Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29

Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29

Aggravation of disease of varicose veins; meaning of incapacity in s 16 of the 1987 Act; application of principles in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701; notice of injury; notice of claim; WorkCover Provisional Liability and Claims Guidelines issued December 2001; whether Arbitrator entitled to refer to findings by Delegate of the Registrar in an Application for Expedited Assessment; procedural fairness; ss 74, 254, 255, 260 and 261 of the 1998 Act; cl 46 of the 2010 Regulations

1. 
   determining that Mr Thoroughgood was relevantly incapacitated in accordance with s 16 of the 1987 Act, when he changed jobs in 2006;
   
2. 
   his consideration and determination of the issue of whether Mr Thoroughgood had given notice of injury and made a claim for compensation in accordance with the requirements of the Act;
   
3. 
   considering as evidence a statement of the Delegate of the Registrar;
   
4. 
   denying Inghams procedural fairness, by refusing to admit three articles referred to by its medical expert and refusing to allow that doctor to give oral evidence, and
   
5. 
   determining the matter on a basis different to that put on behalf of Mr Thoroughgood.
   

Inghams did not challenge the Arbitrator’s findings on injury, substantial contributing factor and last relevant employer, though those issues were very much in dispute and were the subject of evidence and lengthy submissions.

1. 
   The pleading of a deemed date of injury of 10 October 2006, and the concession by the respondent’s counsel at the arbitration that he could not win if there was no incapacity, strongly suggested that the Arbitrator was invited to find a deemed date by reference to the date of incapacity - the date on which Mr Thoroughgood stopped work for Inghams [23]. The worker’s counsel agreed that he relied on no other deemed dated of injury, such as the date of claim on 18 January 2012, or the date on which Mr Thoroughgood requested proper footwear in September 2006 [24].
   
2. 
   The Arbitrator found that Mr Thoroughgood’s injury caused an incapacity for work between 8 September 2006 and 11 September 2006, and from 10 October 2006, when he ceased employment because Inghams had not provided him with appropriate footwear [26]. The Arbitrator found Mr Thoroughgood to have a partial incapacity for work during those periods.
   
3. 
   It was accepted that the appellant did not argue the incapacity issue in the way it was presented by counsel on appeal. However, incapacity was in issue at the arbitration because, on the approach taken by the worker’s counsel, it was necessary to determine that issue to decide the deemed date of injury. In that context, the appellant’s solicitor submitted that there was no evidence of incapacity. Thus, the issues of incapacity and the correct deemed date of injury were raised at the arbitration and Inghams was entitled to challenge the Arbitrator’s finding on appeal, albeit on the basis of authorities that were not cited to the Arbitrator [36].
   
4. 
   The reference to “incapacity” in s 16 is a reference to the incapacity for which compensation is claimed. Accepting that Mr Thoroughgood had an incapacity in the Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 sense, he had no economic loss from his incapacity and had not claimed weekly compensation [55]. As he made no claim for weekly compensation (Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701), it followed that the incapacity found by the Arbitrator could not support a deemed date of injury of 10 October 2006. (GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187; Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246; Moran Health Care Services v Woods [1997] NSWSC 147; (1997) 14 NSWCCR 499; P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA; 49 NSWLR 481) [73]. It followed that the first ground of appeal succeeded [74].
   
5. 
   The concession by Mr Thoroughgood’s counsel that he would not win if there was no incapacity was based on an incorrect view of the authorities. It is clear without doubt that a claim for lump sum compensation can succeed if there is no relevant incapacity. To determine the deemed date of injury in such a case one merely looks to the date of claim. As there were several claims for compensation in this matter, it was necessary that the matter be remitted to a different Arbitrator for that question to be re-determined [76].
   

6. 
   The Arbitrator was satisfied that Mr Thoroughgood provided notice of injury in accordance with s 254(1) of the 1998 Act. He said that Mr Thoroughgood gave notice of injury to Inghams when he told Ms Holloway that he had swollen feet from standing up all day. As Ms Holloway knew Mr Thoroughgood, by notifying her, he was in effect giving notice of his name and address. His statement also apprised her of the method by which his injury occurred and, because his injury occurred from the type of work he did over a period of time, he provided notice of the date on which his injury occurred [81]-[82].
   
7. 
   The Arbitrator found that, when Mr Thoroughgood requested Inghams in September 2006 to provide him with appropriate footwear, which he made on the recommendation of his general practitioner Dr Walter, he was making a claim for compensation under s 60 for proposed treatment for his injury in the form of therapeutic treatment given at the direction of his general practitioner [83]. Therefore, in accordance with s 261(3) of the 1998 Act, Mr Thoroughgood had made a claim for compensation under s 66 at that time [84].
   

8. 
   The evidence on notice of injury was in Mr Thoroughgood’s statement of 13 February 2009, where he said that he told Ms Holloway (presumably in or about September 2006) that he had swollen feet from standing up all day. That conversation occurred at work before Mr Thoroughgood stopped working for Inghams and had not been challenged by Ms Holloway. As Ms Holloway knew Mr Thoroughgood, it was not necessary for him to formally give her his name and address. As the legislation expressly provides that notice of injury may be given orally (s 255(2) of the 1998 Act), it was of no consequence that Mr Thoroughgood did not complete a claim form [93].
   
