The Presbyterian Church (New South Wales) Property Trust v Pingol
[2014] NSWWCCPD 80
•10 December 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | The Presbyterian Church (New South Wales) Property Trust v Pingol [2014] NSWWCCPD 80 | ||
| APPELLANT: | The Presbyterian Church (New South Wales) Property Trust (wrongly sued as Presbyterian Aged Care) | ||
| RESPONDENT: | Rosanna Pingol | ||
| INSURER: | Employers Mutual Ltd | ||
| FILE NUMBER: | A1-7299/13 | ||
| ARBITRATOR: | Mr G Edwards | ||
| DATE OF ARBITRATOR’S DECISION: | 19 August 2014 | ||
| DATE OF APPEAL DECISION: | 10 December 2014 | ||
| SUBJECT MATTER OF DECISION: | Weight to be attached to evidence of injury in the absence of corroboration; notice of injury; time within which a claim for compensation must be made; ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Hicksons Lawyers | |
| Respondent: | Bowrey Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The appellant employer’s name is amended to The Presbyterian Church (New South Wales) Property Trust. 2. The findings made by the Arbitrator and the orders made in the Certificate of Determination dated 19 August 2014 are confirmed. 3. No order as to costs. | ||
INTRODUCTION
The worker in this matter suffered from an advanced degenerative condition in her cervical spine that resulted in ossification (calcification of soft tissue) in her spine. She alleges that in addition to injuring her shoulder her cervical condition was permanently aggravated, during the course of her employment, by the action of throwing garbage bags into a skip bin with one hand whilst holding the lid of the skip with the other.
The incident was not reported for several months. It was only reported after the worker sought expert medical and legal advice concerning the extent of her injuries and her entitlement to compensation. The issues concern the application of the notice of injury and notice of claim provisions in ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and the Arbitrator’s determination that in the circumstances the worker was not barred from receiving compensation.
BACKGROUND
In 2007, the respondent worker, Ms Rosanna Pingol, commenced work with the appellant employer, The Presbyterian Church (New South Wales) Property Trust.
Ms Pingol worked at an aged care nursing home/residence facility conducted by the appellant at Haberfield. She was a care service employee, which required her to, among other things, attend to the needs of the residents, which included general cleaning of the residents’ rooms and disposing of rubbish into a garbage skip located in the dock area of the appellant’s premises.
On 25 February 2012, Ms Pingol allegedly suffered an injury to her neck and left shoulder girdle when she was at work lifting rubbish bags into a skip bin. There were three bags of rubbish each weighing approximately 6–7 kilograms. Ms Pingol was required to lift the heavy lid of the garbage skip with her right hand while she bent to lift each bag of rubbish to throw into the skip with her left hand.
On 28 February 2012, Ms Pingol attended on Dr Ofelia Ludovice-Santos, general practitioner. In the progress notes the following history is recorded: “came in for review of her back [sic] pain, claimed it had been painful since Sunday”. She referred Ms Pingol for a CT scan of her chest.
On 10 March 2012, Ms Pingol attended on Dr Ludovice-Santos. In the progress notes she recorded the following history: “came in for review of her neck pain and pain over the shoulders”. In Ms Pingol’s subsequent visits to Dr Ludovice-Santos the doctor recorded ongoing complaints and treatment with respect to Ms Pingol’s neck.
On 12 March 2012, Ms Pingol underwent a CT scan of her cervico-thoracic spine at the request of Dr Ludovice-Santos. The scan confirmed that the posterior longitudinal ligament at cervical levels C2 to C4 inclusive had ossified. The scan also confirmed the presence of extensive calcification of the posterior longitudinal ligament at the upper regions of the cervical spine.
On 13 March 2012, Ms Pingol was conveyed to St George Public Hospital by ambulance. On 21 March 2012, Ms Pingol underwent a multilevel cervical laminectomy and cervical fusion (from C2 to C6 inclusive) at the hand of Dr Ali Ghahreman at St George Public Hospital. She was discharged on 27 March 2012 and continues to be certified unfit for work as a result of her cervical and left shoulder conditions.
On 25 May 2012, Ms Pingol consulted her current solicitors, Bowrey Lawyers, about her injury.
On 7 June 2012, Bowrey Lawyers sent a letter to the appellant. In that letter the following is recorded:
“I am acting for Ms Pingol in relation to her injury on or about 25 February 2012.
I understand that no notification of injury has been made on you as yet. I am awaiting some medical records but as you are no doubt aware Ms Pingol had emergency neck surgery at St George Hospital on 21 March 2012 and has not been able to return to work.
Based on information provided to me by Ms Pingol it appears that she did some work on or about 25 February 2012 throwing bags of rubbish into a garbage skip while holding up the lid with her other hand, went home, woke up the next morning with an acute neck pain, ‘soldiered on’ for a time but ultimately had some scans and came to surgery on 21 March 2012.
