Star City Pty Limited v Hudson
[2006] NSWWCCPD 288
•27 October 2006
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Decision confirmed on Appeal: Star City Pty Ltd v Hudson [2007] NSWCA 188 | ||||||
| CITATION: | Star City Pty Limited v Hudson [2006] NSWWCCPD 288 | |||||
| APPELLANT: | Star City Pty Limited | |||||
| RESPONDENT: | Liana Hudson | |||||
| INSURER: | Self Insurer | |||||
| FILE NUMBER: | WCC15875-05 | |||||
| DATE OF ARBITRATOR’S DECISION: | 23 December 2005 | |||||
| DATE OF APPEAL DECISION: | 27 October 2006 | |||||
| SUBJECT MATTER OF DECISION: | Notice of injury; notice of claim; sections 254 and 260 of the Workplace Injury Management and Workers Compensation Act 1998. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | George Mallos | ||||
| Respondent: | Steve Masselos & Co | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 23 December 2005 is confirmed. | |||||
| The Appellant Employer is to pay the Respondent Worker’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 10 January 2006 Star City Pty Limited (‘the Appellant Employer/Star City’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 December 2005.
The Respondent to the Appeal is Liana Hudson (‘the Respondent Worker/Ms Hudson’).
Ms Hudson was born on 15 February 1961. She left school in year nine and initially worked in a clothing factory and then as a check out operator in a supermarket before leaving the work force to start and raise a family. She returned to the work force as a cleaner before she started work with Star City as a croupier on 23 June 1999. She was initially trained to deal blackjack but also worked games known as ‘Sic-Bo’, ‘Big Wheel’ and ‘stud poker’.
In her statement of 31 May 2005 she described the work as rapid and repetitive. When dealing cards she was required to perform highly repetitive grasping, reaching and manipulative movements with her hands, particularly her left hand. In December 2002 she started to develop pain in her left wrist and forearm, and pins and needles in her left hand. She attended on her regular general practitioner, Dr Cheiw, on 19 June 2003 complaining of pain in her left wrist, forearm and up to her left elbow. He certified her unfit for work for several days because of her condition. He also referred her to Dr Dave, orthopaedic surgeon at Liverpool, and started her on physiotherapy.
Ms Hudson completed and submitted a claim form on 24 June 2003 alleging she had sustained a “repetitive strain to left wrist” as a result of the “repetitive dealer action” required in her job over time. Her claim was accepted and an Injury Management Plan prepared. There is no evidence to suggest that there was a ‘provisional acceptance of liability’ as is open under section 267 of Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
A Return to Work Plan was prepared by Star City starting on 27 June 2003 with provision for suitable duties with the objective of returning to full duties as a dealer. An Injury Management Plan was also prepared on that day with a claim number of WC01145. The Injury Management Plan set out, among other information, the ‘type of injury’, ‘date of injury’, ‘objective’, ‘actions required’, the name of the rehabilitation co-ordinator, David Leeson, and the claims officer, Claudia Coelho.
Dr Cheiw records in his report of 20 November 2004 that since 28 September 2003 Ms Hudson complained that her right hand and wrist started aching. As a result of that pain together with the pain from her left arm she was off work from 29 October 2003 until 7 November 2003. Dr Cheiw also prepared a WorkCover certificate dated 30 October 2003. Under ‘how injury occurred’ he has written “working with (R) hand (arm) as a result of L hand-arm injuries (on 4/12/02)”. He diagnosed “soft tissue injuries – (R) hand (fingers-palm) and (R) wrist”. The certificate has the claim number WC01145 written on the top left hand side and an ‘entered’ stamp on it of 10 November 2003. It is described as a ‘progress’ certificate, as opposed to an ‘initial’ or ‘final’ certificate.
Ms Hudson’s symptoms continued through the balance of 2003 and into 2004 with further short periods being taken off work. On 25 March 2004 her hours were reduced to four per day for five days per week. From 29 May 2004 her hours increased to five per day for five days per week which she continued to perform until she ceased work on 6 April 2005.
A second Injury Management Plan was prepared for Ms Hudson on 26 October 2004 stating ‘type of injury’ to be “left and right wrist condition” with a date of injury noted as “04/12/2004” [sic]. The ‘claim status’ is described as “accepted”. Exactly the same comments appear in the third and fourth Injury Management Plans dated 16 December 2004 and 24 January 2005 respectively.
Prior to ceasing work in April 2005 Ms Hudson received a letter from Star City dated 24 February 2005 declining liability for her “left wrist injury” on the basis of Dr Bodel’s report of 7 February 2005. On 4 August 2005 her employment with Star City was terminated.