9. 
   If Inghams felt that the information provided in the verbal notice of injury (the initial notification) was defective, and the missing information was “materially necessary” for it to decide about Mr Thoroughgood’s entitlement to provisional liability, it was under an obligation, within three working days, to inform Mr Thoroughgood that the notification had not been made (Pt 1 r 7.2 of the WorkCover Guidelines issued in December of 2001). There was no evidence that Inghams did that and it was not open to Inghams to claim that Mr Thoroughgood did not give notice of injury [94].
   
10. 
    The Arbitrator’s conclusion on notice of injury was open and disclosed no error [95].
    

11. 
    Advising Inghams that he had swollen feet from standing up all day, and armed with a certificate from his treating general practitioner that he needed “proper comfo[r]table water proof boots to protect his [f]eet”, as gumboots were unacceptable, and a second certificate from the same doctor stating that working on concrete and in a wet environment makes varicose veins worse, Mr Thoroughgood asked Inghams to provide him with “proper boots”. That was clearly a claim for “medical or related treatment”, namely, therapeutic treatment, at the direction of a medical practitioner under s 59(b) and s 60 of the 1987 Act [104].
    
12. 
    The fact that Mr Thoroughgood did not make a claim for lump sum compensation within six months of September 2006 was of no consequence. Section 261(3) of the 1998 Act provides that, for the purposes of s 261, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury concerned, “even if the person’s claim did not relate to the particular compensation in question”. Therefore, though the claim for medical or related treatment did not relate to the claim for lump sum compensation that was the subject of the current dispute, it was nevertheless sufficient compliance with s 261 [105].
    
13. 
    The fact that Mr Thoroughgood had not completed a claim form was of no consequence. Though there was no evidence of the cost of the boots sought, it was clear beyond doubt that they would have been less than $5,000. In that situation, a worker “may make the claim verbally” (Pt 2 r 5.7 of the Guidelines) and it does not matter that the claim is not in writing. In any event, the claim was substantially in writing in Dr Walter’s two medical certificates [106].
    
14. 
    If the claim was defective, because it was not made as required by the Guidelines, it was, in the circumstances, a minor defect in form or style and not a bar to the recovery of compensation (s 260(5); Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363) [107].
    
15. 
    The wording of Pt 2 r 5.7 of the Guidelines was considered. In addition to allowing a claim to be made verbally (where the claim is only for medical expenses up to $5,000), the Guidelines only require supporting documentation of the amount claimed “for the payment to be made”. It does not require supporting documentation for a claim to be made. Thus, Inghams would have been entitled to require supporting documentation of the amount claimed before it paid the claim. However, that did not arise because it disputed liability for the boots in any event [109].
    

16. 
    The Arbitrator referred to the decision by Ms Lynch delivered on 25 March 2009. Noting that Ms Lynch’s reasons recounted evidence that was before her, but not before him, the Arbitrator said that that evidence was evidence of the facts to which it related and that he was able to take into account in the proceedings before him because “the rules of evidence do not apply” and he was satisfied that Ms Lynch’s recount of that evidence was “reliable” [110].
    
17. 
    The appellant submitted that the Arbitrator erred in stating that the rules of evidence do not apply. Relying on s 91 of the Evidence Act 1995, he said that the Arbitrator erred in finding that Ms Lynch’s reasons constituted evidence.
    
18. 
    Where the rules of evidence do not apply, fairness must guide the weight to be given to evidence (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 cited in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42 (Edmonds) at [93]). The Arbitrator’s statement that the rules of evidence do not apply in the Commission was perfectly consistent with s 354(2) of the 1998 Act and with appellate authority. Section 354(2) states that the Commission “is not bound by the rules of evidence”. In Edmonds, McColl JA expressed it as an “absence of an obligation to abide by the rules of evidence”. It follows that s 91 of the Evidence Act 1995 does not apply to proceedings in the Commission [122].
    
19. 
    There was no unfairness in the Arbitrator referring to Ms Lynch’s reasons. Those reasons were admitted into evidence without objection and, once admitted, were admitted for all purposes (Walker v Walker [1937] HCA 44; (1937) 57 CLR 630; Jones v Sutherland Shire Council [1979] 2 NSWLR 206, and Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542). That Mr Thoroughgood intended to rely on them was obvious from the fact that they were attached to the Application. If they contained matters that were seriously in issue, it was open to Inghams to put on evidence in response. It did not do so [124].
    
20. 
    The only possibly relevant matter in Ms Lynch’s decision that the Arbitrator relied on was the reference to Inghams having Mr Thoroughgood almost immediately investigated by a doctor of its choice, Dr Beiers. As that evidence was not relied upon in upholding the Arbitrator’s finding on notice of injury, it was of no consequence to the outcome of the appeal [127].
    
21. 
    However, as the Commission is not bound by rules of evidence and, as there was clearly no unfairness to Inghams in the Arbitrator referring to Ms Lynch’s decision, the Arbitrator did not err in referring to the fact that Inghams had sent Mr Thoroughgood to Dr Beiers when he considered the issue of notice of injury [128].
    