Could you please notify your insurer that it is likely that a formal claim for weekly compensation and medical expenses will be made once further medical material is to hand?
...”
On 11 December 2012, Bowrey Lawyers sent a further letter to the appellant referring to its letter of 7 June 2012 to which they noted there had been no response. The letter enclosed the report of Dr Robin Higgs, orthopaedic consultant, in support of a claim for weekly payments of compensation, medical expenses, domestic assistance and lump sum compensation. The letter records:
“I am instructed to claim compensation for injury on 25 February 2012 in accordance with Professor Higgs’ report and the Workers Compensation Act 1987 as in force at date of injury…”
On 17 December 2012, Ms Pingol attended on Dr Ludovice-Santos. The progress notes for that consultation on that day record, for the first time, details of the circumstances in which the injury was sustained. Dr Ludovice-Santos records: “came in for review of her neck pain, claimed that she was seen by an orthopaedic surgeon and claimed it was related to work that the work had aggravated a pre-existing condition”.
On 28 February 2013, the employer’s insurer, Employers Mutual Ltd, issued a notice pursuant to s 74 of the 1998 Act declining liability for weekly compensation, medical expenses and lump sum compensation, among other reasons, for alleged failure to give notice of injury and failure to bring a claim within the relevant period of time (ss 254, 261 of the 1998 Act).
On 7 August 2013, an Application to Resolve a Dispute was filed in the Commission. Ms Pingol sought weekly compensation from 13 March 2013 and lump sum compensation in respect of the injury on 25 February 2012. She alleged:
“Injury to neck by way of aggravation, acceleration, exacerbation or deterioration of a disease
Injury to the left shoulder”Following a conciliation/arbitration hearing on 25 June 2014 the Arbitrator reserved his decision.
On 15 August 2014, the Arbitrator issued a Certificate of Determination finding in favour of Ms Pingol. On 19 August 2014, the Arbitrator issued an amended Certificate of Determination, which added an order remitting the matter to the Registrar for referral to an Approved Medical Specialist to assess whole person impairment in respect of the injury to Ms Pingol’s cervical spine and the left upper extremity as a result of injury on 25 February 2012. The amended certificate is in the following terms:
“The Commission determines:
1. Respondent to pay the applicant weekly payments of compensation at the rate of $440 from 13 March 2012 during the first 26 weeks of incapacity pursuant to section 36 of the unamended Workers Compensation Act 1987, and thereafter at the rate of $396 until 31 December 2012 pursuant to section 37(1)(a) of the unamended Workers Compensation Act 1987.
2. Respondent to pay the applicant weekly payments of compensation at the rate of $352 from 1 January 2013 pursuant to section 37(3)(a) of the amended Workers Compensation Act 1987 with such payments to continue in accordance with the provisions of the amended Workers Compensation Act 1987.
3. Respondent to pay the applicant’s reasonably necessary medical or related treatment expenses as a result of injury to the applicant’s left shoulder and cervical spine on 25 February 2012.
4. Matter remitted to the Registrar for referral to an Approved Medical Specialist (AMS) to assess whole person impairment of the applicant’s cervical spine and the left upper extremity as a result of injury on 25 February 2012. The following documents are to be sent to the AMS:
(a)Application to Resolve a Dispute and attached documents;
(b)Applicant’s further statement dated 28 March 2014;
(c)Reply and attached documents, and
(d)Application to Admit Late Documents filed by the respondent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The Arbitrator found that Ms Pingol suffered an injury to her left shoulder pursuant to s 4 and an aggravation, acceleration, exacerbation or deterioration of her cervical disease within the meaning of s 4(b)(ii) of the unamended Workers Compensation Act 1987 (the 1987 Act) as a result of the injury on 25 February 2012.
The Arbitrator found that the reason for Ms Pingol not giving notice of the injury as soon as possible after the injury happened was occasioned by ignorance or other reasonable cause pursuant to s 254(3)(b), namely that she thought it was a minor injury that would resolve.
The Arbitrator was satisfied that the respondent’s letter of 7 June 2012 to the appellant was notice of the claim for the purpose of making a claim for compensation as required by s 261(1). He was also satisfied that Ms Pingol first became aware for the purposes of s 261(6) that she had received a compensable injury when she obtained expert medical evidence and legal advice on the relevance of that evidence.
PRELIMINARY MATTERS
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act. There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
On 9 December 2014, after the appeal had been lodged, the appellant employer made an application to amend the pleadings to correctly describe the appellant as The Presbyterian Church (New South Wales) Property Trust. Pursuant to s 4 of The Presbyterian Church (New South Wales) Property Trust Act 1936, The Presbyterian Church (New South Wales) Property Trust is a corporate entity capable of suing and being sued. The appellant’s application has been made with the consent of the respondent. Accordingly, the appellant’s name is amended to The Presbyterian Church (New South Wales) Property Trust.
