Butlin v Chegwidden & Another [1998] NSWCC 38; (1998) 16 NSWCCR 687 (11 September 1998)

[1998] NSWCC 38; (1998) 16 NSWCCR 687

BUTLIN v CHEGWIDDEN & ANOTHER
Compensation Court of New South Wales: Armitage J
11 September 1998
Workers compensation - Proceedings to obtain compensation - Preliminary procedures - Claim must be duly made - Medical certificate to accompany claims - Modification of requirement - Information substantially available from other documentation - Workers Compensation Act 1987 (NSW), ss66 and 92; Sch6, Pt6, cl18 - Workers Compensation (General) Regulation 1995 (NSW), cl39
G.P. Edwards, for the applicant
G.J. Maddocks, for the respondent
Ex tempore
1 ARMITAGE J: This is an application by Jarrod Norman Butlin in respect of injuries suffered on 20 June 1996 in the course of his employment with his employers, Ian and Yvonne Chegwidden, at their premises at Wauchope. He was oiling a chain on a bench-sander when his left index finger was caught in that machinery. He suffered severe injury to the left index finger, involving amputation of the first joint thereof, and therefore suffers from loss of that joint. That the applicant was injured in the circumstances abovementioned and suffered that loss is not disputed by the respondent.
2 The only issue arising for decision by me, as a result of the helpful definition of the issues in this case by Mr Maddocks of counsel for the respondent at the commencement of the hearing, for which I am grateful, is the quantification of the applicant's s66 rights under the Workers Compensation Act 1987 (the Act) in respect of loss of the first or distal joint or phalanx of the index finger of the left hand.
3 The applicant's contention is that, as a result of the date of claim, he is entitled to be compensated pursuant to s66 for that loss at the rates prevailing before the WorkCover Legislation Amendment Act 1996, whereas the respondent contends that as a result of the application of Pt6, Sch6, cl18 of the Act inserted by the WorkCover Legislation Amendment Act 1996, the applicant is entitled only to compensation at the rates prevailing pursuant to s66 after the commencement on 12 January 1997 of the 1996 Act because he failed to "duly make" (if I may split an infinitive) a claim for the relevant compensation before such commencement within the meaning of subcl(1) of the clause.
4 The applicant's evidence consisted briefly of oral evidence from himself, largely in cross-examination, there being no necessity as a result of the agreement above mentioned to relate the circumstances of his injury or its effects, in which he conceded that soon after the injury in 1996 he was still receiving treatment, inter alia, by way of physiotherapy to restore movement in the whole of his finger, excluding of course the amputated distal phalanx. Secondly, the applicant tendered Exhibit A, which was a claim form he signed himself dated 1 July 1996 which it is conceded by the respondents was submitted to them on or about the date it bears. Thirdly, the applicant tendered Exhibit B, which consists of two reports of Dr Mark Baker, an orthopaedic surgeon who treated the applicant, dated 20 June 1996 and 1 July 1996. It was conceded by the respondents that the first of those reports sent by Dr Baker to the insurer was received on 1 July 1996, and that the second was received on 3 July 1996 by the respondent's insurer. Fourthly, the applicant tendered Exhibit C, which was two letters from the respondent's insurer, which I shall briefly refer to as "MMI", dated 3 July 1996 and 5 March 1997.
5 In the respondent's case there were tendered Exhibit 1, which is a report of Dr Chris Oates, occupational physician, which is undated but which relates to an examination of the applicant on behalf of MMI on 12 February 1997, and Exhibit 2, the latter over objection, which was a report of Dr John F. Davis dated 18 September 1997, addressed to the applicant's solicitors.
6 The question for decision by me is posed initially by Sch6, Pt6, cl18(1) which reads:
Despite section 66(3) and 67(6), the compensation payable under section 66 or 67 in respect of any injury received before the commencement of the amendment of those sections by the WorkCover Legislation Amendment Act 1996 where no claim for compensation under either section 66 or 67 in respect of the injury was duly made by the worker before that commencement is to be calculated by reference to the requisite percentage of the amounts enforced under the relevant section immediately after its amendments by that Act.
