Visy Board Pty Ltd v Ali
[2007] NSWWCCPD 22
•24 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Visy Board Pty Ltd v Ali [2007] NSWWCCPD 22
APPELLANT: Visy Board Pty Ltd
RESPONDENT: Zihni Ali
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC19065-05
DATE OF ARBITRATOR’S DECISION: 21 March 2006
DATE OF APPEAL DECISION: 24 January 2007
SUBJECT MATTER OF DECISION: Disease; whether it is open to find two deemed dates of injury under section 16 of the Workers Compensation Act 1987; application of Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Blake Dawson Waldron
Respondent: Stacks Goudkamp
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 21 March 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 7 April 2006 Visy Board Pty Ltd (‘the Appellant Employer/Visy Board’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 March 2006.
The Respondent to the Appeal is Zihni Ali (‘the Respondent Worker/Mr Ali’).
Mr Ali was born in Cyprus on 21 April 1944 and came to Australia in 1970. He initially lived in Melbourne where he worked as a labourer until 1994 when he moved to Sydney and started work with Visy Board at its Chullora premises. His duties involved bending, lifting and general labouring duties. He alleged that as a result of his duties he developed pain in his neck, shoulders and back in about 2000. His symptoms increased over time and he ceased work 13 October 2002 when he was admitted to Liverpool Hospital because of a heart attack. He was discharged from hospital on 19 October 2002 but never resumed work for Visy Board. His employment was terminated on 3 February 2005.
Mr Ali made a claim for compensation on 5 February 2004 in respect of injury to his back, neck, both shoulders, both arms and legs. He was initially paid weekly benefits under a Salary Continuance Scheme supported by Visy Board. By letter dated 8 June 2004 CGU Workers Compensation (NSW) Limited denied liability for the claim on the grounds that the injury was not work related.
A claim for lump sum compensation was made on 3 March 2005.
On 9 November 2005 an Application to Resolve a Dispute (‘the Application’) was registered in the Commission. The Application, as amended, alleges that Mr Ali sustained injury to his neck, back, shoulders, arms and legs as a result of the nature and conditions of his employment with Visy Board from 30 September 1994 to 13 October 2002. It claims weekly compensation from 5 July 2004 to date and continuing and lump sum compensation in respect of 18% whole person impairment.
In its Reply filed on 30 November 2005 Visy Board raised issues as to injury, notice of injury, notice of claim, incapacity, nexus, whether employment was a substantial contributing factor to the alleged injury and whether Mr Ali has a need for medical or related treatment.
The matter was listed for conciliation and arbitration on 3 March 2006 when it proceeded directly to Arbitration. Mr Ali gave oral evidence and the parties made lengthy submissions.
In a reserved decision the Arbitrator found in favour of Mr Ali on the issue of injury but in favour of Visy Board on the issue of notice of injury and notice of claim relating to the claim for weekly compensation and medical expenses. In respect of the claim for lump sum compensation the Arbitrator found in favour of Mr Ali and referred that part of the claim to an Approved Medical Specialist (‘AMS’) for assessment.
Visy Board seeks leave to appeal the Arbitrator’s decision relating to the finding that Mr Ali is entitled to lump sum compensation.
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 Workplace Injury Management and Workers Compensation Act 1998 (‘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. The whole of the lump sum compensation claimed is “at issue” on appeal and, therefore, the threshold in section 352(2)(b) is also 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
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 before me, and the submission 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 21 March 2006, records the Arbitrator’s orders as follows:
“1.The date of injury in respect of the Applicant’s claim for weekly benefits compensation is 13 October 2002. The Applicant has failed to make a claim within the period required by section 261 of the 1998 Act and the exceptions set out in that section do not apply. The Applicant is therefore barred from the recovery of weekly benefits compensation or section 60 expenses.
2.The date of injury in respect of the Applicant’s claim for lump sum compensation for permanent impairment is 3 March 2005. The Applicant gave notice of injury as required by section 254 of the 1998 Act and his claim for compensation is within the period required by section 261 of the 1998 Act. The Applicant is therefore entitled to recover lump sum compensation for permanent impairment.
3.I refer the issue of the Applicant’s permanent impairment for assessment by an Approved Medical Specialist in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed. I certify that this matter comes within clause 4.10, Part 4, Schedule 6 of the Workers Compensation Regulations 2003 in that is involved complex issues which requires the matter to go straight to Arbitration.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)her application of section 16(1)(a) of Workers Compensation Act 1987 (‘the 1987 Act’) in finding that the deemed date of injury for the purpose of Mr Ali’s claim for lump sum compensation was different to the deemed date of injury for the purpose of his claim for weekly compensation and medical expenses;
(b)her reliance upon and application of the principles set out in Alto Ford Pty Limited v Antaw (1999) 18 NSWCCR 246 (‘Antaw’), and
(c)failing to distinguish Antaw from the facts in the present case.
ARBITRATOR’S DECISION
In a detailed, carefully prepared and thorough decision the Arbitrator found:
·that Mr Ali suffers from cervical and lumbar spondylosis which is a disease for the purposes of section 4(b)(ii) of the 1987 Act and that his employment with Visy Board from September 1994 to 13 October 2004 caused an aggravation of that disease (Statement of Reasons for Decision (‘Reasons’) paragraph 25);
·that Mr Ali’s employment was a substantial contributing factor to the injury (Reasons paragraph 28);
·the facts found properly come within the provisions of section 16 of the 1987 Act and that section must be applied to determine the correct date of injury (Reasons paragraph 29);
·that the deemed date of injury for the claim for weekly compensation was 13 October 2002, the date when Mr Ali ceased his normal duties and the incapacity in regard to the aggravation of the disease can be said to have arisen (Reasons paragraph 30);
·applying Antaw, the claim for permanent impairment benefits was made on 3 March 2005 and it follows that the deemed date of injury for the purposes of the permanent impairment claim was 3 March 2005;
·Mr Ali failed to give notice of injury as soon as possible after the injury on 13 October 2002 (Reasons paragraph 39);
·Mr Ali was not barred from recovering compensation because of the effects of section 254 of the 1998 Act (Reasons paragraph 42);
·applying the reasoning in Gow v Patrick Stevedores (2002) NSWCCR 626 (‘Gow’) it followed that notice was given ‘as soon as possible’ after the deemed dated of injury of 3 March 2005 in respect of the claim for lump sum compensation (Reasons paragraph 40);
·Mr Ali did not make a formal claim for compensation until 5 February 2004 (Reasons paragraph 44);
·there was insufficient evidence to conclude that Mr Ali’s failure to claim weekly compensation could be excused under sections 261(4) or 261(5) of the 1998 Act (Reasons paragraph 47), therefore, that failure operated as a bar to his recovery of such compensation (Reasons paragraph 48), and
·in respect of the claim for lump sum compensation the date of injury (3 March 2005) was also the date of claim, and it “follows that the claim for lump sum compensation was made within time as prescribed by section 261 of the 1998 Act” (Reasons paragraph 49) and Mr Ali was therefore entitled to recover that compensation if he was otherwise entitled to it.
