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[2009] NSWIRComm 1074
respondent. Application dismissed.
1 cited instrument linked from this judgment.
The CFMEU sought reinstatement of a long-serving employee after he underwent double knee replacements and was dismissed. The Industrial Relations Commission dismissed the application because there was no evidence that the worker's knee injuries, which led to his dismissal, had been accepted as compensable against Springvale by the workers' compensation insurer; under the Act the Commission can only order reinstatement against the employer whose employment gave rise to the compensable injury. The judge also found that the 2000 and 2002 'twist' incidents at Springvale were insufficient, on the evidence, to be shown to have caused or substantially contributed to the later need for knee replacements even if processing errors were hypothesised, and therefore the jurisdictional threshold was not met ([20]-[24]).
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The CFMEU applied to the Industrial Relations Commission (the Commission) for reinstatement of its member, Mr Ross Speirs, to the position of Longwall Production Superintendent at Springvale Colliery, under the workers' compensation reinstatement provisions of the Workers Compensation Act 1987 (the Act) ([1], [5]). Mr Speirs had a long history of knee problems, including workplace injuries in 1975 and 1992 (left knee) and 1978 (right knee) before joining Springvale in 1995 ([14]-[16]). While employed at Springvale, he recorded incidents described as ‘‘twisted knee’’ on 22 August 2000 and 23 October 2002, although neither incident led to loss of working time and he did overtime on each occasion ([16]-[17]). He later underwent right knee replacement on 19 October 2007 and left knee replacement on 9 April 2008, followed by rehabilitation ([6], [10]). Springvale dismissed him effective 11 July 2008, citing the knee replacements and injuries as the reason ([6], [13]). A treating doctor certified fitness for pre-injury duties on 27 January 2009; Speirs applied to Springvale for reinstatement on 28 January 2009 but Springvale refused on 3 February 2009, asserting it was not the relevant employer for the compensable injury ([6], [16]). The CFMEU then applied to the Commission; after hearing, McKenna C dismissed the reinstatement application on jurisdictional grounds on 25 September 2009 ([24]).
The Commission's decision turned on the jurisdictional threshold created by the Act for reinstatement applications. Sections 240-243 read together require that an ‘‘injured worker’’ be a worker entitled to compensation under the Act (s 240(2)), and that a person is the ‘‘employer’’ of an injured worker only if the injury arose (wholly or partly) out of the course of employment with that person (s 240(3)). The Commission can order reinstatement under s 243 only where the worker is fit and the statutory requirements as to employer/entitlement are met ([4]).
McKenna C concluded that, on the evidence, there was no accepted workers' compensation claim against Springvale specifically for the knee injuries that led to the dismissal ([20]). The insurer, Coal Mines Insurance Pty Ltd (CMI), had not registered or accepted Springvale liability for knee-related claims arising from the incidents at Springvale in 2000 and 2002, and the Compensation Court settlement recorded in 2003 related to injuries predating Springvale employment ([19]). While some medical evidence (notably Professor Bruce's report) indicated that employment at Springvale might have aggravated or accelerated osteoarthritis in the knees, the absence of any Springvale-accepted compensable knee claim remained the decisive threshold impediment to jurisdiction ([21], [22]).
The judge also examined the nature of the Springvale incidents. The 2000 and 2002 incidents were described as ‘‘twists’’; on the days they occurred Mr Speirs lost no working time and worked overtime. Even if one assumed CMI had mis-processed claims, McKenna C considered those incidents unlikely, without more, to have caused or materially contributed to the need for bilateral knee replacements several years later ([16], [17], [23]). Given the jurisdictional deficiency, the Commission declined to address the alternative submissions concerning fitness for the role, accepting Springvale's submission that dismissal on jurisdictional grounds made further consideration unnecessary ([24]).
Before this decision the statutory framework in ss 240-243 of the Workers Compensation Act already required a connection between the employer and the compensable injury for reinstatement applications. The Court of Appeal's discussion in Strasberger (cited and quoted at [12]) had emphasised that the Act's definition of ‘‘injury’’ is broad and may include gradual or cumulative conditions, and that injury need not necessarily be tied to a singular incident. The CFMEU relied on that broader understanding of ‘‘injury’’ together with medical opinion suggesting employment at Springvale contributed to OA in the knees.
