[41] Section 109(1) provides the Work Health Court must order interest against an employer if it is satisfied the employer has caused unreasonable delay in accepting a claim for or paying compensation. His Honour ordered s 109(1) interest on the sum of $274,680 (the agreed amount for past attendant care) calculated over 19 August 2008 to 6 September 2011 inclusive, and on weekly benefits at the rate of 20 percent per annum.[31]
[42] I will not summarize all of the material provided on Appeal, but some history is required.
[43] It needs to be appreciated the injury, the onset of which manifested at work[32] occurred on 28 May 2007; the claim was submitted (with a medical certificate describing the collapse at work, and some signs of subarachnoid haemorrhage) on 20 November 2007; proceedings were commenced on 22 May 2009. The employer by notice dated 28 November 2007 deferred accepting liability under s 85(1)(b) of the Act. As His Honour pointed out, the purpose of deferral under the Act is to permit further investigation of the claim. There was no material before His Honour as to the employer's investigations between November 2007 and 29 January 2008. The employer's hypothesis in a general sense was that the bleed causing incapacity may have occurred, not at work but later in hospital. Even if not strictly a hypothesis, this was the point the employer appears to have wanted proof on before accepting the claim. The claim was not accepted until 27 August 2011, shortly after an order was consented to confirming the injury was compensable under the Act.
[44] A letter of 18 February 2008 was sent to the Neurologist, Professor Burns, by the employer's solicitor seeking a report as to what was likely to have occurred. Professor Burn's opinion in his report of 6 March 2008 was that it was "highly likely" the worker's neurologic illness began at work; the most likely diagnosis was intra-ventricular haemorrhage.[33] Professor Burns said he was uncertain about the diagnosis.[34] A further report was sought four months later[35] by the employer. That report was provided on 15 July 2008.[36] Professor Burns said he "assumed" the worker's deterioration while at Alice Springs Hospital was due to a continued bleeding. He also said "It seems highly probable that his illness did begin at work". His Honour found the employer's hypothesis was put in doubt by this report. Clearly, it was.
[45] Professor Burns suggested the employer obtain an opinion from Mr Brophy in relation to the possibility of the later bleed. The employer requested the advice from Mr Brophy by letter of 13 August 2008.[37] The letter refers, in effect to the employer's hypothesis, or the uncertainty held by the employer about whether the injury occurred at work.
[46] An important concession made on Appeal is that Mr Brophy's report, although dated 25 August 2008 was not received by solicitors for the employer until 26 July 2010. His Honour proceeded on the erroneous basis it was received almost two years earlier. This information about receipt of the report did not appear to be available, alternatively was not made clear to His Honour at the hearing. The sequence of events is that a letter from the employer's solicitor to Mr Brophy dated 28 June 2010 noted there had been no response from the request for a report of 13 August 2008.[38] Mr Brophy's report of 25 August 2008 was then faxed to the employer.
[47] The employer then sought a further medical opinion when a solicitor for the employer phoned Mr Brophy. A telephone attendance of 6 April 2011 between the solicitor for the employer and Mr Brophy notes a discussion when Mr Brophy confirmed the haemorrhage could be considered an injury within the legal definition and that it resulted or materially contributed to his impairment.
[48] The employer's first Defence, filed on 31 August 2009, as noted by His Honour[39] positively denied the rupture of the blood vessels occurred at the time of his collapse at work. His Honour found this was contrary to the reports that had been received by that time. Particular reference was made to Mr Brophy's report. Save that Mr Brophy's report of 25 August 2008 had not been received by the employer, in my view that finding is still open. While Professor Burn's reports do not completely exclude the possibility of a non-causally connected bleed, it must have been clear there was an injury at work with perhaps the full extent of contributions to incapacity under the Act not as a certainty determined. Nevertheless, clearly there was a work based injury on the available material.
[49] The worker served a report in support of the claim from Associate Professor Chambers dated 14 May 2011.
[50] The appellant employer suggested the delay in accepting the claim could be justified in part because of lack of relevant procedural steps taken by the worker. The Act is particular about obligations of employers; it is no answer in my view that the worker took no specific action on the pleadings that would have prevented the employer's delay. The appellant employer's Defence (August 2009) was a denial; effectively alleging the injury, a blood vessel rupture, did not occur at the time of the worker's collapse at work but rather when he was no longer in the course of employment, (possibly in hospital or later). In a letter of 10 July 2008,[40] the respondent worker's solicitor had inquired as to whether the employer was suggesting the injury identified did not develop at work.
[51] I agree with the respondent worker's argument that the pleadings effectively amounted to a factual dispute thus removing any realistic possibility of a successful summary judgment or strike out application. None of this shifts the burden of proof but if the employer's delayed assessment and therefore acceptance of the claim leads to unreasonable delay, there are consequences.
[52] Section 109 of the Act should be interpreted as a coercive provision, its purpose being to ensure compliance with the Act is taken seriously. An employer may well put a worker to proof, however, if unreasonable delay results, s 109(1) interest must inevitably follow. The Act provides the machinery for the deferral of acceptance of liability. Non compliance with the regulatory processes of the Act has s 109 consequences, a feature of the structure of the Act.
[53] In my view His Honour was correct to conclude the employer had no case to justify delay on the basis of a defence grounded in the concept of "disease" under the Northern Territory Act concerning the interpretation of s 4(6A) and (8) of the Act. His Honour found there was no analysis of s 4(6A) and (8) offered on behalf of the employer which might have distinguished the approach under the Act from that taken by the High Court in Kennedy Cleaning v Petkoska.[41] In Kennedy Cleaning the High Court confirmed the approach taken to the concept of "injury" in Zickar v MGH Plastic Industries Pty Ltd[42] concluding an injury would ordinarily be compensable without meeting the "disease" pre-conditions. The existence of an alternative and additional definition of compensable disease does not lead to a narrowing or reading down of the definition of injury. The fact of an established connection between sudden physiological change and underlying disease process does not prevent the physiological change being distinct from the disease.
[54] I agree with respect with His Honour's analysis of "injury" in s 3 of the Act that includes a disease. That inclusion does not mean consideration must be given to s 4(6A) and (8) which are limited to disease. These are specifically to be considered when there is no injury but there is disease. The Work Health Court in Keating v Global Insulation Contractors[43] determined the Act produced the same result as that taken in some other jurisdictions, establishing that when a physical injury in the course of employment occurs, there is no need to consider the concept of underlying disease. Although there had been no judicial consideration of subsections 4(6A) and (8) until June 2011 when Keating v Global Insulation Contractors was decided_,_ any significant point of distinction under the Northern Territory Act from the High Court's approach in similarly structured legislation remains elusive.[44] Whatever hesitation there may have been over the legal position, I agree with His Honour's conclusion that this could not have justified the delay in accepting the claim. In my view it was an appropriate matter for consideration in the early stages but could not possibly justify the magnitude of the delay after August 2008.
[55] A further reason given to justify the delay concerned the state of the medical information available and what it established. There were some complexities in the aetiology. There was, in the background the high blood pressure the worker suffered from, which had previously been undiagnosed. As noted, the employer asserted the incapacity may have been caused other than from the bleeding in his brain suffered at work on 28 May 2007. As the incapacity must be linked to the work injury,[45] if some other medical cause arose after the particular injury on 28 May 2007, and if that other cause was the cause of or a material contribution to the respondent worker's incapacity, the employer may have been justified in continuing to dispute the claim.
[56] His Honour noted he had no evidence of steps the employer took to investigate the claim between 28 November 2007 and 29 January 2008 when it disputed the claim.[46] He referred to the correspondence between the employer and the doctors about the possibility of the injury being suffered later. At no point however did any evidence emerge that supported this possibility.
[57] His Honour rejected a submission on behalf of the respondent worker that the worker could rely on s 4(1)(e)(ii), s 4(1)(f) of the Act, as bringing any injury found to have occurred later within the definition of "out of the course of employment" as the section is limited to claims which have been accepted or deemed to be accepted, or have been invalidly disputed, or where the Court has made a determination.[47] I reject the respondent worker's contention that His Honour was in error in rejecting the worker's construction of s 4(1)(e)(ii). I agree with His Honour's analysis that the words "in connection with an injury for which he or she is entitled to receive compensation ..." in the text of s 4(1)(e)(ii) limits in ss 4(1)(e) and (f) to claims where the entitlement to receive compensation already exists. That would appear to be the clear purpose of the limitation.
[58] Mr Rothwell did not make his claim until 20 November 2007, nearly six months after the original injury. His Honour was aware of the date of the claim.
[59] His Honour accepted the employer needed to investigate during the period of deferral. The letter of 18 February 2008, (referred to earlier in these reasons) to the Neurologist Professor Burns[48] sets out the events of 28 May 2007 as known to the employer at that time. In that correspondence a solicitor for the employer points out that the employer was seeking to determine precisely when the brain haemorrhage occurred as given the worsening of the worker's symptoms in hospital it was on the employer's view at that time arguable that the haemorrhage occurred or progressed when he was no longer at work. The letter states "I advise that it is important for the employer/insurer to determine, as best as possible, and on the balance of probabilities, when the worker's haemorrhage occurred in the injury process for the purpose of considering the employer's liability for the worker's injury/claim under the NT Work Health Act".[49] The timing of the injury causing incapacity was clearly in dispute, however there was no evidence in the hands of the employer that supported this as a real possibility.
[60] His Honour found the extent and/or duration of the incapacity and impairment may have been quite limited, if the employer's alternative hypothesis was correct that a new and separate bleeding into his brain occurred when the worker was no longer at work. The finding throughout the reasons was that there was no sufficient evidence in support of the alternative hypothesis at any time. Clearly, His Honour also took the view the employer could continue to investigate its alternative hypothesis.[50]
[61] The point at which His Honour found it would have been unreasonable to delay accepting the respondent worker's claim was after the employer received and considered reliable evidence that the worker most probably suffered a rupture of a blood vessel or vessels in his brain while at the workplace on 28 May 2007. His Honour found the employer received that evidence in the Report from Professor Burns dated 15 July 2008.[51]
[62] The appellant argues that the problem with that conclusion was that His Honour earlier in the reasons found[52] Professor Burn's assumption that the work injury continued to bleed, fell short of a positive opinion on the balance of probabilities of its actual occurrence. His Honour found at that time the employer's hypothesis was put in doubt, but not definitely excluded.
[63] The statement in His Honour's reasons that the assumption by Professor Burns fell short of a positive opinion on the balance of probabilities that this is in fact what happened must be seen in the context of the reasons in their entirety and Professor Burn's second report. His Honour is saying in my view, that although there was not a positive opinion of a continued bleed, it was clear there was reliable evidence of the rupture of blood vessels or vessel in the brain while at work. As well as the assumption about the deterioration, Professor Burns says "It seems highly probable then that his illness did begin at work". I agree that the second report of Dr Burns satisfied the conditions for liability and the employer should have accepted the claim shortly after. There is no other way to interpret Professor Burn's second opinion but that it was a condition commencing at work, there being no evidence at that time of an unrelated new bleed. Properly considered in context, I conclude His Honour did not make inconsistent findings about this point.
[64] Professor Burns did recommend the employer seek the opinion of Mr Brophy, Head of Neurosurgery at Royal Adelaide Hospital. The employer took that advice and its solicitor wrote to Mr Brophy on 13 August 2008. The employer was clearly pursuing the further injury hypothesis which had not been ruled out. Not being completely ruled out as a contribution to incapacity does not mean this was not a work injury under the Act. By this time, the employer had reliable material indicating that it was. Part of Mr Brophy's report of 25 August 2008 stated the worker's deterioration may have been the result of re-bleed in the course of the hours following the ictus. Nothing in Mr Brophy's report could lead to a conclusion there was not liability under the Act. The breadth of the relevant definitions under the Act are relevant. "Incapacity" means "an inability or limited ability to undertake paid work because of an injury". "Impairment" means "a temporary or permanent bodily or mental abnormality or loss caused by an injury".[53] If medical material at any stage had arisen to show neither the incapacity nor the impairment were causally linked to the work injury, the employer could have cancelled benefits in accordance with procedures under the Act or made an application to the Court.
[65] His Honour referred to a report of Mr Brophy's of 28 June 2008. It may be, as submitted on behalf of the employer, His Honour was referring to the report of 28 June 2010, in which His Honour notes the alternative hypothesis is not addressed. This in my view was not material to His Honour's conclusion on the question of unreasonable delay.
[66] The respondent worker argues notwithstanding His Honour proceeded on the basis of Mr Brophy's report being received soon after 25 August 2008, the conditions of liability under the Act were met and reliable material to that effect was with the employer by 22 July 2008. In my view this argument must be correct. His Honour found the delay in accepting the claim was unreasonable by 19 August 2008. (This was 28 days after receiving the supplementary report from Professor Burns).
[67] Although His Honour proceeded on the factual error that Mr Brophy's report had been received by the employer in August 2008, in my view there was a significant amount of other material to justify a conclusion of unreasonable delay, His Honour having found that in any event there was reliable material in support of the claim. Mr Brophy's report did not support the employer's hypothesis. There was no evidence that supported the employer's theory.
[68] The period from the request by the employer for Mr Brophy's report of 13 August 2008 to 26 July 2010, (when it was received), needs to be considered. During that period the appellant employer challenged various points of pleading illustrated in correspondence between solicitors.[54] The employer did at least imply in correspondence that it had a factual basis for its defence. As between solicitors, one email from the employer states "This may well be a matter of evidence at trial and if the employer fails to persuade the Court of its proposition on the factual evidence, then so be it".
[69] Further, there was no explanation on why there was no follow up on the part of the employer from 25 August 2008 until its follow up letter to Mr Brophy of 23 June 2010. After receiving the report on 26 July 2010 there was further delay until a communication between the solicitor for the employer and Mr Brophy on April 2011.
[70] After reviewing the available material I agree with the conclusion the delay was unreasonable from 19 August 2008 - 6 September 2011 and that interest under s 109(1) should be paid. I have come to this conclusion in the knowledge His Honour was in error in relation to the date the employer received Mr Brophy's report.
[71] It was also argued that interest ordered under s 109(1) should not be paid on the award of compensation of past attendant gratuitous care services, even if there is a finding they constitute "costs incurred". The cost of provision of the relevant services having been quantified, s 109(1)(a) makes no distinction between different forms of compensation. If unreasonable delay is found in accepting a claim the Court must order interest.
[72] I would not interfere with His Honour's finding and would not allow ground 2.