Ding v Electra Lift Co Pty Ltd [2002] NSWCC 35

Reported Decision : (2002) 23 NSWCCR 701

Compensation Court of New South Wales

CITATION : Ding v Electra Lift Co Pty Ltd [2002] NSWCC 35 Xian Ju Ding PARTIES : v Electra Lift Co Pty Ltd MATTER NUMBER(S) : 5490 of 2002 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 02/07/02 EX TEMPORE JUDGMENT DATE : 07/02/2002

FOR APPLICANT: Mr J Lichtenberger instructed by Austin Dunhill Barwick appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Catsanos instructed by Vandervords appeared for the respondent (Allianz). Mr Kettle of Messrs Hunt & Hunt appeared for the respondent (GIO).

JUDGMENT: 1. This is a motion on notice. Notice of the original motion was filed on 17 May 2002. The substantive relief claimed in the original motion was this: Proceedings in Matter No 5490/02 be struck out due to non-compliance with s 101, s 102 and s 103 of the Act. 2. The only Act referred to in the motion is the Workers Compensation Act 1987 which is mentioned in the intitulement of the notice. However the reference to s 101, s 102 and s 103 is clear reference to those sections of the Workplace Injury Management & Workers Compensation Act 1998. The notice was initially listed for hearing on 7 June 2002 before Assistant Registrar Cox who referred it to me. It initially came before me on 24 June 2002 when Mr Lichtenberger of counsel appeared for the applicant and Mr Alexander Vandervord (solicitor) appeared for the respondent in the interests of Allianz Australia Workers Compensation (NSW) Limited. There was then no appearance by the respondent in the interests of GIO Workers Compensation (NSW) Limited which subsequently filed a notice of appearance. 3. On 24 June 2002 I granted to the applicant an adjournment in order to enable the applicant to serve certain subpoenas for production on both the respondent and its insurance broker. The respondent in due course produced documents to this Court yesterday to which date the motion had been adjourned but the respondent's broker did not produce any documents but the applicant did not seek to enforce the subpoena. The final arguments I heard in this motion yesterday at 4.40 pm when I stood the matter over to give judgment today. 4. On 24 June 2002 I granted leave to Mr Vandervord to file an amended notice of motion but that was only done yesterday when Mr Catsanos of counsel, instructed by Mr Vandervord, filed a manuscript notice of motion, the substantive prayer for relief being this: Proceedings in Matter No 5490/02 be struck out due to non-compliance with s 65 of the Workplace Injury Management Act 1998[sic]. 5. I assume Mr Catsanos meant to refer to the Workplace Injury Management & Workers Compensation Act 1998. During the course of argument I pointed out to Mr Catsanos, as I had to Mr Vandervord, on 24 June 2002 the difficulty with the relief claimed in the motion. If I were to find that at some time 21 days prior to the commencement of the proceedings a claim for compensation had been made then the motion would have to be dismissed. 6. The originating process was filed on 26 February 2002. The originating process claimed weekly payments of compensation, pursuant to s 101 of the 1998 Act as modified by reg 87. A worker cannot commence court proceedings in respect of weekly payments of compensation within 21 days of the making of a claim for such compensation. Therefore if a claim were made sometime prior to 5 February 2002 the motion would have to be dismissed. This initially prompted Mr Catsanos to seek leave to amend the answer filed on 17 May 2002 to add a par 6A as follows: That the Court has no jurisdiction to hear and determine this matter as no claim for compensation was made prior to 1 January 2002. 7. The substance of this application is really about the jurisdiction of this Court. In the initiating process the applicant refers to two separate events. The first was on 9 November 1994 and the second was on 4 December 2001 although the date pleaded for the second injury was 4 December 2000. It is common ground that the second event to which the application for determination was referring was an event on 4 December 2001. 8. It is also common ground, and this is shown up by subsequent pleadings, that the injury of 9 November 1994 occurred when the applicant fell down from a garbage bin leading to a twisting injury to his left foot. There were earlier proceedings in this Court claiming a lump sum under s 66 for loss of efficient use of the applicant's left foot and a consequential lump sum for pain and suffering pursuant to s 67 but those proceedings were discontinued by the applicant on 24 March 1995. Although the date of the injury, 9 November 1994, was pleaded in the originating process, the circumstances of the injury occurring on that day were not pleaded, but they have been subsequently pleaded. In the initiating process the event of 4 December 2001 is thus described: The applicant sprained his right wrist and suffered a sharp pain in the upper back behind the chest while he was lifting the work bench. Due to the nature and conditions of his employment using such force violently, the alveolus pulmonis exploded to let part of the air in the lung leak into the thoracic cavity where the air piled up and pressed lung became smaller and smaller causing his breathing difficulties and lack of oxygen. 9. The nature of the injury alleged was anxiety, depression, dysthymia and the psychological injury. 10. According to the evidence before me the applicant made a complaint to a co-worker, Aaron Cadet, of injuring himself at work on 4 December 2001 when he was lifting a work bench at the end of the work day. On the following day the applicant experienced anterior chest wall tightness, discomfort and severe pain in his left wrist. He went to work on that day and completed his normal work albeit with difficulty. On 6 December 2001 the applicant drove to work but his symptoms deteriorated to the extent that he had to consult a medical practitioner in the afternoon. That medical practitioner was a Dr Tse. Dr Tse referred the applicant to the Royal Prince Alfred Hospital as an emergency and the applicant was admitted to that hospital on that day and remained an in-patient until 17 December 2001. It appears that the applicant had suffered a pneumothorax. 11. On the day of his discharge from hospital the applicant attended upon Dr Ang of Campsie. The applicant had been treated at the Royal Prince Alfred Hospital with some form of morphia to which he was allergic. As a result of the prescription of the morphia-based medicine the applicant developed a rash over his body. That was what sent him to see Dr Ang. On the following day, 18 December 2001, the applicant called the respondent's premises and spoke to the receptionist. The applicant asked to speak to one of the principals of the respondent company. The applicant was told that that person was not at work at that time. The applicant deposed to the fact that he had the intention of discussing the issue of making a work-related injury claim with his employer but did not feel it appropriate to mention that issue to the receptionist. He asked the receptionist to inform the "boss" that the applicant had something important to discuss with him. 12. The boss in another affidavit filed on the applicant's behalf is described as "Paul". When the applicant had not received a telephone call from Paul on 18 December 2001 he phoned the employer's premises on 19 December 2001 and spoke to Aaron Cadet again. This time Mr Cadet was referred to as the applicant's "immediate supervisor". The applicant said that Mr Cadet asked how he was going and the applicant said that he was not very well. The applicant, in the conversation he had with Mr Cadet, said that "I will ask boss Paul do workers compensation." 13. On 2 January 2002 the applicant made a facsimile transmission to his employer. That document is Annexure F to the affidavit of the applicant's solicitor sworn on 18 June 2002 and is also Annexure A to the applicant's affidavit sworn on 25 June 2002. The facsimile transmission is lengthy but refers, inter alia, to the applicant's medical condition, his progress, the fact that he had been certified as unfit for work and that he currently had a certificate of unfitness for work until 11 January 2002. The document also states that the doctor had told the applicant he might be able to return to work "in about a month". The penultimate paragraph of the facsimile transmission says this: I wish to have a face-to-face discussion with you for an hour or one-and-a-half hours. This is because I may not have explained everything clearly although I may have explained something about me in this report. I may request for a claim form, I would appreciate if you could let me know the time and venue for the discussion so that I will be there on time. 14. The lengthy facsimile transmission was to apprise the employer as to what had happened to the applicant and to request a meeting at which the applicant might ask for a workers compensation claim form. On the day of that facsimile transmission the applicant attended upon Dr Jonathan Moore at the Campsie 24 Hour Medical and Dental Centre and obtained a certificate of unfitness for work until 11 January 2002 because of a diagnosis of "post-pleurodesis". Pleurodesis which I understand to be a term synonymous with pneumothorax. Shortly thereafter the applicant consulted solicitors who sent a communication to the respondent. That sets out the worker's name and underneath that the following matter: Date of Injury - 10/1994 (left foot) 4/12/2001 (right lung) Workers Compensation Claim. 15. The solicitors then state that they are instructed to act for Mr Ding in connection with his workers compensation claim. They point out that they were instructed that the applicant told them that he was employed by the respondent at the time of the relevant injuries and goes on to ask for copies of the respective accident reports in relation to the injury, asking for the workers compensation insurer's full name and address and policy number and enclosing the applicant's signed authority to enable the employer to supply to the applicant's solicitors details concerning the applicant. 16. Thereafter there was further correspondence passing between the applicant himself and the employer. On 19 February 2002 the employer wrote to the applicant saying the following: Ding, I have no doubt that your solicitor's advice is in line with the new guidelines recently introduced. We have, as I told you I would, forwarded your claim and report to our insurance broker for delivery to the appropriate insurer. As for your solicitor being puzzled, I think that is fairly normal. I do not know what the last sentence is supposed to mean. 17. A formal claim for worker's compensation, that is filling out a form on insurance company stationery, was not done until 23 March 2002. The applicant submits that a claim for compensation was made some time in December 2001. I pointed out to Mr Lichtenberger of counsel that in the originating process - in the first, second and third amended applications for determination - it was alleged that the claim for compensation was made on 15 February 2002. Mr Lichtenberger rapidly made an amendment to state that the claim for compensation was made in December 2001. 18. S 105 of the 1998 Act relates to the jurisdiction of the Workers Compensation Commission (WC) and of this Court. This section is as follows: (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. (2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common Law Remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act. (3) The Commission does not have jurisdiction in respect of matters that the Compensation Court has jurisdiction to examine, hear and determine. (4) Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act. (5) Despite section 17(4) of the Compensation Court Act 1984, the Compensation Court does not have jurisdiction to re-consider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter. (6) References in this Act to the Commission are, for the purposes of giving effect to subsection (4), to be read as references to the Compensation Court to the extent that the reference is in respect of an existing claim matter. 19. Appropriate definitions are given in s 250 of the same Act. "Existing claim" is defined thus: "Existing claim" means a claim for compensation that is made before the commencement of this section or a related claim that is made or entitled to be made (whether before or after the commencement of this section). " Existing claim matter " is defined thus: