Deemed date, of injury by disease
66. I do not accept the submission that counsel’s reference at the arbitration to a deemed date of injury of 23 January 2009 was inconsistent with Mr Nand having had knee problems days before. Whilst Mr Nand had knee symptoms before 23 January 2009, he was not incapacitated until he stopped work on 23 January 2009. Therefore, the appropriate deemed date of injury for the disease injury, assuming it is otherwise made out, is the date of incapacity, namely 23 January 2009: s 16(1)(a)(i) of the Workers Compensation Act 1987 and P & O Berkeley Challenge Pty Ltd v Alfonso & Ors  NSWCA 214; 49 NSWLR 481.
36 In my opinion, the decision in GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 shows that one must relate the question of the time of death or incapacity under s.16(1)(a)(i) to what is being claimed.
Where, as in GIO itself, what is being considered is not a worker's claim based on incapacity, but a dependant's claim based on death, the fact that there was incapacity prior to the worker's death is irrelevant. The relevant time for the purposes of s.16(1)(a)(i) is the time of death.
37 P & O Berkeley Challenge PL v Alfonzo (2000) 49 NSWLR 481 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 Snack Products PL v Yacob (1985) 155 CLR 171 sense, not resulting in any loss of wages.
24. In my view, whilst the applicant was experiencing symptoms and seeking treatment in 2006 in relation to his knees, the date of incapacity, in the sense required by section 16(1)(a)(i) of the 1987 Act, in respect of weekly compensation was 18 January 2007, being the date when the applicant was admitted to hospital in order to undergo the right knee arthroscopy.
That was the first date the applicant had an incapacity that gives rise to an entitlement to weekly compensation and is therefore within the meaning of the provision the deemed date of injury in respect of claim for weeklycompensation.
25. The deemed date of injury in respect of lump sum compensation under section 66 and 67 was the date of claim for such losses, namely, on 23 June 2008: see Alto Ford PL v Antaw  NSWCA 234; (1999) 18 NSWCCR 246; Stone v Stannard Brothers Launch Services Pty Limited  NSWCA 227.
[In Kelk v Patrick Stevedores  NSWWCC 147, Mr Tanner similarly]