Way v Newcastle City Council
[2004] NSWWCCPD 17
•29 March 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Way v Newcastle City Council [2004] NSW WCC PD 17
APPELLANT: Ken Way
RESPONDENT: Newcastle City Council
FILE NUMBER: WCC10518-03
DATE OF ARBITRATOR’S DECISION: 23 September 2003
DATE OF APPEAL DECISION: 29 March 2004
SUBJECT MATTER OF DECISION: Sections 15 and 16 of the Workers Compensation Act 1987 and 261 of the Workplace Injury Management and Workers Compensation Act 1998, ‘injury’ or ‘disease’, time for making of claim, power of Arbitrator to ‘strike out’ proceedings
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:Determined on the Papers
REPRESENTATION: Appellant: Whitelaw McDonald Solicitors
Respondent: Harris Wheeler Lawyers
ORDERS MADE ON APPEAL: Leave to Appeal is granted.
The decision of the Arbitrator is revoked.
The application is referred back to the Registrar for allocation to an Arbitrator to be determined in accordance with these reasons.
BACKGROUND
On 21 October 2003, Ken Way (‘Mr Way/the Appellant’) lodged an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission. The Respondent to the Appeal is Newcastle City Council (‘the Council/the Respondent’), which is a self-insurer for the purpose of worker’s compensation.
The Respondent filed a reply to the appeal on 20 November 2003.
The appeal relates to Mr Way’s claim for workers compensation payments from the Council, his former employer, for permanent impairment and associated pain and suffering. The Council has denied liability for the claim.
The Arbitrator held two teleconferences in this matter. At the first teleconference, on 20 August 2003, the Respondent submitted that the claim was out of time. The Arbitrator adjourned the proceedings to give the parties the opportunity to prepare submissions on this issue. These submissions were duly made.
At the second teleconference, on 23 September 2003, the Arbitrator ordered “the application be struck out as the application does not meet the exceptions of section 261(3)(6)” (sic). This refers to section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), set out below. A Direction, including a short statement of reasons (‘the reasons’) was then issued.
The Appellant wants this order revoked, the proceedings revived, and a further teleconference held before an Arbitrator who will determine the substantive dispute.
The Respondent submits that the Arbitrator’s decision should not be interfered with.
This matter was referred to me for review on 12 February 2004.
THE ARBITRATOR’S DECISION
The Arbitrator’s reasons are briefly stated, and provide, relevantly, as follows:
“. . . A distinction must be drawn however between the date a claim is made and the last date of relevant employment. To a great extent the repealed sections of the 1987 Act mirror those in the 1998 Act. However the 1998 Act is strengthened by removal of the words ‘ if the claim is not made within three years but it is found that it is in the interests of justice that the claim not be barred’ no longer appear.
Section 261(4) of the 1998 Act refers to:The failure to make a claim within the period required by the section is not a bar to recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause.
However this claim is well outside that three year period.
Turning then to Section 261(6) which states
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.
The statement of Mr Way at point 11 states ‘my knees have been aching for many years. . . in the past 15-20 years the pain has become constant.’
As noted above I no longer have to determine if it is in the interests of justice that the claim not be barred, the onus falls to the Applicant to meet the provisions of section 261 and he has failed to do so.”
The Arbitrator’s reasons omit the remainder of section 261(4), parts (a) and (b), which are set out below.
ISSUES IN DISPUTE
The Appellant submits that the Arbitrator has erred in:
·Failing to find that, as Mr Way suffered from a disease, namely arthritis and osteoarthritis, the ‘date of injury’ fell to be determined in accordance with sections 15 and 16 of the Workers Compensation Act 1987 (‘the 1987 Act’);
·Finding that the claim was made out of time pursuant to section 261 of the 1998 Act, and;
·Acting in excess of her powers in purporting to ‘strike out’ the proceedings.
The Appellant contends that he is entitled to workers compensation as his disease was caused by his employment with the Respondent. He submits that his claim is not out of time as the date of injury for a disease is deemed to be the date the claim is made, in this case, in January 2003.
ON THE PAPERS REVIEW
The parties are in agreement that both the leave to appeal and the substantive appeal should be determined ‘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.
Neither party seeks leave to admit fresh evidence.
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.
LEAVE
Before proceeding to deal with the appeal it is necessary to determine whether the requirements of section 352 of the 1998 Act are met. In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The Facts
The evidence and submissions that were before the arbitrator are before me on the appeal, as are further substantial written submissions by the parties.
Mr Way is 71 years of age. He was employed by the Council from 1956 until 1994, originally on the Road Construction Crew, and then later as a greaser. He did not have any single, discrete injury to his knees when he was at work. When on the Road Construction Crew, from 1956-1961 his duties involved “. . . curbing (sic) and guttering. . .” where he spent “a lot of time on [his] knees smoothing or trowelling the cement for hours at a time and shovelling slagsand” (Statement dated 19 June 2003). He also built sumps for roadside water to drain and had to use his knees to push the heavy sump frames. The work was heavy and he frequently used jackhammers, which caused his knees to “constantly ache”. From 1961 he worked in the Council Workshop, initially as a fitter’s labourer and then as a greaser. This work was also heavy and included having to hold up floor plates on his knees and crawling under vehicles on cold concrete floors.
Mr Way ceased working in 1990, and received weekly payments of workers compensation for a neck and back injury from then until 1994, when he retired. That injury is unrelated to this claim.
On 26 September 2002, after advising his solicitors of his long-held knee pain, and upon their advice, he was examined by Dr Philip Jeffery, General Practitioner. Dr Jeffery reported (on the same day) that “As a result of the nature and conditions of Mr Way’s employment and not to any other factor, (sic) has developed osteoarthritis of both knees with patellofemoral crepitus and arthritis.” His report states that the condition is gradually worsening and causing Mr Way considerable discomfort.
Mr Way’s evidence is that he was not aware of his injury or that it was related to his former employment, until receiving the report of Dr Jeffery in September 2002. On the basis of the report he instructed his solicitors to write to the Council on 16 December 2002 giving notice of the claim. On 13 January 2003 he lodged a claim form, seeking compensation for permanent impairment under Section 66 of the 1987 Act, and pain and suffering under Section 67 of the 1987 Act. This was some twelve years after he stopped physically working for the Respondent, eight years after his employment ceased (in that he retired and his weekly workers compensation payments ceased), and 15 years after he first felt pain in his right knee. More recently he has also had pain in his left knee.
The Respondent relies upon the report of Dr Graham, Occupational Physician, who examined Mr Way on 3 February 2003. Dr Graham opines that Mr Way has mild osteoarthritis of his knees, which is largely constitutional in nature, and that “There may have been a slight contribution to it from the nature and conditions of his work but his employment has not been a substantial contributing factor to the development of the condition nor of any acceleration or aggravation of it.”
The Appellant’s Submissions
The Appellant submits that he suffers from the ‘disease’ of oesteoarthritis, and therefore sections 15 and 16 of the 1987 Act are the sections that apply, rather than section 261(6) of the 1998 Act. Section 15(1) of the 1987 Act provides as follows:
“Diseases of gradual process-employer liable, date of injury etc
(1)If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(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
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Section 16(1) of the 1987 Act provides as follows:
“Aggravation etc of diseases of gradual process-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
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
The Appellant submits that the Arbitrator erred in failing to consider that the ‘injury’ suffered by Mr Way was a degenerative ‘disease’, namely arthritis and osteoarthritis, of a kind that can be caused by the type of work offered by the Respondent. Section 15 and section 16 of the 1987 Act are therefore to be applied to determine the date of injury.
The Appellant alleges the Arbitrator erred in finding that the Appellant’s awareness of the pain in his knees is equivalent to an awareness of injury. The Appellant was not aware that he had an injury until shortly before he lodged this claim for compensation. The Appellant’s injury did not incapacitate him for employment in the years prior to his making of this claim.
The Appellant submits that the Arbitrator erred in applying sections 261 (4) and (6) of the 1998 Act (set out above in the extract of the Arbitrator’s reasons), as those sections are not relevant to this case.
The Appellant claims the Arbitrator erred in finding that the Appellant should have given notice to his employer within six months of receiving the injury. In cases where the injury is a disease, the worker need not give notice within the six-month time frame. That would be a practical impossibility considering the existence of a disease is not often apparent to the worker within that period. The Appellant relies upon the decision of Geraghty J, of the Compensation Court of NSW, in Gow v Patrick Stevedores [2002] NSWCC 60 to support the argument that the date of injury should be deemed to be the date the claim is made.
Finally, the Appellant argues that the Arbitrator had power to ‘strike out’ the application only for procedural or administrative mistakes, and not for substantive weaknesses in a case. Rule 6 of the Workers Compensation Rules 2003 (‘the Rules’) provides as follows:
“Adherence to and relief from rules
(1)Subject to subrule (2) and to rule 5, the practice in the Commission is to be the practice provided by the Workers Compensation Acts or these rules.
(2)The Commission may if it thinks fit on terms dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.
(3)The general practice of the Commission prescribed by these rules applies to all proceedings authorised by any existing or future Act to be commenced, taken or continued in the Commission, except in so far as that practice is inconsistent with any provision of or under any such Act.
(4)If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.
(5)If the Commission does not make a determination as referred to in subrule (4) in respect of a failure to comply with a provision of these rules, the failure is to be treated as an irregularity only.
(6)For the avoidance of doubt, it is declared that the Registrar may exercise the Commission’s functions referred to in subrule (4).
(7)The striking out of proceedings under this rule does not prevent the proceedings from being recommenced.”
The Respondent’s Submissions
The Respondent submits that the Appellant has not suffered a ‘disease’ that fits within sections 15 and 16 of the 1987 Act and is not entitled to rely upon these provisions in determining the date of injury. As such, section 261 of the 1998 Act applies, and the Appellant’s claim is out of time.
The Respondent argues that if sections 15 and 16 of the 1987 Act were to apply, they would have to be considered separately. Section 15 does not apply to the Appellant, as the evidence does not establish that his osteoarthritis was not contracted wholly through his work with the Respondent. Nor does section 16 apply. The evidence does not support a finding that Mr Way’s osteoarthritis was aggravated by his employment with the Respondent.
The Respondent argues that, in any event, the Appellant’s osteoarthritis is congenital, and constitutional as a result of the Appellant’s age. The Respondent submits that the Appellant’s age, of itself, creates an incapacity for work, despite his osteoarthritis. There is no evidence to support the proposition that Mr Way’s employment with the Respondent was the cause of his injury. Therefore, the ‘injury’ did not arise ‘out of or in the course of’ his employment with the Respondent, pursuant to section 4 of the 1987 Act.
The Respondent submits that the case of Gow v Patrick Stevedores [2002] NSWCC 60 has no relevance to this matter, as that case applied section 16 of the 1987 Act.
DISCUSSION AND FINDINGS
Unfortunately the short decision of the Arbitrator is not entirely consistent with the reasons. The reasons refer to, and set out, section 261(4) of the 1998 Act, which was in issue. However the order refers to section “261(3) (6)” (sic) without attribution to the 1987 or 1998 Act. It appears that the reference to section 261(3) is an obvious error. The relevant section, 261 (4) of the 1998 Act, is incompletely copied, leaving the reasons difficult to follow.
Section 261 (1)–(6) provides as follows:
“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.”
Mr Way lodged his claim on the Respondent on 13 January 2003 and, therefore, section 261 applies (by reason of section 259 of the 1998 Act).
Section 4 of the 1987 Act defines ‘injury’ to:
“(b) include[s]:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) . . . ”
There is no evidence in this matter, nor any claim, that Mr Way suffered a frank incident that gave rise to his injury. There is agreement in the medical evidence of Dr Jeffery and Dr Graham that Mr Way is suffering from osteroarthritis of the knees. The medical evidence, slim though it is, supports the conclusion that this is a disease of gradual onset. Dr Graham describes the condition as “. . . a constitutional one which is related to aging (sic) ”. Dr Jeffery describes the condition as “causing him considerable discomfort over a number of years”.
In order for Mr Way to be entitled to workers compensation for this disease, he must have made his claim within the time specified in section 261 of the 1998 Act. To do this he must establish when the injury “happened”, pursuant to section 261(1) and (3), or when the injury is “taken to have been received”, pursuant to section 261(6). The injury will be taken to have been received when Mr Way “first became aware” of it (section 261(6) of the 1998 Act).
In my view the medical evidence of Dr Graham is to be preferred. He is a specialist Occupational Physician and his report is comprehensive. Dr Jeffery is a general practitioner. He does not have any special knowledge in relation to Mr Way’s condition, as he is not Mr Way’s treating doctor.
Dr Graham opined that “ . . [T]here may have been a slight contribution to [the osteoarthritis] from the nature and conditions of his work but his employment has not been a substantial contributing factor to the development of the condition nor any acceleration or aggravation of it”.
Section 16 of the 1987 Act applies to the “. . . aggravation, acceleration, exacerbation or deterioration of a disease”. On the facts of this matter, this section applies. Mr Way has the disease of gradual onset, arthritis/osteroarthritis, which was “contributed to” (whether by ways of aggravation, acceleration, exacerbation or deterioration is not clear) by his employment with the Council. The date that he is taken to have received an ‘injury’, for the purpose of the Workers Compensation Acts (the 1987 Act and the 1998 Act), is either at the time of his incapacity or at the time he made the claim.
“Incapacity” means ‘total or partial incapacity for work’ as per section 33 of the 1987 Act. Mr Way does not claim to have suffered incapacity for work. This does not automatically result in a denial of any claim to compensation (Gow v Patrick Stevedores [2002] NSWCC 60). He ceased work around 1990 due to an unrelated neck injury and has not claimed any incapacity for work as a result of the arthritis of his knees. Mr Way’s injury therefore falls to be determined pursuant to section 16 (1) (a) (ii), namely the date that his injury was ‘deemed to have happened’ is the date he made the claim, that is, 13 January 2003.
Mr Way has, therefore, satisfied section 261 of the 1987 Act. It follows that the Arbitrator made an error of law.
This deals with the issue of whether the claim is made within time, however it remains for Mr Way to prove that his ‘injury’ meets the requirements of sections 4 of the 1987 Act. The injury must have arisen out of or in the course of employment. It must also be shown that Mr Way’s employment was a ‘substantial contributing factor’ to his injury. The fixing of the date of injury, pursuant to section 16 of the 1987 Act, is not determinative of liability to pay compensation. The elements of the definition of ‘injury’ must still be met. The better approach to the construction of these provisions is to first determine whether the worker suffered an ‘injury’, pursuant to section 4, and the nature of that injury (section 4(b)), and then to fix the date of injury accordingly. The application of section 261 of the 1998 Act may then be applied to the relevant facts, as found.
In this case the issue of liability remains to be determined by an Arbitrator. It would not be fair and just for me to proceed to determine the substantive dispute, given that the appeal has been argued on the basis of the narrow issue of whether the claim for compensation was made within time. The Arbitrator has also not yet had the opportunity to try to bring the parties to a settlement of the dispute that is acceptable to both of them (section 355 of the 1998 Act).
In any event, where the Respondent is found to be liable for payment of compensation to Mr Way, this matter also cannot finally be determined unless and until an Approved Medical Specialist has given an assessment on the medical dispute.
The Appellant also challenges the Arbitrator’s use of the power to ‘strike out’ proceedings under Rule 6 of the Rules. The Respondent makes no submissions on this issue.
The power to ‘strike out’ is expressed to be dependent upon non-compliance with the Rules in relation to the commencement or conduct of proceedings in the Commission. Ordinarily, a ‘strike out’ power is designed to ensure the proper conduct of litigation, and compliance by the parties with expected procedural steps necessary for the timely resolution of disputes.
The Arbitrator’s determination of whether Mr Way’s claim was commenced in accordance with the requirements of the Workers Compensation Acts was a substantive matter. The use of the ‘strike out’ power was not appropriate in the circumstances of this matter.
DECISION
The decision of the Arbitrator is revoked.
The application is referred back to the Registrar for allocation to an Arbitrator to be determined in accordance with these reasons.
COSTS
The appeal has been successful and costs fall to be determined by section 345 of the 1998 Act, which provides as follows:
“345 Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.”
The parties are urged to come to an agreement as to costs in accordance with the above provisions.
Dr Gabriel Fleming
Deputy President
29 March 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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