On 19 September 2005 the Respondent Worker’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission. The Application alleged that Ms Hudson sustained injury to her left wrist, left elbow, neck and right arm as a result of the nature and conditions of her employment as a croupier up to 4 September 2005. The Application sought weekly compensation from 6 April 2005 to date and continuing and lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). Under ‘attempts to resolve dispute’ is written “letter of demand 18.10.04” and “letter requesting review dated 5.1.05”. The letter of demand is a letter from the Respondent Worker’s solicitor claiming lump sum compensation under sections 66 and 67 of the 1987 Act. The Appellant Employer apparently responded to this demand by letter dated 15 November 2004, but that letter is not in the papers before me. By letter dated 5 January 2005 the Respondent Worker’s solicitor asked the Appellant Employer to review the decision set out in its letter of 15 November 2004
A Reply was filed in the Commission by the Appellant Employer on 10 October 2005 denying injury and, among other things, alleging that the Respondent Worker had not provided notice of injury under section 254 of the 1998 Act in respect of the alleged injury to the left elbow, neck or right arm and was “thereby precluded from making any claim for compensation in respect thereof”.
At a teleconference on 28 November 2005 it was noted that “duly made claim” and incapacity were the main issues in dispute.
An Arbitration hearing was held on 21 December 2005 when, over objection, the Respondent Worker amended her claim to delete the claim for lump sum compensation. The Arbitrator found in favour of the Respondent Worker on the issues of injury to each arm, notice and incapacity.
The Appellant Employer seeks leave to appeal from that decision.
LEAVE TO APPEAL
Monetary Threshold
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 quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. At least 20% of the amount awarded is ‘at issue’ on appeal and the monetary thresholds are therefore satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
On 11 September 2006 I issued the following direction to the parties in this matter:
| “In light of : (a) the claim form completed by the respondent worker on 24 June 2003; (b) the medical certificates subsequently submitted (especially the certificate of Dr Chiew dated 30 October 2003); (c) the fact that the claim was accepted by the appellant employer and voluntary weekly compensation paid until 6 April 2005, and (d) the appellant employer’s letter dated 24 February 2005 disputing liability, | |
| the appellant employer is directed to make submissions in support of the grounds of appeal set out in paragraph 21 (a) and (b) of its written submissions dated 16 February 2006.” |
The parties have each made additional submissions in response to the above direction.
Section 354(6) of the 1998 Act provides:
“(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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are now before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 December 2005, records the Arbitrator’s orders as follows:
“1.I order the Respondent pay the Applicant’s s60 expenses in the sum of $443.85 (representing HIC payments).
2.I order the Respondent pay weekly benefits at the maximum statutory rate for a single worker with no dependents as and from 6 April 2005 to date and continuing.
3.I order the Respondent pay the Applicant’s costs to be assessed if not agreed. I note that at the conclusion of the substantive hearing the Applicant elected to discontinue the claim for s66 and s67 entitlements and leave was granted. The issue of costs of any further application for s66 & s67 entitlements is a matter for the Workers Compensation Commission. On the next occasion I direct that to the extent the Workers Compensation Commission should consider as part of any cost determination in these proceedings, the costs thrown away in preparing and conducting this arbitration that it should bear the late discontinuance in mind. However I do put on record that time spent at the Arbitration hearing on s66 & s67 issues was [sic] minimal compared to substantive arguments on jurisdiction and weekly benefits entitlement.”
The Arbitrator made the following ‘formal orders’ at page 73 line 14 of the transcript:
“The formal orders that I make are:
1.I find that the injury in respect of left and right arm is connected with the nature and conditions of her work.
2.That the notice in respect of both left and right arms has been duly given in accordance with section 260 of the 1998 Act.
3.That the applicant is entitled to an award in respect of medical expenses in the sum of $443.85.
4.That the applicant is entitled to an award in respect of weekly entitlement as and from 6 April 2005 to date and continuing at the rate of $774.06.
5.I order that the respondent pay the applicant's costs to be assessed if not admitted.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to give any or any adequate reasons for finding that he had jurisdiction to hear and determine the claim (‘reasons’);
(b)finding that the Respondent Worker had given the Appellant Employer notice of injury to her right wrist as required under section 254 of the 1998 Act (‘notice of injury’);
(c)determining that ‘special circumstances’ existed under section 254(2) to enable the Respondent Worker to rely upon injury to the right wrist (‘notice of injury’);
(d)making a determination when there was no ‘dispute’ in compliance with section 289 of the 1998 Act (‘dispute’);
(e)proceeding to a hearing in circumstances where the Respondent Worker had not made a claim in compliance with section 260 of the 1998 Act (‘notice of claim’);
(f)making a decision based on either no evidence or insufficient evidence (‘no evidence’);
(g)making an order for costs in favour of the Respondent Worker (‘costs’), and
(h)failing to make an order for costs in favour of the Appellant Employer (‘costs’).
SUBMISSIONS AND FINDINGS
Reasons
The Appellant Employer submits that the Arbitrator erred in failing to provide any or any adequate reasons for finding the Commission had jurisdiction to hear and determine the claim (Appellant Employer’s submissions 16 February 2006, paragraph 21(d)). Apart from the bald assertion just stated, the Appellant Employer has made no submissions to support this ground of appeal.
An Arbitrator has a duty to provide reasons in support of his or her decision (See Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1). In the present case the Arbitrator has given reasons in respect of the ‘notice of injury’ issue (see transcript page 37 to 39). In those reasons the Arbitrator wrongly referred to section 61 of the 1998 Act when the correct section is section 254. Nothing turns on that error as the sections are in substantially the same terms. The Arbitrator referred to and considered the provisions of section 254(2)(a), (b) and (c) and held that the circumstances in those subsections were made out. For the reasons set out in detail below, I agree with that conclusion. In addition, the Arbitrator was satisfied that, if there was a defect in the notice given by the Respondent Worker, the Appellant Employer suffered no prejudice as a result of that defect. That finding was open to the Arbitrator and it discloses no error of fact, law or discretion.
However, the Arbitrator said at page 39 line 10 that:
“I'm satisfied that oral notice was given and for all the circumstances, all the matters that I have raised herein, I am satisfied that notice has been given for the purposes of the legislation in respect of this injury and accordingly the jurisdictional precondition has been satisfied.”
The Arbitrator was in error in holding that his finding on the notice of injury issue determined the issue of jurisdiction. The issue of jurisdiction is determined by an application of section 289 of the 1998 Act. Though counsel for Star City made general submissions about ‘jurisdiction’, he did not refer the Arbitrator to section 289.
In respect of the ‘notice of claim’ issue, the Appellant Employer’s submissions before the Arbitrator are difficult to follow. After the Arbitrator made his ruling on the ‘notice of injury’ issue counsel for Star City said at page 41 line 58 “we challenge the jurisdiction of you [sic] to hear” the claim for weekly compensation. The Arbitrator enquired as to the basis of the challenge to jurisdiction and the following exchange took place at page 42 line three:
“ARBITRATOR: Okay. All right. What’s the basis of your challenging my jurisdiction?
EMPLOYER’S COUNSEL: There was never any claim. Before they filed a --
ARBITRATOR: I thought I’d dealt with that. Have I not dealt with that?
EMPLOYER’S COUNSEL: No, you only do it for the weeklies. I mean, you haven’t addressed that aspect. You’ve addressed the left wrist and the right wrist.
ARBITRATOR: I’ve dealt with injury.
EMPLOYER’S COUNSEL: Yeah. But that doesn’t - you also say that you found a claim for incapacity. We say they’ve got to comply and go through all the ropes for the pay slice. I mean, in terms of incapacity, what we’re - what my cross-examination will be will be about the - see, you’ve jumped a causation issue here. You’ve jumped from giving jurisdiction to determine the claim on the left wrist and right wrist.
ARBITRATOR: I may --
EMPLOYER’S COUNSEL: I’m still contesting that these problems --
ARBITRATOR: Put --
EMPLOYER’S COUNSEL: -- particularly the right wrist, are unrelated to the work. And I do that. I mean, I’ve sat on my hand. I do that on the basis before she came here, notwithstanding that she told no doctor that she had previous right wrist problems. She had - she started with us on 23 June 1999, and on 6 May 1999 was having her right wrist examined by a radiological examination.
ARBITRATOR: Well, hold on. Where do I have any medical evidence of that?
EMPLOYER’S COUNSEL: I’ve already --
ARBITRATOR: Well, take me to it now. That’s what I’m just saying. Okay? With respect, this aspect, as you correctly say, has not been addressed in relation to the matters that I’ve been looking at. I’ve been looking at the jurisdiction issue in respect of injury, and I’ve dealt with that.
EMPLOYER’S COUNSEL: Yeah.
ARBITRATOR: You now wish to raise an issue in respect of - and I want to make sure. Is it a jurisdictional issue in respect of --
EMPLOYER’S COUNSEL: No, it’s a causation issue.
ARBITRATOR: Okay. Well, it's a separate matter altogether.
EMPLOYER’S COUNSEL: Yeah.
ARBITRATOR: It’s not to do with jurisdiction; it’s to do with causation.
EMPLOYER’S COUNSEL: What I’m saying is that you may determine the left wrist and its problems may or may not be solely related to work.
ARBITRATOR: Right. So - okay. So, what you want to say is that both or either the left and/or right wrist defines its aetiology upon circumstances outside the workplace.
EMPLOYER’S COUNSEL: Yes.
ARBITRATOR: Is that right?
EMPLOYER’S COUNSEL: You’ll see that there is a reference by Dr Bodel…” (emphasis added)
Counsel for Star City then took the Arbitrator to evidence from Dr Bodel suggesting that Ms Hudson had heavily callused hands and he made submissions on the medical evidence in general until page 54 line 16 when he said “George is saying what’s happened to the jurisdiction question on the weekly payment claim”. The reference to ‘George’ is a reference to George Mallos, the Appellant Employer’s solicitor. After hearing brief evidence from Ms Hudson on the issue of her capacity to work and hearing further submissions from counsel for Ms Hudson, the Arbitrator gave his decision (transcript, page 68 line 57).
At page 69 line 22 the Arbitrator referred to the employer’s counsel’s concern that section 260 had not been adequately dealt with and said at line 42:
“I am satisfied that the oral notice given complies with the WorkCover Guidelines, and I am satisfied that the requirements under section 260 have been satisfied in the circumstances by giving of the oral claim, and the subsequent opportunity given to the respondent to investigate the matter, which was undertaken, means that under section – I’ll just back [sic] again --
MR HANRAHAN: [Inaudible].
ARBITRATOR: No, no, it was earlier. It was the earlier section. It was about --
EMPLOYER’S COUNSEL: 54.
ARBITRATOR: Section 61, it was. Wasn’t it section 61?
EMPLOYER’S COUNSEL: Yes, section 61.
ARBITRATOR: Section 61, and in section 61, subsection (2) the lack of prejudice and the like means that I believe that the respondent has had a reasonable opportunity to carry out its investigations, that if there is an absence of defect or inaccuracy in the notice, it was occasioned in the circumstances by ignorance or mistake because of the conversations which have taken place between the worker and her employer and, (c) that the person, that is, the respondent, did by reason of the discussions that the worker had with someone in apparent authority at the respondent, it meant that there was knowledge as to the source of and the time when the injury happened sufficient to satisfy subsection (2) of section 260 in respect of the matters, being the form, the manner and the information components.
EMPLOYER’S COUNSEL, does that satisfy that aspect?
EMPLOYER’S COUNSEL: I pleaded with it [sic].”
The above reasons confuse ‘notice of injury’, dealt with in section 254, with ‘notice of claim’, dealt with in section 260. Quite different provisions apply in each section.
Therefore, the Arbitrator was in error in that when he purported to deal with the ‘notice of claim’ issue he referred to the legislative provisions and the evidence dealing with ‘notice of injury’. This error means that the decision on the ‘notice of claim’ issue must be redetermined. In the absence of any credit issues I believe I am in as good a position to redetermine that part of the claim as the Arbitrator and that is the course I propose to adopt.
In addition, the above analysis of the transcript reveals that the Arbitrator’s reasons did not adequately deal with the issue of ‘jurisdiction’.
Notice of Injury
The Appellant Employer makes the following submissions on this point:
(a)the special circumstances referred to in section 254(3) of the 1998 Act could not apply (Appellant Employer’s submissions, paragraph 14);
(b)it was denied the opportunity to examine the matter at all before the hearing and, even after the Respondent Worker’s oral evidence, was unable to identify from whom enquiry ought be made (Appellant Employer’s submissions, paragraph 15);
(c)as a result of (b) above, the Appellant Employer was prejudiced by the late evidence;
(d)there was insufficient evidence to find ‘special circumstances’ as set out in section 254(3)(c) (Appellant Employer’s submissions, paragraph 16), and
(e)it was “ambushed by fresh allegations with no opportunity to investigate them” (Appellant Employer’s submissions, paragraph 17).
The relevant provision dealing with ‘notice of injury’ is section 254 which provides:
“254 Notice of injury must be given to employer
(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) In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances:
(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Occupational Health and Safety Act 2000,
(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
Ms Hudson’s initial claim form identified her injury as being to her left wrist. That claim was accepted and an Injury Management Plan put in place. Part of that plan required Ms Hudson’s duties to be altered so as to reduce strain on her left wrist (see Return to Work Plan reference number 421). This was confirmed in the Respondent Worker’s evidence at page 27 line 20 of the transcript when she said:
“Q. And was it your left hand that was troubling you then?
A. Yes.Q. In relation to when you were doing roulette, which hand do you primarily use for that?
A. You can use either hand.Q. Which were you using?
A. Well, when my left hand was so bad, only right.”
Ms Hudson’s was then questioned by the Arbitrator about whether she ever reported her right hand injury to the Appellant Employer. At page 29 line 34 the following questions were asked:
“Q. Okay. Well, whoever it might be, what I’m now trying to clarify is that you spoke to someone at Star City about your injuries?
A. For my right hand.Q. For your right hand or generally. Do you understand what I’m on about now? You don’t now - you can’t tell me who that person was. Is that right?
A. Look, it could have been through HR. It could be on any department. I am not sure. I spoke to David Leeson. I spoke to Jason a few times. I’ve spoken to so many. I don’t remember who’s who.”
The Injury Management Plan prepared by the Appellant Employer and dated 26 October 2004 refers to “left and right wrist condition” and is signed by Ms Hudson and the Appellant Employer’s rehabilitation co-ordinator. In addition, the plan refers to David Leeson as being one of the persons responsible for monitoring Ms Hudson’s return to work and her progress under the plan. In the Return to Work Plan, David Leeson is referred to as the ‘rehabilitation co-ordinator’ who signed the Respondent Worker’s Return to Work Plans and her Injury Management Plans. The reference to ‘Jason’ was not clarified in the evidence. However, present at the Arbitration hearing was a Jason Spinks, the Appellant Employer’s workers compensation manager (transcript page 28 line 25). If he was not the Jason the Respondent Worker was referring to he could easily have given evidence to that effect. Instead, he remained silent throughout the hearing notwithstanding that the Arbitrator specifically asked the Appellant Employer if it wanted time to speak with him (transcript 28 line 33).
