Iddles v The Albury Sailors Soldiers and Airmens Club Ltd [2002] NSWCC 30

Reported Decision : (2002) 23 NSWCCR 521

Compensation Court of New South Wales

CITATION : Iddles v The Albury Sailors Soldiers and Airmens Club Ltd [2002] NSWCC 30 Rodney I Iddles PARTIES : v The Albury Sailors Soldiers and Airmens Club Ltd MATTER NUMBER(S) : 4634 of 2002 JUDGMENT OF: Neilson J at 1 :- Claim to be "duly made". Effect of 2001 amending Acts. Modification of WIM-WCA 1998 s 102 by Workers Compensation (General) Regulation reg 88. Repeal of WCA 1987 s 73. CATCHWORDS: Repeal of Workers Compensation (General) Regulation reg 39. WIM-WCA 1998 s 65(1)(b) still in force but no pertinent regulation now in force. Only current requirement is to make a written claim and wait the required period. No necessity to serve a "supporting medical report". Bennett v Masterton Homes Pty Ltd (1997) 15 NSWCCR 417 cons and dist. In any event medical report served "supported" claim made. The Oaks Hotel v Blicharski (1998) 17 NSWCCR 250 applied. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/05/02 EX TEMPORE JUDGMENT DATE : 05/15/2002

FOR APPLICANT: Mr Monaghan instructed by Gibney & Gunson appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Niven instructed by Moray & Agnew appeared for the respondent.

