STATEMENT OF REASONS FOR DECISION
BACKGROUND TO THE APPLICATION
1. The Applicant, Shang Xiao Han, claims to have sustained injuries during the course of
his employment with the First Respondent, Flash Courier Services Pty Ltd, on 14
December 2000 and to 6 February 2001. According to the Applicant, he injured his right
2. The First Respondent was insured for workers compensation purposes by CGU Workers
Compensation (NSW) Ltd ("CGU"). On 19 June 2000, CGU wrote to the First
Respondent advising that it was "unable to invite renewal" of the First Respondent's
policy at expiry of the period of risk on 30 June 2000. This stance was explained as
being "due to non-payment of outstanding premium". An issue which arises is whether
CGU, notwithstanding the absence of formal renewal of the First Respondent's policy,
remained on risk after 30 June 2000, having regard to the provisions of s.157 of the 1987
Act.
3. At Part 3 of the Application to Resolve a Dispute lodged by the Applicant on 9 January
2006, it is recorded that the date of the compensation claim is "9/4/2004". This does not
accord with the documentary evidence attached to the Application. A letter addressed by
the Applicant's solicitors to the WorkCover Authority on 23 December 2004 records the
Applicant's claim pursuant to ss.66 and 67 of the Workers Compensation Act 1987.
Based on the report of Dr Peter Endry-Walder, the Applicant sought compensation in
respect of 15% permanent loss of efficient use of the right arm at or above the elbow, and
in respect of 17.5% permanent loss of efficient use of the right leg at or above the knee.
4. After lodgment of the Application to Resolve a Dispute and the First Respondent’s
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Reply, a Telephone Conference convened on 20 March 2006. The Arbitrator who
conducted the Telephone Conference issued various orders, one of which was to amend
the application to join the WorkCover Authority of New South Wales (ULIS) as Second
Respondent. The Arbitrator referred the dispute regarding the degree of the Applicant's
loss pursuant to s.66 of the 1987 Act to an Approved Medical Specialist (AMS). It is
relevant that the First Respondent did not dispute the fact of the injury sustained by the
Applicant on 14 December 2000, but placed in issue the subsequent injury which the
Applicant claims to have sustained on 6 February 2001.
5. The Reply filed by the WorkCover Authority recorded a denial that the First Respondent
was uninsured, and an assertion that the First Respondent was insured at all relevant
times by CGU.
6. On 9 May 2006 the Medical Assessment Certificate of Dr Mohammed Assem, AMS, was
issued. The AMS assessed the loss of efficient use of the Applicant's right hand,
attributable to an injury on 4 December 2000, to be 1%. Loss of use of the Applicant's
right leg at or above the knee, attributable to an injury on 6 February 2001, was assessed
to be 3%.
7. After release of the Medical Assessment Certificate, a Telephone Conference convened
on 9 June 2006. It was not possible to settle the matter because the representative of the
First Respondent, in the interests of CGU, was adamant that no compensable injury had
been sustained by the Applicant on 6 February 2001, that claims in relation to both
injuries were time-barred, and that CGU was not on risk at material times. The matter
was accordingly scheduled for Conciliation Arbitration.
8. At the hearing on 23 June 2006, the representatives of the parties confirmed that there
was no prospect of settlement and that it was necessary that the relevant preliminary
issues be determined.
THE ISSUES
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9. Following discussions with the representatives of the parties the following issues were
identified as being in dispute:
(i) Did the Applicant sustain an injury which arose out of or occurred during the
course of the Applicant's employment with the Respondent on 6 February 2001?
(ii) If the Applicant did sustain a compensable injury on 6 February 2001, is the
Applicant barred by reason of the provisions of ss.61 and 65 of the Workplace
Injury Management and Workers Compensation Act 1998 ("the 1998 Act") from
recovering compensation in respect of that injury?
(iii) Is the Applicant barred by reason of the provisions of ss.61 and 65 of the 1998
Act from recovering compensation in respect of the injury sustained on 14
December 2000?
(iv) Did CGU refuse, as contemplated by s.157(1) of the Workers Compensation Act
1987, to issue a policy of insurance to the Respondent or to renew a policy of
insurance which had been issued to the Respondent?
(v) Was the Respondent insured by CGU for the purposes of any claim arising from
compensable injuries found to have occurred on 14 December 2000 and/or 6
February 2001?
EVIDENCE
10. The following documents were in evidence before the Commission and taken into
account in making this determination:
• Application to Resolve a Dispute and all attachments;
• Reply filed by CGU Workers Compensation (NSW) Ltd;
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• Reply filed by WorkCover Authority of NSW; and
• Medical Assessment Certificate of Dr Mohammed Assem, AMS, dated 9 May
2006.
FINDINGS AND REASONS
11. The First Respondent asserts that the Applicant failed to give notice of injury in
accordance with s.61(1) of the 1998 Act. That section provides:
“Compensation may not be recovered under this Act 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 the employment in which the worker was at
the time of the injury.”
12. The Applicant has recorded in his Statement of 17 February 2004 that, following his
injury of 14 December 2000, he “called (his) office and advised them that (he) had been
seriously injured and could not do the pick up”. On returning to the office he was told to
go and get immediate attention. He subsequently returned to work on selective duties.
13. The Applicant further records details of the circumstances of his injury of 6 February
2001. He states that, after slipping on a tiled floor and injuring his right knee, he “called
(his) office to say that (he) was injured”. He was off work “for at least one or two
weeks”, and returned to work on selective duties.
14. The First Respondent has not filed any material to contradict the Applicant’s account of
the notification provided of his injuries and of his placement, necessarily in the wake of
notification of his injuries, on selective duties,. I therefore accept that the Applicant gave
notice to the First Respondent of his injuries as required by s.61(1).
15. The First Respondent relies further on Section 65(7) of the 1987 Act which provides:
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"Compensation may not be recovered under this Act 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 of the date of death."
16. Section 65(13) of the 1987 Act indicates the circumstances in which a worker may
proceed to recover compensation, notwithstanding the failure to make a claim within 6
months of the date of injury:
"The failure to make a claim within the period required by subsection (7)
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 from the death or serious and
permanent disablement of a worker."
17. There is no dispute that the Applicant failed to make a claim within 6 months of,
respectively, his injury of 14 December 2000, and the disputed injury of 6 February 2001.
I am therefore required to determine whether, given that failure, the Applicant may
nevertheless proceed having regard to the provisions of s.65(13) of the 1998 Act.
18. The Applicant's preliminary task is to establish that his failure to make a claim within 6
months of the respective injuries was occasioned by ignorance, mistake, absence from the
State or other reasonable cause. The Applicant purports, in a supplementary statement
signed on 17 October 2005, to explain the delay in making claims in relation to his
injuries. The relevant paragraphs are as follows:
"4. I further note that there is an issue regarding my delay in reporting
my claim.
5. I found it very difficult to obtain the details of my previous
employer's insurer.
6. I consulted a number of solicitors in relation to pursuing a claim.
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I initially completed a claim form against whom I believe was my
employer at the time, Stemet Pty Ltd T/as Flash Courier Services.
7. It was not until proceedings were commenced that I came to learn
that Stemet was in fact not my employer, but rather the payee
company of Flash Courier Services Pty Ltd.
8. As such, there was a significant delay in completing my claim
form.
9. Flash Courier Services Pty Ltd is deregistered, and as such,
gaining particulars from this employer has been difficult, if not
impossible.
10. I failed to complete a claim form with my employer, at the time of
the injury, as I did not want to jeopardise my employment. I
understand that people who make claims against employers are
often ostracised and needed the money at the time."
19. The Applicant's explanation is short on detail, containing no particulars of the efforts
made to obtain details of the relevant insurer, the dates on which solicitors were
consulted, the identities of such solicitors, the reasons for instructing different solicitors,
and the date on which he ascertained the correct identity of his employer.