ON THE PAPERS
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 Nos 1 and 6; the documents that are 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.
LAY EVIDENCE
Ms Pingol provided a signed statement dated 30 July 2013. In that statement Ms Pingol said that she “experienced severe pain running from [her] neck along toward [her] left shoulder” when she lifted the rubbish into the skip. She continued to experience pain.
Ms Pingol states that:
“I did not report a work injury at work because I was unaware then of my rights to workers compensation, but more importantly I did not want to make trouble and thought that I might lose my job if I reported my injury. I was almost finished my Certificate III in Aged Care and I was very concerned that those plans would be interfered with.
I did say something to a girl from work who phoned me in hospital – that it happen at work – and she did say that some people at work were worried that I would make a worker’s compensation claim.
I did later speak to my GP, Dr Ludovice-Santos about making a worker’s compensation claim at one time. She said something about it may be aggravated by my work but I could not make a claim because I had not reported it at the time.”
Ms Pingol recalls “…telling two fellow workers, Katie (whose surname [she could not] recall) and Kylie Winners ([her] supervisor) that [she] had a sore neck” but did not recall that she told them about the circumstances in which she had hurt it.
Ms Pingol provided a supplementary signed statement dated 28 March 2014. In that statement Ms Pingol agrees that she “did not report the injury to anyone at work on [25 February 2012] as it happened just before [she] left work, sometime between 2.30pm and 3pm, and it was [her] last work task of the day”.
That night Ms Pingol felt pain and as a result “did not go shopping” and “did not cook dinner” as she usually did. When Ms Pingol woke up the following morning she “couldn’t get up from bed” and “felt stiff in [her] neck and head”.
Ms Pingol did not go to the doctors on Monday, when her doctor’s clinic was next open, as her husband was at work and she did not have anyone to drive her there. However she attended on her general practitioner the following day, when her husband had finished work and was able to drive her.
After she went back to work, but before 5 March, Ms Pingol said to Kylee Winner, her supervisor, “[m]y neck is very sore. I can’t get up from bed on Sunday” and in response Ms Winner said “maybe you got [sic] a stiff neck”. Ms Pingol states that:
“I felt pain in my neck and shoulder and my upper back. I thought it was from the bin but I didn’t report it straight away because I didn’t think it would cripple me at that time. I was also a bit scared to complain.
I do remember that after I returned to work in the week after the 25th February I was having pain when I put my head down while writing resident’s notes. I complained to staff about that…I couldn’t work out exactly what was wrong with me at that time.”
Ms Pingol recalls Ms Hurst phoning her once after her accident, in about June or July 2013. Ms Hurst said “[w]hy are you taking the photo of the rubbish bin?” and in response Ms Pingol said “sorry [Ms Hurst] I [sic] taking the photo because its [sic] hurting myself when I put the rubbish”. Ms Pingol said to Ms Hurst that she did not report the incident because she “thought it only muscle pain when it happen[ed]”.
While she did not initially report the incident, Ms Pingol states that she complained to various other colleagues about the pain she was experiencing in her shoulder, neck and upper back. She did not initially report her injury because her “natural thought is not to report things – some people report things all the time, and [she had] seen some people get in trouble for reporting injuries”.
Ms Pingol said that she gets “a bit scared of [her manager, Sharon Hurst]” and recalls that she “had a problem, about a year ago with a lady in the kitchen”. The lady had complained about Ms Pingol to Ms Hurst because Ms Pingol told her to do something at work and that was part of Ms Pingol’s job to tell her. Ms Pingol states that Ms Hurst embarrassed her by saying “don’t be bossy like that”. Since that incident, Ms Pingol always goes through Ms Winner because she is scared to talk to Ms Hurst. She claims that she did not say this before because she was scared.
Ms Pingol recalls two incidents her colleagues had with Ms Hurst, one of which involved a workers compensation matter in which the colleague was later “sacked”.
At first, Ms Pingol hoped that she would recover so that she would not have to report it. After that, being in hospital stopped her from doing much. Ms Pingol states:
“I did wait until my solicitor sent a letter about my injury then I did tell to [sic] Kylee everything about my injury when she was helping me with my assignments. I said ‘sorry Kylee I did not report it to you my injury [sic] I’m thinking this is not a [sic] serious [injury] but after the operation I am thinking it happened from the injury with the bin and after that I get a lawyer because nobody tell me about that [sic] things.”
In evidence is a statement from Ms Hurst and Ms Winner, neither of which are dated nor signed. Both Ms Hurst and Ms Winner state that they did not become aware of the incident of 25 February 2012 until June 2012, when Ms Pingol’s solicitors wrote to the appellant.
