Wraydeh v Westaff (Australia) Pty Limited
[2006] NSWWCCPD 285
•26 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wraydeh v Westaff (Australia) Pty Limited [2006] NSWWCCPD 285
APPELLANT: Nesreen Wraydeh
RESPONDENT: Westaff (Australia) Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC16781 - 05
DATE OF ARBITRATOR’S DECISION: 21 February 2006
DATE OF APPEAL DECISION: 26 October 2006
SUBJECT MATTER OF DECISION: Time for making a claim; Application of sections 60A and 261 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Stephen Spinak, Solicitor
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: 1. Paragraph 1 of the decision of the
Arbitrator dated 21 February 2006 is revoked and the following decision made in its place:
(a)Pursuant to section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998 the Applicant is not barred from pursuing her claim for compensation.
2.Paragraph 2 of the decision of the Arbitrator is confirmed.
3.The matter is remitted to another Arbitrator for determination of the outstanding issues in accordance with these reasons.
4.Westaff (Australia) Pty Limited is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Nesreen Wraydeh (‘Ms Wraydeh’) was employed on a casual basis by Westaff (Australia) Pty Limited (‘Westaff’) as a labourer. She commenced employment in about September 1998.
Ms Wraydeh claimed that in 1999, whilst working at premises at St Peters, she slipped on water on the floor and injured her back. Ms Wraydeh claimed that she reported the incident to a fellow employee and later that day telephoned her trainee manager “Liz” to report the incident.
It was not until the 30 August 2002 that Ms Wraydeh completed a “Workers Compensation Claim Form” issued by Westaff’s insurer, Allianz Australia (Workers Compensation) NSW Limited (‘Allianz’)
On 30 September 2005, Ms Wraydeh lodged an ‘Application to Resolve a Dispute’ in the Commission seeking medical, hospital or related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
On 25 October 2005 Westaff filed a ‘Reply’ listing as the issues in dispute, inter alia, that notice of the injury was not given nor was the claim for compensation made within the time limits specified by the 1998 Act.
The parties attended a conciliation/arbitration hearing on 3 February 2006. On 21 February 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The determination of the Arbitrator was as follows:
“1. The Applicant’s claims for compensation are out of time.
2.The Respondent should pay the Applicant’s costs as agreed or assessed.”
In summarising the resolution of the issues in dispute, the Arbitrator made the following findings:
·“After May and before December 1999, the Applicant received an injury to her back arising out of or in the course of her employment with the Respondent.
·The Applicant’s employment was a substantial contributing factor to her injury.
·The Applicant gave oral notice of injury to the employer on the date of injury.
·The Applicant does not satisfy the requirement of ‘serious and permanent disablement’ in section 261(4)(b) of the 1988 [sic – 1998] Act.
·The Applicant’s medical expenses and non-economic loss claims are out of time.
·The Applicant is barred from prosecuting those claims for compensation.”
On 21 March 2006 Ms Wraydeh filed an ‘Appeal Against Decision of Arbitrator’. Briefly, Ms Wraydeh submits that, as the Arbitrator made a finding of injury in “1999”, the claim form completed by Ms Wraydeh on 30 August 2002 was submitted within the three years prescribed by section 261(4)(a) of the 1998 Act, since the three years expired at the end of 2002. In those circumstances, it is submitted, “it was therefore unnecessary for the Arbitrator to have regard to the issue of ‘serious and permanent disablement’”.
On 19 April 2006, Westaff filed a ‘Notice of Opposition to the Appeal’. Westaff submits that Ms Wraydeh has failed to establish any proper grounds of appeal and that the decision of the Arbitrator ought be confirmed.
LEAVE TO APPEAL
No amount of compensation was awarded in this matter however, the amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act. The appeal was filed within the time limits prescribed by section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Ms Wraydeh submits that “it is not appropriate to determine this appeal on the papers as the appeal involves explanation of fundamental errors of law, fact and discretion that will disentitle a deserving worker if the appeal is not successful.”
Westaff submits that the matter is suitable for a determination ‘on the papers’.
Section 354(6) of the 1998 Act provides:
“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.”
Ms Wraydeh has provided extensive submissions on appeal clearly identifying the nature of the errors she claims the Arbitrator has made.
Having carefully read both parties’ submissions, the transcript, and all the evidence before the Arbitrator, I am satisfied that, in accordance with Practice Directions No. 1 and 6, and section 354(6) of the 1998 Act, I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE ISSUES ON APPEAL
The issues raised by Ms Wraydeh are fairly straight forward. In brief, she submits that, the Arbitrator having made the finding of fact that she suffered injury in the employ of Westaff “in 1999”, and having further found “due notice of injury is established” the Arbitrator’s findings relating to the issue as to notice of the claim were incorrect, firstly because the Arbitrator made reference to section 65 of the 1998 Act, and secondly, in his interpretation of section 261(4) of that Act.
The Arbitrator found (paragraph 43 of his Statement of Reasons) that “I accept that the Applicant was ignorant of her rights and obligation in relation to the requirement for notice of claim.” It is appropriate to note here that Westaff, in its submissions, concedes that this finding was open to the Arbitrator.
The Arbitrator went on to state at paragraph 44 as follows:
“However, I do not accept the Applicant’s submission, that she should be forgiven the delay in making her claim because she sustained serious and permanent disablement, the additional criteria once ignorance can be established. This submission is against the weight of evidence.”
Ms Wraydeh submits that section 261 of the 1998 Act applies since the claim was made after 1 January 2002 and that, in accordance with that section, “… the issue of ‘serious or permanent disablement’ is not an additional factor to be considered where the claim is made within three years of the date of injury.”
THE RELEVANT LAW
Section 60A of the 1998 Act provides as follows:
“(1)Sections 61 – 64 apply only in respect of an injury received before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
(2)Sections 65 and 66 apply only in respect of the making of a claim before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).”
In the present case, the Arbitrator made the finding of ‘injury’ in 1999 such that sections 61 to 64 were applicable. Section 61 of the 1998 Act provides as follows:
“61 (1) Compensation may not be recovered under this Act unless notice of
the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)Notwithstanding sub-section (1), the absence of, or defect or inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation:
(a)that the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings, or
(b)that the absence of or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the state or other reasonable cause, or
(c)that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, …”
Section 65 of the 1998 Act makes provisions for the making of a claim for compensation however, in the present case, the Arbitrator found that the claim was made by way of a Claim Form completed by Ms Wraydeh on 30 August 2002, i.e, after 1 January 2002, such that Chapter 7 of the 1998 Act is applicable.
Section 261 in Chapter 7 of the 1998 Act deals with the time limits within which a claim for compensation must be made. Section 261 relevantly provides as follows:
“(1) Compensation cannot be recovered unless a claim for compensation has been made within six months after the injury or accident happened, or, in the case of death, within six months after the date of death.
…
(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 three years after the injury or accident happened or, in the case of death, within three years (3) after the date of death, or
(b)The claim is not made within that three (3) years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The thrust of Westaff’s submissions on appeal is to the effect that the weight of medical evidence supported the Arbitrator’s finding that Ms Wraydeh had failed to provide sufficient evidence of “serious disablement” and that such a finding does not establish any errors either of law, fact or discretion.
That submission is correct insofar as it deals solely with the issue of “serious and permanent disablement”, notwithstanding Ms Wraydeh’s submissions to the contrary. In reaching this conclusion, the Arbitrator had regard to the decisions of Gregson v L & M R Dimasi Pty Limited [2000] 20 NSWCCR 520 and Broken Hill Co Pty Limited v Kuhna [1992] 8 NSWCCR 401 dealing with this issue. The Arbitrator concluded at paragraph 50 of his ‘Statement of Reasons’:
“I am not satisfied on the evidence that Mrs Wraydeh has established her entitlement in the ‘serious disablement’ category in comparison to the Gregson (or Kuhna) matters relied on above. Both of those workers certainly had more serious injuries and more serious disablement arising out of their injuries …”
The Arbitrator went on at paragraph 51: “There is insufficient evidence of serious disablement to enable the Applicant to take advantage of the exclusion from obligation in section 65 of the 1998 Act.”
The Arbitrator has incorrectly referred to section 65 of the 1998 Act but that in itself is not fatal to his determination. His summary of the issues in dispute in paragraph 53 includes this statement: “The Applicant does not satisfy the requirements of ‘serious and permanent disablement’ in section 261(4)(b) of the 1988 [sic – 1998] Act” such that he was clearly cognizant of the relevant legislative provisions.
Unfortunately, the Arbitrator’s interpretation of section 261(4) was incorrect. As Ms Wraydeh points out in her submissions:
“… by the use of the words ‘either’ prior to paragraphs (a) and (b) and ‘or’ between those paragraphs, the issue of ‘serious or permanent disablement’ is not an additional factor to be considered where the claim is made within three years of the date of injury. If the claim was made within the three years of the date of injury, it is sufficient to establish that the delay was ‘occasioned by ignorance etc’. Here, the Arbitrator found such ignorance at paragraph 43.”
That statement reflects a proper construction of section 261(4). A worker is only required to demonstrate either that a claim was made within three years after injury or, if more than three years, the claim is in respect of an injury which results in serious and permanent disablement.
In the present case, the Arbitrator stated at paragraph 43:
“I accept that the Applicant was ignorant of her rights and obligation in relation to the requirement for notice of claim. Her age at the time [17], and general lack of knowledge of the workers compensation regime, contributed to her failure to meet the prescribed requirements for notice.”