22. 
    This ground of appeal originally concerned the refusal to admit into evidence three articles referred to by Dr Potter, qualified by the appellant, in his reports. In the submissions that were ultimately filed, the ground was expanded to include a complaint about the refusal to allow Dr Potter to give oral evidence, after a request was made by the appellant at arbitration [130].
    
23. 
    The matter was first listed for conciliation and arbitration on 16 August 2012, when the respondent’s counsel sought and was granted leave, over objection, to amend the Application to change the date of injury, the particulars for injury description, and the particulars for how the injury occurred. The Arbitrator then adjourned the matter until 1 November 2012 “to provide Inghams with the opportunity to obtain further medical evidence” [131].
    
24. 
    The appellant did not comply with the 2011 Rules or Practice Direction No 3 with regard to calling expert evidence and was not entitled to call Dr Potter to give oral evidence without leave. All that happened on 16 August 2012 was that the appellant’s solicitor indicated that he would be “seeking” to call Dr Potter. That did not remove the obligation to comply with the Commission’s Rules [157].
    
25. 
    Allowing Dr Potter to give oral evidence without the appellant having complied with the Commission’s Rules would have been prejudicial to Mr Thoroughgood (because he would not have known what evidence the doctor was going to give and would not have been in a position to effectively cross-examine the doctor) and the Arbitrator was right to refuse to allow oral evidence from Dr Potter. The Arbitrator addressed any potential prejudice to Inghams from that ruling by allowing an adjournment for a further report to be obtained from Dr Potter, which was done, though outside the time limit the Arbitrator set [158].
    
26. 
    Dealing with the rejection of the three articles referred to in Dr Potter’s reports, it was not accepted that the rejection involved any procedural unfairness or denial of natural justice to Inghams [160].
    
27. 
    In exercising discretion on the application to tender the articles referred to in Dr Potter’s report, the Arbitrator had regard to the lateness of the application, which was made during addresses on the third occasion on which the matter had been listed for arbitration, and the prejudice to Mr Thoroughgood, because it would be impossible for him to respond to them [165].
    
28. 
    The Arbitrator did not err in taking these matters into account. The appellant had every opportunity to serve the articles in time under the Commission’s Rules. No explanation had been offered, either at the arbitration or on appeal, for why the articles were not served in time [166].
    
29. 
    Given the late attempt to rely on the previously unserved articles, Mr Thoroughgood was clearly prejudiced, as he had no opportunity to have his experts address the full articles, rather than just Dr Potter’s summary of them in his report. To obtain that evidence would have required yet another adjournment in circumstances where the matter had already been adjourned twice [167].
    
30. 
    Taking all matters into account, in particular the non-compliance with the Commission’s Rules, the lack of explanation for the non-compliance with the Commission’s Rules, the extreme lateness of the attempt to tender the articles, the prejudice to Mr Thoroughgood, the modest amount of compensation involved, and the fact that the missing articles were not the only reason the Arbitrator preferred Mr Thoroughgood’s medical evidence, the Arbitrator did not err in the exercise of his discretion in refusing to admit the articles on 7 December 2012, and that refusal caused no procedural unfairness to Inghams [173].
    

31. 
    Counsel for the appellant submitted that the Arbitrator found “an alternate date [of injury] that was not submitted by” Mr Thoroughgood. Mr Thoroughgood only relied on an injury in or about September 2006, on the basis of “incapacity”, and his counsel’s submissions were confined to that alone. To the extent that the Arbitrator decided the case on an alternative basis to that articulated by the respondent’s counsel, he denied Inghams natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17) [175].
    
32. 
    The respondent’s counsel agreed that he did not rely on the date of claim for lump sum compensation (18 January 2012) as the deemed date of injury, and conceded that it was therefore not open to the Arbitrator to make the alternative finding. It followed that, given the way the respondent presented the case, it was not open to the Arbitrator to make an alternative finding for the deemed date of injury [176].
    

33. 
    Inghams succeeded on only one of its several grounds of appeal, namely, the meaning of incapacity in s 16, and, as a result, the question of deemed date of injury had to be re-determined before a different Arbitrator in light of the reasons in this decision. As the issues of notice of injury and notice of claim have been determined on appeal, they were considered no longer in dispute. The Arbitrator’s findings on injury, substantial contributing factor and last relevant employer had not been challenged on appeal and had not been disturbed. They remained binding according to the usual principles of issue estoppel [185].
    
34. 
    It was difficult to see how a different deemed date of injury could, in the circumstances of the matter, “change entirely the nature of this case”, as counsel for the appellant submitted at the appeal hearing. However, if the deemed date of injury is amended at the next arbitration, the question of whether there is a need for further evidence to meet that amendment will be a matter for the next Arbitrator [186].
    
35. 
    While the appellant submitted at the arbitration that there was no evidence of incapacity, it did not do so on basis of the arguments and authorities its counsel relied on in the appeal. That being so, and given that the appeal was otherwise unsuccessful, it was appropriate that Inghams pay part of Mr Thoroughgood’s costs of the appeal [188]-[189].