SUBMISSIONS AND FINDINGS
The Appellant Employer does not challenge the following findings by the Arbitrator:
a)that Mr Ali suffers from cervical and lumbar spondylosis which is a disease for the purposes of section 4(b)(ii) of the 1987 Act;
b)that Mr Ali suffered an aggravation of that disease within the meaning of section 4(b)(ii);
c)the aggravation arose out of or in the course of Mr Ali’s employment with Visy Board and that his employment was a substantial contributing factor to that aggravation;
d)Mr Ali failed to give notice within the relevant time prescribed by section 254 of the 1998 Act;
e)Visy Board has not been prejudiced in respect of the proceedings by Mr Ali’s failure to give notice;
f)no claim for compensation was made until 5 February 2004;
g)Mr Ali’s claim for compensation was not made within six months after the injury, but was made within three years of the injury;
h)Mr Ali’s has not satisfied the onus required under section 261(4)(a) of the 1998 Act with respect to his failure to make a claim within the requisite period;
i)Mr Ali’s was generally aware of his rights with respect to workers compensation, and there was no convincing evidence that his failure to claim within the time required by section 261 of the 1998 Act was occasioned by ignorance, mistake, absence from the state or other reasonable cause;
j)Mr Ali failed to make a claim for weekly benefits or medical expenses within the time required by section 261 of the 1998 Act, and was not relieved of the obligation to observe the time limits by virtue of any of the exceptions contained in section 261;
k)the failure to make a claim for weekly compensation and medical expenses within the relevant period operates as a bar to his recovery of such compensation;
l)the deemed date of injury for the purposes of the claim for weekly compensation was 13 October 2002, and
m)Mr Ali’s incapacity arising from injury consisting in the nature of an aggravation of a disease within the meaning of section 4(b)(ii) of the 1987 Act arose on 13 October 2002.
The Appellant Employer’s contention is that the Arbitrator erred in finding that the deemed date of injury for the purposes of the claim for lump sum compensation under section 66 of the 1987 Act was 3 March 2005, the date on which the claim for lump sum compensation was duly made. It is argued that the Arbitrator should have found injury “for the purposes of the claim at large (and not just the claim for weekly payments and medical expenses)” was deemed to have occurred on 13 October 2002 (Appellant Employer’s submissions paragraph 3.3). By finding a different date of injury for the purposes of the lump sum claim the Arbitrator went beyond the task required of her by section 16(1)(a) of the 1987 Act.
Section 16(1)(a) of the 1987 Act provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and …”
The argument is that once the Arbitrator satisfied the task required of her by section 16(1)(a) (which she did when she found that incapacity resulting from the aggravation of the disease occurred on 13 October 2002) it was then not necessary for her to apply section 16(1)(a)(ii). That the Arbitrator went on to apply section 16(1)(a)(ii), despite finding that incapacity resulted from the injury, amounts, it is submitted, to an error of law.
In support of this argument it is submitted that the Arbitrator’s reliance on Antaw was misplaced. The Appellant Employer submits that the relevant findings in Antaw were:
a)the worker suffered loss of sight in the left eye as a result of an injury in 1977 (sic);
b)in 1978 he recovered compensation under section 16 of the Workers Compensation Act 1926 for 10% loss of sight of one eye;
c)the worker kept working for various employers in employment to the nature of which the disease was due up until 1992, at which point he could no longer continue working, and
d)between 1992 and 1996, the worker’s sight continued to deteriorate but the incapacity had already arisen and did not result from the further deterioration.
In fact the worker in Antaw was injured in 1976 and he continued to work from 1992 until October 1996 and suffered a gradual deterioration in his sight over that time.
Applying these findings to section 15(1)(a) of the 1987 Act the trial judge found the deemed date of injury for the purposes of the claim for weekly compensation to be the date of incapacity (in 1992) and the deemed date of injury for the purposes of the claim under section 66 to be 1996 (the date when the claim for lump sum compensation was made). The Court of Appeal held that these findings were open to the trial judge because, it is submitted, “incapacity for work had not resulted from the further loss of vision” (Appellant Employer’s submissions paragraph 3.9). The Appellant Employer relies on the following passage at [25] in Antaw:
“The appellant’s argument is that the purpose of s15 (1) (a) is to fix one date for the happening of the injury, in this case loss of vision of such a nature as to be contracted by a gradual process. On this basis compensation for further loss of vision after 1992 would be denied. In my opinion, clearly the Act does not work in this way. As the evidence shows, by 1996 there was a further 40 per cent loss of vision since a lump sum award was made in 1978. Her Honour fixed the date of injury on the basis contemplated by s15 (1)(a)(ii) that incapacity had not resulted from that additional loss of vision and accordingly the appropriate time was the time that the respondent made his claim for compensation with respect to the injury. I can see no error in this approach which accords with the terms of s15. Accordingly, in my opinion, this ground of appeal fails.” (emphasis added)
It is argued that the Court of Appeal was content to uphold the trail judge’s approach on the basis that incapacity had not resulted from the further loss of vision and, had the trial judge not made that finding, the result would have been different.
The Arbitrator in the present case made no finding that there had been a deterioration in Mr Ali’s condition (contrary to the finding in Antaw) after the date the incapacity arose. The Arbitrator said at [31]:
“The position is different with respect to the claim for permanent impairment benefits. In Alto Ford Pty Limited v Antaw [1999] NSWCA 234 the Court of Appeal explained that for a claim for permanent impairment benefits the impairment does not arise until the impairment is assessed and the claim for compensation is duly made (see also section 16(3) of the 1987 Act). Accordingly there is no incapacity as a result [of] the impairment prior to that date. In this case the claim for permanent impairment benefits was made on 3 March 2005. It follows that the deemed date of injury for the purposes of the permanent impairment claim is 3 March 2005.” (emphasis added)
It is argued that the words highlighted in the above passage demonstrate that the Arbitrator misconceived the task required of her because section 16(1)(a) does not speak of incapacity resulting from impairment but of incapacity resulting from injury and it requires the fixing of a time when incapacity arises. This submission ignores section 16(3) which provides that “in this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 Part 3” (that is, lump sum compensation).
In my view, what the Arbitrator found is perfectly consistent with the principles discussed by Sheller JA in Antaw and with section 16(3) of the 1987 Act. Section 16(3) expands the definition of injury in section 4 to include “a reference to a permanent impairment for which compensation is payable”. That being so, there can be no such injury until the claim is quantified and duly made. That did not happen until 3 March 2005 when the claim for lump sum compensation was made. If a permanent impairment is established under Division 4 Part 3 that fact constitutes ‘an injury’ (section 16(3)) and the date of that injury shall, if “incapacity has not resulted from the injury”, be deemed to have happened at “the time the worker makes a claim for compensation with respect to the injury” (section 16(1)(a)(ii)). That is the situation in the present case and is consistent with the findings the Arbitrator made. Her reference to “impairment” in paragraph 31 of her Reasons should be read as a reference to ‘injury’ in its expanded meaning in section 16(3). No incapacity resulted from that injury so it was appropriate to find a separate deemed date of injury on 3 March 2005.
It is also submitted that the decision of Judge Geraghty in Gow, relied on by the Arbitrator, does not support her conclusion. In that case the applicant was a former waterside worker who worked for the respondent from 1964 until 20 October 1991 when he retired at age 65 of his own volition. He had never been incapacitated. In October 2001, ten years after retiring, he claimed lump sum compensation for severe bodily and facial disfigurement allegedly due to a skin disease either caused by or aggravated by exposure to sun in the course of his employment. His Honour held that under section 16(1)(a)(ii), where the injury consisting in the aggravation of a disease does not result in the worker’s incapacity, it is deemed to have happened at the time the worker makes a claim for compensation with respect to the injury. Accordingly the deemed date of injury was October 2001. His Honour held that under section 16(1)(a)(ii) the date of injury, for all purposes of the Workers Compensation Acts (the 1987 Act and the 1998 Act), is the date the claim is made. Consequently, the claim for lump sum compensation could not be out of time. It was this part of Gow that the Arbitrator relied on to support her conclusion that the claim for lump sum compensation was not out of time. This part of the Arbitrator’s reasoning does not appear to be attacked by the Appellant Employer. Its challenge is that based on the reasoning I have dealt with above at [30]. For the reasons set out above I do not accept that argument.