McKenna C accepted that the statutory definition is broad and that employment may be a contributing factor to disease or deterioration ([12], [21]). However the decision reinforces that, procedurally and practically, the reinstatement jurisdiction is tied to the existence of a compensable entitlement against the specific employer. The absence of an accepted claim against the employer whose actions are the subject of the reinstatement application remains a jurisdictional bar. In short, the case confirms that the reinstatement remedy cannot be invoked against an employer unless there is evidence that the worker's compensable injury is one for which that employer bears, or has been adjudged to bear, compensable responsibility (as evidenced by an accepted insurer liability or similar allocation) ([20], [22]).
Quoted finding of lack of jurisdiction: "If the Commission were to consider only the history of claims processed by CMI ... I think the application would fail for want of jurisdiction ... there is no evidence CMI accepted a workers' compensation claim against Springvale with respect to any knee-related injuries" ([20]).
On the nature of the workplace incidents: "Those incidents were described as involving twists to the knees. Mr Speirs lost no working time ... and also worked 4-6 hours' overtime ... several years elapsed before Mr Speirs was advised to undergo knee replacement surgery" ([23]).
On the hypothetical of mis-processed claims: "Even if that were the case, the evidence ... would not lead me to a conclusion the injuries would have, without more, contributed ... to an extent of significance such as to necessitate double knee replacements" ([23]).
Final disposition: "All things considered, I prefer the submissions advanced on behalf of Springvale ... and, as such, propose to dismiss the application." ([24]).
This decision is most directly triggered where:
In those factual matrices the Commission will likely treat the absence of an employer-specific accepted compensable claim as a threshold jurisdictional bar to reinstatement, unless there is convincing proof that the employer's employment caused or materially contributed to the relevant compensable condition and liability has been or could be allocated to that employer ([16]-[23]).
This judgment itself cites and applies prior authorities rather than being framed as a novel doctrinal shift. McKenna C relied on the broad definition of "injury" in s 4 as explained by the Court of Appeal in Strasberger Enterprises v Serna, and on established authorities about the policy intent of reinstatement provisions ([12], [25]). The decision does not purport to alter the legal test for causation or the statutory definitions; it emphasises evidentiary and procedural prerequisites, notably insurer acceptance or apportionment of liability to the specific employer, before the Commission will exercise reinstatement powers against that employer ([20], [22]). Subsequent tribunals and courts confronted with reinstatement applications where insurer processing or apportionment is ambiguous will likely regard this case as confirming the importance of clear employer-specific compensable linkage to the injury in question. Practitioners should note the practical consequence: absence of Springvale-specific accepted claims was decisive even though medical opinion suggested employment contribution to osteoarthritis ([19]-[22]).
Apportionment and procedural remedies: The judgment notes that if the Compensation Court had apportioned liability to Springvale in 2003 or CMI had apportioned liability between employers, the outcome might have differed ([22]). It remains open how the Commission should proceed where insurer acceptance is ambiguous or administrative mis-processing is credibly alleged, and whether the Commission should be more proactive in resolving competing insurer allocations rather than treating insurer records as dispositive.
Causation in cumulative disease cases: While the Court recognised the statutory capacity for gradual or cumulative injury (citing Strasberger) ([12], [21]), McKenna C treated the actual 2000 and 2002 events as insufficient in causal potency. There remains scope for dispute about what evidentiary standard should suffice to connect earlier workplace incidents to later degenerative surgery, particularly where multiple employers and long time spans are involved.
Practical interplay between compensation proceedings and reinstatement applications: The case underlines the dependence of a reinstatement application on prior or concurrent workers' compensation adjudication against the employer. It leaves open procedural coordination issues; for example, whether a worker may seek a declaration or determination of employer liability within the Commission context (or whether they must first secure an insurer or court allocation).
Policy balance between worker protection and employer avoidance: McKenna C emphasised the potential negative consequences of a broad reinstatement jurisdiction for employers hiring persons with pre-existing claims ([25]). The correct balance between protecting injured workers from post-injury dismissal and avoiding undue burdens on new employers remains an area where legislative or higher-court clarification could be sought.
In practice, lawyers advising employers or unions should ensure contemporaneous and clear workers' compensation claim records, consider early apportionment where multiple employers may have contributed to a condition, and be prepared to address both jurisdictional employer-link issues and substantive fitness evidence where reinstatement is sought.
