Cristea v. Workers Rehabilitation and Compensation Corporation [1993] SASC 4356; (1993) 61 S.A.S.R. 487.

Dennis v. General Motors Holdens Automotive Limited A.9/1996.

Flint v. Lithgow Valley Colliery Co. Ltd. 1937 W.C.R. 128.

G.C. Singleton and Co. Pty. Ltd. v. Lean (Seymour) 1970 A.L.R. 129.

This is a Judicial Determination of a dispute between Zac Paul Williams (`the worker') and the WorkCover Corporation (`the Corporation') concerning the Corporation's decision by its agent G.I.O. Australia to reject a claim for compensation by the worker on the basis that the claim was not lodged within the period prescribed by the Workers Rehabilitation and Compensation Act 1986 (`the Act').

On the hearing a book of documents was tendered which included: the relevant documentation relating to the dispute including a claim form, the disputed determination, the notice of dispute; medical certificates, medical reports, various written statements and the transcript of proceedings before an Arbitration Officer at arbitration. I also heard oral evidence from the worker, Dr. McCulloch, neurosurgeon and Dr. McAllister chiropractor.

I have no hesitation in accepting the evidence of Dr. McCulloch without qualification and also accept that of Dr. McAllister save as it ventured into the area of diagnosis. The worker was a patently honest witness although a somewhat vague historian. However his evidence was independently corroborated in a number of respects and I have complete confidence in accepting the essence of his story. With those comments in mind I turn to the background to the dispute much of which comes directly from the evidence of the worker.

The worker is a man aged 24 years and is a qualified Mechanical Engineer. He commenced employment with the employer Simar Transit Mixers (`Simar') in about 1991. During the course of his employment with Simar he suffered injury to a knee in about July 1991 and to his left hand in about October 1993 in respect of which he sought and obtained compensation pursuant to the Act. However up until an incident which occurred in about December 1994 he had had no problems with his back. About that time the worker suffered an injury to his lower back when he was attempting to lift a water tank onto a sack trolley in the course of his employment with Simar (the Simar incident). He said that whilst attempting the lift he felt `a ripping or a burning sensation' in his lower back. He rested for a short while and then reported the incident to the person he regarded as his `Boss' George Baryczka who advised him to `take it easy' and `see what happens'. In early January 1995 the worker sought treatment from Dr. McAllister on two occasions for his lower back symptoms. The doctor's account for the treatment was forwarded to Simar but not met by the firm.

It was the worker's evidence that since the Simar incident he has been constantly troubled by lower back symptoms of fluctuating severity although over time the symptoms have got worse. In his evidence (tr. 37) he described the situation as like his lower back having `a mind of its own and when it wanted to hurt it would ... it seemed to get worse over time ... it ... started off not being too bad but then it just got more regular and the pain got worse and I was doing ... nothing that I could recall that would have injured it ...'

The worker continued in his work with Simar until about December 1995 when he resigned partly because his back was troubling him and he wished to find a lighter job. In about June 1996 the worker suffered a worsening of his lower back symptoms whilst lifting a welder out of the back of his car. He said that the sensation he experienced was similar to the Simar incident but not as bad. He consulted Dr. McAllister in relation to the problem but paid the fee for the consultation himself .

Since finishing work with Simar the worker has only had short term employment on three occasions the most recent being with a firm called Holdspares where he worked for about four days in early 1997. The work involved removing parts from cars, workshop maintenance, answering telephones, serving customers and sweeping the floor. In the course of that work the worker was conscious of acute lower back symptoms even when involved in passive activities such as answering the telephone. It was that experience combined with the fact that after in excess of two years his back was not getting any better that brought the worker to the realisation that it was time to do something about his back. He said in evidence (tr. 33) that what convinced him that the symptoms were not going to abate was `more the time factor ... after about 2 years, and I just thought, you know, that every time I think it's getting better or something, ... it just re-occurs again. So it was time to do something about it.' On 10 February 1997 the worker consulted a general practitioner Dr. Tolis who advised him to `quit heavy labouring ... it wasn't any good for [his] back and to get an office job' (tr. 23).

On 11 March 1997 the worker completed Notice of Work Related Injury and Claim for Compensation forms which were duly served on WorkCover in which he asserted inter alia injury to his lower back whilst in the employ of Simar in January of 1995 whilst sliding a water tank onto a sack truck. He said he had not made a claim earlier because he thought his problem was a muscle strain which would eventually resolve; however, it did not. Whilst he had made earlier claims for Compensation he was not aware of any time limits that might apply to his claim (tr. 24). In any event in a decision set out in a notice of 23 September 1997 WorkCover by its agent G.I.O. rejected the worker's claim for compensation on the basis that the claim was not lodged within the period prescribed by the Workers Rehabilitation and Compensation Act 1986 (`the Act'). The determination was duly disputed on behalf of the worker by Notice Of Dispute of 23 September 1997 but the determination was subsequently confirmed. When the dispute came on before me for hearing his counsel announced that the worker did not make any claim on WorkCover for weekly payments of income maintenance prior to the lodgement of his claim for compensation viz. 11 March 1997.

In September 1997 the worker consulted Mr. McCulloch, a neurosurgeon who, having examined the worker, taken a history from him and viewed a C.T. Scan, stated in a written report of 11 September that the worker was suffering from a lumbar disc injury which appeared to be related to the Simar incident, that he had a permanent residual disability in the order of 20% loss of function of the lumbar spine as a whole and that he was partially incapacitated for work as a result of the injury. In his oral evidence on the hearing Mr. McCulloch accepted that he was entirely dependent on the worker's history to draw the link between the injury diagnosed by him in September 1997 and the Simar incident and that if he had been able to examine the worker at a point of time closer to the incident he would be in a better position to state definitely whether the incident had caused lumbar disc injury or was a ligamentous strain. He also acknowledged that the incident when the worker lifted the welder from the boot of his car was the sort of incident which could cause or aggravate a pre-existing lumbar disc injury.