Notwithstanding these deficiencies, I will treat the Applicant's explanation as satisfying
the requirement of "reasonable cause" for the failure to make a claim within 6 months of
each of his injuries.
20. Where an Applicant demonstrates such reasonable cause for delay, it is necessary in
instances in which a claim is made more than 3 years after an injury, that the injury has
resulted "in the death or serious and permanent disablement of a worker". The Applicant
has been certified by an AMS, Dr Mohammed Assem, as having permanent loss of
efficient use of his right hand and of his right leg at or above the knee. I am required to
consider whether the assessments of 1% loss in respect of the right hand and 3% loss in
respect of the right leg consistent with "serious ... disablement" within the contemplation
of s.65(13).
21. If the legislature had been content that all claims made in excess of three years of the date
of injury could proceed if permanent disablement, irrespective of the degree thereof, were
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established, it would not have stipulated the additional requirement that such disablement
be "serious".
22. I have difficulty in treating assessments of loss of 1% and 3% respectively as indicating
disablement of a "serious" nature, distinguishable from other "less serious" cases of
disablement. If loss assessed at 1% may be deemed serious, the effect would be that all
assessed loss, regardless of degree, would qualify as serious. That cannot have been the
intention of the legislature. Rejecting the notion that disablement in instances of loss
assessed at 1 % may be treated as serious, on what basis would the marginally greater, but
essentially modest, assessment of 3 %, indicate a level of disablement to be regarded as
being of distinguishable gravity?
23. Beyond my difficulties with the negligible formal assessments of impairment which are
recorded in the Medical Assessment Certificate, an examination of the body of Dr
Assem's Medical Assessment Certificate does not assist the Applicant. Dr Assem found
that the Applicant had a full range of wrist, hand and finger movement, and that the
Applicant's functional grips were normal. He noted that, although the Applicant
complained that his ability to write was affected, the Applicant filled out the usual
paperwork. Dr Assem indicated that his assessment of 1% loss of efficient use of the
right arm is more than sufficient to account for the Applicant's limitations, and suggested
that in making such assessment he was giving the Applicant “the benefit of the doubt”.
24. Dr Assem found the Applicant to have full range of movement of his knee. He described
the interference with the Applicant's “usual vocational and avocational activities” as
being "very minor" and "mild".
25. On that evidence, the Applicant's disablement cannot conceivably be regarded as serious.
26. It therefore follows that the Applicant does not satisfy the requirements of s.65(13) of the
1998 Act, and that the Application must be dismissed. In the circumstances, it is not
necessary for me to determine the dispute regarding whether the Applicant sustained a
compensable injury on 6 February 2001, or any of the issues regarding whether CGU was
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on risk at material times.
DECISION
27. For the reasons recorded above, the decision in this matter is:
(1) The Application is dismissed.
(2) There is no order as to costs.
CRAIG TANNER
Arbitrator
10 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION
OF CRAIG TANNER, ARBITRATOR, WORKERS COMPENSATION COMMISSION
REGISTRAR
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CERTIFICATE OF DETERMINATION
This Certificate is issued pursuant to s 294 of the Workplace Injury Management and Workers
Compensation Act 1998.
Matter No: WCC204-06
Applicant: Shang Xiao Han
First Respondent: Flash Courier Services Pty Ltd
Second Respondent: WorkCover Authority of New South Wales
Date of Determination: 10 July 2006
1. The Application is dismissed.
2. There is no order as to costs.
A brief statement of reasons for determination, in accordance with Rule 73 of the Workers
Compensation Commission Rules 2003, is attached.
Craig Tanner
Arbitrator
I CERTIFY THAT THIS IS A TRUE AND ACCURATE CERTIFICATE OF
DETERMINATION ISSUED BY CRAIG TANNER, ARBITRATOR, WORKERS
COMPENSATION COMMISSION.
REGISTRAR
Tuyet Duong
Dispute Assessment Officer
By Delegation of the Registrar