MEDICAL EVIDENCE
The St George Public Hospital records relating to Ms Pingol’s admission record a history of severe neck pain. In the progress/clinical notes dated 13 March 2012 the following history is recorded:
“2 week history of severe neck Pain
Radiating to L shoulder + L arm
Occasional numbness to upper arm”The hospital discharge referral note, dated 28 March 2012, states that Ms Pingol was “admited [sic] with cervical myelopathy secondary to ossified posterior longitudinal ligament in the cervical region”. Under the heading “INPATIENT MANAGEMENT:” it is recorded:
“On presentation:
2 weeks of severe neck pain
The pain radiated to his [sic, her] left shoulder and arm, associated numbness”On 24 October 2012, Ms Pingol attended on Dr Higgs. In a report dated 29 October 2012, Dr Higgs records a history that Ms Pingol “suffered from neck pain that was referred to the left shoulder girdle when she was putting rubbish into a bin”. He recorded that Ms Pingol “‘threw’ the rubbish bags into the skip using her left hand and that she held the lid of the skip open with her right hand” (emphasis included in the original).
After considering the CT scan of 12 March 2012, Dr Higgs recorded that:
“…the appearance of the ossification has caused me to form the conclusion that this pathology cannot be related, in a causal sense, to the injury incident that occurred on or about 25/02/12. The ossification must clearly have been present for some considerable time.” (emphasis included in original)
Dr Higgs formed the view that the injury incident that occurred at work on 25 February 2012 had “been cause for Mrs Pingol to suffer from permanent aggravation of the pre-existing, and co-existing, posterior longitudinal ligament ossification”. It said that the injury incident probably also caused there to be permanent aggravation of a condition of spinal canal stenosis.
Dr Higgs found that Ms Pingol has also “…suffered from a left post-traumatic subacromial bursitis condition. This condition has been cause for Mrs Pingol to continue to suffer from left shoulder girdle region pain and from a restricted range of left glenohumeral joint motion that is cause for an impairment of left upper extremity function”. He concluded that Ms Pingol has “suffered personal injury that can be said to have arisen out of or in the cause [sic] of employment” and that “work is a substantial contributing factor to the injuries that have been suffered”.
Dr Higgs said that there is a “direct relationship or causal nexus between the injury incident that occurred on or about 25/02/12 and Mrs Pingol’s present condition” and assessed Ms Pingol to suffer 18 per cent whole person impairment for the cervical spine and left upper extremity impairment.
On 6 February 2013, Ms Pingol attended on Dr Donald Faithfull, orthopaedic surgeon at the request of Employers Mutual. In a report dated 8 February 2013, Dr Faithfull recorded a history of the incident on 25 February 2012 that Ms Pingol “was holding up the lid of a rubbish bin with her right hand and threw three bags of rubbish in with her left arm”.
Dr Faithfull found that Ms Pingol suffered a “subacromial bursitis when she was putting the rubbish bags into the bin”. He further found that work with the appellant was not a substantial contributing factor to the cervical problem but that it was a substantial contributing factor to her left shoulder problem.
THE ARBITRATOR’S REASONS
After carefully setting out the relevant factual and medical evidence, the Arbitrator found (at [60]), that the mechanism of injury described by Ms Pingol in her statements and her instructions as set out in her solicitor’s letter of 11 December 2012 and the history taken by Dr Higgs are all consistent, namely that she was throwing bags of rubbish into a skip bin with her left hand whilst holding the lid of the bin open with her right hand.
Whilst Ms Pingol thought that there might be a relationship between her cervical and shoulder conditions with the skip bin incident, the Arbitrator accepted (at [66] of Reasons), that it was not until she received the report of Dr Higgs dated 29 October 2012, and advice from her solicitor Ms Bowrey, that she first became aware that she had suffered an injury in compensable circumstances (Unilever Australia Limited v Petrevska [2013] NSWCA 373 (Petrevska)). Ms Pingol made the claim for compensation after receiving the report from Dr Higgs and taking advice from Ms Bowrey.
Ms Bowrey’s letter of 7 June 2012 to the respondent, the details of which are referred to at [11] of this decision, was held (at [65] of Reasons) to be sufficient notice of the claim and therefore the provisions of s 261(1) of the 1998 Act were satisfied.
The Arbitrator acknowledged (at [67]–[68]) that there was no evidence of a complaint recorded in the treating doctor’s records about the circumstances of the alleged injury until December 2012. He also noted that there had been no contemporaneous record of injury recorded in the notes of the nominated treating doctor or the treating surgeon nor any admission notes from St George Hospital concerning the incident involving the rubbish skip bin.
However, the Arbitrator accepted Ms Pingol’s evidence (at [72]) that she believed she had not suffered a serious injury to her cervical spine at the time of the alleged incident and was hopeful that her condition would resolve in time. She only came to the realisation after submitting to surgery, that the skip bin incident could be the cause of her cervical condition but remained uncertain and for that reason consulted Ms Bowrey.
The Arbitrator concluded (at [71]) that little turned on the evidence of Ms Hurst and Ms Winner (as to the absence of contemporaneous complaints) because Ms Pingol acknowledged that she did not report the injury or tell the respondent about the incident involving the rubbish skip bin until her solicitor wrote to the respondent on 7 June 2012.
