Stapleton v PSGA Pty Limited - [2022] NSWPIC 709

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWPIC 709
Decision Date: 12 December 2022

CaseChat Overview and Summary

The case before the court involved a dispute between Stapleton, an employee, and PSGA Pty Limited, the employer. Stapleton claimed compensation for an umbilical hernia that developed following a frank injury sustained at work, which occurred over a period of 15 to 18 months. The crux of the dispute lay in determining the timeline of Stapleton's entitlement to compensation under the relevant statutory framework, specifically the Workplace Injury Management & Workers Compensation Act 1998 and the Workers Compensation Act 1987. The employer argued that Stapleton's claim for compensation was not valid until the hernia had fully manifested, whereas Stapleton contended that the employer should have been aware of the potential for a subsequent injury from the initial incident.

The court was tasked with resolving whether Stapleton's claim was legally actionable immediately upon the initial injury or if it was contingent upon the hernia's full development. The central issue was the interpretation of section 261 of the 1998 Act, in conjunction with sections 4 and 59A of the 1987 Act, to ascertain the point at which Stapleton's legal rights to compensation arose. Additionally, the court examined whether Stapleton's claim was exempt from the statutory requirement for prompt notification under section 59A due to reasonable ignorance or other causes attributable to the employer's failure to inform the insurer of the injury.

In its decision, the court held that Stapleton's legal rights to compensation were contingent upon the full manifestation of the hernia, thus rendering the claim inadmissible until the 15 to 18-month period had elapsed. However, the court also considered the possibility that Stapleton's claim could be exempt from the notification requirement if it could be shown that the employer failed to pass on the notification to the insurer, thereby causing Stapleton's reasonable ignorance. The court noted with sentiment the case of Flying Solo Properties v Collett, which had implications for future surgical treatments that might be necessary. Ultimately, the court made a general order for Stapleton's past expenses under section 60 of the 1987 Act, while reserving judgement on future medical treatments pending further developments.

Orders