Stapleton v PSGA Pty Limited
[2022] NSWPIC 709
•12 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Stapleton v PSGA Pty Limited [2022] NSWPIC 709 |
| APPLICANT: | Michael Peter Stapleton |
| RESPONDENT: | PSGA Pty Limited |
| Member: | Philip Young |
| DATE OF DECISION: | 12 December 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Umbilical hernia from frank injury developed over subsequent 15-18 month period; section 261 of the Workplace Injury Management & Workers Compensation Act 1998; sections 4 and 59A of the Workers Compensation Act 1987 (1987 Act); Held – applicant had no legal rights to pursue until expiration of 15-18 month period; alternatively claim exempt for ignorance or other reasonable cause as employer failed to pass on to insurer notification of injury; general order made for past section 60 of the 1987 Act expenses and sentiment expressed regarding Flying Solo Properties v Collett in respect of future surgery. |
| determinations made: | 1. The applicant in the course of his employment with the respondent on 2 May 2018 suffered a frank injury, namely an umbilical hernia. 2. The applicant’s failure to make a claim within six months of the injury is not established and in the alternative is excused by s 261 (4) of the Workplace Injury Management & Workers Compensation Act 1998 (1998 Act). 3. There is an award in favour of the applicant being a general award in respect of past s 60 Workers Compensation Act 1987 (1987 Act) expenses which result from the applicant’s umbilical hernia. 4. The Commission recognises the effect of s 59 A of the 1987 Act but expresses the sentiment referred to by Snell DP in Collett[1] that whilst this Commission cannot make a s 60 (5) 1987 Declaration, the proposed hernia repair treatment is reasonably necessary as a result of the applicant’s injury of 2 May 2018. |
[1] Flying Solo Properties V Collett [2015] NSWWCCPD 14 at [75].
STATEMENT OF REASONS
BACKGROUND
Mr Michael Peter Stapleton (the applicant) is a 58-year-old-man who was employed by PSGA Pty Limited (the respondent). He alleges that on 2 May 2018 he suffered a pulling sensation in his stomach, namely a frank injury, for which he requires a hernia operation.
By s 78 notice dated 30 July 2020 the respondent initially raised ss 254 and 261 of the Workers Compensation Act 1987 (1987 Act). Subsequently in its Reply lodged 23 August 2022 the respondent accepted that notice of injury (s 254) was satisfied but did not accept that notice of claim (s 261) was satisfied.[2]
[2] Reply at page 16.
In addition to these matters there are issues concerning s 4, s 4 (b) and s 9 A of the 1987 Act and the respondent relies also on s 59A (2) of the 1987 Act. The applicant in reply then amended the claim to only seek compensation in respect of past treatment expenses which were made on 20 May 2020. Additionally the applicant seeks a finding consistent with the decision in Collett[3], namely the Personal Injury Commission’s (Commission) expectation that time off work for surgery notwithstanding s 59A will result in the applicant being entitled to the cost of the surgery.
[3] Flying Solo Properties v Collett [2015] NSWWCCPD 14.
ISSUES
The issues have been identified above.
PROCEDURE BEFORE THE COMMISSION
This matter came for conciliation and arbitration hearing on 28 September 2022. Mr Dodd of counsel instructed by Mr McCabe, solicitor, appeared for and with the applicant. Ms Warren of counsel instructed by Ms Nicholls, solicitor, appeared for the respondent. Present were insurer representatives Mel H and Ana A.
The parties participated in a conciliation process in an attempt to achieve resolution of the matter. Regrettably, despite the exercise of my best endeavours, the matter was not capable of resolution. I was satisfied in the circumstances that the matter could not be settled and that jurisdiction to determine the matter by arbitration process was enlivened.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute lodged 29 July 2022 and attachments (Application);
(b) Reply and attachments lodged 23 August 2022 (Reply), and
(c) Application to Admit Late Documents lodged by the applicant on 1 September 2022 including surveillance video (AALD 1).
The matter was sound recorded and at the commencement of the proceedings Mr Dodd made the application to admit documents the subject of AALD 1 (namely surveillance video) which was taken at the applicant’s workplace on 1 May 2018 and 2 May 2018. After submissions on the admissibility of this surveillance video this Commission determined that documents the subject of AALD 1 were to be admitted into evidence. The reason for this admission was that I viewed the surveillance evidence and was comfortable with the following three matters:
(a) the surveillance evidence is highly relevant to the issues before this Commission;
(b) the respondent’s solicitor has conceded that the respondent has viewed the evidence, and
(c) no prejudice flows to the respondent in respect of the admission of such evidence and it is in the interests of justice that the evidence be admitted.
The surveillance film was accordingly admitted into evidence.
ADJUSTMENTS TO THE CLAIM
During arbitration Ms Warren confirmed that the dispute remained regarding s 261, s 4,
s 4 (b), s 9 A, s 59 A and s 60 of the 1987 Act. The applicant in Reply indicated that it sought to proceed on the Application as filed and future surgery was still claimed.
DIRECTIONS AT THE ARBITRATION HEARING
At the arbitration hearing on 28 September 2022 the following Directions were made:
“1. The Applicant is to lodge and serve by written (sic) 14 October 2022 written submissions.
2. The respondent is to lodge and serve by 28 October 2022 written submissions.
3. Any further written submissions in reply by the applicant are to be lodged and served by 7 November 2022.
4. At conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’”.
The respondent’s submissions were made available to me on the portal on 21 November 2022. At the time of providing these Reasons for Decision I do not have in my possession any submissions in Reply by the applicant.
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
The respondent has submitted that there is a “lack of contemporaneous medical evidence” as to the 2 May 2018 incident “being a substantial and/or the main contributing factor to the applicant’s present hernia condition”.[4] The applicant has confirmed that “disease” is neither pleaded nor relied upon.[5] Accordingly, the reference to “main contributing factor” is somewhat redundant.
[4] Respondent’s submissions undated at [17].
[5] Applicant’s submissions dated 30 September 2022 at [19].
The factual matters concerning the incident of 2 May 2018 are as follows:
(a) CCTV surveillance of the applicant’s workplace attached to the applicant’s AALD 1 confirms that on 2 May 2018 the applicant was in fact involved in carrying a printer at work (as he alleges).
(b) The respondent does not adduce any evidence to dispute the fact in “(a)” above.
(c) The applicant gives evidence in his statement of 16 October 2020 as follows:
“4. On 02.05.2018, I was working at the Badging Office helping to put in a new TBR Printer. The printer was large and cumbersome and as we were maneuvering the printer into place, we had to spin the printer on an angle.
5. Whilst lifting up the heavy side of the printer, I felt a pulling sensation in my stomach. I did not think anything of it at the time, I just kept on moving.
6. Shortly afterwards I made a comment to Adrian Cormick and Dan McGregor that I was sore in the stomach”.[6]
This evidence of the applicant is not countered by any evidence by the respondent. In particular there is no statement of Mr Cormick or Mr McGregor taking issue with the applicant having made the complaint.
[6] Application at page 2 at [4]-[6].
The applicant in his statement[7] confirms that he sent Mr Cormick an email on 9 May 2018 confirming that he felt an uncomfortable feeling in his stomach which he said felt like a pulled muscle. That email appears at Application page 15. In it the applicant writes to Mr Cormick “…I don’t want to rush to the Docs so we will give it another week or so to see if it improves”.[8]
[7] Statement at Application page 3 at [8].
[8] Application at page 15.
The applicant was able to continue to work and over the next year after 9 May 2018 he “just had a niggling feeling in my stomach. Over the next 15 months to 18 months, the hernia got bigger”.[9]
[9] Applicant’s statement at Application page 3 at [9].
Ultimately in May 2020 the applicant consulted a doctor who confirmed that he was suffering an umbilical hernia “that looked a couple of years old because of the size of the hernia”.[10] The applicant filed a claim for compensation on 11 May 2020.[11] The respondent points to the applicant’s evidence that he did not seek medical attention for the hernia for a period of 15 to 18 months post injury.[12] The respondent submits that the issue as to whether the incident of 2 May 2018 was a substantial contributing factor is not dealt with by the applicant’s expert report of Dr Dixon.[13] However, in his report dated 14 April 2022 Dr Dixon states:
“His employment was a substantial contributing factor to the injury in that the abdominal strain with umbilical hernia occurred while moving the printer at his workplace”.[14]
[10] Applicant’s statement at Application page 3 at [10].
[11] Application at page 22.
[12] Respondent’s written submission at page 3 at [15].
[13] Respondent’s submissions at page 2 at [15].
[14] Application at page 10.
Dr Dixon as the respondent suggests, does not explicitly “deal with the delay of two years in diagnosis at all”.[15] The evidence however emerges from the applicant’s statement in that the applicant gives uncontested evidence of a strain to his stomach when lifting the printer, having commented on the event to his co-workers and sent an email to Mr Cormick one week later. It also dovetails with the applicant’s evidence of an ongoing “niggling” feeling over the next 15 to 18 months which in my view is a ready explanation for why the applicant did not escalate the matter by seeking medical advice over that time.
[15] Respondent’s submission at page 3 at [23].
The respondent takes issue with the qualifications of Dr Dixon to comment on the nature of the applicant’s condition, its causal relationship with the incident of 2 May 2018 and whether the surgery proposed is reasonably necessary medical treatment. This is because it is suggested that Dr Dixon is an orthopedic surgeon and the matter should be assessed by a general surgeon.[16] The respondent required the applicant by letter of 23 August 2022 to be examined by a general surgeon. No report issued by any such surgeon is in evidence.
[16] Respondent’s submissions at page 3 at [21].
I am mindful of the fact that Dr Dixon is a qualified surgeon (MB, BS) and was a qualified surgeon prior to taking up his specialty in orthopaedics. Whilst he did not have before him, it seems, any medical evidence from the treating surgeon Dr Malkoun. It is clear from his report[17] that he had before him Dr Malkoun’s quotation for the cost of the proposed hernia operation because he specifically referred to the quotation and regarded the cost of the proposed surgery to be “a normal cost for such a repair”.