There was a consistency of complaint about the onset of neck pain at the time of the alleged incident as recorded in the admission notes at the hospital which recorded a “two week history of severe neck pain radiating to the left shoulder and left arm”.
Although there were some minor inconsistencies between the version of events recorded by Dr Faithfull and that recorded by Dr Higgs, the Arbitrator accepted, (at [77]) in the absence of cross-examination, Ms Pingol’s unchallenged evidence about the mechanism of throwing each bag of rubbish into the bin with her left hand whilst holding the lid of the bin with her right hand.
The Arbitrator’s finding that Ms Pingol suffered an injury to her left shoulder in the alleged incident was unchallenged both before the Arbitrator and on appeal.
The radiological evidence confirmed that the posterior longitudinal ligament at C2-C5 level of the cervical spine had been ossified and that pathology had been present for some considerable time prior to the alleged injury. The ossification of the posterior longitudinal ligament in the cervical spine had been the cause of canal stenosis associated with compression of the spinal canal. The Arbitrator found (at [100]) that the alleged injury aggravated the pre-existing posterior longitudinal ligament ossification and canal stenosis. The Arbitrator set out his reasons for reaching that conclusion at [81]–[100].
The Arbitrator expressed his ultimate conclusion (at [107]) in the following terms:
“…I find that the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration of the cervical disease within the meaning of s 4(b)(ii) of the unamended 1987 Act.”
In terms of Ms Pingol’s failure to give notice of the injury as required by s 254 of the 1998 Act, the Arbitrator made the following finding (at [64]):
“I am satisfied on balance that the reason for Ms Pingol not giving notice of the injury as soon as possible after the injury happened as required by s 254 of the 1998 Act was occasioned by ignorance or other reasonable cause namely that she thought she suffered a muscle condition which would settle not realising the seriousness of her cervical condition until admitted to St George Hospital; the causal relation between her cervical and shoulder conditions with the incident with the skip bin, and her ‘ignorance of rights derived from the Act and the obligations imposed by it’: s 254(3)(b) and Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR [Gregson] 520 approved in Westlake v Sydney Symphony Subscribers Committee [2009] NSWWCCPD 12 at [61]-[62].”
The Arbitrator accepted that Ms Pingol thought that there might be a relationship between her shoulder and cervical conditions with the skip bin incident, but it was not until she received the report of Dr Higgs of 29 October 2012 and sought legal advice from her solicitor that she first became aware that she had suffered an injury in compensable circumstances (s 261 of the 1998 Act).
The Arbitrator was satisfied that the provisions of s 9A had been satisfied and that finding is not challenged on appeal.
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator erred in:
“(a) Failing to properly apply section 254 of the Workplace Injury Management and Workers Compensation Act 1998;
(b) Failing to properly apply section 261 of the Workplace Injury Management and Workers Compensation Act 1998 and
(c) Finding uncorroborated facts in support of the Worker[’s] claim of injury.”
LEGISLATION
Section 254 of the 1998 Act 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 Work Health and Safety Act 2011 ,
(c)the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
Section 261 of the 1998 Act provides:
“261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
THE ARBITRATOR’S FINDINGS ON INJURY
It is convenient to deal with the appellant’s third ground of appeal first.
The appellant’s submissions
The appellant’s counsel, Mr Halligan, concedes that if Ms Pingol’s evidence as to the mechanism of injury is accepted, support was available from Dr Faithfull, the appellant’s expert, that Ms Pingol suffered a subacromial bursitis as a result of depositing the rubbish into the skip bin.
Mr Halligan’s submission is that the Arbitrator erred in finding in favour of Ms Pingol because there was no corroborating evidence to support Ms Pingol’s version of the circumstances in which she alleges she was injured.
The appellant further alleges that Ms Pingol failed to discharge the onus of establishing that her incapacity is causally related to the alleged injury because there is no reliable and convincing evidence of the events of 25 February 2012.
Statements of work colleagues to whom Ms Pingol made reference in her second statement were not called to give evidence in support of Ms Pingol’s claim. Further, no contemporaneous medical evidence exists and the acceptance of the expert’s opinions is dependent upon the Commission being satisfied of the primary facts.
The appellant’s second complaint concerns the Arbitrator’s criticism of the fact that the worker was not cross-examined. The appellant submits that cross-examination was unnecessary for two reasons. First, hearings in the Commission are conducted “with adequate informality” (s 354 of the 1998 Act). The rules of evidence do not apply and there is no prohibition on hearsay material and opinion evidence (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (per Allsop P)). Second, the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) was not infringed as the question of notice had been fully engaged by the exchange of statements on both sides.
Discussion
I reject the submission that Ms Pingol cannot succeed unless her version of events is corroborated by contemporaneous records or statements from work colleagues.
