Inghams Enterprises Pty Ltd v Thoroughgood

Court of Appeal (NSW)|2014-03-17|Before: McColl JA, Basten JA, Meagher JA, Roche DP

Number(s): CA 2013/179671 Decision under appeal Citation: Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 Date of Decision: 2013-05-27 00:00:00 Before: Roche DP File Number(s): Workers Compensation Commission WCC A1-4147/12

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Brett Thoroughgood (the respondent) was employed at Inghams Enterprises Pty Ltd ("Inghams") since 2003. His work required him to stand on a wet concrete floor, hanging chickens, for eight hour days, five days a week. In 2006, he was diagnosed as suffering "aggravation or worsening of varicose veins" in his left leg as a result of standing for lengthy periods in wet conditions. On the recommendation of his general practitioner, in September 2006 the respondent requested suitable footwear from the applicant. The request was denied. The respondent resigned on 10 October 2006. In January 2010, the respondent made a claim against Inghams for lump sum compensation in the amount of $7,500. Compensation would only be recoverable if a claim had been made within six months of becoming aware of the aggravation of his varicose veins. On 18 January 2010, an arbitrator at the Workers Compensation Commission ("the Commission") held that the respondent's employment at Inghams was a substantial contributing factor to the aggravation of his varicose veins. The arbitrator also held that the respondent had made a claim for compensation within the relevant six-month period, namely when he requested appropriate footwear in September 2006. Inghams appealed the arbitrator's decision to a Deputy President of the Commission. The Deputy President reaffirmed the finding by the arbitrator that the request for footwear was within the six-month period. Nevertheless, the Deputy President allowed the appeal because the respondent did not suffer a relevant incapacity from the injury; it being conceded by the respondent that he needed to establish a relevant incapacity had resulted from the aggravation of the varicose veins for the compensation claim to succeed. The Deputy President reached this view on the basis that the incapacity must be one that establishes an entitlement to a claim for weekly compensation, which was not the nature of the respondent's claim. However, the Deputy President did not grant an award in favour of Inghams. The Deputy President held that the respondent was mistaken in believing he needed to establish a relevant incapacity to succeed and that the matter should be remitted to another arbitrator for redetermination. Inghams appealed the decision of the Deputy President. As the claim involved less than $20,000 and was an appeal from an interlocutory decision, leave to appeal was required. The respondent proposed to cross-appeal if leave was granted. The issues for determination were: (i) whether the request for appropriate footwear constituted a claim for compensation; (ii) whether the Deputy President erred in allowing claimant to depart from a concession that the compensation claim could only succeed if there was a relevant incapacity; and (iii) on the proposed cross-appeal, whether the Deputy President erred in finding that there was no relevant incapacity since there had been no claim for weekly compensation. The Court held (per Basten JA, McColl and Meagher JJA agreeing), refusing leave to appeal: In relation to (i)

Judgment 1McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes. 2BASTEN JA: In 2006 the respondent and claimant worker, Mr Brett Thoroughgood, suffered an injury identified as the "aggravation or worsening of varicose veins" in his left leg, resulting from standing for lengthy periods in wet conditions at his place of employment. On 18 January 2012, he made a claim against his former employer, Inghams Enterprises Pty Ltd ("Inghams"), for lump sum compensation in an amount of $7,500 under s 66 of the Workers Compensation Act 1987 (NSW). 3Inghams resisted the claim, partly on the basis of the long delay in bringing it forward. An arbitrator upheld the worker's entitlement to claim compensation and remitted the claim to the registrar of the Commission for referral to an approved medical specialist to determine the degree of permanent impairment. Inghams appealed to a Deputy President, who found error but remitted the matter to an arbitrator to reconsider one specific issue: Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 (Roche DP). Inghams then sought leave to appeal from the decision of Deputy President Roche, an appeal being available only on a point of law: Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act"), s 353(1). 4The decision of the arbitrator was interlocutory. On the basis that an appeal from that decision was also interlocutory, Inghams required leave to appeal to this Court, pursuant to s 353(4)(a) of the Workplace Injury Act. Although it succeeded on one ground of appeal before the Deputy President, resulting in a remittal to a different arbitrator for determination of the outstanding issue, Inghams submits that it should have obtained an award in its favour. 5The amount in issue appears to be relatively small; indeed it may be insufficient to allow an appeal without leave even if the decision were final: see s 353(4)(c), requiring leave where the amount of compensation in dispute is less than $20,000. Further, the course taken by Inghams has led to a proposed notice of cross-appeal by the worker challenging the finding of the Deputy President as to error on the part of the arbitrator. The proposed cross-appeal is not without merit. Absent an issue of principle or public importance, or egregious error on the part of the Deputy President, this Court would not willingly countenance an appeal in such circumstances. 6For the reasons given below, leave to appeal should be refused.

