White v Sylvania Lighting Australasia Pty Ltd
[2011] NSWWCCPD 7
•10 February 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | White v Sylvania Lighting Australasia Pty Ltd [2011] NSWWCCPD 7 | ||||
| APPELLANT: | Marshal John White | ||||
| RESPONDENT: | Sylvania Lighting Australasia Pty Ltd | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-4848/10 | ||||
| ARBITRATOR: | Ms A Simpson | ||||
| DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING: | 11 October 2010 4 February 2011 | ||||
| DATE OF APPEAL DECISION: | 10 February 2011 | ||||
| SUBJECT MATTER OF DECISION: | Claim for additional lump sum compensation; disease provisions; deemed date of injury; application of principles in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | Oral | ||||
| REPRESENTATION: | Appellant: | Ms E Wood, instructed by Whitelaw McDonald | |||
| Respondent: | Mr S Harris, solicitor, Moray & Agnew | ||||
ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 11 October 2010 is confirmed. Each party is to pay his or its costs of the appeal. | ||||
BACKGROUND
Mr White started work as a storeman for Sylvania Lighting Australasia Pty Ltd, the respondent employer, in about June 1992. He still works for the respondent, though in a different capacity.
His duties required him to drive a “high lift forklift”. To operate the forklift, Mr White had to stand sideways to the tines and continuously lean back and bend and rotate his neck at a sharp angle so he could see where he had to place the load.
In or about April 2000, Mr White noticed neck stiffness and neck and shoulder pain associated with his work. He reported his symptoms on 30 May 2000 and saw his general practitioner, Dr Cavanagh, who put him off work for about a week. The respondent accepted liability for and paid weekly compensation.
Mr White returned to work on suitable duties. Though he still worked in the store, and still used the high lift forklift, he said that he only used it at levels at or below eye level and therefore did not have to bend and rotate his neck. He remained in stores until 2004, when he became a quality control inspector.
In proceedings commenced in the former Compensation Court of NSW in 2000, Mr White claimed lump sum compensation for a 20 per cent impairment of his neck, 10 per cent loss of efficient use of his right arm at or above the elbow, 10 per cent loss of efficient use of his left arm at or above the elbow, and compensation for pain and suffering. The amended Application for Determination filed in the Compensation Court on 7 February 2002 alleged that Mr White had injured his neck and arms as a result of the “nature and conditions of employment involving forklift driving” and that Mr White had given notice of injury on 30 May 2000 and claimed compensation on 30 November 2000.
He settled that claim on 8 December 2002 for the following amounts:
(a) $6,000 in respect of 15 per cent permanent impairment of the neck;
(b) $2,000 in respect of 2.5 per cent permanent loss of use of the right arm at or above the elbow, and
(c) $1,875 in respect of 2.5 per cent permanent loss of use of the left arm at or above the elbow.
As the above amounts did not meet the threshold for compensation for pain and suffering under s 67 of the 1987 Act, that part of the claim was dismissed by consent.
By letter dated 13 January 2010, Mr White’s solicitors claimed additional lump sum compensation as follows:
(a) $8,000 in respect of a 20 per cent further impairment of the neck;
(b) $2,000 in respect of a 2.5 per cent further permanent loss of use of the right arm at or above the elbow;
(c) $1,875 in respect of a 2.5 per cent further permanent loss of use of the left arm at or above the elbow, and
(d) $25,000 for pain and suffering.
Dr Bracken made the above assessments under the Table of Disabilities, which applies to injuries received before 1 January 2002.
In an Application to Resolve a Dispute (the Application) filed in the Commission on 10 June 2010, Mr White claimed the lump sum compensation particularised at [8] above. The Application originally pleaded the date of injury as “nature and conditions of employment until 31 December 2001. Frank injury on 30.05.2000” and the date of claim as “13.01.2010”. At the arbitration hearing, counsel for Mr White amended the Application to delete the frank injury and to add, as an alternative, “the nature and conditions of employment up to the 30th May 2000” (T1.49) and three alternative dates of claim, 30 May 2000, 15 November 2000 and 13 January 2010.
The Application described the injury as having occurred in the following circumstances:
“Nature and conditions of the Applicant’s employment including but not limited to the constant and repetitive use of a high reach fork lift which required the Applicant to constantly look upwards. As a result of such work he has sustained injuries to his neck, right arm and left arm.”
The insurer did not dispute the claim until its solicitor filed a Reply on 8 July 2010. It disputed liability on the grounds that the injury alleged was in the nature of a disease of gradual process and “[b]y operation of s 15 and/or s 16 of the Workers Compensation Act 1987, the injury for the purpose of the claim for lump sums is deemed to be the date on which the claim was made, namely, 13 January 2010” and, as the claim had not been “duly made” on the insurer, the proceedings were “not maintainable”.
