BHP Billiton Ltd v Eastham

[2013] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		BHP Billiton Ltd v Eastham [2013] NSWWCCPD 34
APPELLANT:		BHP Billiton Ltd
RESPONDENT:		Richard Eastham
INSURER:		Self-insured
FILE NUMBER:		A1-11550/11
ARBITRATOR:	Mr M Snell
DATE OF ARBITRATOR’S DECISION:		21 November 2012
DATE OF APPEAL HEARING:		15 May 2013
DATE OF APPEAL DECISION:		13 June 2013
SUBJECT MATTER OF DECISION:		Apprehended bias; conduct of arbitrator; recusal application properly refused; s 261 of the Workplace Injury Management and Workers Compensation Act 1998; making a claim; failure to comply with requirements as to making of claim; worker’s ignorance; serious and permanent disablement; causation; material contribution.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr D Andersen, solicitor, Piper Alderman
Respondent:	Mr B McManamey, instructed by Frisina Lawyers
ORDERS MADE ON APPEAL:		1.     The determination and orders found in the Senior Arbitrator's Certificate of Determination dated 21 November 2012 is confirmed. 2.    The appellant is to pay Mr Eastham's costs of the appeal.

BACKGROUND

1. Mr Richard Eastham was employed by BHP Billiton Limited (the appellant) as a boilermaker between 1959 and 1995. On 1 August 2011 he made a claim against the appellant seeking compensation in respect of noise induced hearing loss. That claim was in respect of a further loss of hearing, given that Mr Eastham had claimed and been paid compensation benefits by the appellant in respect of hearing loss on two earlier occasions being in 1980 and 1992. Whilst it is common ground that the appellant employed Mr Eastham in employment to the nature of which the relevant injury was due, the claim was ultimately disputed.

2. The appellant failed to determine the claim within time fixed by the provisions of s 281 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). As a result, these proceedings were commenced in December 2011 and Mr Eastham served an Application to Resolve a Dispute (the Application) upon the appellant on 9 January 2012. The appellant had, on 5 January 2012, served upon Mr Eastham’s solicitors a notice issued pursuant to s 74 of the 1998 Act. That notice advised that the claim had been denied and reasons for the decision were furnished. Those reasons included an allegation made by the appellant that Mr Eastham had not complied with the time requirements prescribed by s 261 of the 1998 Act concerning the making of a claim for compensation. Given that the s 74 notice was served out of time it became necessary for the appellant to seek leave of the Commission pursuant to s 289(A) of the 1998 Act to rely upon the defence raised in that notice. That application was made at the hearing of the matter which was listed before Senior Arbitrator Michael Snell on 23 August 2012.

3. The matter had earlier been listed for teleconference before Arbitrator Dennis Nolan on 7 March 2012. At that time the appellant informed the Commission that it wished to raise the defence founded…