Factual background 7The worker commenced employment with Inghams in 2003. His work required him to stand on a wet concrete floor, hanging chickens, for eight hour days, five days a week. In mid-2006 he said that he notice swelling in his left foot and his veins "popping". He experienced pain in his legs. On 6 June 2006 he consulted his general practitioner, Dr Walter. On 8 September 2006 Dr Walter suggested that Inghams provide him with proper boots. He made such a request to his superintendent to whom he provided medical certificates stating that he required suitable footwear as he was suffering from varicose veins. Mr Thoroughgood said that his request was declined, leading him to resign on 10 October 2006. This account was consistent with a statement prepared by an officer for Inghams in November 2006. She recorded that she had known Mr Thoroughgood for some 10 years outside his employment and was aware that he suffered from varicose veins prior to his employment with Inghams. 8After leaving Inghams, Mr Thoroughgood commenced employment with a company for which he worked as a plumber and turf layer. In February 2012 he was working as a pipe laying supervisor for that company. There was an issue as to whether the more recent employment also aggravated his condition. 9The determination of the arbitrator, dated 18 January 2013, provided affirmative answers to the following three questions relating to the injury, namely: "(a) whether arising out of or in the course of employment Mr Thoroughgood suffered an injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease, being varicose veins in his left leg; (b) if so, whether his employment with Inghams was a substantial contributing factor to that injury; (c) if so, whether Inghams was the last employer who employed Mr Thoroughgood in employment that was a substantial contributing factor to the injury." 10The arbitrator was also required to consider three other matters, due to the failure of Mr Thoroughgood to pursue his claim for worker's compensation in a timely manner. These required a determination of: (i) when the injury "happened"; (ii) when Mr Thoroughgood gave notice of the injury to Inghams, and (iii) when Mr Thoroughgood made a claim for compensation. 11The significance of the last three matters depends upon an understanding of the scheme of the worker's compensation legislation, to which it is convenient now to turn.

Scheme of legislation 12To constitute an injury for the purposes of the Workers Compensation Act, the injury must arise out of or in the course of employment: Workers Compensation Act, s 4. Mr Thoroughgood did not claim that his work at Inghams caused the varicose veins. He did, however, rely upon so much of the definition of injury as included the aggravation, acceleration, exacerbation or deterioration of his condition. To that end he needed to establish that his employment was a contributing factor (s 4(b)(ii)) and, indeed, a substantial contributing factor: see s 9A. Where the injury consists of an aggravation etc, the Act further provides when the injury is deemed to have happened. Thus, s 16 states: 16 Aggravation etc of diseases-employer liable, date of injury etc (1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease: (a) the injury shall, for the purposes of this Act, be deemed to have happened: (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury-at the time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration. 13In the circumstances of this case, the alternatives within paragraph (a) depended upon whether the worker did or did not suffer "incapacity" as a result of the injury. The arbitrator concluded that "the evidence clearly establishes that Mr Thoroughgood's injury did cause him incapacity while working for Inghams": reasons, par 65. It will be necessary to return to that issue. 14To obtain compensation, a worker must satisfy the procedural provisions in Ch 7 of the Workplace Injury Act. The steps relevant for present purposes are those requiring the giving of "notice of injury" (Ch 7, Pt 2, Div 1) and for making a "claim for compensation" (Ch 7, Pt 2, Div 2). Relevantly to giving notice of the injury, s 254(1) provides: 254 Notice of injury must be given to employer (1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury. 15There are exceptions, but they do not arise because the Deputy President rejected Inghams' assertion that notice of injury had not been given, a finding which is not challenged. It is convenient to note that s 254(1) contains two points in time, namely when "the injury happened" and when the worker "voluntarily left" the employment. Notice of the injury must be given as soon as possible after the first event and before the second event occurs. Matters which must be dealt with in a notice of injury are set out in s 255(1); such a notice may be given orally or in writing: s 255(2); the identity of the person to whom notice is given is also relevant: s 255(4). 16With respect to the giving of notice, the arbitrator concluded at par 73: "In my view, Mr Thoroughgood gave notice of his injury to Inghams when he told Cindy Holloway, the RTW Coordinator at Inghams, that he had swollen feet from standing up all day. This notice was given orally to Ms Holloway before Mr Thoroughgood left his employment. Ms Holloway knew Mr Thoroughgood. Therefore, Mr Thoroughgood, by notifying Ms Holloway directly of his injury, was in effect giving her notice of his name and address. Mr Thoroughgood's statement to Ms Holloway also apprised Ms Holloway of the method by which his injury occurred and, thereby, because his injury occurred from the type of work he was doing over a period of time, Mr Thoroughgood provided Ms Holloway notice of the date upon which his injury had occurred. I am therefore satisfied that Mr Thoroughgood provided notice of his injury in accordance with s 254(1) as soon as possible after his injury occurred and before he had voluntarily left his employment with Inghams." 17In addition to giving notice of injury, there are time limits upon making a claim for compensation. These are to be found in s 261 of the Workplace Injury Act, which, so far as relevant, states: 261 Time within which claim for compensation must be made (1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death. ... (3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question. (4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either: (a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or (b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker. ... (6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware. 18The arbitrator approached satisfaction of s 261 on two bases. First, on the basis that the claimant had been unable to work for a four day period in September 2006 and after 10 October 2006 due to the effects of his injury, he was, at that time, partly incapacitated for work. On that basis, it was necessary for him to have made a claim by March 2007 to comply with s 261(1). The arbitrator held that the request for appropriate footwear constituted a "claim for compensation for proposed treatment for his injury, as directed by his doctor": at par 76. By way of alternative, on the basis that the claim was for compensation for permanent impairment under s 66, the arbitrator held that he had not suffered a relevant incapacity for the purposes of s 16(1)(a)(i), and therefore the injury was deemed to have happened, pursuant to s 16(1)(a)(ii), at the time he made a claim for compensation: at par 77.

(a) finding as to incapacity 19On the employer's appeal, the Deputy President held that because there had been no economic loss and no claim for weekly compensation, there could not have been an incapacity on 10 October 2006, permitting that date to be the deemed date of injury: Reasons, at [69], [71] and [73]. This conclusion was said to flow from application of principles established by this Court in four decisions, namely GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 ("GIO Workers"); Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 ("Alto Ford"); P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 ("Berkeley Challenge"), and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 ("Stone"). 20For reasons which will be explained below, this conclusion was arguably wrong in point of law, a finding relevant to the proposed cross-appeal. However, the Deputy President did not treat his conclusion as determinative, on the basis that there were other deemed dates of injury which were potentially relevant, and therefore remitted the matter to an arbitrator for further consideration.