The Respondent Worker’s further evidence about reporting her right arm injury is found at page 30 line 10 of the transcript where she said that she “mentioned it straight away”, though could not recall to whom. The following evidence was then given:
“Q. Thank you. Now, although you can’t recall who it was, what are you able to tell me about that conversation?
A. I was told that it was a separate claim.Q. Well, before you were told that, did you tell them something - that you had injured a body part?
A. Yes.Q. What did you tell them?
A. My wrist. I couldn’t move my hand.Q. This was your right wrist?
A. Yes.Q. Okay. You told them that you couldn’t. Did you tell them how it had occurred?
A. From roulette.Q. Thank you. And do you know whether that person made any note of your complaint?
A. No, I don’t.Q. And were you told something by that person about filling in a form?
A. Put in a report?Q. Mmm.
A. I don’t recall. Look, I’m sorry.”
Ms Hudson was cross examined by counsel for the Appellant Employer. In the course of that cross examination no questions were asked about the ‘notice’ issue concerning the right wrist and Ms Hudson’s evidence that she had given notice was not challenged. Questions were put about her neck symptoms. Ultimately, the claim for compensation as a result of any injury to Ms Hudson’s neck was withdrawn (transcript page 36 line 52).
In answer to questions from her counsel Ms Hudson stated that the reason she was doing roulette with her right hand was because of her left hand injury (transcript page 35 lines 8 to 14).
After hearing the Respondent Worker’s oral evidence the Arbitrator heard further submissions from counsel for the Appellant Employer and then gave his decision on this issue. As noted above, the Arbitrator incorrectly referred to section 61 of the 1998 Act which applies to injuries before 1 January 2002, but nothing turns on that error as sections 61 and 254 are in substantially the same terms. The Arbitrator held that, on the evidence before him, the ‘exceptions’ in section 61 had been made out and that the Appellant Employer “was on notice of a specific injury to the right wrist and has had that investigated by their own medical material” (transcript page 39 line three). He also found that the Respondent Worker had given oral notice of injury and that the Appellant Employer had not suffered any prejudice.
The Arbitrator’s findings were open to him on the evidence and the incorrect reference to section 61 does not invalidate the factual finding he made. In my opinion it is clear beyond doubt that the Appellant Employer was on notice of the right wrist injury as it included it in the Injury Management Plan, signed by Ms Hudson and by a representative of the Appellant Employer. It should be noted that though written notice of injury to the right wrist was given in the Injury Management Plan, the WorkCover Provisional Liability and Claims Guidelines (‘the Guidelines’) and section 255(2) of the 1998 Act expressly provide that notice of injury may be given orally (see the Guidelines Part 2, rule 3). In the present case Ms Hudson was already on a Return to Work Plan when she developed symptoms in her right wrist. In those circumstances it is not surprising that she did not complete a new claim form. There is no evidence that the Appellant Employer gave her a new claim form though there is evidence that someone from Star City did suggest to her that the right hand injury was a “separate claim” (transcript page 30 line 14).
The existence of the right hand injury was made know to Star City through its rehabilitation co-ordinator (David Leeson) and, most likely, through its worker compensation manager (Jason Spinks). Given the evidence I have set out above, the vigour with which the Appellant Employer has argued that it has been ‘ambushed’ (Appellant Employer’s submissions 16 February 2006, paragraph 17) is a little surprising. Not only did the Appellant Employer know about the right wrist injury but its doctors deal with that injury in detail (see report from Dr Bodel, 7 February 2005).
I reject the submission that there was insufficient evidence to support a finding of ‘special circumstances’ under section 254(3)(c). The relevant subsection provides that failure to give notice of injury is not a bar to the recovery of compensation if “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”. In the present case the Appellant Employer had knowledge of the right wrist injury through its rehabilitation co-ordinator.
A further reason for Ms Hudson not completing a formal claim form in respect of her right wrist condition is that her doctor told her that it was “not a separate claim because it stems from the same injury” (transcript page 30 line 53). The reference to “the same injury” is a reference to the left hand injury. The Respondent Worker’s evidence on this point is corroborated by Dr Cheiw’s certificate dated 30 October 2003 which I quoted earlier in this decision at paragraph [7] above. Therefore, it would have been open to the Arbitrator to find that the right hand injury had resulted from the left hand injury and the consequential change in duties that it brought about.
I confirm the Arbitrator’s finding that Ms Hudson did give notice of her right hand injury as required by the 1998 Act. In the alternative, if I am wrong in this conclusion, I find that notice of injury to the right hand was not required as the evidence supports a finding that the right hand injury resulted from the left hand injury.