The Commission listed the matter for conciliation and arbitration on 28 September 2010. Though it is not clear from the Arbitrator’s Statement of Reasons (Reasons), it appears that she gave the respondent leave to dispute the matters in the Reply, despite the fact that the insurer had not served a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The matter proceeded with submissions from the legal representatives for both parties, but the Arbitrator heard no oral evidence. It was common ground at the arbitration that Mr White alleged that his injury had been caused by his employment duties over time and that the injury was “in the nature of a disease of gradual process” (T4.45).
Without objection, the respondent employer argued two points. First, that Mr White’s duties after 31 December 2001 caused an aggravation injury. And, second, regardless of the finding on the first point, as Mr White made his claim for lump sum compensation on 13 January 2010, that was the correct deemed date of injury under s 16(1)(a)(ii) of the Workers Compensation Act 1987 (the 1987 Act) and his rights were to be determined under the whole person impairment provisions introduced by the Workers Compensation Legislation Amendment Act 2001. As Mr White had never particularised a claim for compensation for whole person impairment, his claim should be dismissed (T6.3).
In a reserved decision delivered on 11 October 2010, the Arbitrator accepted that Mr White has a disease of gradual process and that he suffered an aggravation, acceleration, exacerbation or deterioration of that disease. She found that the correct deemed date of injury was 13 January 2010 and, as Mr White had never particularised a claim for whole person impairment under the 1998 Act, she dismissed the claim.
The Commission issued a Certificate of Determination on 11 October 2010 in the following terms:
“The Commission determines:
1. That the Applicant’s claim is dismissed.
2. That there is no order as to costs.”
In an appeal filed on 1 November 2010, Mr White seeks leave to appeal the Arbitrator’s decision.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
Monetary threshold
Both parties have submitted that the monetary thresholds in s 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
Interlocutory
The Commission has held that orders dismissing or striking out claims without a hearing on the merits are interlocutory orders because they do not determine the parties’ rights (Nott v The Western Stores Limited [2007] NSWWCCPD 83; Teofilo v New South Wales Police Service [2007] NSWWCCPD 200; Crethar v GA & JI Charters Pty Ltd t/as Avis Northern Rivers [2010] NSWWCCPD 52). It has also held that, where injury is not in issue, the referral of a matter to an Approved Medical Specialist is an interlocutory order (P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87).
Counsel for Mr White, Ms Wood, submitted that the test for whether an order is interlocutory depends on the nature of the order made and whether the order has finally disposed of the parties’ rights (Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443-444). She argued that the Arbitrator’s determination finally determined Mr White’s rights with respect to his claim for lump sum compensation under the Table of Disabilities.
I agree that the present case can be distinguished from the cases cited above. The Arbitrator has made a final determination, after a hearing on the merits, that Mr White has no right to claim compensation under the Table of Disabilities. That finding is capable of supporting an estoppel on that issue in any subsequent proceedings seeking the same relief. In these circumstances, I find that the Arbitrator’s determination was not an interlocutory order.
I grant leave to appeal.
EVIDENCE
Mr White
Mr White’s evidence is in a brief statement dated 12 August 2010. He said that he operated a “high forklift” between 1992 and May 2000. This job required him to “lean back and bend [his] neck backwards at a very sharp angle”. After a few years, he developed pain in his neck at work. His symptoms increased in late 1999 and early 2000.
He saw his local doctor on 30 May 2000 and stopped work for about one week. Mr White returned to work on suitable duties in the store, but was not allowed to lift any “particularly significant weights”. Though he continued to use the forklift, he only did so at low levels to avoid having to bend his neck. He continued those duties until the respondent made him a quality control inspector in 2003. Other evidence suggests that Mr White did not become a quality control inspector until 2004 (see [42] below). He remains in that position today.
Mr White said that the problem with his neck and shoulders “just keeps getting worse over the years”. He has pain every day.
Medical evidence
Dr Cavanagh reported to the insurer on 7 July 2010. He first saw Mr White on 30 May 2000 when he took a history that Mr White complained of a month long history of neck stiffness, and neck and shoulder pain associated with work. His job required him to load the upper shelves of the warehouse using a forklift. To do that, he had to lean out, extend, and rotate his neck to the right in order to observe where he wanted to load the pallet. X-rays revealed moderately severe degenerative changes in Mr White’s neck. Mr White’s spine was stiff and movement caused discomfort in all directions.
Dr Cavanagh felt that Mr White’s pain was mechanical and that “[p]oor posturing of the cervical spine, while being constantly jarred during the course of operating a hard tired [sic] forklift on concrete, had most likely caused irritation of the articular mechanisms of the cervical spine (probably the facet joints)”. He initially prescribed a reduction in exposure to the poor neck posture by reducing forklift operation time.
Mr White’s symptoms continued and he saw Dr Cavanagh 13 times from May 2000 to early 2001. Each time, his symptoms were the same. Dr Cavanagh concluded that Mr White was “suffering from degenerative spondylosis of the spine associated with prolonged and persistent micro traumata to the cervical spine’s articulation mechanisms, occurring in the process of his specific forklift activities”.