CITATION: Construction, Forestry, Mining and Energy Union, New South Wales Branch (on behalf of Ross Speirs) v Springvale Coal Pty Limited [2009] NSWIRComm 1074
APPLICANT Construction, Forestry, Mining and Energy Union, New South Wales Branch on behalf of Ross Speirs PARTIES: RESPONDENT Springvale Coal Pty Limited
CATCHWORDS: Injured worker - reinstatement application - s 242 of Workers Compensation Act - mining industry - worker dimissed following knee replacement surgery - application to employer for reinstatement refused - application to Commission for order for reinstatement - application opposed on basis the respondent was not the employer responsible for the injury leading to knee replacements - no relevant workers' compensation claims accepted against the respondent, only the worker's former employers - application opposed on grounds of fitness for inherent requirements of the job - application dismissed as no relevant injury/workers' compensation claim against respondent
LEGISLATION CITED: Workers Compensation Act 1987 ss 4, 240-243 Workers Compensation (Dust Diseases) Act 1942
ASMOF (NSW) v CSAHS [2005] NSWIRComm CASES CITED: Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 Riley v WorkCover Authority (NSW) (2006) 151 IR 396; State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263
HEARING DATES: 8, 9, 10 July, 18 August 2009
APPLICANT Mr A Slevin of counsel Ms M Mitchell - CFMEU LEGAL REPRESENTATIVES: RESPONDENT Mr R Warren of counsel Solicitor - Mr S Woodbury, Blake Dawson
DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C 25 September 2009
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF ROSS SPEIRS) AND SPRINGVALE COAL PTY LIMITED
Application by Construction, Forestry, Mining and Energy Union, New South Wales Branch on behalf of its member Ross Speirs for reinstatement of an injured employee pursuant to s 242 of the Workers Compensation Act 1987
1 This is an application made by the Construction, Forestry, Mining and Energy Union, New South Wales Branch ("CFMEU") pursuant to s 242 of the Workers Compensation Act 1987 seeking the reinstatement of its member, Ross Speirs, to his former position with Springvale Coal Pty Limited ("Springvale"). Mr Speirs was formerly employed as the Longwall Production Superintendent at the Springvale Colliery. 2 Springvale opposes the CFMEU's application for the reinstatement of Mr Speirs to his former position. That opposition was advanced on two principal bases. First, Springvale submits there is no jurisdiction to make an order for reinstatement because Springvale was not relevantly the appropriate employer concerning Mr Speirs' workers' compensation-related knee injuries. Second, Springvale submits, putting aside issues as to power, it would be inappropriate, in any event, to reinstate Mr Speirs, given the inherent demands of the job of Longwall Production Superintendent at the Springvale Colliery and the fact Mr Speirs has had bilateral prosthetic knee replacements. 3 On the hearing of the application, Mr A Slevin of counsel represented the CFMEU. Mr R Warren of counsel represented Springvale. Statutory provisions
4 Section 242 of the Workers Compensation Act is concerned with applications for reinstatement by injured workers. An "injured worker" is defined by s 240(2) as being a worker who has received an injury for which the worker is entitled to receive compensation under the Workers Compensation Act or the Workers' Compensation (Dust Diseases) Act 1942. As to the meaning of "employer", s 240(3) provides that "a person is the 'employer' of an injured worker only if the injury arose (either wholly or partly) out of the course of employment with that person". Section 241 provides that if an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may then apply to the employer for reinstatement to employment of a kind specified in the application, subject to the criteria in s 241(2)-(3). If the employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for an order under s 243, which reads as follows: 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).
(4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.
ORDER 1: The Commission orders, pursuant to s 243(2) of the Workers Compensation Act , that the employer reinstate the applicant to employment in the position of Longwall Superintendent at the Springvale Colliery.
ORDER 2: The Commission orders that the applicant is to be reinstated to the employment of the kind herein stipulated as soon as practicable, and within twenty-one days from the date of this decision.
ORDER 3: The Commission orders, pursuant to s 243(4) of the Workers Compensation Act , that the employer pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between the time of making application to the employer for reinstatement and reinstatement, less any amounts received as payment in respect of workers' compensation or derived from alternative employment. This amount is to be paid as soon as practicable, and within twenty-one days from the date of this decision.
ORDER 4: The Commission orders, pursuant to s 246(1) of the Workers Compensation Act , that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between the date of the application by the applicant to the employer for reinstatement, and the reinstatement of the applicant, shall be counted for all purposes as a period of employment.