JUDGMENT: 1. This is an application for review of a decision of Assistant Registrar O'Dowd given on 5 April 2002. The application to me is made pursuant to s 36 of the Compensation Court Act 1984. The learned Assistant Registrar refused relief sought by the respondent employer in a notice of motion filed on 19 March 2002. That notice of motion prayed that the application for determination be struck out. The application for determination was filed on 21 February 2002. That application for determination relies on a frank injury occurring some time in 1995 when the applicant slipped on detergent on the floor of his employer's premises injuring his left arm. The claim in the application for determination is for 30 per cent loss of efficient use of the left arm below the elbow and a consequential lump sum for pain and suffering pursuant to s 67. 2. The respondent filed an answer to that application for determination on 12 March 2002 but a few days later filed the notice of motion which the Assistant Registrar dealt with on 5 April 2002. As counsel for the employer, the claimant before me, has and as did the learned Assistant Registrar, I form the view that the employer's notice of motion was based on the proposition that the applicant's claim had not been "duly made". The learned Assistant Registrar pointed out that the respondent's argument was probably based on the "old" concept of "claim duly made" the provisions concerning which had now been mostly repealed. In the Assistant Registrar's view there had been sufficient compliance with the statutory provisions in force at the time of the filing of the application for determination on 21 February 2002. 3. The background to cases of this nature can be seen in such decisions as Bennett v Masterton Homes Pty Ltd (1997) 15 NSWCCR 417. The headnote sums up that judgment thus: 1. For a claim under s 66 of the Workers Compensation Act 1987 (the Act) to be duly claimed for the purposes of s 106E of the Act, the claim must comply with s 92(1) of the Act and cl 39 of the Workers Compensation (General) Regulation 1995 (the Regulation). Cl 39(4) of the Regulation prescribes that the claim must be accompanied by a medical certificate of the kind referred to in s 73 of the Act, ie, a certificate that certifies to a "loss" mentioned in the Table to Div 4 of Pt 3 of the Act. 2. S 65(1) defines the "loss" for the purposes of Div 4 of Pt 3 of the Act, which Division includes s 73. Accordingly, the medical certificate must include a statement that there is a loss of a thing or the permanent loss of use or the permanent loss of efficient use of a thing mentioned in the Table. 4. S 106E was eventually replaced by the Workplace Injury Management and Workers Compensation Act 1998 ("a 1998 Act") s 102. S 92 of the Workers Compensation Act was replaced by s 65 of the 1998 Act. However there were significant changes made to the Workers Compensation Act and the 1998 Act by amending Acts in 2001. S 102 of the 1998 Act is still in force but is modified by Workers Compensation (General) Regulation 1995 reg 88. Reg 88 is in the following form: (1) Section 102 of the 1998 Act is modified by replacing of s (1)-(3) with the following subsection: (1) On and from 1 January 2002, a worker cannot commence court proceedings in respect of compensation under section 66 of the 1987 Act (as in force immediately before its amendment by the amending Acts) within 2 months after the worker made the claim for that compensation. (2) This clause applies whether the claim for compensation was made before or after the commencement of this clause. 5. I understand that clause to have commenced on 1 January 2002. Accordingly, s 102 of the 1998 Act ought now be read as follows: 1. On and from 1 January 2002, a worker cannot commence court proceedings in respect of compensation under section 66 of the 1987 Act (as in force immediately before its amendment by the amending Acts) within 2 months after the worker made the claim for that compensation. The rest of s 102 of the 1998 Act is currently irrelevant. 6. It is clear that there is a requirement that a claim be made for compensation under s 66. I am quite prepared to construe the Act as still requiring compliance with s 65 of the 1998 Act. However, the problem then becomes for the employer that cl 39 of the Workers Compensation (General) Regulation 1995 was repealed with effect from 31 December 2001. There is therefore no requirement to provide a medical certificate of the kind referred to in s 73 of the Act certifying a loss mentioned in the table to Div 4 of Pt 3 of the Act, insofar as that table is still in force. 7. Furthermore, s 73 itself has been repealed and replaced by a new section which is not relevant to claims under s 66 and s 67 as they were in force immediately prior to 1 January 2002. There is therefore no requirement under s 65 that a claim for compensation under s 66 be accompanied by a medical certificate certifying the loss and certifying that the loss is permanent. 8. S 65(1)(b) requires that the claim for compensation be accompanied by such additional medical certificates or other documents as may be prescribed by the regulations but as I have already pointed out the requisite regulation has been repealed and no-one has pointed me in the direction of any replacement to the repealed reg 39. Accordingly, in my view, the decision of the learned Assistant Registrar was correct. However, even if the old regime, if I may use that expression, were still in force the medical certificate which had been served by the applicant's solicitor complied with the old regime as it had been interpreted by their Honours in the Court of Appeal. On the question of "Impairment\disability" Dr Jim Rowe, a specialist occupational physician, said in a report of 19 October 2001: I don't think his condition has fully stabilised, but he has been left with a permanent impairment/loss of the efficient use of the left arm below the elbow. It is quite a significant loss because he has lost grip strength, he has a resulting median neuritis and he also has an ulnar neuropathy in the left hand as evidenced by the numbness in the fourth and fifth fingers and the weakness of grip there. The loss of use of the left arm as assessed today is of the order of 30 per cent of the left arm below the elbow, contributed to by the reflex sympathetic dystrophy, the ulnar neuropathy and the residual weakness in the hand following carpal tunnel decompression. 9. In The Oaks Hotel v Blicharski (1998) 17 NSWCCR 250 the Court of Appeal dealt with an allegation that a claim had not been duly made. Priestley JA said this on behalf of himself and Meagher JA and Fitzgerald AJA at [5]: The court is of the view that there is no basis in the present case for asserting that the claim was not duly made. There is no challenge to the form of the claim pursuant to cl 39(1) or to the form of the medical report under cl 39(4). The argument was directed solely to the difference in the percentages expressed in the two documents. Such a difference is not in the view of the Court a matter going to the validity of the claim. 10. Here of course the only argument is that the doctor said that there was permanent impairment and it was then in the order of 30 per cent but there might be some amelioration and that the applicant would need to be reviewed in six months. Clearly there was certification of a permanent loss of efficient use of the applicant's left arm below the elbow. It was then thought to be 30 per cent but there might yet be some improvement. In the view of the Court of Appeal that would be sufficient to satisfy the requirements of reg 39 even if it were still applicable to the current case. The learned Assistant Registrar was therefore quite right in the decision that she made. 11. The application for review is dismissed. I order the employer to pay the worker's costs of the review. Certify for counsel. Mr Monaghan instructed by Gibney & Gunson appeared for the applicant. Mr Niven instructed by Moray & Agnew appeared for the respondent.