Welcome to the July 2015 Edition of the Edwards Michael Powell eBulletin

Meaning of “one claim”; Amendment of Claims

In Woolworths Ltd v Steven Stafford [2015] NSW WCC PD 36, DP Roche considered whether a worker was prevented from amending his claim by the “one claim” restrictions.

The worker had initially claimed permanent impairment compensation for 7% WPI which, after the High Court Goudappel appeal, was insufficient to satisfy the s. 66(1) threshold.  He subsequently sought to amend the claim to 12% WPI after medical evidence identified the basis for an increased impairment.  The insurer declined liability on the basis that the initial claim was the “one claim” permitted by s. 66(1A).

DP Roche agreed with the Arbitrator’s finding that “one claim” means one “valid” claim, meaning a claim capable of payment.  As there was no entitlement to permanent impairment compensation for 7% WPI the initial claim did not satisfy this definition.

The Deputy President noted that because of the consequences of the “one claim” provisions, the definition of “claim” should not be narrowly construed.  He also made the interesting obiter remark that there was some merit in the worker’s argument that “one claim” means “one determined claim”.

The Deputy President also held that there is nothing in the legislation preventing a claim from being amended:-

To suggest that, prior to the resolution or determination of the claim, by making a demand for permanent impairment compensation for a certain level of permanent impairment, the worker is permanently locked into that claim, and cannot amend it, is untenable and contrary to all principles of justice”.

DP Roche considered that the Rules allowing amendment of documents “for the avoidance of injustice” illustrate that the interests of justice are best served by also allowing amendment of other claim documents, with amendment to take effect from the date of the original document, not the date of amendment.

The extent to which this accommodation will extend to amendment of other documents (e.g Dispute Notices) remains to be seen.

Late Notice not Properly Disputed

In Fairfield City Council v Arduca [2015] NSW CA 166 the Court of Appeal refused to grant leave to appeal from a determination of DP O’Grady that an issue as to late notice of claim had not been properly raised in a Dispute Notice.

A letter from the employer’s solicitor stating that the worker “has not given notice of injury nor claimed compensation benefits in accordance with the requirements and the time limits imposed by the legislation” was deemed insufficient.

The Court agreed with DP O’Grady’s statement that “compliance with Section 74 requires more than a mere recitation of a section or sections of the Acts”, and also agreed that a notice should not be in “boilerplate form” and should specifically flag the issues on which the employer sought to rely.  The Court agreed that a “catch all” phrase did not meet these requirements.

The Court also found that the Notice was deficient because it did not properly identify the injury which was the subject of late notification.

Journey Claim Successful

In Namoi Cotton Co-operative Limited v Stephen Easterman (as Administrator of the Estate of Zara Lee Easterman) [2015] NSW WCC PD 29, the Estate of the deceased worker was successful in recovering compensation for death benefits in respect of injuries sustained by the deceased worker as the result of the motor vehicle accident.  The Arbitrator found that the deceased worker fell asleep while driving home after completing her 6th straight shift, having worked 5 previous 12 hour night shifts and driving home after partially completing her 6th shift.

The Arbitrator decided that the deceased worker’s employment had a real and substantial connection with the accident “by reason of her tiredness from her employment activities and the duration of them”.

The main challenge to the Arbitrator’s decision was whether it open to the Arbitrator to find that the cause of the accident was in fact the worker falling asleep.  President Keating found that the Arbitrator was entitled to rely on inferences from the evidence to support his finding.

President Keating determined that the deceased worker’s Estate had discharged the onus of establishing that employment had a real and substantial connection to the accident having regard to the fact the worker was relatively new to night shift and had complained of tiredness, and having regard to the number and duration of shifts undertaken immediately prior to the accident.

Working Director Not Deemed Worker

In Sarac v Itexcel Pty Limited [2015] NSW WCC PD 32, DP Roche considered an Appeal from a finding that a Working Director was not a deemed worker

It was argued that the Senior Arbitrator had erred in finding that because the claimant was a Director of his own company which had contracted with the Respondent, he could not be a deemed worker within the meaning of Clause 2, Schedule 1 of the Workplace Injury Management & Workers Compensation Act 1998.  That Clause provides:-

“(1) Where a contract; 

 (a) To perform any work exceeding $10.00 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or….

 is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act taken to be a worker employed by the person who made the contract with the contractor”.

DP Roche agreed with the Senior Arbitrator’s finding that because the claimant’s own company employed him, he had not contracted with the Respondent:-   “because his own company employed him, and because that company contracted with the Respondent, he was unable to establish that he was a party to a contract with the Respondent to perform work and unable to rely on Clause 2 of Schedule 1”.

The Deputy President confirmed the Senior Arbitrator’s decision.

Appeal Threshold Defeated by Section 59A

In Air Electrical Pty Limited trading as DJ Staniforth & Co v Mortimer [2015] NSW WCC PD 18, Deputy President Roche was required to consider whether the $5,000.00 threshold to appeal had been satisfied in circumstances where an order had been made for the payment of future medical expenses.

It was agreed that the worker had not in fact undergone the surgery by the time of the Appeal and that by virtue of his age and Section 59A he was no longer entitled to payment of medical expenses.

President Roche stated:-   “The clear effect of the section (section 59A) is that Mr Mortimer has no entitlement to recover the costs of the proposed surgery (or to enforce the Arbitrator’s award) and, as no other compensation is claimed, or, on the current state of the evidence, can be claimed, there is no compensation at issue on appeal”.

It was therefore decided that the $5,000.00 monetary threshold could not be satisfied.

100% Deduction under Section 323 Incorrect

In Csanki v Liquorland Australia Pty Limited [2015] NSW WCC MA 10 a Medical Appeal Panel disagreed with an Approved Medical Specialist’s approach to Section 323 of the 1998 Act.  The Approved Medical Specialist found 25% impairment of the back, 20% impairment of the neck and 10% loss of use of the left leg at or above the knee but he then deducted 100% pursuant to Section 323 on the basis of the worker’s pre-existing condition in the form of progressive degenerative changes.  The Approved Medical Specialist issued a Certificate in respect of an assessment of 0% Whole Person Impairment.

The Panel decided that the Approved Medical Specialist’s approach was incorrect, and that instead of making findings in relation to the degree of permanent impairment and then deducting 100% for pre-existing factors etc, the correct approach was simply to find that there was 0% impairment as a result of the referred injury.

Hearing Loss Challenge Misconceived

In Pyoplot Pty Limited trading as Commercial Hotel v Garry Muller [2015] NSW WCC MA 11 a Medical Appeal Panel rejected an Appeal from a hearing loss assessment based on the Approved Medical Specialist’s failure to consider whether frequencies at 500, 1000 and 1500 Hz should be included in an assessment.

The Panel considered that whether to include the frequencies at lower levels is appropriate for cases of gradual hearing loss accrued over a period of time, whereas the hearing loss which was the subject of the assessment was caused by a traumatic gas explosion.  The Panel stated:-

“There was minimal other noise exposure in employment, and the AMS explains how this means there is no applicable deduction for pre-existing damage.  An explosion can affect all frequencies given the general damage to the cochlea”.

In the circumstances, the Panel considered that the Appellant’s submissions were misconceived.  The Medical Assessment Certificate was confirmed.

Announcement: Special Counsel

Our Special Counsel, Tim Wardell, leaves the firm on 3 July 2015 after accepting appointment as an Arbitrator of the Workers Compensation Commission.  We congratulate Tim on his appointment and thank him for his 8 years of dedicated service to the firm.