Hanson v Wilke and Company Pty Ltd (NSWPICPD 2024)

Link to Decision

Link to Video

Key Takeaways

This decision serves as a reminder for insurers, when reviewing a claim for compensation, to be vigilant as to when the worker first claimed compensation for their injury.

Brief Facts

The worker injured his right hand on 14 September 1998 when it became caught in a printing machine. His supervisor arranged for the worker to take a taxi to hospital but there were no hand surgeons available so he was asked to return the next day. He returned the following day but was told no treatment was required and he was given a WorkCover certificate. Mr Hanson handed the certificate to his supervisor and was told to go home and rest and that he would be paid for the day. The worker then took annual leave for 3 weeks.

Upon returning from annual leave, the worker advised his employer that his right index finger appeared to be permanently deformed due to the injury however he had no further treatment and continued to perform his pre-injury duties until he was retrenched in 2018.

The worker was aware that his supervisor did not hand the medical certificate to management and that the injury was not reported to WorkCover.

On 11 May 2022 (23 years after the injury), the worker lodged a claim for lump sum compensation.

The insurer disputed the claim on the basis that the worker failed to give notice of injury to his employer as soon as possible after the injury (s254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and on the basis also that he failed to make a claim for compensation within 6 months of the injury (s261 of the 1998 Act).

The worker then commenced proceedings in the Personal Injust Commission claiming lump sum compensation for his injury.

Arbitral Decision

Although there was no doubt that the worker had attended hospital on 14 and 15 September 1998 for a right hand injury, the employer argued it had no record of the worker ever sustaining an injury.

Senior Member Haddock accepted the worker’s evidence that he gave his employer notice of the injury on the day of the injury so the insurer’s reliance on the s254 provisions failed.

With respect to the insurer’s argument that the worker did not lodge a claim for compensation within six months of the injury, the worker argued he made a claim on the day of the injury because his employer arranged for him to take a taxi to the hospital and the taxi fare would be a s60 expense. However, Senior Member Haddock did not accept the worker’s argument on the basis that whilst the employer may have arranged for the taxi, there was no evidence the employer paid for the taxi. ‘In the absence of any further evidence from [the worker] on this point, I am not prepared to find that he made any claim before the claim for permanent impairment compensation was made on 4 July 2022’.

In response to the worker’s submissions that his failure to make a claim earlier was due to ignorance (s261 (4)), Senior Member Haddock rejected that submission effectively because there was evidence that the worker had made a claim for a similar injury that occurred before the 1998 injury and so was aware of the requirements. In the alternative, Senior Member Haddock found that the worker’s injury did not result in serious and permanent disablement thus the provisions in section 261(4) would not apply in any event.

The worker appealed Senior Member Haddock’s decision.

Presidential Decision

On appeal, the worker pressed the submission that the taxi fare represented a claim. However, Acting Deputy President Parker SC (ADP Parker) found no error on the part of Senior Member Haddock adding that she was entitled to make the inferences she made from the worker’s evidence and the finding she made on this issue was ‘open to her on the material’.

The worker also argued that Senior Member Haddock’s finding that he sustained an injury as alleged should have enabled her to accept, as a matter of logic and by inference, that the employer paid for the taxi. Again ADP Parker found against the worker on this point adding that the inference drawn by Senior Member Haddock was open to her on the evidence.

Finally, the worker argued that handing his employer a WorkCover medical certificate was a claim for lost wages. However, once again, ADP Parker found that Senior Member Haddock, on the evidence before her, was entitled to find that the worker had not made a claim for compensation. ADP Parker noted: ‘the supervisor said [the worker] would be paid for time off, it does not follow that [the worker] was to be paid compensation. It simply means that he did not lose any part of his wages. There is no evidence of error on the part of the Senior Member’.

Noting the above, ADP Parker confirmed Senior Member Haddock’s decision in favour of the employer

Implications

This decision highlights the potential value of the s261 provisions in terms of challenging a worker’s claim for compensation on the basis that the claim was not made within the time provided by the legislation.