[17] Application at page 10.
Dr Dixon’s recommendation for hernia surgery is also supported by the applicant’s general practitioner, Dr Baig in that doctor’s referral to Dr Malkoun dated 24 July 2020.[18] Having regard to this medical evidence, it appears clear that in considering the criteria in Diab[19] the proposed hernia surgery is reasonably necessary medical treatment resulting from the applicant’s hernia injury.
[18] Application at page 12.
[19] Diab v NRMA Limited [2014] NSWWCCPD 72.
The s 261 argument
The applicant sent an email to Mr Cormick on 3 May 2020.[20] It included the following:
“I know Dan would possibly remember this as I had a bit of a whinge to him as we were setting up the printer over the next several day's [sic], and I do remember mentioning it to you verbally as well, I never went to the doctors regarding it as it seemed to settle down and every once in a while I would get some discomfort but never reallydavid [sic] thought anything of it, I was wondering what my options could be in putting this through as workers compensation?”
[20] Application at page 15.
The explanation giving by the applicant in the above email is in my view consistent with the applicant’s statement.[21] The general thrust is that the applicant’s hernia over the time after 2 May 2018 gradually got bigger to the extent that in May 2020 he reported it to a medical practitioner.
[21] Application at pages 2-3 at [9] and [14].
Section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) includes the following:
“261 (1) Compensation cannot be recovered unless a claim for the compensation has been made within six months after the injury or accident happened or, in the case of death, within six months after the date of death…”.
There are exceptions which apply to excuse compliance with this provision which will be discussed below.
It occurs to me that the first matter to consider is “the compensation” as referred to in the section. The applicant after 2 May 2018 continued to work and no weekly payments were payable nor claimed. The applicant did not seek medical treatment and there was therefore no claim for s 60 expenses. Otherwise, the applicant had no cause to make a “claim for the compensation” within six months after the injury. On that view, s 261 (1) of the 1998 Act simply does not apply, because there was no compensation to be claimed.
The second consideration on this issue concerns s 260 of the 1998 Act. Section 260 (4) allows Workers Compensation Guidelines (Guidelines) to be made so as to provide for certain matters in connection with the making of a claim. That section includes the following:
“(a) Waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given…)”.
These guidelines are issued pursuant to s 376 of the 1998 Act.
Part 1 of the Guidelines provides for initial notification to an insurer of an injury to a worker, being a notification “by the worker or the employer or by some other person…”. It seems reasonably clear in this matter that the applicant’s initial notification (email and verbal complaint) were not pursued by the employer in passing that notification on to the insurer. Part 1.1 of the Guidelines points out that notification may be given by the worker online, by email or verbally. The applicant submitted a verbal notification as well as email notification.
The significance of what I have said follows through to Part 2 of the Guidelines. Part 2 relates to “Provisional Liability”. Clause 2.1 is to the following effect (omitting irrelevant parts):
“Once the insurer has received an initial notification of injury it must:
-Start provisional payments…or
-(Issue) a reasonable excuse within seven days or
-Determine liability.”
It is necessary to consider the whole scope, purpose and requirements of the workers compensation scheme, including the Guidelines. It is clear that had the employer remitted the applicant’s notification of injury in May 2018 to the insurer, that would have triggered the insurer’s obligation under the Guidelines to create a claim and take action on it in May 2018. Accordingly, a second reason is available to the applicant as to why there is reasonable cause for any failure (if there be a failure) to make a claim. That “other reasonable cause” is failure on the part of the employer to comply with its statutory obligations.
A further reason is of relevance. The applicant in his statement and email essentially reports that the “niggling” feeling in his stomach was lived with. The applicant thought that he had strained a muscle and it was only with the effluxion of time that he in fact realised that the lump had grown. Whilst the expression “ignorance” in s 261 (4) of the 1998 Act means ignorance of his legal rights, in the applicant’s case his subjective approach in thinking that he had simply strained a muscle must in my view mean that he thought he did not have rights which he could pursue. Indeed, on the view I first expressed above, he had no legal rights to pursue.
FINDINGS AND ORDERS
The applicant in the course of his employment with the respondent on 2 May 2018 suffered a frank injury, namely an umbilical hernia.
The applicant’s failure to make a claim within six months of the injury is not established an in the alternative is excused by s 261 (4) of the 1998 Act.
There is an award in favour of the applicant being a general award in respect of past s 60 expenses which result from the applicant’s umbilical hernia.
The Commission recognises the effect of s 59 A of the 1987 Act but expresses the sentiment referred to by Snell DP in Collett[22] that whilst this Commission cannot make a s 60 (5) 1987 Declaration, the proposed hernia repair treatment is reasonably necessary as a result of the applicant’s injury of 2 May 2018.
[22] Flying Solo Properties V Collett [2015] NSWWCCPD 14 at [75].
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