Dispute
It is submitted that there was no ‘dispute’ before the Arbitrator that complied with the requirements of section 289 of the 1998 Act and, therefore, the Arbitrator had no jurisdiction to make a determination. It is argued that an Application is to resolve a ‘dispute’ and before a ‘dispute’ can exist there must be a clear indication of what is claimed. The question of whether there was a dispute before the Arbitrator in the present matter was not raised in the Reply, but was raised, without objection, in oral argument before the Arbitrator and has been raised on appeal. As the Commission is not a court it is not bound by formal pleadings. However, issues must be clearly identified either in the Reply or at the teleconference. The issue has been sufficiently identified in the present case to enable it to be argued on appeal.
Section 298 provides:
“289 Restrictions as to when a dispute can be referred to the Commission
(1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.
(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
(4) A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until:
(a) 28 days after the claim for compensation is made, or
(b) the person on whom the claim is made disputes liability for the claim (wholly or in part),
whichever happens first.” (emphasis added)
In the present case liability for the initial claim was accepted and an appropriate Return to Work Plan was put in place. Compensation was paid but there was no evidence as to exactly how much was paid or the sections of the Act under which it was paid. All of this information was known to the Appellant Employer.
The original claim for compensation (dated 24 June 2003) was accepted by Star City by letter dated 7 July 2003.
By letter dated 24 February 2005 from Star City to Ms Hudson liability in respect of the claim for weekly compensation for the left wrist injury was declined. The letter said:
“We wish to advise that Star City Ltd disputes its liability to continue to make weekly payments of compensation and to pay medical expenses in relation to this claim on the following grounds:
· medical evidence now indicates that your condition is not work related, and any injury caused by work has now resolved. Liability is disputed in accordance with Section 9(a).”
The letter relied on a report from Dr Bodel dated 7 July 2005 which was attached to it. The report from Dr Bodel examined and commented on the Respondent Worker’s left and right wrists as well as her shoulders and neck.
Given the contents of this letter there clearly was a ‘dispute’ as to liability for the claim for the left wrist and the Commission had jurisdiction. The Commission will have jurisdiction under section 289 of the claim is disputed “wholly or in part”. The letter of 24 February 2005 is sufficient evidence to confirm that a dispute existed and clearly gave the Commission jurisdiction.
Notice of Claim
There is no issue that a claim was made in respect of the Respondent Worker’s left wrist. The dispute centres on the claim for the left elbow and right arm. The Appellant Employer’s arguments with respect to the neck are not relevant as that part of the claim was withdrawn. Section 260 was not pleaded in the Appellant Employer’s Reply, but it is an issue that was raised without objection at the Arbitration and the Respondent Worker is clearly on notice that it is an issue on appeal.
After Ms Hudson submitted her claim form the Appellant Employer arranged for her to be examined by Dr Isbister, orthopaedic surgeon, on 18 August 2003 (report 19 August 2003). He took a history of her work related left wrist symptoms and that she experienced aching in her left arm and had “pain around the elbow area with disturbed sensation in the forearm and pain extending up to the shoulder and left side of the neck” (Dr Isbister, report 19 August 2003 page three).
Star City then referred Ms Hudson to Dr Stapleton, hand, plastic and reconstructive surgeon, who saw her on 27 January 2004 (report 28 January 2004). He also had a history of left wrist symptoms developing at work at Star City when dealing. He also noted her complaint of pain in the left elbow.
The notice of claim provisions are set out in section 260 of the 1998 Act and provide:
“260 How a claim is made
(1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
(2) The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form part of a claim,
(f) such other matters as may be prescribed by the regulations.
(3) Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.
(4) The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim:
(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,
(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
(7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.”
The “WorkCover Guildelines” referred to in section 260 are the Guidelines published in December 2001. They set out the procedures for the making and handling of claims under Part 3 of the 1998 Act. The making and handling of claims is set out in Part 2 of the Guidelines. A worker must make a claim if he or she requires benefits that exceed their ‘entitlements under provisional liability’. In the present case Ms Hudson’s claim was never paid under the ‘provisional liability’ provisions and it is therefore doubtful that it was necessary for her to make a further claim after her claim made on 24 June 2003.
A claim must be made “in writing on a form designed for making a claim for workers compensation benefits pursuant to the Workers Compensation Act 1987 and the WorkplaceInjury Management and Workers Compensation Act 1998” (Guidelines, Part 2 rule 4).
The information to be set out in the claim is listed in Part 2 Rule 6 of the Guidelines which provide:
“What information from the worker is needed to make a claim?
6.1 Information about the worker:· Given and family names
· Residential address
· Date of birth
· Occupation
· Interpreter required, if yes language.
· Country of birth
6.2 Information about the employer
· Name
· Current business address
· ABN if known
· Policy number if known
6.3 Information about the treating doctor
· Name
6.4 Information about the worker’s employment
· Full time or part time
· Permanent or casual
· Gross pay per week
· Total hours worked per week
· Normal working hours
· Details of enterprise or workplace agreement or an award
if known
· Date the worker started employment with the employer
· 2nd employers name and contact details if applicable
· gross pay per week from 2nd employer
· hours worked per week for 2nd employer
6.5 Information about the workplace injury
· Date and time of the workplace injury
· How the injury happened
· What part of the body is injured?
