When Time Is Not On Your Side

Hanson v Wilke and Company Pty Ltd [2023] NSWPIC 242 (26 May 2023)

The Applicant was a Printer who sustained an injury to his right hand on 14 September 1998 when his hand was caught in a printing machine.

He was taken to Liverpool Hospital in a taxi which he stated was arranged by the Respondent. The Orthopedic Registrar was unavailable that evening and he was asked to return the following day. When he returned, he was seen by Dr Toh, who issued a Work Cover certificate.

The Applicant gave evidence that he returned to work and provided the Work Cover certificate to his supervisor, but that the certificate was not passed onto management and Work Cover was not informed. The Applicant continued performing his regular duties as a Printer until he was retrenched in September 2018.

On 11 May 2022, the Applicant completed a Permanent Impairment Claim Form for 8% loss of the right hand and served it upon the Respondent on 4 July 2022, some 24 years after the injury.

A Human Resources representative of the Respondent advised the Respondent’s solicitors that she could not access or could not find any information relating to the injury sustained by the Applicant in 1998.

The medical evidence was that the Applicant’s right index finger was deformed as a result of this injury.

It was relevant that the Applicant had made numerous other claims for workers compensation, dated 7 March 1995, 4 May 2014, 9 March 2015, 8 July 2015 and 7 September 2018.

The issues for determination were:

• Whether the Applicant gave notice of the injury within the time prescribed by section 61 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act); and
• Whether the Applicant failed to make a claim within the time prescribed by 261 of the 1998 Act.

Legislation and case law

Section 61 of the 1998 Act, which applies to injuries received prior to 1 January 2002, provides that compensation may not be recovered unless notice of the injury has been given to the employer “as soon as possible after the injury happened” and before the worker has voluntarily left that employment. There are various exceptions outlined within the section.

Section 261 of the 1998 Act provides that:

(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.

Submissions and decision

Dealing with section 61 of the 1998 Act first, Member Haddock was satisfied that the Applicant gave notice of the injury “as soon as possible after the injury happened.” She accepted the Applicant’s evidence that the Respondent arranged for a taxi to take him to hospital after the injury occurred. She noted that the records of Liverpool Hospital showed that the Applicant was given a Work Cover Certificate.

Dealing next with Section 261 of the 1998 Act, Member Haddock did not accept the Applicant’s submission that he had made a claim satisfying section 261(3) of the 1998 Act because the Respondent arranged for a taxi to the hospital, which must have been covered as a ‘treatment expense.’ The Member noted that was a time before most people owned a mobile phone and it may have been the case that someone with access to a telephone simply made the call for a taxi on the Applicant’s behalf. There was no evidence that the Respondent had paid for the taxi.

The Applicant also sought to rely on section 261(6) of the 1998 Act, submitting that he was not “aware” he could make a claim for permanent impairment for his right hand before he saw solicitors.

She considered that the Applicant was “on notice of the injury and its cause” (that is, became aware) immediately when it occurred and the submission that he was not aware of the injury until he became aware that he could make a claim for permanent impairment compensation was rejected.

The Applicant further sought to rely on section 261(4) of the 1998 Act, submitting that his failure to make a claim was occasioned by ignorance. The Applicant submitted that he did not know he could make a claim for permanent impairment of his right hand, because the injury to his right hand was “not as bad” an injury to his left hand for which he had made a prior claim for permanent impairment.

Member Haddock did not accept that the Applicant was ignorant of the requirement to make a claim. It was important that the Applicant had made a previous claim in respect of which he lost no time from work. There was an Award made in favour of the Respondent.

Implications

This decision shows that the provision of a Work Cover Certificate of Capacity to the Employer does not necessarily constitute ‘making a claim for compensation’ so as to satisfy section 261 of the 1998 Act. In this matter, it was the Applicant’s understanding that his Work Cover certificate had not been provided to management and Work Cover had not been informed of his injury. His failure to make a claim within the relevant timeframe barred him from recovering compensation in this instance, despite medical evidence that he did have some disability with respect to the right hand as a result of his injury.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 8297 5900 or (02) 4929 9333.