability, inform the worker of the reasons for disputing liability, and refer the matter to the tribunal: s81A(1).
· If the employer does not take those steps, it is "taken to have accepted liability in respect of that claim": s81AB.
· If the employer does not dispute liability under s81A(1), but later wishes to dispute its liability to continue to make weekly payments, it may refer the matter to the tribunal at any time after the expiration of the 84-day period: s81A(5).
In this case, as I have said, the employer did not initially dispute liability, but it later referred the matter to the tribunal under s81A(5), seeking a determination that it was not liable to continue to pay compensation by way of weekly payments. It contends that the decision of the tribunal to allow the worker to amend his claim has resulted in prejudice, on the following bases:
· It contends that, as a result of the amendment, the worker has been allowed to substitute a different "injury", namely "abrasions, cuts, puncture wounds or other types of skin vulnerability" for the "injury" that was specified in his original claim.
· It contends that, without the amendment, the worker could only have claimed compensation in relation to that second "injury" by lodging a fresh claim; that it could have disputed that fresh claim under s81A(1); and that the worker would then have borne the onus of proof.
· It contends that in the s81A(5) proceedings it bears the onus of proving that it is not liable to continue making weekly payments of compensation.
Counsel for the worker accepted that the onus of proof was on the worker in s81A(1) proceedings, but on the employer under s81A(5). I will assume that that is so.
The critical question, therefore, is whether the amendment has had the effect of substituting a different "injury" for the original one. If that were so, the amendment should not have been allowed. That is clear from the Full Court's decision in State of Tasmania v Beadle (2001) 10 Tas R 302. The worker in that case claimed compensation for hypertension and headaches, and later applied to amend his claim for compensation to refer to "chronic anxiety state, or anxiety condition or similar". The tribunal refused the amendment. The Full Court held that it was right to have refused it. At par[36] Underwood J (as he then was), whose reasoning Slicer and Evans JJ agreed with, concluded that the issue whether the worker suffered an incapacity resulting from an anxiety condition was not a justiciable issue before the tribunal.
In this case, counsel for the worker argued that Beadle should be distinguished because this amendment does not substitute an entirely different medical condition, set up a new cause of action, or make allegations materially different from those originally relied upon.
The Act does not require a claim for compensation to contain a precise description of the "injury" to which it relates. A description of the manifest symptoms and the identification of the precipitating event will be sufficient: Beadle (above) at [32]. Both Dr McCulloch and Dr Stevenson referred in their reports to a mechanism whereby an infection can enter the body when a worker with a sub-clinical skin injury has to kneel in dirty situations. In my view the amendment went no further than providing more detailed particulars of the asserted cause of the worker's infection. His case is that he was incapacitated for work by that "disease"; and that that infection is work-related. He is not seeking the continuation of weekly payments of compensation on the basis of a sub-clinical skin injury that did not incapacitate him. The learned chief commissioner concluded that the medical certificate that accompanied the notice of claim gave "at least an indication that the existence of a site of entry for the bacteria is a pre-requisite for the development of the infection suffered by the worker". That finding is not challenged in these proceedings. The question whether bacteria entered through a work-related skin injury was justiciable in the tribunal proceedings both before and after the amendment.
It follows that this is not the sort of situation that the Full Court was concerned with in Beadle. It is not a situation in which the amendment of a claim for compensation has resulted in the onus of proof being reversed. Grounds 2 and 4 must therefore fail.
Ground 5 – Employer's case
This ground reads as follows:
"5The Tribunal erred in law in determining the basis upon which the Employer/Appellant would seek to prove its case at a hearing, when it had no evidence properly before it as to those matters."
This ground appears to relate to par[12] of the learned chief commissioner's reasons, in which he said:
"… the Tribunal considers that the employer is not affected as to the basis upon which it is seeking to review its liability as outlined in the body of the referral to the Tribunal. In that regard the employer apparently will seek to rely upon medical opinion and employment records to establish in summary:
· Any introduced infection to the worker's body occurred in a matter of days rather than weeks prior to the symptoms becoming apparent and are therefore unrelated to the flood water exposure;
· Employment records for the days leading up to the time at which symptoms became apparent will be submitted on behalf of the employer to show that the worker was involved in duties where abrasions, cuts or other forms of puncture to his skin were unlikely to have occurred; and
· The micro-organism concerned in this case was unlikely to have been encountered in the work condition (ie the 'dirty environment') and introduction via a sub-clinical injury was unlikely there being a need for some form of penetrating injury."