This finding was clearly open to the Arbitrator particularly in light of Ms Wraydeh’s oral evidence given at the hearing.
The issue to determine then was whether or not the circumstances satisfied the requirements of section 261(4)(a) of the 1998 Act. The Arbitrator made no such overt finding, however, implicit in his statement in paragraph 43 of his ‘Statement of Reasons’ is an acknowledgment that Ms Wraydeh failed to make a claim within the time limits prescribed by section 261(1) of the 1998 Act. The next question for the Arbitrator to determine was whether or not, having been satisfied that the failure to make a claim in time was due to ignorance, the claim was made within three years after the date of injury.
In her statement dated 6 May 2002, Ms Wraydeh claimed that the date of injury was “end of 1998 or start of 1999.” In her oral evidence before the Arbitrator, she was similarly unable to accurately pinpoint a date of injury but was adamant that it was after May of 1999 (when she was provided with a reference by Westaff) and probably before the end of December 1999. At page 5 of the transcript, when asked when the injury occurred she stated “I think late 1999”. At page 9, when asked if she got her reference before or after the injury she stated “way before my injury”.
The evidence disclosed that she first sought medical treatment from her General Practitioner, Dr Kanawati in March 2000. There was also evidence to the effect that Ms Wraydeh had again either injured her back or suffered further symptoms following an incident lifting vegetables at her father’s fruit shop. At page 15 of the transcript, when asked “If, indeed, the incident with the tomatoes is just before 20 March 2000, that would place your original injury back at somewhere like August or September of 1999”, to which Ms Wraydeh responded “Probably”. She was then asked “And that’s about the best to your recollection?” and she responded “Probably, yeah”. At page 16 of the transcript when asked “… we’re still talking about sort of August – September ’99 then?” she responded “Probably”.
On the basis of all this evidence, the Arbitrator concluded at paragraph 53 “after May and before December 1999, the Applicant received an injury to her back arising out of or in the course of her employment with the Respondent”. That was the best evidence available, although it would be fair to say that Ms Wraydeh’s best recollection was that the injury occurred “probably” in around August or September of 1999.
The claim form was completed on 30 August 2002. In the absence of any specific date of injury, the Arbitrator’s finding that injury occurred “after May and before December 1999 effectively gave a ‘range of dates’ in which ‘injury’ occurred such that, as Ms Wraydeh submits, “the three years expired at the end of 2002.”
In the absence of a finding of a specific date of injury, I think Ms Wraydeh’s submission is correct. Section 261(4)(a) provides that a claim must be made “within three years after the injury or accident happened …” It is not clear precisely when the injury occurred in this case. It could have been at any time from June to December 1999 such that it is appropriate that time should run from the last probable date of injury. In any event, Ms Wraydeh’s recollection at arbitration was to the effect that the injury occurred “probably” in August or September 1999.
In the circumstances, I am satisfied that Ms Wraydeh’s claim was made within the time limits prescribed by section 261(4)(a) so that the Arbitrator was not required to deal with the alternative ‘requirement’ set out in section 261(4)(b).
CONCLUSION
Where the Arbitrator’s determination involves a finding of fact open to him on the evidence, prima facie it should not be disturbed. In this case, the Arbitrator’s finding of fact that Ms Wraydeh sustained an injury in the course of her employment with Westaff “after May and before December 1999” was open to him. Similarly with his finding that “the Applicant gave oral notice of the injury to the employer on the date of injury.”
However, the Arbitrator has erred in his interpretation of section 261(4) of the 1998 Act in determining that Ms Wraydeh’s claim for compensation was “out of time” because it did not satisfy the requirements of section 261(4)(b) of the 1998 Act.
Westaff having conceded that it was open to the Arbitrator to conclude that Ms Wraydeh was “ignorant of her rights and obligation in relation to the requirement for notice of claim”, the Arbitrator was required to determine whether Ms Wraydeh should be afforded the extension of time in which to make a claim as set out in section 261(4)(a) of the 1998 Act.
The Arbitrator’s focus on the issue of “serious and permanent disablement” was erroneous given his other findings.
The Arbitrator failed to properly consider the Application of section 261(4)(a) of the 1998 Act in circumstances where his findings were such as to entitle Ms Wraydeh to prosecute her claim.
DECISION
1. Paragraph 1 of the Arbitrator’s decision dated 21 February 2006 is revoked and the following decision made in its place:
(a)Pursuant to section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998 the Applicant is not barred from pursuing her claim for compensation.
2.Paragraph 2 of the decision of the Arbitrator dated 21 February 2006 is
confirmed.
3.The matter is remitted to another Arbitrator for determination of the
outstanding issues in accordance with these reasons.
COSTS
Westaff (Australia) Pty Limited is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
26 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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