· Was this part of the body normal before the workplace
injury?
· The address where the workplace injury happened
· Name of any witness to the workplace injury
WorkCover NSW Guidelines effective 1/1/2002
Part 2-Making and handling claims Page 27 of 33
· Name of person at workplace the injury was reported to
· Date the workplace injury was reported to the employer
6.6 Additional information
· Details of any previous similar injuries or conditions
· That may assist when determining the claim
· Worker’s declaration, see Part 2, rule 6.7.
What must the “worker’s declaration” include?
6.7 A declaration must be signed by the worker and must say words
that mean the same as:
I certify that the information I have provided is correct. I consent to
my insurer and its appointed service providers collecting personal
information about me and using it for the purpose of assessing and
managing my worker’s compensation claim, including determining
liability and whether my claim is true. I consent to my insurer
disclosing my personal information to medical practitioners,
rehabilitation providers, investigators, legal practitioners and other
experts or consultants for the purposes of assessing and managing
my claim. I also consent to my insurer disclosing my personal details
to the WorkCover Authority which is authorized to use this information
to fulfil it’s functions under the NSW workers compensation
legislation. I understand that if any information I have given is untrue,
that my claim may be denied and that I may be prosecuted”
The majority of the above information was provided by the Respondent Worker in her claim form on 24 June 2003. In this regard Part 2 rule 6 of the Guidelines is relevant. It states:
“If a worker has provided information in relation to one claim for an
injury, that information is relevant for any other claim the worker makes
for the same injury.”
If a claim is made for weekly benefits the worker must provide the “minimum information listed in Part 2 rule 6.1 to 6.7” and “provide a WorkCover medical certificate” (Guidelines Part 2 rule 6.9).
The Respondent Worker submits that the Guidelines do not require a separate claim be submitted on every occasion that further symptoms are experienced (Respondent Worker’s submissions 4 October 2006, paragraph five). I agree with that submission if the further symptoms have resulted from the initial injury. In the present case the evidence suggests that the right arm symptoms have resulted from the left arm injury. That evidence is from Dr Chiew in his certificate dated 30 October 2003 which I quoted at paragraph [7] above.
In addition, Dr Patrick states in his report of 25 August 2004 that Ms Hudson developed increased symptoms in her right hand which he believed were “related to the nature and conditions of her work at Star City , as well as a result of favouring (sparing) significantly symptomatic left upper limb” (Dr Patrick, 25 August 2004 page four).
On the basis of this evidence I am satisfied that the right wrist symptoms have resulted from the left wrist injury. In these circumstances I do not accept the Appellant Employer’s submission that the Respondent Worker’s current claim is “an entirely different claim to a claim for ‘injury to the left wrist’” (Appellant Employer’s submissions 25 September 2006, paragraph 10). It is correct that the medical certificate from Dr Chiew of 30 October 2003 does not, on its own, constitute a ‘claim’ pursuant to the Guidelines. However, the medical certificate taken with the original claim form does constitute such a claim.
The purpose of the ‘claim’ provisions in the Guidelines is to require that an employer be given fair notice of a claim so that it can meet it in terms of any necessary investigations and medical examinations it may wish to arrange. In the present case the Appellant Employer arranged for a number of medical examinations of Ms Hudson relating to her injury. In his report of 28 January 2004 Dr Stapleton noted at page two that Ms Hudson had a problem in her right hand “three to six months ago”. Further, in his report of 7 February 2005 Dr Bodel recorded a history that “when she went back on those modified duties she began to develop problems on the right hand side as well”. He examined both of Ms Hudson’s upper limbs and concluded that her condition was unrelated to her work at Star City. It was on the basis of Dr Bodel’s report of 7 February 2005 that the claim was denied.
In these circumstances I do not believe there has been a failure by the Respondent Worker to comply with section 260 or the Guidelines in respect of making her claim.
If I am wrong on this point and it is felt that a separate claim was required in respect of the right wrist symptoms then I believe that the provisions of section 260(5) are relevant and applicable. That subsection provides that the failure to make a claim is not a bar to the recovery of compensation if the failure “was occasioned by ignorance, mistake or other reasonable cause”.
In the present case Ms Hudson did not submit a separate claim for her right wrist because she had been given conflicting advice. After giving evidence that she reported her right arm at work, Ms Hudson gave the following evidence at page 30 line 34 of the transcript:
“Q. And were you told something by that person about filling in a form?
A. Put in a report?Q. Mmm.
A. I don’t recall. Look, I’m sorry.
Q. Were you told anything about seeing a doctor as a result of this?
A. I went to see a doctor because I couldn’t bend my fingers back.Q. Was that as a result of anything you’d been told by someone from Star City or was that of your own volition?