As Mr Stockley, counsel for Ms Pingol, submitted, the question of corroboration is one that goes to weight of the available evidence. In Chanaa v Zarour [2011] NSWCA 199 Campbell JA (Bathurst CJ and Tobias AJA agreeing) held (at [86]):
“…However, in the civil law corroboration is not a technical term, or a legal requirement…. Rather, the task of the judge is to decide, on the basis of the whole evidence (denials and all), what he or she accepts. In doing that, there is no requirement for the judge to accept the whole of the evidence of any one witness”
The Arbitrator was clearly conscious of the lack of a contemporaneous report of the circumstances surrounding the alleged injury to treating medical practitioners and St George Hospital. He said (at [72]):
“I accept Ms Pingol’s evidence that she thought she had not suffered a serious injury to her cervical spine at the time of the incident involving the skip bin, and was hoping her condition would resolve in time, but realised after the surgery that the skip bin incident could be the cause of her cervical condition, but remained uncertain and for that reason consulted Ms Bowrey.”
The Arbitrator correctly noted (at [73]) that Ms Pingol’s complaints about the onset of neck pain at the time of the incident with the rubbish skip bin are consistent with the St George Hospital admission notes which recorded a two week history of severe neck pain radiating to her left shoulder and left arm. The Arbitrator also found that her complaints were consistent with the history of injury set out in Ms Bowrey’s letter of 7 June 2012 and the history recorded by Dr Higgs. These were matters that the Arbitrator was entitled to take into account, and did take into account, in determining whether he accepted that Ms Pingol received an injury in the circumstances alleged.
With respect to the cross-examination issue, I accept Mr Halligan’s submission that it was not necessary to cross-examine Ms Pingol before submitting to the Arbitrator that her evidence should not be accepted. The Arbitrator held (at [70] of Reasons):
“Whilst Ms Hurst and Ms Winner have provided unsigned and undated statements which deny any complaint about neck pain made to them by Ms Pingol before June 2012, the respondent, in my view, should have put these matters to Ms Pingol before making submissions that I should not accept her evidence.”
The circumstances in which Browne v Dunn requires a matter to be put in cross-examination depends on the nature of the pre-trial preparation and whether the pre-trial preparation has been sufficient to give notice to a witness of the submissions ultimately intended to be put by a party (Campbell J in West v Mead [2003] NSWSC 161 at [95]–[96] – quoted and applied in New South Wales Police Force v Winter [2011] NSWCA 330 from [81]).
The statements in the present case made it clear that the failure to report the injury as soon as possible after it happened was an issue in the case. The statements of Ms Hurst and Ms Winner were served prior to the hearing and were admitted without objection. The issue of the delay in notifying the injury was addressed by Ms Pingol and it was not a matter on which Mr Halligan had to cross-examine before making submissions on it. To the extent that the Arbitrator concluded to the contrary he erred.
However, nothing turns on such an error because Ms Pingol acknowledged that she did not report the injury or tell her employer about the incident with the rubbish skip bin until her solicitor wrote to her employer on 7 June 2012. Therefore, the Arbitrator’s statement about the absence of cross-examination had not affected the outcome.
In the absence of any evidence that Ms Pingol was an unreliable or untruthful person, it was open to the Arbitrator, in the circumstances of this case, to accept her evidence. In reaching his conclusions the Arbitrator did that which he was required to do, that was, to weigh all the evidence both favourable and unfavourable to Ms Pingol.
For these reasons, no error has been demonstrated with respect to the Arbitrator’s conclusions as to injury.
DID THE ARBITRATOR FAIL TO PROPERLY APPLY S 254 OF THE 1987 ACT WITH RESPECT TO PROPER NOTICE OF THE INJURY?
The appellant’s submissions
Mr Halligan submits that the Arbitrator found that the worker did not report the injury to the appellant until 7 June 2012, when her solicitor wrote to the appellant informing it of Ms Pingol’s injury on or about 25 February 2012. Mr Halligan submits that the notice of injury was given approximately 3.5 months after the alleged injury was sustained.
It is submitted that Ms Pingol failed to report a work related injury when opportunities presented:
(a) when she first visited her general practitioner Dr Ludovice-Santos on 28 February 2012 and nine subsequent visits from 10 March 2012 to May 2012;
(b) to the St George hospital, when Ms Pingol had an opportunity to disclose details of any workers compensation claim;
(c) to the ambulance officers, whose report makes no mention of any work related incident causing neck pain, and
(d) to her treating doctor, Dr Ghabreman.
Mr Halligan further submits that even Ms Pingol’s solicitor remained unconvinced that a relationship existed between the alleged incident and Ms Pingol’s cervical condition until the intervention of a medico-legal examination by Dr Higgs.
Mr Halligan also submits:
“Each of the ‘special circumstances’ covered by s.254 (3) [of the 1998 Act] have been shown not to apply:
(a) The Appellant was clearly prejudiced if for no other reason, but not limited to observe that surgery had already been carried out before any notice was given.
(b) Ignorance or mistake cannot have been properly found in circumstances where the Worker says that before she reported to work on 25 February 2012, she was fully fit.
(c) No other source existed for the Appellant to know about the time when the injury happened.”
Ms Pingol’s submissions
Mr Stockley submits that it is clear that the appellant is dissatisfied with the determination of the Arbitrator. However, it does not identify in terms precisely what the Arbitrator found or in what respect his finding constitutes appellable error.
The Arbitrator concluded (at [64]) that the fact that the worker did not give notice as soon as possible after the injury was occasioned by ignorance or other reasonable cause, namely that she thought she had suffered a muscular injury and failed to appreciate the significance of her injuries.
The appellant’s submission does not directly attack the Arbitrator’s conclusion or identify in what respect/s the Arbitrator was wrong, other than to state that ignorance or mistake cannot have properly been found in the circumstances where the worker says that before she reported to work on 25 February she was fully fit. Mr Stockley submits that this ground of appeal is not advanced by Mr Halligan’s submission nor is any error on the part of the Arbitrator identified.
Discussion
Ms Pingol concedes that she did not give notice of the injury until her solicitor notified the appellant of it on 7 June 2012. The issue raised on appeal was whether the Arbitrator was correct to find (at [64] of Reasons) that Ms Pingol’s failure to report the injury as soon as possible after the injury happened was occasioned by ignorance or other reasonable cause. Namely, that she believed she suffered from a muscular condition which would settle and that she did not appreciate the seriousness of her cervical condition until she was admitted to St George Hospital.
There was ample evidence to support that finding, namely Ms Pingol’s evidence:
(a)that she told Ms Hurst in a conversation in June or July 2012, that she did not report the injury as soon as it happened because she thought it was only muscle pain when the incident happened (see [32] above);
(b)that she told Ms Winner after she returned to work, but before 5 March, that although she was suffering from neck, shoulder and upper back pain she did not report it straight away because she did not believe at that time that it would “cripple” her (see [31] above), and
(c)that she also told Ms Winner that it was not until after her operation and she obtained legal advice that she realised the seriousness of the injury (see [36] above).
It was open to the Arbitrator in the circumstances to conclude that the failure to report the injury immediately was excusable under s 254(3)(b) because of Ms Pingol’s mistaken view that she had sustained only a minor injury which she believed would resolve.
In any event, there is ample additional evidence to support a finding that the failure to report the injury as soon as possible was because of Ms Pingol’s ignorance or other reasonable cause, namely:
(a)she was unaware of her rights (see [26] above);
(b)she did not want to “make trouble” (see [26] above);
(c)she thought she might lose her job (see [26] above);
(d)she did not want to prejudice her prospects of completing her Certificate III in Aged Care which she had almost finished (see [26] above);
(e)she was “scared to complain” (see [31] above);
(f)her natural inclination was not to report her injury because she had seen people get into trouble for reporting injuries (see [33] above), and
(g)she was unaware of her rights until after she sought legal advice (see [36] above).
Ms Pingol had cause to be concerned about reporting her injury to Ms Hurst because she had been embarrassed on a prior occasion by Ms Hurst in front of other staff (see [34] above) and she believed that the making of a claim for compensation by a colleague had resulted in his dismissal (see [35] above).
The failure to give notice as required by s 254 is not a bar to recovery of compensation if any of the special circumstances in s 254(3) are satisfied. Once the Arbitrator correctly concluded that s 254(3)(b) applied in the circumstances of this case it did not matter that ss 254(3)(a) and (c), which provide alternative special circumstances excusing failure to give notice as required by s 254, were not also independently satisfied.
It follows that this ground of appeal fails.
DID THE ARBITRATOR FAIL TO PROPERLY APPLY S 261 OF THE 1998 ACT?
The appellant’s submissions
Mr Halligan submits that the Arbitrator erred by misconstruing the authority of Petrevska. Noting that Petrevska was a case that involved a claim for industrial deafness, he submitted:
“the worker’s claim was made in respect of a frank injury. Unilever [Petrevska] can therefore have no application.”
He relied on the remarks of Tobias AJA (at [42]) where His Honour said:
“Frank injuries do not cause a problem. The ones that do are those of gradual onset such as gradual loss of hearing (as distinct from instantaneous loss due for instance to an explosion next to one’s ear) and injuries such as mesothelioma or, possibly, psychiatric injury depending upon its symptoms.”
Mr Halligan also relied on the remarks of MacFarlane JA (Meagher JA agreeing) (at [33] and [41]) where his Honour approved the comments of Deputy President Roche in Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 concerning the extent of knowledge required to satisfy awareness of an injury for the purposes of s 261(6).
Mr Halligan submitted that the facts from the worker’s own statement demonstrated that she was fully aware of her neck and shoulder pain as a result of depositing the rubbish into the skip on 25 February 2012.
Ms Pingol’s submissions
The Arbitrator found on balance that the respondent was on notice of Ms Pingol’s claim within the meaning of s 261(1) upon the delivery of Ms Bowrey’s letter of 7 June 2012. Accordingly, notice of claim was made within six months after the injury happening and in compliance with s 261(1) of the 1998 Act.
Even if the Arbitrator was in error in his consideration of Petrevska such error would not result in a different outcome. As the Arbitrator found that the claim was made within time it was only necessary for him to consider s 261(6) in the alternative.
Mr Stockley submitted that what Tobias AJA stated (at [42]) in Petrevska does not as a matter of law exclude the circumstances of the present case from the purview of s 261(1). So much can be seen from His Honour’s development of the point (at [43]) and a commentary of MacFarlane JA (at [22]–[23]), a judgment with which both Maher JA and Tobias AJA agreed.
Discussion
The Arbitrator found (at [65] of Reasons) that Ms Bowrey’s letter of 7 June 2012 to the respondent constituted proper notice of a claim as required by s 261(1) of the 1998 Act.
Although there may be some doubt as to whether the letter of 7 June 2012 was a valid notice of claim, this finding has not been challenged on appeal. It must follow therefore that, as the injury was sustained on 25 February 2012 and the unchallenged finding is that a claim was made on 7 June 2012, the claim was made within the time provided by s 261(1) (six months). On that basis this ground of appeal must fail.
That said, I consider there is some merit in Mr Halligan’s submission concerning the alleged misapplication of Petrevska and although it is not strictly necessary to deal with it, I would make the following observations although they do not form the basis of my decision. The submission in substance is that the principles discussed in Petrevska only apply in cases of diseases of gradual onset and not to injuries caused by a specific incident.
The Arbitrator’s conclusions with respect to the alleged aggravation of Ms Pingol’s disease condition are dealt with at [105]–[107] of the reasons. It is apparent that in addition to finding that there was a frank injury to the shoulder under s 4(a) (at [85] of Reasons) the Arbitrator also found that Ms Pingol suffered a separate injury that consisted in the aggravation of the diseased cervical spine under s 4(b)(ii) of the 1987 Act, to which her employment was a substantial contributing factor.
The Arbitrator’s findings are perhaps unsurprising given the way in which the case was pleaded and run in respect of the cervical injury, namely as an aggravation of disease. It seems that it was the Arbitrator’s finding of disease that led him to consider that application of s 261(6) and the principles in Petrevska.
Arguably, the Arbitrator’s conclusion that the injury consisted in an aggravation of a disease condition was wrong, in circumstances where there was a finding that there was a frank injury, that is, a personal injury under s 4(a). In Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski), the Court of Appeal expressly approved the approach in Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422. In Dimovski, Hodgson JA held (at 68]) that:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some time other than when it in fact happened.”
This approach was confirmed and adopted in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (Meagher JA at [25] and Emmett JA at [103]).
Whether the Arbitrator was correct to find that the injury was an aggravation of a disease injury under s 4(b)(ii) was not argued on appeal. However, as the Arbitrator made a finding of a frank injury, albeit to the shoulder, that satisfies the definition of injury in s 4(a). Even if the incident on 25 February 2012 also aggravated the cervical disease condition and would therefore have supported a finding of injury under s 4(b)(ii) the injury did not consist in the aggravation of a disease (Dimovski) and it is therefore difficult to see any scope for the operation of Petrevska.
Moreover, the Arbitrator’s finding that Ms Pingol was not aware that she had received an injury until after she had received Dr Higgs’s report and advice from Ms Bowrey was inconsistent with his earlier finding that she had given notice of injury on 7 June 2012. Clearly, she could not have given notice of injury if she was not aware that she had received an injury.
I accept that, generally, Petrevska deals with circumstances that arise in diseases of gradual onset and that it will rarely apply to a personal injury received from a specific incident. However, as previously explained, having found that the letter of 7 June 2012 was the notice of injury and the notice of claim, and as that claim was made within six months of the date of injury, the Arbitrator’s incorrect reliance on Petrevska makes no difference to the outcome.
For completeness, I add one final matter. Even if, contrary to the Arbitrator’s unchallenged finding, the letter of 7 June 2012 did not constitute a valid notice of claim under s 261, Ms Pingol would in all probability still be entitled to succeed. That is because the evidence which has been held sufficient to support the Arbitrator’s finding in her favour under s 254(3)(b) may equally support a finding that any failure to claim compensation within time was excusable under s 261(4). However, as that matter was not argued on appeal I make no finding in relation to it and it does not form a basis for my decision.
DECISION
The findings made by the Arbitrator and the orders made in the Certificate of Determination dated 19 August 2014 are confirmed.
COSTS
No order as to costs.
Judge Keating
President
10 December 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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