Those comments appear to have been based on material in the employer's s81A(5) referral to the tribunal. That document set out eight reasons for the employer disputing liability to pay workers compensation. Those reasons included the following:
"(c)The worker first suffered symptoms in his left leg on or about 18 November 2012 (as evidenced by the triage and nursing care records from Calvary Hospital dated 21 November 2012). In the alternative, the worker first suffered symptoms on either Thursday 15 November or Friday 16 November, as stated in the attached incident investigation.
(d)The work on the Clarence Street underpass at Bellerive was undertaken on Friday, 9 November 2012 as evidenced by the enclosed incident report and investigation form and the enclosed incident investigation report.
(e)The enclosed report of Dr McGregor indicates that on the balance of probabilities the bacteria staphylococcus aureus entered the body in a matter of days rather than weeks prior to the first symptoms. Dr McGregor says that on balance given that there was no penetrating injury that it is more likely than not that the worker had bacteria that resulted in the organism 'seeding' his left knee.
(f)Dr McGregor thinks on balance that the bacteria entering the blood was the primary event that then developed to seeding of the knee and then the spine rather than being at a primary infection.
(g)In the three days immediately preceding the onset of symptoms (at the earliest 15 November) the worker's timesheets, which are enclosed, disclose that Mr Anning worked on 12 November and 13 November a total of 12.5 hours. Also enclosed for those days are safety observation forms that confirm the tasks being performed and all safety precautions being utilised.
(h)On the basis of this evidence, it is more likely than not that the work was not the major almost significant contributing factor to the onset of the worker's condition (being a disease) and that as a result compensation is not, and was never, payable to the worker in respect to his claim for compensation."
The learned chief commissioner was required to consider whether it was likely that the amendment would result in any prejudice to the employer. He was therefore obliged to consider any information that he had in relation to the basis upon which the employer would or might contend at the hearing that it was not liable to continue making weekly payments of compensation. Such information was contained in the referral and in the documents referred to in the referral. In accordance with s49(1), the tribunal was entitled to inform itself in a manner that it thought fit, and to proceed without undue formality and technicality. It was therefore open to the tribunal to make findings of fact as to the likely nature of the employer's case at the forthcoming hearing. It made no error of law in undertaking that exercise. Ground 5 must fail.
Ground 6 – No evidence of abrasions etc
This ground reads as follows:
"6The Tribunal erred in law in determining that the interests of Justice were best served by the Tribunal considering the issue as to causation of the Worker's medical condition when there was no evidence that the Appellants [sic] condition was caused by abrasions, cuts, puncture wounds or other types of skin vulnerability during his employment between the 9th November 2012 and 19th November 2012."
In par[11] of his reasons, the learned chief commissioner concluded:
"The interests of justice are best served by the Tribunal considering the issue as to the causation of the worker's compensable condition based upon the medical evidence available in support of the claim for compensation."
The reports of Dr McCulloch and Dr Stevenson contained assertions to the following effect:
· The worker reported leg pain on 13 November 2012.
· The worker's last day at work before the making of his claim was 20 November 2012.
· After he left work on 19 November 2012 he developed a sore left knee, which was swollen and red. His condition worsened dramatically. He was admitted to Calvary Hospital on 21 November 2012.
· He suffered an infection that can arise through small cuts on the skin.
· His job required him to kneel in dirty situations.
· It was likely that a sub-clinical skin injury precipitated his condition.
In the employer's referral to the tribunal, it was asserted that the worker undertook work on the Clarence Street underpass at Bellerive on 9 November 2012. The employer provided the tribunal with an incident investigation report containing that information.
The medical reports and the incident investigation report together constituted evidence from which the tribunal could, at a future hearing, conclude that the worker's condition was caused by abrasions, cuts, puncture wounds or other types of skin vulnerability during his employment between 9 November 2012 and 19 November 2012. It was open to the tribunal to have regard to those documents in accordance with s49(1). The reasoning based upon those documents involved no procedural unfairness and no error of law. This ground must therefore fail.
Conclusion
For the reasons stated above, this appeal must be dismissed.
1
1