6 Matters relevant to the history to the application were outlined in the CFMEU's submissions as follows, which I have expanded upon slightly: 1. … 2. Mr Speirs has worked in the underground coal mining industry since 1971. In that time, he has worked for a number of employers. 3. In 1975, he was involved in an incident which resulted in an injury to his left knee [and had an operation to remove damaged cartilage in his left knee]. At that time, he was working at the Ivanhoe Colliery. 4. In 1978, he was involved in an incident which resulted in an injury to his right knee [and had an operation to remove damaged cartilage in his right knee]. At that time, he was working at the Ivanhoe Colliery. 5. In 1992, there was another incident involving injury to his left knee at the Western Main Colliery [and Mr Speirs had an arthroscopy of his left knee to remove a piece of bone]. 6. In 1995, he commenced work with [Springvale]. In his application for employment form, he disclosed that he had claimed workers' compensation for his knee injury at Western Main Colliery [where he had worked between 1982 and 1995]. 7. Whilst working with [Springvale] he was involved in two incidents which resulted in injuries to his knees. These occurred in 2000 and 2002. 8. After these incidents, Mr Speirs received treatment for his knees on a number of occasions. This treatment included: steroid injections in August and October 2000, an arthroscopy to his right knee in April 2004 and pain-killing drugs in 2007. 9. In August 2007, Mr Speirs provided a medical certificate indicating he was unfit for work due to the injuries to his knees. The certificate identified Mr Speirs' employment as a substantial contributing factor to the injury. 10. Mr Speirs was subsequently advised by his orthopaedic surgeon that he should have knee replacements. He had operations to replace his right knee on 19 October 2007. His left knee was replaced on 9 April 2008. Following surgery, Mr Speirs was placed on a rehabilitation programme. 11. Mr Speirs received compensation under workers' compensation legislation for lost wages and medical treatment associated with his knees. 12. Mr Speirs has not worked since August 2007. Following his operations he was placed on rehabilitation plans. 13. He was dismissed by [Springvale] by letter dated 3 June 2008. The dismissal letter referred to Mr Speirs' injuries and bilateral knee replacements as the reason for the dismissal. The dismissal took effect on 11 July 2008. 14. On 27 January 2009, Mr Speirs' treating doctor, Dr Roebuck, issued a certificate that Mr Speirs was fit for his pre-injury duties. 15. On 28 January 2009, Mr Speirs provided a copy of Dr Roebuck's certificate to [Springvale] and made application to [Springvale] pursuant to s 241 of the Workers Compensation Act for reinstatement to his pre-injury duties, being the position of Longwall Production Superintendent. 16. By letter dated 3 February 2009, the respondent notified Mr Speirs that it would not reinstate him claiming that it was not the relevant employer under the Workers Compensation Act . [The letter read as follows: We refer to your letter dated 28 January 2009. We note that your application for reinstatement to the position of Longwall Production Superintendent has been made pursuant to section 241 of the Workers Compensation Act 1987. Under s 241, the entitlement to apply for reinstatement may only be made to an employer if the injury or injuries giving rise to the termination of the employee's employment arose (partly or wholly) out of, or in the course of, employment with that employer. Your injuries did not arise out of your employment with Springvale Coal and, therefore, no entitlement to apply for reinstatement arises under s 241. Your application will not therefore be the subject of further consideration.] 17. That letter was drafted by Mr Gillard who is the Group Industrial Relations Advisor for Centennial Coal Company, the parent company for [Springvale]. 18. Centennial Coal was also the parent company for Ivanhoe Colliery, which ceased operations around 2006.
Mr Speirs' claims for workers' compensation benefits, by way of compensation and reimbursement for medical expenses and lost wages, were all made to the industry-based insurer, Coal Mines Insurance Pty Ltd ("CMI"). 7 There was no substantial issue between the parties in relation to the history of incidents concerning Mr Speirs' injuries as outlined in the CFMEU's submissions. The parties were, however, in sharp dispute concerning the appropriate characterisation of that injury history as it related to the application now before the Commission seeking an order for Mr Speirs' reinstatement to his former position at the Springvale Colliery.
