Styks Pty Limited (In Liquidation) v Ringe

[2005] NSWWCCPD 161

WORKERS COMPENSATION COMMISSION

DETERMINATION OF AN APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Styks Pty Limited (In Liquidation) v Ringe [2005] NSW WCC PD 161

APPELLANT:  Styks Pty Limited (In Liquidation)

INSURER:QBE Workers Compensation Insurance

FIRST RESPONDENT:  WorkCover Authority

SECOND RESPONDENT  Geoffrey Ringe

FILE NUMBER:  WCC1812-2002

DATE OF ARBITRATOR’S DECISION:          27 June 2005

DATE OF APPEAL DECISION:  22 December 2005

SUBJECT MATTER OF DECISION: Date of Injury, section 16 of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:On the papers.

REPRESENTATION:  Appellant:      QBE In-House Legal

Respondents:  No Appearance on Appeal

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

The Appellant is to pay the costs of the appeal.

Background to the Appeal

1. On 20 July 2005 Styks Pty Ltd (in Liquidation) (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 27 June 2005.  QBE Workers Compensation is the relevant workers compensation insurer for Styks Pty Ltd (in Liquidation), it acted for, and on behalf of, the Appellant in the appeal. 

1. There are two respondents named in the appeal, however neither has filed a reply to the appeal or any submissions.  The First Respondent is the WorkCover Authority (‘WorkCover’) as the administrator of the Uninsured Liability and Indemnity Scheme (ULIS) under the Workers Compensation Act 1987. The Second Respondent is Geoffrey Ringe, the worker (‘the Second Respondent’). The Appellant employed Mr Ringe as a baker. Mr Ringe claims to have suffered an injury to his back and right leg due to the nature and conditions of his employment with the Appellant from about June 1999 until July 2002. His claim is for compensation by way of weekly payments, medical expenses and lump sum for permanent impairment.

1. Liability for Mr Ringe’s injury is disputed.  He lodged an ‘Application to Resolve a Dispute’ in the Commission on 23 August 2002. 

1. On 27 June 2005 a Commission Arbitrator determined that the ‘deemed date of injury’ suffered by Mr Ringe was 31 July 2002.  This date is significant in terms of which Insurer, if any, is ‘on risk’ in relation to Mr Ringe’s claim.  ULIS is ‘on risk’ from 3 November 1998 to 7 November 2002 and QBE Insurance is ‘on risk’ from 8 November 2001 to 31 July 2002.

1. The only issue in dispute on appeal is whether the Arbitrator erred in fixing the date of injury at 31 July 2002.  

1. The Appellant argues that the Arbitrator erred in failing to properly consider factual evidence relevant to the setting of the ‘deemed date of injury’ and that Mr Ringe “had an economic incapacity long before 31 July 2002 and that such incapacity may have first occurred before 8 November 2001”. 

1. Leave to appeal is granted pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) (see: Mawson v Fletchers International Exports Pty Ltd [2002] NSW WCC PD 5 and Air Grilles Pty Limited v Kiparizov [2005] NSW WCC PD 74).

1. I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

Did the Arbitrator err in determining the deemed ‘date of injury’?

1. The Arbitrator’s decision does not refer to the evidence upon which it was based.  It discusses the relevant law but does not set out what facts support the finding that Mr Ringe’s deemed date of injury is 31 July 2002.  Mr Ringe has been in receipt of weekly compensation paid by WorkCover, since 31 July 2002. 

1. Mr Ringe filed a statement in the proceedings before the Arbitrator in which he set out the following facts, relevant to the ‘date of injury’:

   ·     He worked as a baker for the Appellant from about October 1989, first in the business known as ‘Plaza Hot Bread Shop; at Byron Bay and, from November 2000 until May 2002, in the business known as ‘Oz Bakehouse’ in Byron Bay.

   ·     He described the work as involving heavy lifting.  He stated that he slipped several times in the shop-front. 

   ·     He states that he began experiencing back pain in or about June/July 2001.  It became increasingly severe. 

   ·     He attended Dr Mitchell, General Practitioner, on 19 September 2001 and was referred for physiotherapy.  Dr Mitchell certified him fit for light duties.

   ·     On 29 July 2002 he was advised that no light duties were available to him and his employment was terminated.  He received termination and holiday pay for the period to 31 July 2002.

   ·     Mr Ringe did not suffer any loss of income as a result of his injury until his employment was terminated, effective from 31 July 2002. `

1. The Appellant does not dispute the Arbitrator’s application of the principles set out in P & O Berkeley Challenge Pty v Alfonzo & Ors [2000] NSWCA 214, in particular that Justice Priestly, in that case, “held that the determinative factor when incapacity arises requires the establishing of when liability for weekly payments for compensation within the meaning of the [1987 Act] arose”. This submission is clearly correct.

1. The “incapacity” referred to in section 15 and section 16 of the 1987 Act first occurs when “the physical incapacity results in some loss of wages”; Stone v. Stannard Brothers Launch Services Pty. Ltd [2004] NSWCA 277 at paragraph 37.

1. The Appellant submits that the Arbitrator should have taken into account the following evidence, in determining the ‘date of injury’:

   ·That Mr Ringe consulted his doctor for the injury in October 2001 and was placed on restricted duties,

   ·that Mr Ringe saw a physiotherapist in November 2001 who commented upon his progress under ‘a recent trial of restricted duties’,

   ·that Mr Hutton, the sole director of the Appellant, stated that Mr Ringe was on light duties from June 2002, and

   ·that Dr Bodel reported a history of Mr Ringe working ‘reduced hours’ prior to June 2002.

1. The Appellant’s claim that Mr Ringe “had an economic incapacity long before 31 July 2002 and that such incapacity may have first occurred before 8 November 2001” is not supported by the evidence.  The fact that Mr Ringe reported symptoms of injury and sought treatment does not, ipso facto, mean that he suffered a loss of wages as a result. 

1. The Arbitrator did not err in finding that the date of injury was 31 July 2002.  This is the date that, on the evidence, he first suffered a loss of wages that was attributable to his claimed injury.

1. This matter has now been on foot in the Commission for a long time and should be speedily resolved. 

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. The Appellant is to pay the costs of the appeal.

Dr Gabriel Fleming

Deputy President  

22 December 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE