Wynyard Properties Pty Limited v Reyes - [2013] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Wynyard Properties Pty Limited v Reyes [2013] NSWWCCPD 23
APPELLANT:		Wynyard Properties Pty Limited
RESPONDENT:		Evelyn Reyes
INSURER:		Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:		A1-6897/12
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:		10 January 2013
DATE OF APPEAL DECISION:		24 April 2013
SUBJECT MATTER OF DECISION:		Application to extend time to appeal; Pt 16 r 16.2 of the Workers Compensation Commission Rules 2011; sufficient compliance with s 282 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons
Respondent:	Turner Freeman Lawyers
ORDERS MADE ON APPEAL:		1. The application to extend time to appeal is refused. 2. The appellant employer is to pay the respondent worker's costs of the appeal as agreed or assessed.

INTRODUCTION

The amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) restrict entitlements to permanent impairment compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of claims made after 19 June 2012.This appeal concerns whether valid particulars of a claim for lump sum compensation were provided to the appellant prior to 19 June 2012, and therefore whether a valid claim for lump sum compensation was made before 19 June 2012.

BACKGROUND

The respondent worker, Ms Reyes, was employed by the appellant as a room attendant from 2001 through to 2008.
On 3 January 2006, Ms Reyes suffered injuries to her back, neck and right shoulder while pushing and pulling a bed during the course of her employment. She made a claim for permanent impairment compensation. That claim was resolved and on 7 February 2008, the Commission entered a Certificate of Determination Consent Orders. The consent orders noted, among other things, an award in favour of Ms Reyes in respect of an 18 per cent whole person impairment as a result of injuries to the right shoulder and neck and seven per cent whole person impairment as a result of injuries to the lumbar spine pursuant to s 66 of the 1987 Act, plus an amount of $20,000 pursuant to s 67 of the 1987 Act.
On 16 November 2008, Ms Reyes underwent an ulnar nerve decompression at the right elbow and excision of a ganglion performed by Dr Dexter.
It is evident that prior to December 2009, Ms Reyes made a claim for compensation in respect of her right elbow, and left shoulder, although the precise details of this claim are not in evidence. It is evident because on 14 December 2009, Allianz issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), declining liability for “your claim for compensation for your right elbow and left shoulder”. The “claim” was rejected on the basis that the injuries to the right elbow and left shoulder were not workplace injuries within the meaning s 4 of the 1987 Act, and did not develop as a consequence of the accepted right shoulder injury. It denied that the provisions of s 9A of the 1987 Act were satisfied.
There is nothing in the evidence to indicate what steps, if any, were taken to progress any further claims for compensation between December 2009 and June 2011.
On 14 June 2011, Ms Reyes underwent revision surgery on the right elbow performed by Dr McMaster, neurosurgeon.
On 22 June 2011, Ms Reyes’s solicitors, Turner Freeman, wrote to Wynyard Properties Pty Limited (the appellant) making a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 10 per cent whole person impairment. She alleged an injury to the right upper extremity occurring on 3 January 2006. The letter attached two reports of Dr Raymond Wallace dated 8 January 2011.
Dr Wallace diagnosed Ms Reyes as having suffered the following injuries as a result of her employment with the appellant:
(a)     musculoligamentous strain cervical spine;
(b)     partial thickness rotator cuff tear and traumatic subacromial impingement right shoulder;
(c)     traumatic ulnar nerve entrapment right elbow;
(d)     traumatic carpal tunnel syndrome right wrist, and
(e)     musculoligamentous strain lumbar spine.
Dr Wallace’s assessment of a 10 per cent whole person impairment related specifically to impairments of the right elbow and wrist. He found that in respect of the right elbow condition Ms Reyes “suffered a right upper limb impairment of 8% as result of loss of range of movement at the joint according to Figures 16.34 and 16.37, pages 472-474, AMA Guides Edition 5”.
In respect of the wrist condition Dr Wallace opined “she has suffered a right upper limb impairment of 14% as a result of loss of range of movement at the joint according to Figures 16.28 and 16.31, pages 467-469 AMA guides Edition 5”.
After making an adjustment of four per cent in respect of the wrist, to reflect a loss of range of movement in her uninjured wrist and a previous carpal tunnel operation, Dr Wallace combined the losses using the combined values chart to assess a 16 per cent upper limb impairment which corresponds to a whole person impairment of 10 per cent. He opined that the impairments were due to Ms Reyes employment with the appellant as a room attendant from 2005 to 2006. The remaining injuries he diagnosed are irrelevant to this appeal. Claims for impairments to those body parts were resolved in 2006.
On 14 July 2011, Allianz wrote separately to Ms Reyes and to Turner Freeman in effect rejecting her claim by making a zero whole person impairment counter offer on the basis that Ms Reyes had previously been compensated for whole person impairment in respect of an injury to the right shoulder on 3 January 2006. There is then another gap in the evidence until April 2012.
On 5 April 2012, Ms Reyes lodged an Application to Resolve a Dispute in the Commission, matter number 3329/2012 (the first Application). She alleged injury to her “right elbow and right wrist” due to the nature and conditions of her employment which included cleaning and preparing hotel rooms, changing bed linen, cleaning bathrooms, vacuuming, pushing heavy lunch trolleys, scrubbing shower screens, moving beds, dusting and removing rubbish (the cleaning duties) between 2001 and January 2008, with a marked increase in pain on or about 6 October 2007. The first Application claimed $12,500 in respect of a 10 per cent whole person impairment in respect an injury to the right upper extremity. The notional date of injury stated in Part 5.6 of the application was particularised as “On or about 2006”.
On 18 May 2012, Allianz issued a further notice pursuant to s 74 of the 1998 Act, in which it denied liability for multiple reasons. In general terms, those reasons related to alleged inadequate particularisation of the claim, a denial of “injury”, reliance on s 9A of the 1987 Act, failure to make a claim within the time required by s 261 of the 1998 Act and a denial that the worker suffered a disease within the meaning of ss 15 and 16 of the 1987 Act. Allianz acknowledged a claim by the worker dated 22 June 2011, alleging injuries to the right wrist and elbow arising from an injury on 3 January 2006. It made reference to the limitations with respect to the lump sum compensation provisions arising from the 2012 amending Act. It stated that the first application referred inconsistently to pleaded dates of injury and “introduced different dates and mechanisms of injury that were not previously notified”.
On 29 May 2012, the first Application was listed for a teleconference before a Commission Arbitrator. The Application was discontinued and a Certificate of Determination issued. The Certificate records the parties’ agreement that the proceedings be discontinued, however the reasons for the discontinuance are not apparent.
On 26 June 2012, Ms Reyes filed another Application to Resolve a Dispute in the Commission, matter number 6897/2012 (the second Application). The second Application, as amended, also claimed permanent impairment compensation in respect of injuries to “the right elbow and right wrist”. As in the first application, it pleaded “injury due to the nature and conditions of employment with a marked increase in pain on or about 6 October 2007”. However, in the second application, Ms Reyes claimed $6,875 in respect of five per cent whole person impairment relating to injuries to the right upper extremity due to the nature and conditions of her employment from on or about January 2001 to on or about 2008. The notional date of injury was stated in Part 5.6 of the second Application as “on or about January 2008”.
On 28 June 2012, Ms Reyes’ solicitors Turner Freeman, wrote to the appellant claiming $6,875 in respect of five per cent whole person impairment in respect of the injury to the left elbow on 6 October 2007.
On 20 July 2012 the appellant lodged a Reply to the second Application. The reply listed 13 matters in dispute, however as recorded by the Arbitrator (at T3.3), the issue for determination by the Commission was encapsulated in paragraph 1.1 of the Reply which states:
“The applicant failed to give notice of her claim for lump sum compensation prior to filing the application to resolve a dispute (ARD) [the second Application] and denied the respondent procedural fairness afforded by sections 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).”
(It should be noted that the appellant did not rely on a failure to claim within the time prescribed by s 261 of the 1998 Act.)
On 7 January 2013, the matter was listed for an arbitration hearing before a Commission Arbitrator. At the commencement of the hearing, counsel for the appellant made an application that Ms Reyes’ Application be struck out on the basis that a claim for lump sum compensation had not been validly made prior to 19 June 2012. The Arbitrator heard submissions form the parties and reserved his decision on the strike out application to the following day.
On 8 January 2013, the Arbitrator delivered his decision refusing the application to strike out the Application and provided oral reasons. He accepted that the amended claim made in the second Application had been the subject of a claim before 19 June 2012 and that it substantially complied with s 282 of the 1998 Act.
On 10 January 2013, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1.       Decline the respondent’s application to strike out the matter on the basis that a claim for lump sum compensation had not been validly made prior to 19 June 2012.
2.       Leave to the respondent to dispute that the applicant suffered injury to her right elbow arising out of or in the course of their employment.
3.       Respondent to serve any further evidence upon which it wishes to rely within 14 days.
4.       Stand over the issue of injury for conciliation and arbitration at 2 PM on 25 February 2013.”
On 11 February 2013 the appellant filed an Application, Appeal against Decision of Arbitrator (the appeal). The appeal was lodged one day out of time.