The basis of the determination of the Corporation to reject the worker's claim for compensation as set out in its notice of 23 September 1997 was that it was not made within the period prescribed by the Act and that it had been substantially prejudiced in determining the claim by reason of the late lodgement because it had been denied the opportunity of having the worker medically examined at the time of the alleged injury to determine the relationship between his complaints and the alleged incident. It alleged that the claim was out of time because of its view that the prescribed period was within six months of the day on which the entitlement to make the claim arose, that the day on which the entitlement to make the claim arose was in January 1995 and that the notice of injury was not received until 13 March 1997.

The making of a claim for compensation is provided for by section 52 of the Act. Section 52 (1) provides as follows:-

(a) must be made in a manner and form approved by the Corporation; and

(b) must be made within the prescribed period; and

(c) must be supported by a certificate in the prescribed form by a recognised medical expert certifying -

(ii) the probable cause of the disability so far as that is ascertainable by the medical expert;

(iii) where the claimant claims to be incapacitated for work - the extent and probable duration of the incapacity.'

For the purposes of section 52(1)(b) `prescribed period' is defined by section 52(7) as follows:-

"prescribed period", in relation to the making of a claim in pursuance of this section, means the period of 6 months commencing on the day on which the entitlement to make the claim arises.'

A failure to comply with section 52(1) of the Act creates a bar to the making of a claim except as provided by section 52(3)(b) of the Act which provides as follows:-

`(b) a failure to make a claim within the prescribed period is not a bar to the making of a claim if -

(i) the proper determination of the claim has not been substantially prejudiced; or

(ii) the failure to make the claim within the prescribed period was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause.'

For my part I am not persuaded that insofar as the worker's claim is for income maintenance the claim is out of time. As noted earlier in these reasons the worker does not make any claim for weekly payments of income maintenance prior to the lodgement of his claim for compensation on 11 March 1997. The Corporation took the view in its determination that the six months limitation period prescribed by the Act commenced to run from January 1995 because that was the day on which the entitlement to make the claim arose. However in Cristea v. Workers Rehabilitation and Compensation Corporation [1993] SASC 4356; (1993) 61 S. A. S. R. 487 at 489 King C.J. took the view that where section 52(7) talks of the `prescribed period' the period of six months commencing on the day on which the entitlement to make the claim arises means:-

`The entitlement arises when the worker incurs one or other of the heads of expense or loss for which compensation is payable.'

The end result is as Thompson D.P. remarked in Dennis v. General Motors Holdens Automotive Limited A.9/1996 at p.9:-

`Section 52(7)'s function is to say that if a worker chooses to limit his claim for the period of six months prior to the date of the Section 52 claim notice and abandons any of his vested rights before then, he is free to do so.'

Given the above it is my view that insofar as the worker's claim for weekly income maintenance is concerned no extension of time is required.

In the event that I am wrong in that conclusion however, and that time commenced to run from the date of the Simar incident, I turn to a consideration of section 52(3)(b) of the Act.

I am prepared to accept that given the history of the matter (and in particular the evidence of Mr. McCulloch that the incident when the worker lifted the welder from his car could cause lumbar disc injury) the Corporation has been substantially prejudiced in the proper determination of the claim on the basis that had Mr. McCulloch been able to examine the worker shortly after the subject incident he would have been in a better position to state definitely whether the incident had caused the lumbar disc injury or was a ligamentous strain; Flint v. Lithgow Valley Colliery Co. Ltd. 1937 W.C.R. 128. However that of course is not the end of the matter given the provisions of section 52(3)(b)(ii) of the Act.

In my view the failure on the worker's part to make his claim within the prescribed period should not create a bar to the making of the claim. In reaching that conclusion to my mind two factors stand out. First until the worker saw Dr. Tolis in February 1997 and was told of the seriousness of his injury he had no intention of making a claim for compensation being under the misapprehension that his problem was only one of muscular strain which would eventually resolve. In the light of all of the evidence and in particular that of Mr. McCulloch that was clearly a mistaken view on the worker's part. Second, although I am prepared to accept that the worker had some understanding of the compensation system having made earlier claims, I accept his evidence that he was not aware that a time limit existed for the making of a claim for compensation. In those circumstances it is my view that the failure of the worker to make a claim within the prescribed period was also occasioned by ignorance (see G.C. Singleton and Co. Pty. Ltd. v. Lean (Seymour) 1970 A.L.R. 129) or mistake on his part.

In the circumstances then I hold that the worker's claim for compensation is not statute barred on the basis that, at least in respect of his claim for weekly payments it was made within the prescribed period or alternatively if it was out of time the failure to make the claim within time was occasioned by ignorance or mistake on the worker's part.

Before leaving the matter it is to be noted that in its determination the Corporation did not base its rejection of the worker's claim on failure to give notice of his disability in accordance with section 51 of the Act and it is thus not strictly necessary for me to deal with the notice issue. However I intimate that had I been called upon to do so in light of the worker's evidence I would have held that oral notice which complied with the provisions of section 51 was given to the employer at the time of the Simar incident.

I will hear the parties as to the progress of this matter from this point or on any ancillary matters at a mutually convenient time.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.