Unfortunately the above analysis does not conclude the matter. The Court of Appeal has considered the issue before me in two further cases that are directly relevant.
In P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonzoand others (2000) 49 NSWLR 481 (‘Alfonzo’) the worker developed painful symptoms in her arms and neck in the course of her employment between 1981 and February 1996. In that period she worked for two employers: the Government Cleaning Service from 1 January 1981 to 28 January 1994 and P & O Berkeley Challenge Pty Ltd (‘Berkeley’) from 29 January 1994 to 11 February 1996. Berkeley had two insurers: one for the period up to 31 December 1995 and another from 1 January 1996. Her symptoms deteriorated over time resulting in her being put off work and paid compensation from April 1993 to August 1993. On her return to work her symptoms again deteriorated and she was off work for five weeks over the holiday period at the end of 1995. She worked again for three weeks in 1996 but stopped on 11 February 1996 and did not work again. By 1 January 1996 her employer had changed insurers. She claimed weekly and lump sum compensation in a case to which section 16 of the 1987 Act applied. The issue was which of Berkeley’s two insurers was responsible for its liability?
The trial judge held that incapacity in section 16 was a reference to incapacity for which compensation was claimed. Therefore, the relevant date was the commencement of the worker’s inability to earn wages she would otherwise have earned but for injury (per Priestley JA at 484). This meant that the deemed date of injury under section 16 was 12 February 1996 and the insurer on risk at that time was liable to indemnify Berkeley.
In addition to claiming weekly compensation Mrs Alfonzo also claimed lump sum compensation. Though that claim was not made until 30 July 1997 the trial judge held that the deemed date of injury fixed by section 16(1)(a)(i) (12 February 1996) was also the date of injury for the purposes of the lump sum claim. On appeal Priestley JA, with whom Clarke A-JA agreed, affirmed that conclusion.
The most recent authority is Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (‘Stone’). In that case the worker developed skin cancer as a result of prolonged exposure to sun in the course of his employment with the respondent up to 16 December 1985 when he stopped work for unrelated reasons. Prior to stopping work he was aware of ‘sun spots’, which he had burnt off by his doctor. The worker’s condition deteriorated and he claimed lump sum compensation in respect of severe facial disfigurement in December 2001, which claim was amended on 10 June 2003. The trial judge held that the treatment given before 30 June 1987 would have involved some incapacity for work and therefore the deemed date of injury was before 30 June 1987 and the provisions of section 16 of the Workers Compensation Act 1926 applied in assessing the quantum of compensation recoverable.
On appeal it was held that the trial judge was in error. As there was no claim for weekly compensation section 16(1)(a)(i) did not fix a date on which the impairment injury happened. That date was, in the circumstances of the case, fixed when the claim for lump sum compensation was made in December 2001 or 10 June 2003. After referring to Alfonzo and Antaw, Handley JA, with whom Mason P agreed, said at [10]:
“In the present case where there was and could be no claim for weekly compensation s 16(1)(a)(i) did not fix a date on which the impairment injury happened. Accordingly s 16(1)(a)(ii) applied and this injury is deemed to have occurred when the claim for lump sum compensation was made. Even if s 16(1)(a)(i) was capable of operating in this case to fix a date for the worker's incapacity injury we should nevertheless follow the Alto Ford [Antaw] case where this Court specifically held that s 16(1) could fix different dates for incapacity and impairment injuries and, in the latter case the relevant date was the date of the claim.”
Therefore, even if I was minded to accept the Appellant Employer’s submissions, I do not believe it is open for me to do so in light of the clear statement by Handley JA in Stone, made after his Honour considered the different views in Antaw and Alfonzo.
It therefore follows that the Appellant Employer’s appeal must fail and the Arbitrator’s decision is confirmed.
DECISION
The Arbitrator’s decision dated 21 March 2006 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
24 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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