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.”
Both parties have submitted that the matter can proceed ‘on the papers’ without the need for holding a formal hearing.
Having regard to Practice Directions 1 and 6 and the documents that are before me, and having regard to the parties’ submissions, the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed “on the papers without holding any conference or formal hearing” and that this is the appropriate course in the circumstances.

PRELIMINARY MATTERS

Monetary threshold

There is no dispute that the monetary thresholds in s 352(3) of the 1998 Act are satisfied.
The appeal was lodged more than 28 days after the decision was made and is out of time (s 352(4) of the 1998 Act). The appellant seeks an extension of time in which to appeal.
The appellant’s submissions in support of leave to appeal out of time are:
(a)     the respondent insurer gave instructions to file an appeal of the decision to its representatives at 4.51pm on 8 February 2013, the last day on which the appeal could be filed within time;
(b)     the appeal was filed as soon as practicable after instructions were received;
(c)     the appellant’s representatives have notified the respondent worker’s representative of the appellant’s appeal as soon as practicable after instructions were received. A letter to this effect was apparently sent to the respondent worker’s lawyers on 11 February 2013. The letter is not in evidence, and
(d)     to lose the right to seek leave to appeal would work a demonstrable and substantial injustice on the appellant: Gallo v Dawson [1990] HCA 30, McHugh J at 480 (Gallo). In support of the submission the appellant submits that it notified the respondent worker by separate correspondence filed prior to this application.
The application to extend time is opposed for the following reasons:
(a)     in order to consider whether there are exceptional circumstances sufficient to justify an extension of time it is necessary to explain what happened during the whole of the period since the decision was made;
(b)     no explanation for what happened until nine minutes before the time to appeal expired has been offered;
(c)     no explanation is given of when notice was given to the insurer or why the insurer did not see fit to give instructions until 4.51pm on the last day to appeal in time, and
(d)     Ms Reyes submits that she is prejudiced by the appeal being brought out of time. The delay has kept her from having the benefit of the award monies. Until the award monies are paid the worker is unable to obtain the benefit of any interest on her entitlement.
In reply, the appellant submits that the following sequence of events occurred:
(a)     a transcript of the Arbitrator’s decision was requested by the appellant’s representatives on 9 January 2013;
(b)     the transcript was emailed to the appellant on 24 January 2013;
(c)     the appellant’s solicitors provided comprehensive advice to the appellant’s insurer regarding the Arbitrator’s decision on 1 February 2013;
(d)     the appellant insurer confirmed receipt of the advice on 4 February 2013, and
(e)     instructions to proceed with the appeal were communicated by the appellant’s insurer to the appellant’s solicitors on 8 February 2013 after the advice was reviewed and considered.
An extension of time in which to appeal is governed by Pt 16, r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules), which provide:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
As Ms Reyes submits, the question of extending time to appeal was considered by McHugh J in Gallo. His Honour observed that in order to determine whether the strict application of the time limits would work an injustice, it is necessary to have regard to:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)     the fact that, upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
The appellant’s submissions concerning the reasons for the appeal being filed out of time do not demonstrate exceptional circumstances. Aside from providing a chronology of events, no attempt has been made to explain the reason for the appeal not being filed within time. I infer from the chronology that the time taken to obtain the transcript of the Arbitrator’s reasons was a factor in the appeal being lodged out of time. If that be the case I do not accept that that constitutes exceptional circumstances.
Practitioners at judgment should be ready and active in taking notes: Dillon v Boland; Dillon v Cush[2012] NSWCA 364 at [8] applying Kounnas v Citywide Civil Engineering Pty Ltd[2012] NSWCA 287 at [14]–[16] where it was stated by Allsop P that “Practitioners are required to keep notes of the essentials of what occurs in court. This includes, in particular, the terms of judgments and the elements of arguments put to judicial officers” ([15]).
The Arbitrator’s reasons are relatively brief and were delivered, extempore, in the presence of the parties’ legal representatives. The issue for determination was of narrow compass and the Arbitrator’s reasons for decision should have been readily appreciated by the parties. I should also add that pursuant to Practice Direction 6, parties are permitted to lodge supplementary submissions within 28 days from the date of the correspondence from the Registrar providing a copy of the transcript of the proceedings.
Further, no explanation has been given for the appellant insurer’s failure to give instructions with respect to the appeal after receiving advice from their solicitors on 1 February 2013 and 8 February 2013, when instructions were given to proceed with the appeal.
On the other hand, I do not accept Ms Reyes’s submission that she is prejudiced by reason of being held out of the benefit of an award. The Arbitrator’s decision was an interlocutory decision. It did not finally determine the parties’ rights and indeed it was left open to the respondent to dispute the question of injury. Ms Reyes would not be entitled to recover any compensation until those issues are argued and determined.
Even if the reasons for the appeal being lodged out of time are less than satisfactory, it is still possible to satisfy the test in Pt 16, r 16.2(12) of the Rules if it is otherwise established that to lose the right to appeal would create a demonstrable and substantial injustice.
Allsop P considered Pt 16, r 16.2(11) of the Workers Compensation Commission Rules 2006 which is in the same terms as r 16.2(12) of the current rules in Bryce v Department of Corrective Services [2009] NSWCA 188. His Honour held (at [10], Beazley JA (as her Honour then was) and Giles JA agreeing) that:
“whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction …”.
Whether there will be a demonstrable or substantial injustice if time to appeal is not extended in the present case requires a consideration of the merits of the appeal.
The Arbitrator’s decision is interlocutory. Except with leave of the Commission, there is no right of appeal against an interlocutory decision by an arbitrator, and the Commission is not to grant leave “unless of the opinion that determining the appeal is necessary or desirable for the proper and efficient determination of the dispute” (s 352(3A)).
Although the appellant agrees that the Arbitrator’s order is interlocutory, it submits that it is necessary and or desirable to determine the appeal in order to ensure the proper and effective determination of the dispute.

The appellant submits that the injury issue and the degree of permanent impairment as a result of any compensable injury will remain in issue. It submits that it would be proper for the Commission to determine the appeal because, if upheld, the determination of the appeal would eliminate the need for any further hearing or any examination by an Approved Medical Specialist (AMS): (DP World Sydney Pty Limited v Kelly [2011] NSWWCCPD 43 at [13]).
Ms Reyes opposes the appeal on the interlocutory issue. She submits that the appellant has not explained why it is necessary or desirable for the appeal to proceed other than to assert that a successful appeal will eliminate the need for any further hearing or examination by an AMS. Ms Reyes further submits that pursuant to s 354(3) of the 1998 Act, the Commission is required to act according to equity, good conscience and the substantial merits of a case without regard to technicalities or legal forms.
I accept that if the appeal is dismissed only because the substance of the appeal concerns an interlocutory order, the matter would then proceed on all issues. That will involve the matter being listed for an arbitration hearing and if successful on the liability issues, a referral by the Registrar to an AMS to determine the extent of any whole person impairment suffered by the worker. At that point, after final orders are entered, the appellant would be entitled to lodge a further appeal to argue the failure to provide particulars point. I am satisfied that it is desirable for the proper and effective determination of the dispute that that issue be determined now, as the resolution of the issue may avoid the unnecessary utilisation of the Commission’s resources.

THE ARBITRATOR’S REASONS

The Arbitrator’s finding that Ms Reyes had made a valid claim for compensation before 19 June 2012, proceeded from the following analysis. The definition of the word “claim” in s 4 of the 1998 Act defines the word to mean “a claim for compensation or work injury damages that a person has made or is entitled to make”.
It is evident that one of the primary purposes of the legislation is to facilitate a settlement and enable an insurer to meet and deal with a claim for compensation without resorting to litigation. The concept of a claim must be analysed in that context.
The Arbitrator noted the discussion of the meaning of that term in the recent decision of Goudappel v ADCO Constructions Pty Limited [2012] NSWWCCPD 60, however, his decision does not turn on, or rely on, this authority.
Section 260 of the 1998 Act requires that a claim be made in accordance with the applicable requirements of the WorkCover guidelines.
Section 282 of the 1998 Act sets out the relevant particulars that must be given about a claim.
The Arbitrator accepted that the guidelines issued by the WorkCover Authority have been held in Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363 to be directory rather than mandatory. See also Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247.
The Arbitrator proceeded on the basis that the requirements of s 282 are mandatory and although the guidelines are not mandatory, they form part of the “fabric of the laws” and govern the claiming of compensation and are prima facie to be observed.
The Arbitrator accepted Ms Reyes’ submission that the information contained in the first Application set out all of the information that was required by s 282. His reasons recorded (at (T11.5)) that the appellant’s counsel did not submit that the first Application could not constitute the provision of the relevant particulars about a claim.
The only reservation noted by the Arbitrator was the lack of complete symmetry between the allegation of permanent impairment in Dr Wallace’s report relating to the right elbow condition on 8 January 2011 and the percentage of whole person impairment loss that was claimed in the second Application. He concluded, however, that there was substantial compliance with s 282.
Dr Wallace’s report stated categorically that in relation to the right elbow condition there was a right upper limb impairment of eight per cent as a result of loss of range of movement of a joint according to figure 16.34 and 16.37, pages 472 and 474 of the AMA Guides; 5^th ed.
Whilst Dr Wallace provided an assessment of the whole person impairment, combining the elbow and wrist injuries together, having regard to his findings, the insurer had the opportunity to consult the AMA Guides, 5^th ed, to establish whether, through its claims officer, or if necessary, through its medical advisor, the quantum of the whole person impairment in respect of the right elbow injury only.

GROUNDS OF APPEAL AND APPELLANT’S SUBMISSIONS

Grounds of appeal

The Arbitrator erred in applying his discretion for the following reasons:
“(a) That the respondent worker did not properly provide notice prior to the filing of the ARD, or alternatively within the ARD filed under Matter no. 6897/2012 of her injury and claim for compensation;
(b)     That the respondent worker’s evidence did not crystallise the claim for compensation now in dispute prior to 28 June 2012;
(c)     The arbitrator has considered that the notice of the respondent’s claim was constituted by the ARD filed in Matter no. 3329/2012 was a valid notice of the respondent worker’s claim for permanent impairment where there was ambiguity in this notice of claim;
(d) That there cannot be substantial compliance with sections 281 and 282 of the 1987 Act where there is ambiguity about the assessment of the relief claimed;
(e)     That in so finding that notice of claim was constituted by an ambiguous document, the appellant was denied procedural fairness in properly determining the issues in dispute also raised in its Reply dated. [sic]”

Submissions in support

The worker did not properly provide notice prior to the filing of the ARD, or alternatively did not provide notice of the injury now in dispute. The demand of 28 June 2012, which provided particulars of the worker’s current claim was not provided until two days after the second Application was filed.
The relief claimed in the current proceedings does not accord precisely with the demand of 22 June 2011. That demand was for the sum of $12,500 in respect of a 10 per cent whole person impairment plus additional compensation for pain and suffering pursuant to s 67, in respect of injury sustained to her right upper extremity on 23 June 2006.
The first Application was consistent with the claim made by letter on 22 June 2011. The claim in the current proceedings is a claim for five per cent whole person impairment relating to the right upper extremity. The claim was amended by consent to refer to the nature and conditions of the worker’s employment from 2001 to 2008 with a notional date of injury originally stated as 6 October 2007, which was subsequently amended to plead a notional date of injury “on or about January 2008”.
The appellant submits that while there remained ambiguity about what injury was pleaded, “when there was no precise reference to the injury described in the ARD under neither Matter no. 3329/2012 [the first Application] nor the letter of claim of 22 June 2011”, there cannot be substantial compliance with the provisions of ss 281 and 282 of the 1998 Act.
The medical evidence in support of the claim for five per cent whole person impairment, “the current claim”, was not provided by Dr Wallace until his report dated 20 June 2012. The report served in support of the claim made on 22 June 2011 assessed 10 per cent impairment in respect of the right upper extremity.
The relief sought in the second Application corresponds with the demand of 28 June 2012 and that is when the worker’s claim crystallised.
The Arbitrator’s error was to find that a valid notice of claim had been given in the first Application on or about 3 April 2012. This is because the claim had not crystallised by that time because there was still ambiguity “about what level of impairment was attributed to the injury pleaded”. Dr Wallace’s assessment of 8 January 2011 included reference to several segments of the right upper extremity combined to give an overall impairment of 10 per cent whole person impairment. Dr Wallace’s report of 20 June 2012 attached to the second Application assessed the impairment of the right elbow only and relied on different criteria under the AMA 5^th ed guidelines to those previously used by him.
There cannot be substantial compliance with ss 281 and 282 while there is ambiguity about the assessment of the relief claimed. By the Arbitrator’s finding that the notice of claim was validly made by what the appellant asserts was an ambiguous document prior to there being sufficient evidence to say that a claim for lump sum compensation had crystallised, the appellant submits it was denied procedural fairness in not being allowed to properly determine the respondent worker’s claim on or prior to the Application in the current proceedings.

CONSIDERATION

The appellant’s submission (at [62]) that the Arbitrator’s error was to find a valid notice of claim was given by the worker is misconceived. The relevant provision with respect to the requirements of making a valid claim is governed by s 260 of the 1998 Act. The substance of the appellant’s complaint is the failure to provide relevant particulars of the claim in accordance with ss 281 and 282 of the 1998 Act. That was the sole issue for determination by the Arbitrator (see [19] of this decision].
The context in which claims for lump sum compensation must be particularised was succinctly summarised by Acting Deputy President Snell in Bond Industries Ltd v Borg[2007] NSWWCCPD 80 (Bond Industries) at [67] and [68] cited with approval by Deputy President Roche in Walker v Roberts [2009] NSWWCCPD 66 at [40].
In Bond Industries, the Acting Deputy President said:
“67. Claims pursuant to both sections 66 and 67 fall within the definition of ‘lump sum compensation’ found in section 4 of the 1998 Act. Section 281 of the 1998 Act deals with such claims. It gives an employer (in the absence of agreement on quantum or determination of quantum by a MAC) two months from the claimant providing ‘all relevant particulars about the claim’, in which to either accept liability and make a reasonable offer, or dispute liability. The ‘relevant particulars’ are governed by section 282, which sets out matters that must be included, together with ‘such other matters as the Workcover guidelines may require’ (section 282(1)(g)). The Workcover guidelines make provision at Part 2 rule 6 regarding the information required to claim compensation for both permanent impairment and pain and suffering.
68. Commencement of proceedings in the Commission for recovery of lump sum compensation is then restricted by section 289(3). The dispute cannot be referred to the Commission unless liability has been wholly denied, or one month has passed after an offer of settlement was made to the claimant as and when required by the Act, or the employer failed to determine the claim as and when required by the Act. Thus, if a worker fails to supply ‘all relevant particulars’ in compliance with section 282, the consequence is that the employer is not obliged to determine liability pursuant to section 281. This, in turn, may prevent a worker commencing proceedings in the Commission, due to the operation of section 289(3).”
Section 282 of the 1998 Act provides:
“282 Relevant particulars about a claim
(1) The "relevant particulars about a claim" are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim:
(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.
(2) If the employer requires the claimant to submit himself or herself for examination by a medical practitioner provided and paid for by the employer, the claimant is not considered to have provided all relevant particulars about the claim until the worker has complied with that requirement.
(3) The insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.
(4) In this section, ‘injury’ is not limited by the meaning given by section 4.”
The pleadings in both the first and second Applications describe the injury as being due to the cleaning duties undertaken by Ms Reyes during the course of her employment from 2001 to on or about January 2008, with a marked increase in pain on or about 6 October 2007. Both Applications describe injury to the right elbow and right wrist. Both Applications also contain a detailed description of the duties that caused the injury and how they were experienced.
The first Application attached two reports from Dr Wallace. He obtained a history that in early January 2008, Ms Reyes noted a gradual onset of numbness in the ulnar aspect of her right forearm. His findings and approach to the assessment of the worker’s whole person impairment are detailed at [9]-[13]of this decision. The first Application also included a statement from Ms Reyes which described her work duties and described the onset of symptoms in October 2007, which is consistent with the pleadings in both Applications.
Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits: s 354(1) of the 1998 Act. The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 354(3) of the 1998 Act. The Commission is not bound by strict pleadings: Far West Area Health Service v Radford [2003] NSWWCCPD 10 approved in Shoalhaven City Council v Schutz [2012] NSWWCCPD 14.
It is not correct to assert that the claim in respect of the impairment of the right elbow had not crystallised until 28 June 2012. Dr Wallace assessed a permanent impairment of the right upper limb of eight per cent on 8 January 2011. A copy of that report was provided to the appellant shortly after that assessment was made. The claim was rejected at that time not because the impairment had not crystallised, but because the worker had been previously compensated for injuries to the right arm and shoulder.
It cannot be disputed that the worker made a claim by her letter of demand on 22 June 2011 and in the first Application for lump sum compensation under s 66 of the 1987 Act. The claim was in substance a claim for compensation for whole person impairment arising from injuries to the right arm due to the cleaning duties as described by Ms Reyes.
The Arbitrator correctly determined that the particulars provided in the first Application complied with s 282 of the 1998 Act. The first Application identified the injury received to the right elbow and the circumstances in which the injury was sustained. The impairment to the right elbow was assessed by Dr Wallace in his report of 8 January 2011, which was attached to the first Application, at eight per cent of the right upper limb and was assessed to be permanent. In his report Dr Wallace set out his reasons for his assessment. Dr Wallace considered but excluded the need to apportion any part of the impairment to any previous injury, condition or abnormality. For these reasons and for the reasons given by the Arbitrator the first Application and the supporting material comfortably satisfied the requirements in s 282 of the 1998 Act, as to the provision of relevant particulars about a claim.
If I am wrong then the notice of claim and the particulars provided on 22 June 2011, which attached a copy of the report of Dr Wallace of 8 January 2011, satisfied the requirements of s 282 of the 1998 Act.
To accept the appellant’s submissions to the contrary, would result in the worker being denied any compensation for the impairment claimed. This is because, on the appellant’s submission, the relevant particulars of her claim were not provided before the amendments to the lump sum compensation provisions introduced by the 2012 amending Act.
Clause 15 of Pt 19H of Sch 6 (introduced by the 2012 amending Act) provides that an amendment “made by Sch 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date”. To accept the appellant’s submission would be to read cl 15 as extending the word “claim” to include “relevant particulars about a claim”. That extension is neither justified by the context of the clause nor by a fair reading of the words used. As noted earlier, the making of a claim is dealt with in ss 260 and 261. Section 282 merely deals with the provision of particulars about a claim. As explained in Bond Industries, the purpose of the provision of particulars is to enable an employer the opportunity to either accept liability and make a reasonable offer, or dispute liability. It does not govern whether a claim has been made under cl 15.
The submission that the appellant has been denied procedural fairness is untenable. In terms of the quantum of the claim, the reason for the change in the amount claimed from 10 per cent to five per cent is because the worker has elected not to pursue her claim for impairment to the right wrist. That amendment reducing the amount of compensation claimed by deleting the claim for right wrist cannot, and has not, caused the appellant any prejudice.
In any event, the extent of the impairment will be assessed by an AMS following referral by the Registrar in accordance with s 65 of the 1987 Act. The assessment will be made by an AMS in accordance with Ch 7 Pt 7 of the 1998 Act. In undertaking that process, the AMS may have regard to the quantum of any impairment as assessed by independent medical assessors for both parties but is not bound by such assessments. I note that the appellant has not elected to have the worker medically examined.
For these reasons there are no prospects of the appeal succeeding. It follows that the appellant has not demonstrated that, in exceptional circumstances, to lose the right to appeal would result in demonstrable and substantial injustice.
Even though the appeal is only one day out of time, for the reasons given, the application to extend time is refused.

ORDERS

The application to extend time to appeal is refused.

COSTS

The appellant employer is to pay the respondent worker's costs of the appeal as agreed or assessed.

Judge Keating

President
24 April 2013

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE