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Visy Board P/L v Nguyen [2010] NSWWCCPD 101. O’Grady DP. 

Although accepting lumbar injury, the fund agent appealed Arbitrator Connelly’s findings that the worker had given notice of injury to his thoracic spine, and had injured that part.

O’Grady DP considered incidents and submissions, before quoting Roche DP in Warwick Hobart &c v Pietrzak [2006] NSWWCCDP 315 at [56]:

“A worker is not expected to know the exact nature and extend of his injury at the time of initial notification. Any other interpretation of injury in this section [1998 Act s 254] would lead to the unsatisfactory situation of a worker who gives notice of an upper back strain being barred from claiming compensation in the event that medical investigations subsequently reveal that he or she in fact sustained a lumbar disc injury. There may well be arguments about causation, but provided the evidence supported a connection between the injurious event and the subsequently discovered lumbar disc lesion, the worker would not be barred from recovering compensation because he or she did not initially give notice of injury for the correct body part.”

Mr O’Grady said [62]: “Given my conclusion that the provision of the claim form constitutes both notice of injury (s 254) and notice of claim (s 261), Mr Nguyen’s claim with respect to whole person impairment arising from the alleged thoracic injury is to be taken as having been made at the time of presentation of the claim form (s 261(3)). In the circumstances, the appellant’s argument concerning Mr Nguyen’s suggested failure to give notice of claim as required by the legislation must be rejected.”

To the injury finding, the deputy president canvassed medical expertise.

“The appellant is correct to suggest that the mere reporting of symptoms by an injured worker does not, without more, proof that a body part has been injured within the meaning of the Act. In the present case the relevant symptoms have been reported by Mr Nguyen and reported by those treating him. Upon the basis of those reported symptoms diagnoses have been made. It is common ground among all the medical practitioners that Mr Nguyen has suffered derangement of his spine at the lumbar level.

“In addition to that diagnosis, there are the views of Dr Doong and Dr Sun that, as a result of the injury, Mr Nguyen has suffered a thoracolumbar sprain. That diagnosis, founded upon reported symptoms, is in my view sufficient evidence to lead to the conclusion that Mr Nguyen has suffered not only an injury to his lumbar spine but also to his thoracic spine. I reject each of the arguments advanced on behalf of the appellant challenging the arbitrator’s finding as to injury” [75].

The deputy president countermanded the arbitrator’s admission of a late CT report.

In [79], “The document had not been made available to the appellant prior to the day of hearing. There was at that time an issue as to injury at the thoracic level of Mr Nguyen’s spine. The appellant had had no opportunity to have the findings of the scan scrutinised by their expert witnesses. The appellant was unable to address the findings of that scan in any meaningful way and was thereby prejudiced.”

Arbitrator findings confirmed, late report rejected, worker’s costs.

A: Sparke Helmore. R: TK Legal.

Tan v National Australia Bank Ltd [2008] NSWCA 198.

Basten JA:

32 The procedures specified for making claims are to be found in Ch 7 of the Workplace Injury Act. Those provisions commence with the requirement that "notice of the injury" be given to an employer as soon as possible after the injury happened, with the sanction that compensation is not recoverable unless such notice is given: s 254(1). There is, however, an exception for special circumstances, which are defined in s 254(3) to include: "(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause, (c) 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 ...."

33 A notice of injury may be given "orally or in writing": s 255(2). Notification of an injury engages an obligation on the part of an insurer (or the Bank, as a self-insurer) to commence payments of compensation within seven days unless it has a "reasonable excuse for not commencing those weekly payments": s 267(1). That obligation is neither dependent upon nor affected by the making of a claim for compensation: s 267. If the insurer does not commence payments, it must provide written notice to the worker of its reasonable excuse, including details of that excuse and what steps the worker may take: s 268.

34 Chapter 7, Part 2, Div 2 deals with "[m]aking a claim for compensation or damages". It requires that a claim must be made "in accordance with the applicable requirements of the WorkCover Guidelines": s 260(1). The relevant Guidelines are those which came into operation on 1 January 2002. The explanatory note with which they commence states that they are "primarily intended to assist WorkCover NSW Licensed Insurers". They cannot, and do not purport to, affect the proper construction of the Act, as accepted by this Court in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 at [32] and [41] (Mason P, Santow and Tobias JJA agreeing).

35 Subsections 260(2)-(4) provide for matters in relation to which the Guidelines may make provision and include the form and manner in which a claim "is to be made" and the means by which a claim "may be made". Although they do not presently do so, the Guidelines may provide for waiving a requirement for the making of a claim in specified cases: s 260(4)(a). The insurer can waive a requirement of the Guidelines with respect to the making of a claim: s 260(6). The Guidelines can also require an insurer to notify a worker of a failure to comply with a requirement of the Guidelines and can provide for waiver of any such failure if the insurer fails to give the required notification: s 260(7). It is in that statutory context that s 260(5) provides: "(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style."

36 Chapter 7, Part 4 deals with "[c]ompensation dispute determination". It applies to a dispute "in connection with a claim for compensation": s 287(1). Any party to a dispute about a claim may refer the dispute for determination by the Commission: s 288. Section 289 provides that a dispute about a claim for weekly payments "cannot be referred for determination by the Commission" unless the insurer disputes liability or fails to determine the claim as and when required by the Act. This provision no doubt assumes the existence of a "claim" and the existence of a "dispute" about the claim.

37 Section 289A imposes a further requirement, in relation to notification of disputes before referral for determination by the Commission. However, that provision commenced on 7 December 2005 and is not applicable to the present case.

38 A number of points of significance can be derived from these provisions. First, s 260 clearly envisages that a claim may not be made as required by the Guidelines and may yet constitute a "claim". Secondly, it may readily be envisaged that factual disputes could arise as to whether a claim has been made and whether a dispute has arisen. Because the Commission is required to operate with as little formality and technicality as the proper consideration of matters before it permits (s 354(1)) and without regard to technicalities or legal forms (s 354(3)) the legislative scheme should be understood to confer on the Commission the power to determine whether or not a dispute has arisen or a claim has been made. That is not to say that the statute may not impose legal constraints, but the Commission is entitled to determine these matters for itself and an error will not be jurisdictional. The dicta to that effect in Fletcher at [39] should be followed.

39 The next question is whether s 260(5) operates where there has been no claim made, or only where a claim is defective or fails to comply with a requirement specified by a guideline.

40 The opening words of the provision are consistent with it operating where there has been a failure to make a claim at all. This conclusion receives support from the language of s 254(3)(b) in relation to a notice of injury. In that paragraph, the "failure" to give notice is compared with a "defect or inaccuracy" in the notice. While the language is not mirrored precisely in s 260(5), there is no reason to suppose that the more serious failure does not incorporate a lesser failure.

41 The alternative argument is that the reference to a failure to make a claim should be understood as a reference to the making of a defective claim. Section 260(5) expressly provides that a minor defect in form or style will not operate to bar recovery and, by implication nor will a substantial defect where occasioned by ignorance, mistake or other reasonable cause. However, the only textual support for reading-down the reference to a failure to make a claim to mean the making of a defective claim, is to take the subject-matter of a failure as making a "claim as required by this section", thereby implying that a claim has indeed been made, but that it fails in some respect to comply with the requirements of the Guidelines. The difficulty with this approach is that the only formalities with respect to a claim are those specified in guidelines provided for by the section. Absent applicable guidelines, there would be no formal requirements.

42 The objectives of the Act, which are directed primarily to ensuring compensation for work-related injury, will not be promoted by a narrow reading of a provision which allows for recovery of compensation in circumstances where procedural requirements have not been followed. It was not in dispute in the present case that the Commission was bound to accord procedural fairness to each party. Accordingly, an inadequate, defective or even non-existent claim might require the adjournment of proceedings, or part thereof, and the provision of further information by the worker to the insurer. The adoption of a flexible procedure, expressly provided for by s 354, would be more conducive to the purposes of the legislative scheme than the adoption of a technical approach to a procedural requirement. It was, therefore, not correct to dismiss s 260(5) as unavailable in circumstances where there is "no claim at all".

Incredible ignorance

Bayliss v Arwon Spares and Repairs [2009] NSW WCC 329. Whitelaw, Arb. 17.08.09.

The worker, who gave sworn evidence by telephone, claimed incident of injury on 21 July 1999. In an unsworn statement in previous Commission proceedings, he had claimed the incident occurred in September 1999. A GP’s note indicated the incident occurred in November 1999.

Arbitrator Whitelaw noted 1998 WIM Act s 65 Making a claim for compensation.

At [22], the arbitrator said: “He said he first saw his solicitor some 7 years after the alleged injury and that he was ignorant of the process required to make a claim. This is at odds with his statement that he gave notice of injury and provided claim forms and medical certificates in relation to it”. There were inconsistencies with treating doctors’ records.

The employer had deposed the worker had made note in the business injury register of a finger injury in February 1999.

“Even allowing for the heavy intake of painkillers by the Applicant, I cannot accept his statements as credible. The available evidence points to the Applicant being aware of his workers compensation rights and I do not accept the failure to make the claim was occasioned by ignorance, mistake, absence from the State or other reasonable cause choosing not to exercise them,” Mr Whitelaw said [25], finding the worker barred by s65 (7) and (13).

Award respondent. Appearances unannounced.


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