(b) claim for compensation 21Having addressed the question of incapacity, the Deputy President proceeded to deal with a number of other issues raised on the appeal before him. (Precisely how the issues were formulated in the notice of appeal is not clear because neither party troubled this Court with the notice of appeal to the Deputy President; nevertheless, in his reasons he set out the issues which were said to be "in dispute in the appeal": at [19].) First, the Deputy President addressed the question of "notice of injury" in terms which accepted the reasoning of the arbitrator and dismissed the ground of challenge: at [95]. 22Secondly, the Deputy President turned to what was described as "notice of claim", but involved a discussion in relation to the requirement that "a claim for compensation" be made within six months "after the injury or accident happened": s 261(1). The Deputy President referred to the two certificates issued by the worker's doctor on 8 and 12 September 2006, each of which referred to the worker's need for proper waterproof boots to protect his feet: at [99] and [100]. He then summarised the employer's submissions as amounting to four points, at [102]: "... first, simply asking for boots did not discharge the onus to make a claim; second, Mr Thoroughgood had not made a claim for lump sum compensation (within six months of September 2006); third, Mr Thoroughgood had not completed a claim form or written in the accident book; and, last, there was no evidence, or no sufficient evidence, to prove that Mr Thoroughgood made a claim for compensation on Inghams within six months of becoming aware of the injury." 23The second point was conceded, namely that the claimant had not made a claim for lump sum compensation at any time close to October 2006. However, the Deputy President, correctly, rejected that challenge as irrelevant. The requirements of s 261 impose a bar on compensation being recovered unless "a claim" for compensation has been made in the relevant time period: s 261(1). It is sufficient to make a claim for any form of compensation, which need not be a claim for the particular compensation in question: s 261(3). 24It was not entirely clear from the employer's case in this Court as to whether it accepted that point. It unequivocally challenged the finding that the claim for footwear had constituted a claim "for compensation", but otherwise treated the only possible claim as that made for lump sum compensation on 18 January 2012. By contrast, the Deputy President had referred to a claim made, but discontinued, in 2008 and a second claim made in 2009. In determining that the matter should be remitted, the Deputy President expressly noted that "there were several claims for compensation in this matter": at par 76. In any event, whatever the position taken by the employer, it is sufficient to accept that a claim for medical expenses (under s 60) would have satisfied the requirement of s 261, if made in a timely fashion. 25The issue of substance turned upon the submission that "simply asking for boots" (where no cost had yet been incurred) did not constitute making a claim for compensation. That terminology was not, according to the Deputy President, an adequate description of what in fact occurred. Rather, the worker advised his employer "that he had swollen feet from standing up all day" and provided certificates from his treating general practitioner as to his need for proper waterproof boots to prevent his severe varicose veins worsening: at [104]. 26Section 60 of the Workers Compensation Act provides that if, as a result of an injury, it is reasonably necessary that "any medical or related treatment ... be given", the employer is liable to pay the cost of that treatment: s 60(1)(a). Section 59 defines "medical or related treatment" as including "therapeutic treatment given by direction of a medical practitioner": par (b). The section further provides that "[p]ayments under this section are to be made as the costs are incurred, but only if properly verified": s 60(3). 27The legislation does not contain a definition of the phrase "claim for compensation", but it is clear that payments of compensation can be made (and may be required to be made) before a claim for compensation is made. Thus there is a requirement to commence provisional weekly payments of compensation upon notification of an injury: Workplace Injury Act, s 267. Recognition that a claim is not at that stage required is reflected in the obligation on the insurer to give the worker notice in writing as to the entitlement to make a claim and as to how that claim can be made: Workplace Injury Act, s 269(d). 28The employer proffered no authority for the proposition that a claim for "therapeutic treatment given by direction of a medical practitioner" could not constitute a claim for compensation until the cost had already been incurred, or possibly paid. The consequences of such a conclusion are potentially far-reaching. Inghams did not establish reasonable prospects of demonstrating that the conclusion of the Deputy President (and the arbitrator) that a claim had been made was wrong in point of law. 29The remaining challenge with respect to the claim for compensation was the failure to make the claim "in accordance with the applicable requirements of the WorkCover Guidelines" as required by s 260(1). However, the guidelines can (s 260(4)) and do (Pt 2, r 5.7) permit a claim to be made verbally to the employer or the insurer if the claim is only for medical expenses up to $5,000. The Deputy President dismissed that objection by the employer and there was no challenge to that finding on appeal.

(c) concession by counsel for the claimant 30Having disposed of the grounds which raised specific questions in relation to the construction of the legislation, it is convenient to turn to the primary ground of appeal raised by the employer, namely that it was entitled to judgment "on the basis of a concession by counsel for the respondent ... that [he] could not win if there was no relevant incapacity". That constituted a challenge to the reliance of the arbitrator on the finding that the worker had made "a claim for compensation for proposed treatment for his injury in the form of therapeutic treatment given by the direction of his GP": at par 76. The claim under s 60, for the cost of the proposed medical treatment, was sufficient to constitute a claim for the purposes of s 261(3). Accordingly, the arbitrator held that that claim, made on or about 8 September 2006, could constitute the time at which the injury was deemed to have happened, pursuant to s 16(1)(a)(ii). 31The applicant asserted, however, that the two sub-paragraphs of s 16(1)(a) operated as alternatives so that, if there were an incapacity, the first sub-paragraph applied and not the second. Counsel for the claimant having conceded that he could only succeed if he established incapacity, should not have been permitted to rely upon the second alternative which depended on a claim being made when "incapacity has not resulted from the injury". 32The Deputy President acknowledged that the case for the worker had been conducted before the arbitrator and before him on the basis that the worker had suffered an incapacity: at [75]. However, he concluded that the concession was based on a mistaken view of "the authorities" and was not a position from which there could be no departure: at [76]-[77]. 33There are three separate reasons which, at least when taken together, militate against a grant of leave to appeal from the finding that the "concession" was not binding. First, the issue as to incapacity had not been in issue before the arbitrator. Further, before this Court, the applicant sought to argue that s 16 of the Workers Compensation Act had no application in determining the date of injury for the purposes of s 261 of the Workplace Injury Act. That argument was not one of the issues identified by the Deputy President as being in dispute before him. 34The applicant's argument accepted that the Workers Compensation Act and the Workplace Injury Act were to be read together: Workers Compensation Act, s 2A(2). That section recognises the possibility of inconsistency and provides that the Workplace Injury Act prevails: s 2A(3). Section 261, the submission continued, was inconsistent in the sense that it contained its own internal scheme for determining when an injury happened within the terms of s 261(1). Thus, s 261(6) provides that "[i]f an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware." On the basis (discussed below) that the worker had made a claim for compensation when he sought therapeutic treatment pursuant to s 60, well within the six month period identified in s 261(1), this issue need not be resolved. 35Secondly, the effect of the concession, understood in its context, was contestable. Whether the view of the Deputy President, that it might be open to the Commission to permit an amendment to the pleaded date of injury, involved a decision of the presidential member in point of law may be doubted. The submission that the Deputy President "was not free to make whatever decision he thought fair in all the circumstances" was a misrepresentation of his reasons for decision. The further submission that he was "not free to look behind a concession made by Mr Thoroughgood's counsel below and to which counsel adhered on appeal" could not be accepted as a statement of legal principle. As the Deputy President correctly noted, "the Commission is not a tribunal bound by strict pleadings ... and has a statutory duty to act according to equity, good conscience and the substantial merits of the case": Workplace Injury Act, s 354(3). The Deputy President did not suggest that the dispute was to be resolved otherwise than by applying the law as set out in the legislation, but rather that the Commission's procedures should be sufficiently flexible to allow the merit of the decision to be determined, consistently with permitting each party a reasonable opportunity to present arguments, in accordance with principles of procedural fairness: cf Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29-30 (Gleeson CJ and Handley JA). 36Thirdly, a dispute as to the effect of the concession and the consequences of permitting the claimant an opportunity to depart from it does not raise any question of public importance. Given the small amount in issue on the proposed appeal, it would be contrary to principle to allow an applicant to pursue such a matter to a third level of dispute resolution.

(d) the proposed cross-appeal 37There is a further difficulty which militates against a grant of leave to the applicant. Although the respondent submitted that the matter was to be remitted because the arbitrator did not make a specific finding as to the deemed date of injury for the purposes of s 16, arguably that was not the basis upon which the Deputy President was minded to uphold the appeal. Rather, he upheld the appeal on the ground that there could be no finding of incapacity as the claimant had made no claim for weekly compensation and had suffered no economic loss when he left his employment with the applicant. However, the respondent proposed to challenge this conclusion by way of cross-appeal. It is therefore appropriate to consider the support for the Deputy President's conclusion, which was said to flow from the decisions of this Court referred to at [19] above. 38The first decision, GIO Workers, involved a claim by a worker's widow with respect to his death resulting from a melanoma caused by exposure to sunlight in the course of his employment. The worker was treated, suffering a brief period of incapacity in 1983; but the melanoma later metastasised, resulting in his death in 1993. The insurer argued that the injury was deemed to have happened at the time of his incapacity in 1983. The Court (Sheller JA, Priestley and Clarke JJA agreeing) held at 196: "In the case of the worker's claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. ... [However,] for the purpose of the widow's claim, the worker's injury is deemed to have happened at the time of his death." 39As the Deputy President recognised, this case was authority for the proposition that a reference to incapacity, in s 16, is to the incapacity for which compensation is claimed. That is supported by the provision that the compensation is payable "by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation ...": s 16(1)(b). 40The decision in Alto Ford was to similar effect. In that case the worker had claimed both weekly and lump sum compensation in respect of an injury to his eye, which had originally occurred in 1976. He obtained compensation for that injury, but, in later employment, had further surgery to his eye and was incapacitated for a period before returning to work, in 1992. He ceased fulltime work in April 1996 because of his loss of vision. He claimed both weekly and lump sum compensation in July 1996. The trial judge had found that incapacity for the purposes of the weekly compensation payments had arisen in 1992 and for the purposes of a lump sum payment under s 66, in 1996. This reasoning was accepted by the Court at [18] (Sheller JA, Meagher JA and Cole AJA agreeing). 41The Deputy President distinguished Alto Ford on the basis that the incapacity identified in 1992 had resulted in an economic loss for which compensation was available. The Deputy President contrasted that position with that of the claimant who, while he "has an incapacity in the [Arnotts] sense, he has no economic loss from his incapacity and has not claimed weekly compensation": at [55]. (It will be necessary to refer shortly to the decision of the High Court in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 ("Arnotts").) 42The third case relied upon by the Deputy President was Berkeley Challenge. Again, the case involved separate periods of incapacity and separate claims for compensation against different employers. The Deputy President relied upon the statement of Priestley JA (Clarke AJA agreeing) at [19], in dealing with the calculation of payments of weekly compensation during and after the "first 26 weeks of incapacity", that the provision (s 34) "makes it plain that incapacity, for the purposes of Division 2 [of Pt 3 of the Workers Compensation Act] is incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity." Priestley JA further stated that incapacity had the same meaning in ss 15 and 16: at [29]. The Deputy President then stated (at [64]) that the relevant date of injury "was therefore not the date of the first incapacity but was the date of the incapacity for which compensation was claimed or entitled to be claimed." That proposition, he suggested, was inconsistent with reasoning of Fitzgerald JA in Berkeley Challenge at [50] that s 16(1)(a)(i) is "capable of operation when an injury results in an incapacity for which no compensation is claimed." It was, however, unclear whether the reference by Priestley JA to an entitlement to claim compensation added an element to which Fitzgerald JA did not refer, without any element of inconsistency. 43Consistently with the last point, the Deputy President referred to a fourth case, Stone, in which the Court had held that where there was "no claim or entitlement to claim" weekly compensation, s 16(1)(a)(i) did not fix a date on which the impairment injury happened. Rather, that date arose when the worker claimed lump sum compensation. In Stone, the appellant had suffered no loss when his incapacity first developed because he was already totally incapacitated for work as a result of an earlier and different injury. It was in that context that Handley JA stated at [5]: "Incapacity referred to in s 16(1)(a) does not mean physical incapacity for work in the sense explained in [Arnotts] but means the incapacity for which weekly compensation is claimed." 44That conclusion was derived from GIO Workers and Berkeley Challenge. The Deputy President also referred to the reasoning of Hodgson JA in Stone at [37]: "Berkeley Challenge 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 sense, not resulting in any loss of wages." 45In Arnotts, the claim for compensation arose not merely from an injury, but from the injury combined with the failure of the employer to provide suitable employment while the worker was partly incapacitated, pursuant to s 11(2) of the Workers' Compensation Act 1926 (NSW). The joint judgment of the majority (Mason, Wilson, Deane and Dawson JJ), identified two meanings of incapacity namely, "(a) physical incapacity for actually doing work in the labour market in which the employee works or may reasonably be expected to work; or (b) physical incapacity resulting in actual economic loss": at 173. In considering the meaning of incapacity in s 11, the joint reasons accepted that the term must refer to something other than an incapacity resulting in actual economic loss because the provision required that the compensation for incapacity not exceed the difference between that which he was earning and that which he remained capable of earning, a calculation which could reduce the compensation to nil without denying the existence of incapacity for work. 46There is a point of distinction between a provision capping payments and requiring an employer to provide suitable employment on the one hand and a provision deeming an injury to have happened at the time of incapacity, on the other. However, the authorities do not stand for the proposition that "the incapacity" referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss. 47The basis on which the Deputy President rejected the finding of the arbitrator appears to have been encapsulated in the following passages: "69 As Mr Thoroughgood has not claimed weekly compensation, I infer that, like Mr Stone, he could not do so because he had no entitlement to that compensation, presumably because he suffered no economic loss as a result of his aggravation injury. ... 73 Just as no claim for weekly compensation was made in Stone, Mr Thoroughgood made no such claim. It follows that the incapacity found by the Arbitrator could not support a deemed date of injury of 10 October 2006 ...." 48If those passages imply that "incapacity" in s 16(1)(a) is only satisfied where there was a claim, or at least a proven entitlement to claim, weekly compensation, that arguably involves a misreading of the authorities. It ignores the statement of Hodgson JA in Stone that this reasoning applies "if the claim under consideration is for weekly compensation based on incapacity". If the claim is for another form of compensation, as the Deputy President correctly stated at [64], in the context set out at [42] above, "the relevant deemed date of injury was... the date of the incapacity for which compensation was claimed or entitled to be claimed." 49To the extent that incapacity must be reflected in an entitlement to claim for economic loss, the conclusion that incapacity was not established appears to be inconsistent with the Deputy President's later conclusion that the claimant had an entitlement to claim (and did claim) compensation for therapeutic treatment. That depended upon there being an injury causing incapacity leading to economic loss. The injury complained of caused a relevant incapacity identified as the swelling, veins popping and pain in the legs. There may have been an issue as to whether that claim gave rise to a deemed date of injury as at 8 or 12 September, rather than 10 October (a point relied on by the respondent), in which case it would have been necessary to make a relatively minor amendment to the application in the Commission, but almost certainly one which could have caused no prejudice to the applicant. 50On the other hand, the conclusion that incapacity was not established could have reflected the proposition that the claim for a lump sum for permanent impairment under s 66 was not in relation to the same incapacity as that for which the claim for medical or related treatment was made under s 60. However, that was not a point relied by the Deputy President; further, it would appear to be inconsistent with the need to establish the date of injury for the purpose of s 261(1) of the Workplace Injury Act, which is not dependent on the particular compensation claimed. 51In relation to the concession that the claimant needed to establish "incapacity", there was ambiguity as to the nature of the incapacity relied upon. In order to succeed against Inghams the worker had to establish that it was Inghams who last employed him in employment that substantially contributed to the aggravation of the condition for which he sought compensation under s 66. It is unlikely that he was conceding a need to establish an entitlement to claim weekly compensation, as that was not part of his claim. 52In these circumstances, there is sufficient doubt as to the legal basis on which the Deputy President found error on the part of the arbitrator to make it unlikely that the ultimate order of the Deputy President would be set aside on an appeal. There is also doubt as to the strength of the primary ground relied upon by the applicant, namely the nature of the "concession". The order of the Deputy President, remitting the matter for redetermination of the deemed date of injury, is sufficient to allow the remaining issue in the dispute to be determined.

Conclusions 53For these reasons, leave to appeal should be refused. No reason was proffered why, in that circumstance, costs should not follow the event. Accordingly, the applicant must pay the respondent's costs in this Court. 54MEAGHER JA: I agree with Basten JA.

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. Decision last updated: 30 May 2014

Workers' Compensation Act 1926(NSW)

(1995) 12 NSWCCR 187

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