8 Shortly stated, Mr Warren submitted there was no evidence on which it could be concluded Mr Speirs sustained an injury at the Springvale Colliery entitling him to receive Springvale-specific workers' compensation benefits under the Workers Compensation Act. In this respect, Mr Warren adverted particularly to the following matters arising from the evidence. To the extent Mr Speirs described injuries occurring at the Springvale Colliery on 21 August 2000 and 23 October 2002, the evidence indicated Mr Spiers did not lose any working time and, in fact, performed overtime around the time of the incidents. 9 Mr Warren submitted it was pertinent that no workers' compensation claims have been accepted by CMI, on behalf of Springvale, in relation to those incidents in August 2000 and October 2002. Although Mr Speirs received workers' compensation benefits from 27 August 2002, at the time he was working for Springvale, CMI treated the claim and provision of workers' compensation benefits as being referable to the insurance arrangements applicable between Mr Speirs and his previous employers. Moreover, Mr Warren submitted that to the extent the CFMEU sought to rely on proceedings before the Compensation Court of New South Wales in 2003, in which Springvale was named as the second of three respondents in workers' compensation proceedings: (a) there is no record of any payment against Springvale's workers' compensation insurance policy in 2003 concerning Mr Speirs in relation to those proceedings; and (b) the short minutes of order/terms of settlement before the Compensation Court referred only to injuries which pre-dated Mr Speirs' employment at the Springvale Colliery. 10 Mr Warren submitted there was no relevant workers' compensation injury during Mr Speirs' period of employment with Springvale to enliven the Commission's reinstatement jurisdiction under the Workers Compensation Act. In referring to the legislative intention of the injured worker provisions, Mr Warren submitted as follows: The legislation was not intended to penalise employers who employ persons with pre-existing workers' compensation claims by requiring such employers to reinstate an employee whose employment was terminated due to a condition arrived at as a result of compensable injuries sustained in previous employment. Such an outcome would pervert the beneficial nature of the legislation and create barriers for employment of workers with pre-existing workers' compensation claims. In this instance, Mr Speirs was employed by Springvale for approximately 13 years. During this time, Springvale provided support to Mr Speirs in relation to the compensable injuries he had suffered in previous employment, including in relation to facilitating medical appointments, facilitating workers' compensation payments by CMI and rehabilitation programmes. From the time Mr Speirs ceased performing work for Springvale, Springvale waited almost a year to determine whether Mr Speirs would be able to return to his duties after his double knee replacement before it made the decision to terminate his employment based on the available evidence. At all relevant time, Springvale's actions were appropriate and generous. 11 Mr Warren submitted that if the Commission were to find against Springvale concerning the occurrence of a relevant injury in relation to Mr Speirs' need for knee replacements, then, in the alternative, there was no medical evidence to support the claim the need for that surgery came about as a result of Mr Speirs' employment at the Springvale Colliery. Mr Warren submitted CMI had accepted a number of Mr Speirs' workers' compensation claims (eg industrial deafness, laceration) arising during his period of employment with Springvale, but none of the claims related to Mr Speirs' knee conditions or the knee replacement surgery.
12 As to jurisdiction, Mr Slevin submitted Mr Speirs was appropriately characterised as a injured worker within the meaning of s 240 of the Workers Compensation Act given he was a worker who received an injury for which he had received workers' compensation benefits. As to Mr Speirs' injury itself, Mr Slevin drew attention to the definition of "injury" in s 4 of the Workers Compensation Act, which reads: 4 Definition of "injury"
(a) means personal injury arising out of or in the course of employment,
(b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
Mr Slevin referred also to the following quote from the decision of the New South Wales Court of Appeal in Strasberger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354, a case which considered the meaning of s 4 of the Workers Compensation Act : 21 In the present case the appellant challenged that approach, submitting that under the Workers Compensation Act , an injury was to be identified by reference to a particular incident. At least for the purposes of s 151H, an employee could not accumulate the consequences of separate incidents so as to satisfy the statutory floor, below which a claim must fail.