Dr Bracken examined Mr White for medicolegal purposes on 15 September 2000. He recorded that while Mr White used a high lift forklift he had to constantly lean backwards and look up to make sure that the load and the tines did not foul any other objects. After a week off work, Mr White returned to restricted duties that did not involve forklift driving. He was due to return to work on full normal duties on 19 September 2000, but he was to cease work if he got pain in his neck.
Dr Bracken confirmed that x-rays revealed marked arthritic changes in the cervical spine. He concluded that Mr White’s condition had arisen as a result of work over the previous 10 years and that the degenerative changes in his neck had been “seriously and markedly aggravated by his conditions of work over a long period of time”. Mr White was “permanently and totally incapacitated because of his neck in respect of returning to work as an operator of a high lift forklift”. He needed retraining to light work that would not strain his neck.
Dr Little, neurosurgeon, reported to Dr Cavanagh on 25 June 2001 that Mr White had significant degenerative disease in his neck, which “may be related to his occupation on a standing forklift”. He thought that Mr White “should not be in an occupation that requires significant lifting or bending or using a forklift”.
Dr Bracken reviewed Mr White on 21 September 2001 and reported that he continued to work on “restricted duties”, mostly office work and computer work, but, at times, some shop floor work that he felt he could do. He had tried to operate a high lift forklift on a couple of occasions but found it still markedly hurt his neck and he now totally avoided that work. On examination, Mr White presented in exactly the same manner as Dr Bracken found in September 2000. Dr Bracken’s opinion on diagnosis and causation remained “totally valid”.
Dr Bracken reviewed Mr White again on 15 February 2002. He recorded that, over the previous six months, Mr White had returned to work on the “shop floor and driving forklifts but with restrictions in respect of not working above eye level and given assistance in heavy lifting”. Mr White’s complaints in respect of his neck remained “identical” to those noted in September 2000. Dr Bracken confirmed his previous opinion on diagnosis and causation.
On 22 October 2003, Dr Bracken reviewed Mr White for an unrelated work injury to his left hand. He said that Mr White continued to work as a storeman “with some forklift duties”.
Dr Bracken last reviewed Mr White on 13 November 2009. He recorded that Mr White became a quality control inspector in 2003. With that change, the “strains in [sic] his neck are much less” and he thought that his neck would be better. However, Dr Bracken recorded that “the condition of his neck has deteriorated and is now more painful and stiffer than it was”. Under “opinion”, Dr Bracken said:
“No new x-rays were seen. Clinically this man’s cervical spine has stiffened markedly since he was last seen in respect of his neck in 2002. It is my opinion that there is now present as a direct result of his previous 10 years of high lift forklift driving prior to 30 May 2000, permanent impairment of his neck equivalent to 35 per cent of total value of his neck in relationship to the worst case.”
Rehabilitation reports
The insurer referred Mr White to CRS Australia (CRS) on 9 October 2001 for a workplace assessment to review his pre-injury duties and make recommendations on how his duties could be upgraded. Robyn Gleeson, rehabilitation consultant with CRS, prepared a “final rehabilitation report” on 12 December 2001. She said that the respondent was concerned that Mr White was doing “very little work that was productive due to [the] restrictions of his neck injury” and his more recent hand injury.
CRS conducted a workplace assessment on 10 October 2001 and contacted Mr White’s treating physiotherapist and general practitioner. Mr White was assessed to be able to perform storeman duties in the raw material/batching section, operating a forklift, “but only to the bottom 2 levels of the Pallet Racks to avoid neck extension”. Ms Gleeson said that Dr Cavanagh had certified Mr White fit for full normal duties and that Mr White had been performing full duties, including overtime, since then.
After monitoring Mr White’s capacity to perform his normal duties for four weeks, CRS closed its file on 12 December 2001. Ms Gleeson concluded that Mr White should obtain assistance to perform the following tasks:
(a) obtaining pallets from the upper two levels, if that was required repetitively;
(b) obtaining items from high shelves using a step ladder, and
(c) lifting and carrying things that were awkward or too heavy for him.
The insurer again referred Mr White to CRS for a workplace assessment in September 2004. Natalie McSwan, rehabilitation consultant, conducted a workplace assessment on 1 September 2004. She recorded that Mr White had been working as a storeman “with physical restrictions for approx 2 years now and the pain in his neck became intolerable”. He also told her that he was grateful to his employer for accommodating him with a new position as he thought he was going to have to leave his job because his neck pain was “getting out of control”. Ms McSwan assessed the job of quality assurance assistant to be physically suitable for Mr White, but recommended that he lift the closed box gear trays with another worker.
The Arbitrator’s Reasons
The Arbitrator said (at [4]) that the parties agreed that the only issue in dispute was “the deemed date of injury for the purpose of the s66/67 claim”. After reviewing part of the evidence, she stated at [14] and [15]:
“In my view, notwithstanding the submissions by Counsel for the Applicant, I find that the Applicant suffers from a disease of gradual process and has suffered an aggravation, acceleration, exacerbation or deterioration of that disease.
s60(1)(ii) [sic s 16] of the 1987 Act is clear in these circumstances, and the Court of Appeal in particular in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 confirms, that the injury shall be deemed to have happened at the time the worker makes a claim for compensation with respect to the injury. In this case the claim was made by letter dated 13th January 2010 and I therefore find this is the deemed date of injury.”
She concluded that, as the deemed date of injury was 13 January 2010, the claim for lump sum compensation had to be made under the WorkCover Guidelines “under the whole person impairment procedure”. As Mr White had only ever relied on assessments from Dr Bracken under the Table of Disabilities (applicable for injuries received before 1 January 2002), the “proceedings are not duly made and are dismissed”.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding, if she did, that Mr White suffered an aggravation, acceleration, exacerbation or deterioration of a disease as a result of his employment after 30 May 2000;
(b) failing to consider the phrase “substantial contributing factor” in ss 4, 9A and 16, and
(c) failing to find that 30 May 2000 was the deemed date of injury.
SUBMISSIONS, DISCUSSION AND FINDINGS
The parties agreed at the arbitration that Mr White’s duties with the respondent employer over a period caused his injury and that the injury (condition) was in the nature of a disease of gradual process (T4.43). That concession was appropriate (Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; 16 NSWCCR 253 and Toll Pty Ltd v Bartimote [2007] NSWWCCPD 153 at [98] to [112]).
There are two issues on appeal: first, whether Mr White’s injury was caused only by his duties up to 30 May 2000, or by his duties up to and beyond that date, and, second, regardless of the answer to the first issue, what is the correct deemed date of injury under s 16 of the 1987 Act.
Ms Wood submitted that the Arbitrator failed to have regard to the whole of the evidence and failed to deal with the submission made at the arbitration that, while Mr White’s condition had worsened since his 2002 settlement, that was “merely a deterioration of the applicant’s condition due to previous employment not a further aggravation”. She argued that the Arbitrator should have found that the deterioration was “merely a natural course of events for the appellant worker’s disease as a result of his employment prior to 30 May 2000”.
On behalf of the respondent employer, Mr Harris submitted that “[i]t can be inferred from the statement of reasons that the arbitrator found that the injuries were in the nature of ‘the aggravation, acceleration, exacerbation or deterioration of a disease’ within s 16(1)” of the 1987 Act as a result of the appellant’s employment with the respondent after 30 May 2000, which was consistent with the evidence.
He argued that there is ample evidence to support a finding that Mr White’s employment after 30 May 2000, and after 31 December 2001, was a substantial contributing factor to “the injuries”. That evidence included:
(a) Mr White’s evidence at [15] of his statement that “the problem with my neck and shoulders just keeps getting worse over the years”;
(b) Dr Bracken’s evidence at page 1 of his report of 13 November 2009 that, “with this change, strains on his neck are much less and he thought his neck would be better but in effect the condition of his neck has deteriorated and is now more painful and stiffer than it was”, and
(c) Dr Cavanagh’s evidence that Mr White “was suffering from degenerative spondylosis of the spine associated with prolonged and persistent micro trauma to the cervical spine’s articulation mechanisms, occurring in the process of his specific forklift activities”.
I agree the Arbitrator failed to decide whether Mr White’s injury resulted from the duties he performed up to 30 May 2000 or from his duties after then. I do not accept that I can infer that she found an injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease as a result of his employment with the respondent after 30 May 2000. The Arbitrator did not resolve that issue, but merely found that Mr White suffers from a disease of gradual onset and there had been an aggravation, acceleration, exacerbation or deterioration of that disease. She did not decide when that aggravation occurred. The parties made submissions on that issue and the Arbitrator erred in failing to deal with it.
Ms Wood’s argument that the worsening of the condition after 2002 was merely a deterioration that resulted from Mr White’s pre-May 2000 duties and was not an aggravation within the terms of s 4(b)(ii) of the 1987 Act is unconvincing and inconsistent with the evidence and the authorities. This submission may have had some force if Mr White had not returned to work after 30 May 2000. However, Dr Bracken’s histories in his 2002 and 2003 reports confirm that Mr White continued to work as a storeman and drive forklifts in those years. Ms McSwan’s report also confirmed that Mr White drove forklifts up to a date in 2004. The restriction on obtaining pallets from the upper two levels only applied if that was required “repetitively”. Mr White has not disputed Ms McSwan’s history.
Given that Mr White continued to work as a storeman and to drive forklifts up to 2004, and given that his neck pain became “intolerable” in 2004, such that he thought he would have to resign, the logical and compelling conclusion is that he experienced an aggravation of the degenerative changes in his neck (with symptoms in his arms) as a result of his duties as a storeman until he changed duties in 2004. There is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 637 and 639). I am therefore satisfied that Mr White’s duties up to September 2004 caused an aggravation of a disease in his neck within s 4(b)(ii) of the 1987 Act. I am also satisfied that, given Mr White’s evidence of continuing symptoms, the effect of the aggravation is continuing.