A. That was because of my condition.Q. Thank you.
A. But I was informed before I saw me doctor or before I - that this is a separate claim and my doctor is the one who said this is not a separate claim because it stems from the same injury.” (emphasis added)
No evidence was called from the Appellant Employer that Ms Hudson was given a new claim form to complete in respect of her right wrist. Ms Hudson was not cross examined about this part of her evidence. The right wrist symptoms were handled by Star City as part of the left wrist claim and the same claim number was used. In this situation it is my view that, if there was a failure to comply with section 260, that failure resulted from Ms Hudson’s “ignorance, mistake or other reasonable cause” within the meaning of section 260(5), namely, her belief that her right wrist symptoms had resulted from her left wrist injury and were therefore not a separate claim. As a result, Ms Hudson’s failure (if it be a failure) is not a bar to the recovery of compensation as awarded by the Arbitrator.
I am fortified in this conclusion by the terms of the 1998 Act which provide in section 354 that:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) ….”
In addition, in Barbour v BHP Steel Pty Limited [2004] NSWWCCPD 42 it was held that:
“It is not appropriate for parties in the Commission to seek to have disputes cosseted in technical rules that result in a failure to determine the real issues (section 354 of the 1998 Act). Parties are not restricted to issues strictly ‘pleaded’. Nor, as the Workers Compensation Acts (the 1987 Act and the 1998 Act) currently stand, is a Respondent in the Commission restricted to relying only on the reasons for which liability for a claim was initially refused.”
The Commission is bound by the rules of procedural fairness. In the context of the ‘notice’ provisions that means no more than that the employer must be on notice of the claim made against it and the nature of the dispute it has to meet (Tan v National Australia Bank Limited [2006] NSWWCCPD 115 at [81]). An employer is also entitled to have a fair and reasonable opportunity to prepare for and meet the claim against it. In this case Star City has had every opportunity to prepare for and meet the Respondent Worker’s claim and it has availed itself of that opportunity by arranging for appropriate medical examinations and for private investigators to carry out surveillance of Ms Hudson.
The Appellant Employer argues that there is no evidence that Ms Hudson made a claim for weekly compensation after voluntary payments ceased on 6 April 2005 pursuant to notice served under section 54 of the 1987 Act by letter dated 24 February 2005. That is correct, but there is no requirement that a further claim be made after a section 54 notice is served. By that stage the parties were well aware of the nature of the claim and the issues in dispute. Star City made no request that a further claim be made. It was well aware of the nature of the claim.
The Appellant Employer’s argument that there has been no notice of claim in respect of the left elbow or right arm is not sustainable because the Respondent Worker’s upper limb symptoms were all part of the one repetitive strain injury. I do not accept that the left elbow symptoms constituted a separate injury which required the giving of separate notice. I accept the Respondent Worker’s submissions that the ‘injury’ claimed was a repetitive strain injury which initially affected the left wrist and later resulted in symptoms in other body parts (Respondent Worker’s submissions 4 October 2004, paragraph 10). At least so far as the notice provisions are concerned, it is totally unrealistic and artificial to suggest that the later symptoms Ms Hudson developed were in fact new and separate injuries which required fresh notices of claim. I reject any such submission.
Whilst I agree with the Arbitrator that Star City has suffered no prejudice in respect of the notice of claim issue, ‘prejudice’ is not a consideration under section 260.
No Evidence
The Appellant Employer’s submission is that the Arbitrator has purported to make a decision based on facts for which there was no evidence or, in the alternative, insufficient evidence (Appellant Employer’s submissions 16 February 2006, paragraph 21(f)). No further submissions are made in support of this ground of appeal. I have referred to the evidence in detail above and, for the reasons previously set out, I reject this ground of appeal.
Costs
The success of this submission depends on the success of the other grounds of appeal. As those grounds have failed, it follows that the Respondent Worker is entitled to her costs of the Arbitration.
It is correct that Applicants should normally present all claims arising from the same injury for determination at the one hearing. The Respondent Worker in the present matter withdrew her claim for lump sum compensation. I see no error of fact, law or discretion by the Arbitrator in allowing her to do so. However, having succeeded with the balance of her claim, she was entitled to the costs order the Arbitrator made.
Paragraph 22 of the Appellant Employer’s submissions dated 16 February 2006 suggest that a costs order should have been made in its favour pursuant to Rule 74 of the Workers Compensation Commission Rules 2003 (‘the Rules’). Counsel for Star City sought a costs order in favour of his client at the Arbitration hearing (transcript page 79 line 36) but made no submissions as to why such an order should be made.
The Commission may not order the payment of costs by a claimant unless it is satisfied that the claim was frivolous, fraudulent or made without proper justification (section 341 of the 1998 Act). I am not satisfied that any of the conditions set out in section 341 have been satisfied. The Arbitrator’s decision in respect of costs discloses no error of fact, law or discretion.
DECISION
The Arbitrator’s decision dated 23 December 2005 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
27 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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