22 If this analysis is to operate, it must do so in some circumstances but not others. For example, there will undoubtedly be injuries, falling within the definition of "injury" in s 4 of the Workers Compensation Act , which do not arise from a specific incident or event. The term "injury" includes a "disease" which, as is recognised by s 15, may be contracted by a gradual process. Other forms of personal injury, which may or may not constitute a disease, may result from exposure to work conditions over time. The elements of the definition, at least in pars (a) and (b), are not exclusive of each other: see Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580 at 588-589 (Barwick CJ); Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 at 329-330 (Toohey, McHugh and Gummow JJ). All that is required is that the injury arise out of or in the course of employment, or, in the case of a disease, be contracted in the course of employment. The contention that the injury must be connected with a specific incident or event harks back to the long since repealed requirement of the Workmen's Compensation Act 1916 (NSW) which referred to "personal injury by accident" arising out of and in the course of employment: s 5(1), discussed by Kirby J in Zickar at 339. 13 Drawing from the definition of "injury" in the Workers Compensation Act and the comments in Strasberger, Mr Slevin noted Mr Speirs had sustained knee injuries at the Springvale Colliery in August 2000 and October 2002. He further submitted Mr Speirs' osteoarthritis was aggravated, accelerated or exacerbated by his employment at the Springvale Colliery, consistently with the medical opinions to that effect given by Mr Speirs' treating physician as well as his orthopaedic surgeon. Against that background, Mr Slevin submitted Mr Speirs had an injury and Springvale was the employer for the purposes of s 240 of the Workers Compensation Act. Consideration
14 Mr Speirs has had a long history of knee-related injuries, starting, it seems, with a football injury in 1970, when he had a left-knee meniscectomy. So far as work-related injuries are concerned, Mr Speirs relevantly sustained two injuries of sufficient seriousness to require further procedures for his left knee. In 1975, Mr Speirs injured his left knee while working at the Ivanhoe Colliery and had a left-knee meniscectomy. In 1992, while working at the Western Main Colliery, Mr Speirs again injured his left knee and had an arthroscopic debridement. 15 As for Mr Spiers' right knee, the initial injury occurred in 1978, when he was working at the Ivanhoe Colliery. As a result, Mr Speirs had a right-knee meniscectomy. 16 In 1995, Mr Speirs began working at the Springvale Colliery. There was evidence of two knee-related injuries arising during Mr Speirs' period of employment with Springvale. On 22 August 2000, Mr Speirs completed a form titled "Claim for compensation by injured workers to be given to employer" concerning the injury. In the claim form, Mr Speirs described the injury from the prior day as a "twisted left knee", and noted he had previously injured this knee when working at the Western Main Colliery. Mr Speirs did not lose any time from work as a result of this injury and worked some six hours overtime that day in addition to his normal shift. CMI did not register any workers' compensation liability against Springvale for this injury. 17 As to the injury on 23 October 2002, Mr Speirs noted in the claim form he had suffered a "twisted knee", and that the injury to his right knee was a "reoccurrence". Again, Mr Speirs did not lose any time from work on the day of the incident and worked some four hours overtime. Apparently, that claim form was sent erroneously to CMI in circumstances where Mr Speirs had not submitted a WorkCover certificate. CMI has confirmed liability was not accepted for the claim submitted by Mr Speirs regarding an incident on 23 October 2002. 18 Although CMI has not accepted any workers' compensation claims against Springvale for knee-related injuries, CMI has accepted claims concerning various other injuries suffered by Mr Speirs while working at the Springvale Colliery. Craig Gillard, Group Industrial Relations Manager, who is responsible for matters associated with workers' compensation for Springvale, gave evidence of the following registered workers' compensation claims by CMI against Springvale regarding Mr Speirs:
(a) 16 January 1996 - in relation to a lacerated left finger - no claim cost; (b) 30 October 1996 - in relation to a strained left lower leg - an amount of $34.50 was provided by CMI; (c) 21 March 1997 - in relation to strained left fingers - an amount of $50 was provided by CMI; (d) 31 December 1998 - in relation to bruising to the right elbow - an amount of $75.12 was provided by CMI; (e) 30 July 1999 - in relation to an industrial deafness claim - an amount of $10,379.86 was provided by CMI; (f) 13 July 2001 - in relation to a laceration left hand an amount of $8,771 was provided by CMI; (g) 23 October 2002 - in relation to a strained right knee - no claim cost; and (h) 24 July 2003 - in relation to bruising of the hand - an amount of $60 medical was provided by CMI. 19 Mr Speirs received workers' compensation benefits from 27 August 2002 for knee-related treatments, at the time he was employed at the Springvale Colliery, but, as Mr Warren's submissions noted, CMI did not process those claims against Springvale. Moreover, although proceedings were instituted in the Compensation Court in 2003 naming Springvale as a respondent, among Mr Speirs' other former employers, the short minutes of order/terms of settlement referred only to injuries occurring before Mr Speirs began working for Springvale. 20 If the Commission were to consider only the history of claims processed by CMI in relation to Mr Speirs' knee-related injuries, I think the application would fail for want of jurisdiction in as much as there is no evidence CMI accepted a workers' compensation claim against Springvale with respect to any knee-related injuries - and it was the knee injuries/knee replacement surgery which led to the dismissal. 21 Mr Slevin advocated a broader approach to the question of Mr Speirs' condition, adverting to the expansive definition of "injury" in s 4 of the Workers Compensation Act and the Court of Appeal's comments in Strasberger. Against the background of those submissions, I note aspects of the medical evidence indicated Mr Speirs' employment at the Springvale Colliery had contributed to his eventual need for knee replacement surgery, for example:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Construction, Forestry, Mining and Energy Union, New South Wales Branch (on behalf of Ross Speirs)
Springvale Coal Pty Limited
Application dismissed.