I do not accept Dr Bracken’s conclusion that Mr White’s impairment and losses resulted (solely) from his high lift forklift driving in the 10 years up to 30 May 2000. Whilst I do not doubt that that period of employment played a role in contributing to Mr White’s present condition, Dr Bracken’s conclusion is inconsistent with the need for Mr White to change duties in or about September 2004 because his symptoms “became intolerable” and were “getting out of control”. Dr Bracken did not explain why he attributed the whole of Mr White’s condition to the work up to 30 May 2000 and why he (by implication) excluded the work after that date.
Ms Wood relied on Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (Lyons). Mr Lyons damaged his left knee in a frank injury on 12 February 2000. His injury was a “personal injury” under s 4(a), not an aggravation of a disease under s 4(b)(ii). His condition later deteriorated while he worked for a different employer. Neilson CCJ found (at 428) that a “frank injury (to the knee) can set in train chondromalacia patella, which is a progressive degenerative condition”. That condition can worsen with the passage of time. However, that did not mean that what the worker was doing at the time caused the condition or made it worse. The condition “deteriorates of its own momentum”. Mr White did not suffer a frank injury that caused a pathological condition that deteriorates of its own momentum. Lyons does not support Mr White’s position.
The Arbitrator also failed to consider whether Mr White’s employment was a substantial contributing factor to the aggravation after May 2000. That may have been because the respondent never raised it as an issue in dispute. Nevertheless, given the submissions at the arbitration, the Arbitrator should have made a finding on this issue.
Employment only has to be a substantial contributing factor to the aggravation, not the underlying disease process (Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88). Whether employment is a substantial contributing factor to an aggravation is a question of fact to be determined after considering all the evidence. Having regard to the nature of Mr White’s duties up to 2004 (work as a storeman, including driving a forklift), the duration of his employment, and the improbability that he would have received the injury or a similar injury anyway, at about the same time or stage of his life, I am satisfied that Mr White’s employment up to 2004 was a substantial contributing factor to his aggravation injury.
Given the change in Mr White’s duties in or about September 2004 to a quality assurance officer, and given that Ms McSwan assessed those duties to be suitable for him and that they involved no head extension or forklift driving, it is difficult to see that his duties after that date caused an aggravation injury, even though his symptoms may have continued to increase. However, as it is not necessary for the determination of the case, I make no finding on whether Mr White’s work as a quality assurance officer caused an aggravation of his condition.
The next question concerns the correct deemed date of injury. Under s 16, an aggravation injury shall be deemed to have happened at the time of the worker’s death or incapacity, or, 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 (s 16(1)(a) of the 1987 Act). Incapacity in s 16 means “incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity” (P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 (Alfonzo) per Priestley JA at 486).
Though I accept that Mr White is unfit for unrestricted work as a storeman, or as a high lift forklift driver, there is no evidence that the aggravation injury I have found has incapacitated him within the meaning of that term in s 16, as explained in Alfonzo. The deemed date of injury is therefore the date on which Mr White claimed lump sum compensation, namely 13 January 2010. It follows that the degree of permanent impairment that results from his injury is to be assessed as provided by s 65 of the 1987 Act and Pt 7 of Ch 7 of the 1998 Act.
The assessment of the degree of permanent impairment “is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose” (s 322(1)). The respondent has submitted that, absent a claim by Mr White for further lump sums having been “duly made” by reference to an assessment of whole person impairment, the proceedings are “not maintainable” and the Arbitrator correctly dismissed them.
Ms Wood has not disputed that Mr White has not made a claim for whole person impairment within the terms of the 1998 Act or the WorkCover Guidelines. Dr Bracken assessed Mr White’s impairment and losses under the Table of Disabilities applicable for injuries received before 1 January 2002. The question is what arises from that fact.
The legislation deals with claims for lump sum compensation in Div 4 of Pt 3 of Ch 7 of the 1998 Act. A person on whom a claim for lump sum compensation is made must, within the time required by s 281, determine the claim by accepting liability and making a reasonable offer of settlement, or dispute liability (s 281(1)). A claim must be determined within one month after the degree of permanent impairment becomes fully ascertainable, or within two months after the claimant has provided to the insurer “all relevant particulars about the claim”. A failure to comply with s 281 is an offence (s 283).
Section 282 provides that “relevant particulars about a claim” are full details sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim. They include particulars about:
“(a) the injury received by the claimant,
(b) all impairments arising from the injury,
(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),
(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,
(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,
(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,
(g) such other matters as the WorkCover Guidelines may require.”
For injuries after 1 January 2002, the WorkCover Guidelines dated 17 April 2009 state (at page 40) that the claim must include the following relevant particulars about a claim:
“• the injury received, as identified in claim for workers compensation. If no
claim for compensation has been made, it will be necessary to separately
make such a claim• all impairments arising from the injury
• whether the condition has reached maximum medical improvement
• the amount of whole person impairment assessed in accordance with the
WorkCover Guides for the evaluation of permanent impairment
• a medical report completed in accordance with the WorkCover Guides for
the evaluation of permanent impairment by a medical specialist with
qualifications and training relevant to the body system being assessed
who has been trained in the WorkCover Guides• if there is more than one impairment that requires assessment by different
medical specialists, one specialist must be nominated as lead assessor
and determine the final amount of whole person impairment• if the claim is for permanent impairment of hearing, a copy of the
audiogram used by the medical specialist in preparing the report that
accompanies the claim.”
Mr White has not provided particulars of any whole person impairment, whether his condition has reached maximum medical impairment, or a medical report completed in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment.
An insurer is not entitled to delay the determination of a claim under Div 4 on the ground that any particulars about the claim are insufficient unless the insurer requested further particulars within two weeks after the claimant provided particulars (s 282(3)). There is no evidence that the insurer requested further particulars from Mr White. The insurer first disputed the claim in the Reply filed on 8 July 2010. The dispute was referred to the Commission because the insurer had failed to determine the claim within the time required by the 1998 Act (s 289(3)(c)). Thus, the Commission has jurisdiction to determine the dispute.
The respondent submitted that “absent a claim for further lump sums having been duly made by reference to an assessment of whole person impairment, these proceedings are not maintainable and should be dismissed” (respondent’s written submissions before the Arbitrator at [13]). The Arbitrator apparently accepted that submission and “dismissed” the matter on the ground that “the proceedings [had not been] duly made” (Reasons at [17]).
Chapter 7 of the 1998 Act does not talk of whether a worker has “duly made” a claim. There is no provision in the current legislation to the effect that proceedings are “not maintainable” if a claimant has not provided “relevant particulars” as required by s 282 and the WorkCover Guidelines.
Ms Wood conceded on appeal that, if I found against Mr White on the deemed date of injury, I should set aside the Arbitrator’s decision and strike the matter out. For the following reasons, that concession was appropriate.
The Commission’s power to dismiss proceedings is in s 354(7A) of the 1998 Act, which provides:
“(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Rules.”
The only “other ground” for dismissal “in the Rules” is in Pt 15 r 8 of the Workers Compensation Commission Rules 2010, which provides that the failure by the applicant to prosecute the proceedings with due despatch is a ground of dismissal for the purposes of s 354(7A)(c). That does not apply in the present matter.
Mr White has claimed lump sum compensation under the Table of Disabilities, which applies to injuries received before 1 January 2002. I have found that, because of his further aggravation injury after May 2000, he is not entitled to lump sum compensation under the Table of Disabilities, but must claim under the whole person impairment provisions of the 1998 Act. This is not simply a failure to provide relevant particulars about a claim, which can often be overcome, but a complete failure to claim compensation under the whole person impairment provisions. It follows that the proceedings are “misconceived” or “lacking in substance” because he has claimed compensation under a provision that does not apply to him and he has never made a claim under the provision that does. It follows that the proceedings must be dismissed under s 345(7A)(b).
If I am wrong in my finding that Mr White suffered an aggravation injury after May 2000, it is necessary to determine whether the deemed date of injury is 30 May 2000 (the date of first incapacity), 15 November 2000 (the date of the first claim), or 13 January 2010 (the date of the claim for additional lump sum compensation under the Table of Disabilities). This requires a review of the authorities.
In GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO), the worker was exposed to sunlight in the course of his employment over 19 years. As a result, he developed a melanoma on his right cheek. Doctors removed the melanoma in 1983. This treatment resulted in a short period of incapacity. The worker subsequently developed a number of metastases of the melanoma. In 1993, he died from a brain tumour, which was a metastatic melanoma that had resulted from his original melanoma in 1983. His widow claimed compensation under the 1987 Act and succeeded. The insurer on risk in 1993 appealed. It argued that as the operation on the melanoma in 1983 had caused a period of incapacity and, as the worker’s death had resulted from the 1983 melanoma and there was no evidence that exposure to sunlight since 1983 had played any role in the worker’s death, s 15(1) deemed the injury to have happened at the time of the incapacity in 1983.
Sheller JA said (at 195F–G) (Priestley and Clarke JJA agreeing):
“But, if the injury resulted in incapacity for work and the worker’s death, is it deemed to have happened at the time of the worker’s death or at the time of the worker’s incapacity for work? The appellant submitted that the answer was incapacity for work if that resulted. The injury is only deemed to have happened at the time of the worker’s death if it did not result in incapacity for work before death. In 1983, the operation on the melanoma resulted in incapacity for work. The appellant submitted that, pursuant to section 15(1), the injury was deemed to have happened at that time and that, accordingly, within the meaning of Part 3, clause 2(1), the worker’s death resulted from an injury received before the commencement of Division 1 of Part 3 and the amount payable was that under the former Act.” (emphasis added)
This was the same argument presented by Mr White. In rejecting this argument, Sheller JA held at 196G that “for the purpose of the widow’s claim, the worker’s injury is deemed to have happened at the time of death”. His Honour said at 196B:
“In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed. Section 15(1)(b) provided that ‘compensation is payable by the employer in whose employment the worker is or who last employed the worker’. That means the employer in whose employment the worker is at the time the injury is deemed to have happened, or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn (1961) 105 CLR 177 at 196 and 199.” (emphasis added)
In the present matter, the insurer paid Mr White compensation for his incapacity in May 2000. However, his current claim is for additional lump sum compensation, not weekly compensation.
In Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 (Antaw), the worker was a motor mechanic who was injured in 1976 when a metallic particle struck his left eye. He settled his claim under s 16 of the Workers’ Compensation Act 1926 (the 1926 Act) for 10 per cent loss of sight in the left eye. The worker moved to different employers and, in 1992, he had further surgery to his eye. In April 1996, he ceased full-time work as a mechanic because of his loss of vision. He claimed weekly and lump sum compensation on 29 July 1996 and was awarded weekly compensation from 10 August 1993 (incapacity having arisen in January 1992 when he had time off work for surgery and was paid voluntary compensation) and lump sum compensation in respect of a further 40 per cent loss of sight in his left eye calculated on a deemed date of injury of 29 July 1996.
The employer appealed, arguing that the injury should have been deemed to have happened on or before 30 June 1987 and lump sum compensation calculated under s 16 of the 1926 Act. Counsel for the appellant argued that no practical purpose was to be served by applying s 15 of the 1987 Act where the worker had suffered a frank traumatic injury and there was no difficulty in identifying the date of the injury from which the incapacity arose. It was also argued that the evidence established a deemed date of injury under s 15 before 30 June 1987 because the worker had been incapacitated for work in 1976 and when he first stopped work because of his vision in 1985.
The Court of Appeal held that the trial judge’s finding, that the injury was deemed to have happened at the time of incapacity in 1992, when the worker was unable to work as a motor mechanic, was open to her. By 1996, the worker had sustained a further 40 per cent loss of vision. The worker’s incapacity had not resulted from that additional loss of vision and the appropriate date to determine the further lump sum entitlements was the time when the worker made his claim for lump sum compensation.
Mr White’s aggravation injury first caused incapacity in May 2000. However, as in Antaw, his incapacity (in the sense explained in Alfonzo) has not resulted from the further losses for which he claimed additional lump sum compensation on 13 January 2010. Therefore, an application of Antaw leads to the result that Mr White’s injury, for the purposes of his claim for additional lump sum compensation, is deemed to have happened on the date he made his claim on 13 January 2010.
Antaw involved a claim for additional lump sum compensation because of a further loss, as does Mr White’s claim. Though Antaw concerned s 15 and not s 16 of the 1987 Act, that is of no consequence. The Court referred to sub-s (4) of s 15, which is in identical terms to sub-s (3) of s 16. It states:
“(4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
At [15] of Antaw, Sheller JA said (Meagher JA and Cole AJA agreeing):
“15 Section 15(4) provides that in s15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3 [of the 1987 Act]. Loss of vision is such a loss; see s66 and the Table to Div 4 of Pt 3 therein referred to. The combined effect of subs (3) and (4) means that the condition for the application of subs (1) of s15 is met. The respondent suffered an injury within the meaning of s15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity; s15 (1) (a) (i). Her Honour found that this incapacity occurred, other than for the purpose of s66, in 1992 and for the purpose of s66 in 1996.” (emphasis added)
His Honour held (at [25]) that the trial judge had not erred in making that finding because the relevant incapacity had not resulted from the additional loss of vision. As with Mr Antaw, Mr White’s impairment/losses are losses for which compensation is payable under Div 4 of Pt 3 of the 1987 Act. His injury is an aggravation of a disease. Accordingly, the injury is deemed to have happened at the time of death or incapacity (s 16(1)(a)(i)). That incapacity first occurred in May 2000. However, for the purposes of a claim for additional lump sum compensation, the injury is deemed to have happened, 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” (s 16(1)(a)(ii)).
If s 16(3) had not been enacted, the reference to “the injury” in s 16(1)(a)(ii) could only be a reference to the s 4(b)(ii) injury, namely the aggravation injury that occurred in May 2000, and Ms Wood’s argument might have some merit. However, for the purpose of lump sum claims, s 16(3) expands the definition of “injury” to include “a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3”. The current claim is a claim under Div 4 of Pt 3 of the 1987 Act and, as no incapacity has resulted from the claimed impairment/losses, the injury is deemed to have happened at the time Mr White makes a valid claim for additional lump sum compensation.
The Court of Appeal again considered this issue in Alfonzo, a decision on which Ms Wood relies. In that case, Mrs Alfonzo developed pain in her arms and neck in the early 1990s while working for the first employer. Her doctor put her off work in 1993 and the insurer paid weekly compensation (the first incapacity). She moved to the second employer, where her symptoms worsened and she again had time off work in 1995 and was paid compensation (the second incapacity). She worked for two weeks in February 1996 but ceased work again and did not return (the incapacity for which the worker claimed compensation).
Mrs Alfonzo claimed weekly and lump sum compensation from both employers in an application filed in the Compensation Court on 30 July 1997. The trial judge held that the incapacity for which compensation was claimed occurred when the worker ceased work in February 1996 and that was the deemed date of injury for both weekly and lump sum compensation. The Court of Appeal upheld that decision. The relevant deemed date of injury was not the date of the first incapacity but was the date of the incapacity for which compensation was claimed or entitled to be claimed.
Alfonzo does not assist Mr White. Priestley JA (Clarke JA agreeing) referred (at [32]) to s 16(3) of the 1987 Act and said that it:
“appears reasonably plainly to serve the function of fixing dates for injuries entitling a worker to compensation payable under Division 4 of Pt 3, that is, necessarily including amounts payable under ss 66 and 67.”
The Court of Appeal considered GIO, Alfonzo and Antaw in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone). In Stone, 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 his doctor burnt off. The worker’s condition deteriorated and he claimed lump sum compensation in respect of severe facial disfigurement in December 2001, which he 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 s 16 of the 1926 Act applied in assessing the quantum of compensation recoverable.
The Court of Appeal held that the trial judge had erred. As there was no claim or entitlement to claim weekly compensation, s 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 worker claimed lump sum compensation in December 2001 or on 10 June 2003. Handley JA noted (at [8]) that Antaw is authority for the proposition that s 16 of the 1987 Act “may fix different dates for incapacity and impairment injuries”.
In respect of Alfonzo, his Honour noted at [9] and [10]:
“…the appeal did not require the Court to choose between 11 February 1996 and 30 July 1997 as the date of injury for the purposes of the ss 66 and 67 claims but between dates before and after 31 December 1995 when the appellant insurer came on risk.
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.” (emphasis added)
Hodgson JA (Mason P agreeing) reached the same conclusion, noting at [37] and [38]:
“37 Berkeley Challenge [Alfonzo] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s 16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.
38 In the present case, the claim for facial disfigurement is a claim for a loss of a thing as the result of an injury, within s 66(1), which loss is itself to be treated as an injury within s 16(1), as provided by s 16(3). The same applies to the claim in respect of bodily disfigurement. Each such loss or injury was the disfigurement assessed by Dr Lobel on 5 March 2003, and included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 30 June 1987: in my opinion, this plainly follows from Antaw at par [18]. For that reason, in my opinion the primary judge did make an error of law, and the appeal must be upheld.” (emphasis added)
In Mr White’s matter, there is no claim for weekly compensation, but only a claim for additional lump sum compensation. His claimed s 66 impairment/losses in January 2010 could not have caused his incapacity in 2000. As a result, applying the principles in Antaw, as explained in Stone, s 16 can “fix different dates for incapacity and impairment injuries”, and the correct deemed date of injury for Mr White’s “impairment injury” is the date of claim.
Ms Wood also submitted s 16 does not create an “injury” simply by deeming it (per Hodgson JA, Ipp and Hoeben JJA agreeing, in Gales vLovett McCracken & Bray Pty Ltd [2008] NSWCA 171 at [32] (Gales)). Whilst that is correct, his Honour said (at [30]) that, in Antaw, the court noted sub-ss 15(3) and 15(4) had the effect that:
“the additional loss of vision would itself be an injury within s 15; and the court accordingly held that the additional forty per cent loss measured in 1996 was an injury which had not caused the incapacity which had occurred in 1992, and thus was deemed to have occurred when the claim was made in 1996.”
Gales does not support Mr White’s position, but confirms the approach in Antaw. Applying that approach means that, if, contrary to my finding, Mr White did not suffer an aggravation injury after May 2000, the correct deemed date of injury is the date of claim. For the reasons explained at [73] above, the proceedings based on the claim made on 13 January 2010 are misconceived or lacking in substance.
CONCLUSION
Having conducted a review on the merits, the true and correct position is that Mr White suffered an aggravation injury under s 4(b)(ii) of the 1987 Act as a result of his duties up to approximately September 2004 and the deemed date of injury under s 16 of the 1987 Act is the date on which he purported to claim lump sum compensation, namely 13 January 2010. In the alternative, if Mr White received his injury on either 30 May 2000 or 15 November 2000, the principles in Stone and Antaw lead to the same result. As Mr White claimed compensation under the Table of Disabilities and should have claimed under the whole person impairment provisions, the proceedings were misconceived and are dismissed under s 354(7A)(b) of the 1998 Act. It follows that, for different reasons, the Arbitrator’s ultimate orders are confirmed.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 11 October 2010 is confirmed.
COSTS
Ms Wood submitted that, as Mr White succeeded on the interlocutory issue, he is entitled to part of his costs of the appeal. The respondent employer opposed that order. While Mr White succeeded in establishing that his appeal satisfied the thresholds in s 352, he failed on all of the substantive grounds argued on appeal. The appropriate order is that each party pay his or its costs of the appeal.
Bill Roche
Deputy President
10 February 2011
I, MARGOT UNDERCLIFFE, 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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