7 The parties are agreed, as I apprehend their arguments, that the expression "duly made" is to be interpreted firstly by reference to s92(1) of the Act, which reads:
A claim to compensation shall be -
(a) in writing,
(b) in such form or contain such information as may be prescribed by the regulations or approved by the Authority,
(c) ...
(c1) accompanied by such additional medical certificates or other documents as may be prescribed by the regulations,
(d) made in the manner prescribed by section 92A.
8 S92A is not presently relevant to the parties' arguments, which do not refer to it, but it provides in subs(1) that the manner of making a claim for compensation is by serving the claim on the employer from whom the compensation is claimed, and in subs(3) that the claim may be served on the insurer of the employer instead of the employer in certain circumstances not presently relevant. As to the remainder of s92(1), regulations have been made in accordance with the power conferred by pars(b) and (c1) referred to above, in that cl39 of the Workers Compensation (General) Regulation 1995 reads relevantly:
(1) For the purpose of section 92(1)(b) of the Act, a claim for compensation under section 66 of the Act is to include particulars of the worker, the employer and the injury concerned and of the loss for which compensation is claimed, including the following
(a) a description of the loss capable of being related to the relevant item in the Table to Division 4 of Part 3 of the Act;
(b) the extent of that loss expressed as a percentage ...
...
(4) A claim for compensation under section 66 is to be accompanied:
(a) by a medical certificate (or report) of the kind referred to in section 73 of the Act ...
9 The applicant's contention is that the submission of the claim form dated 1 July 1996 on or about the date it bears to the respondent, together with the sending of the reports in Exhibit B from Dr Baker dated 20 June 1996 and 1 July 1996 to the respondent's insurer, the reports arriving respectively on 1 and 3 July 1996, no doubt with the applicant's authority, which would of course have been necessary for Dr Baker to release the information in the reports to the respondent's insurer, is sufficient compliance with s92(1) and cl39, and through it Sch6, Pt6, cl18(1).
10 On the face of it, that submission must be rejected because the claim form in relation to the nature of the injuries suffered simply reads "amputated left index finger", without referring to whether the whole or part of the finger, e.g. the terminal phalanx, as in the present case, had been amputated, and Exhibit B, the reports of Dr Baker, was not submitted by the applicant with the claim form, so that the claim form was not "accompanied" by the reports as required by cl39(4) of the regulation quoted above.
11 Additionally, Mr Maddocks of counsel for the respondent, while conceding that Dr Baker's reports in Exhibit A provided the respondent with evidence that the distal phalanx or last joint of the applicant's left index finger had been amputated, contends that the reports indicate, as indeed the applicant conceded in his evidence, that the applicant was continuing to be treated for the injury to his left index finger generally, and draws attention to the applicant's concession that, as at the date of the reports, he was still receiving physiotherapy to restore movement in the finger. Thus Mr Maddocks contends that when the respondent's insurer received Dr Baker's reports, it was not entitled to assume that the claim was only for loss of the terminal phalanx or last joint of the left index finger, but may have apprehended that the applicant may later be claiming for loss of use of the remaining part of the left index finger in some percentage, as a result, for example, of loss of movement.
12 The riposte of Mr Edwards of counsel for the applicant to this was two-fold. Firstly, he draws attention to Exhibit C, which consists of two letters from the respondent's insurer, MMI, to the applicant. The first dated 3 July 1996 reads, omitting formal parts:

We refer to your workers compensation claim and are pleased to advise liability has been accepted in relation to an injury sustained by you on 20/6/96. If this injury has resulted in you losing time from your employment, your employer has been authorised to pay your claim for weekly benefits and any queries in relation to this aspect of your claim should be referred to your employer direct. If you wish to discuss this further, please contact their office. Our claim number should be quoted at all times.

13 The claim number was in fact written in the heading to the letter.
14 The second letter to the applicant from MMI, in the Exhibit, dated 5 March 1997 reads, after omitting formal parts:

We refer to your claim for section 66 settlement regarding your injury on 20 June 1996, and now advise that we are prepared to offer you a section 66 settlement, based on loss of the first joint of the forefinger of the left-hand, being in monetary terms $9,000, plus $381.69, interest on section 66 entitlement. Please consult your solicitor regarding this settlement. If your solicitor agrees with this settlement could you please advise this office in writing whereby an application for Registration of Agreement will be drawn up for your signature and the cheque will be forwarded to you.

15 Mr Edwards says that because the first letter quoted above admits liability for the injury, and the second letter specifically refers to "your claim for section 66 settlement regarding your injury on 20 June 1996" and accepts liability for the precise loss which the applicant claims today, the insurer is to be taken by the sending of those letters, particularly the second, to be conceding that the applicant had "duly made" a claim for s66 compensation. Mr Edwards argues, as I understand him, that because no claim was made by the applicant for s66 compensation after 12 January 1997, the date of commencement of Sch6, Pt6, cl18 of the Act quoted above, the insurer must be taken to be conceding that the submission of the claim form Exhibit A, and the dispatch of the reports of Dr Baker, Exhibit B, with the applicant's authority, the claim form being submitted to the respondent and the medical reports to the respondent's insurer, constituted the making of a valid claim, which had therefore been "duly made" within Sch6, Pt6, cl8(1) before 12 January 1997.
16 The second riposte Mr Edwards makes is to draw my attention to s92(1A) inserted by Act No. 30 of 1995, s3 and Sch12, operative from 1 September 1995, and therefore applicable to the present case. This reads:
A claim for compensation need not be accompanied by a medical certificate or other document under this section, if the medical certificate or document relates to information that is substantially available to the person on whom the claim is made from other appropriate documentation given or served by or on behalf of the claimant.
17 Mr Edwards says that the reports of Dr Baker were "given ... on behalf of the claimant" by Dr Baker to the respondent's insurer with the applicant's authority. No point is taken, I should add in passing, by the respondent as to the dispatch of Dr Baker's reports to the respondent's insurer and not to the respondent. Mr Edwards therefore says that because, as conceded by Mr Maddocks, the reports of Dr Baker establish at least that the terminal phalanx of the applicant's left index finger had been lost as a result of the injury, this fact was "information that was substantially available to the person on whom the claim is made from other appropriate documentation" which was "given ... on behalf of the claimant" within s92(1A).
18 Mr Edwards further submits that that was indeed the way the respondent's insurer MMI regarded the matter, for otherwise, he says, why would it have written to the applicant on 5 March 1997 armed only with the applicant's claim form and the reports of Dr Baker and said "we refer to your claim for section 66 settlement regarding your injury on 20 June 1996". Mr Edwards points out that the only thing that MMI thought it necessary to do on behalf of the respondents, following the receipt of that documentation, was to have the applicant assessed independently in the familiar fashion by Dr Oates, and draws attention to the fact that Dr Oates's report was on an examination dated 12 February 1997 and therefore only slightly predates the letter of 5 March 1997 to the applicant in Exhibit C. Mr Edwards contends therefore that once the insurer received Dr Oates's report, it rightly regarded itself as being in a position to deal with the applicant's claim, which it did by writing the letter of 5 March 1997.
19 Mr Maddocks' reply to that contention is that whatever may or may not have been in the attitude of a clerk in the employ of MMI in writing the letter of 5 March 1997, such person being no doubt unqualified in law, nevertheless the fact is that s92 and cl39 have not been complied with and that is the end of the matter.
20 After careful reflection I do not agree. The reality of the situation is that, within the meaning of s92(1A), the reports of Dr Baker indicating that the applicant had suffered loss of the terminal phalanx of his left index finger were "substantially available" to the insurer of the respondent, MMI, soon after the applicant's claim form was submitted. The submission of the claim form was not itself sufficient compliance with s92, but once the applicant caused Dr Baker to send his reports to MMI by providing the appropriate authority and the reports were received by MMI on behalf of the respondents, s92 was complied with, having regard to subs(1A) thereof quoted above. Cl39 is made pursuant to the power in pars(b) and (c1) of s92(1), but that subsection is subject to the operation of the later inserted subs(1A) of the same section quoted above.
21 To put it another way, full compliance with cl39 is not required, in that the claim form need not be accompanied by a medical certificate as prescribed by cl39(4)(a) quoted above, if s92(1A) applies, as in this case I think it does. That the insurer regarded the matter this way, whether by specific reference to s92(1A) or not, is apparent from the way it dealt with the applicant's claim, i.e. by writing the letter of 5 March 1997 referred to above. The "claim" referred to in that letter can only have been the claim form and the later dispatch of the reports of Dr Baker. Whilst I do not regard the insurer's reference to the "claim" in its letter of 5 March 1997 as a conclusive admission that a claim had been "duly made" before Sch6, Pt6, cl18(1) commenced on 12 January 1997, 1 consider that in fact the claim was "duly made" within that clause before the above date because of the joint operation of s92 subss(1) and (1A). This being so, Sch6, Pt6, cl18(1) does not operate to deprive the applicant of compensation at the rates prevailing immediately before its insertion in the Act, and there will be an award accordingly.
22 I therefore make the following finding:
That the applicant duly made a claim for s66 compensation for loss of the last joint or terminal phalanx of the left index finger before 12 January 1997.
23 I therefore make the following award in the applicant's favour:
1. $11,907 under s66 for loss of first joint of forefinger of the left hand.
2. The respondent to pay the applicant's costs.
Orders accordingly
Solicitors for the applicant: Garrett & Walmsley
Solicitors for the respondent: AO Ellison & Co