Edmondston v Hastings Council

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

CITATION:	William Rex Edmondston v Hastings Council [2003] NSW WCC PD 38
APPELLANT:	William Rex Edmondston
RESPONDENT:	Hastings Council
INSURER:	NRMA Workers Compensation (NSW) (No. 2) Pty Limited
FILE NO:	WCC 5065-2002
DATE OF ARBITRATOR’S DECISION:	22 August 2003
DATE OF APPEAL DECISION:	16 December 2003
SUBJECT MATTER OF DECISION:	Appeal against a decision of an Arbitrator, ‘noisy employment’, section 17 Workers Compensation Act 1987, Case Management, Referral to AMS
PRESIDENTIAL MEMBER:	Deputy President, Dr Gabriel Fleming
HEARING:	On the Papers
REPRESENTATION:	Appellant: Whitelaw McDonald Solicitors
Respondent: Sparke Helmore Solicitors
ORDERS MADE ON APPEAL:	The decision of the Arbitrator is confirmed.

THE APPEAL

William Rex Edmondston (‘the Appellant’) lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 22 August 2003. The Respondent to the appeal is Hastings Council (‘the Respondent’) and the Insurer is NRMA Workers Compensation (NSW) (No. 2) Pty Limited (‘the Insurer’).
The Appellant claimed lump sum compensation for permanent impairment of his hearing, and medical expenses for the provision of binaural hearing aids, the total amount in dispute being $10,000.
The Application to Appeal was not date stamped in the Commission but on its face, states that it was served on the Respondent on 11 September 2003. The Appellant filed further submissions in accordance with Practice Direction No 6 on 22 September 2003.
The appeal was registered in the Commission on 22 September 2003.
The Respondent filed submissions in reply to the appeal on 7 October 2003 and 21 October 2003.
The appeal was referred to me for review on 25 November 2003.

THE DECISION UNDER REVIEW

The Certificate of Determination issued by the Commission on 22 August 2003 sets out the decision of the Arbitrator as follows:
1. Award in favour of the Respondent in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.
2. Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
3. That each party pay its own costs.
The Appellant seeks to have the decision of the Arbitrator set aside. The Respondent submits that the decision should be confirmed.

THE ISSUES IN DISPUTE

The issues in dispute in the appeal may be summarised as follows:
(i)Did the Arbitrator err, in law, fact or discretion, in finding that the Applicant was not employed in employment “of a nature to which hearing loss was due”, i.e. noisy employment?
(ii)Was the Applicant worker denied procedural fairness as a result of the Arbitrator’s conduct of the dispute?

ON THE PAPERS REVIEW

Subsection 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides as follows:
354Procedure before Commission
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
Both the Appellant and the Respondent have consented to the determination of leave to appeal, as well as the substantive appeal, on the papers.
Having regard to the President’s Practice Directions Nos 1 and 6, the submissions that have been made by both parties and the documents before me, 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 of this matter.

JURISDICTION TO HEAR THE APPEAL

Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides as follows:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was made within 28 days of the decision appealed against and in compliance with section 352(4) of the 1998 Act.
The decision of the Arbitrator did not involve an award of compensation and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
The ‘amount of compensation at issue on the appeal’ may be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (Grimson v Integral Energy [2003] NSW WCC PD 29). In this case the Appellant has claimed a total of $10,000 in compensation for his industrial deafness.
Leave to appeal is granted.

EVIDENCE AND SUBMISSIONS

The following facts, as set out in the Arbitrator’s reasons for decision, are not in dispute:
·    Mr Edmondston is a 51-year-old man with no dependents.
·    He commenced employment with Hastings Council on 27 September 1999 as a plant operator and continues to be so employed.
·    His duties involve the use of heavy machinery, including the Case Backhoe, for between 6.5 and 8.5 hours per day. He operated other machinery such as the jackhammer and wood chipper. He also worked in close proximity to others using heavy machinery. He did not always wear protective earmuffs.
·    On 27 July 2002 the Appellant completed a Notice of Injury for Industrial Deafness under the Workers Compensation Act 1987 (‘the 1987 Act’). An amended notice was completed on 3 March 2003.
·    He notified his employer of his injury on 26 August 2002 and on 7 August 2002 made a claim for lump sum compensation for $10,000 pursuant to section 66 of the 1987 Act, and for medical expenses pursuant to section 60 of the 1987 Act.
·    The insurer declined to meet the claim on 2 October 2002.
The evidence that was before the Arbitrator is also before me on appeal, including expert medical reports of Dr Fernandes, dated 28 June 2002 and Dr Seymour, dated 22 January 2003.
The Appellant’s written submissions may be summarised as follows:
(i)The Arbitrator erred in adopting 140 dB as the “sound level above which instantaneous damage can be caused to hearing”. Instead the Appellant relies upon the decision of Neilson J in Callaby v State Transit Authority (NSW) (2000) 21 NSWCCR 216 to argue that 115 db is the appropriate sound level.
(ii)The Arbitrator failed to take into account all of the evidence that established the employment as ‘noisy employment’. In particular the Arbitrator did not properly consider the result of the Appellant’s exposure to jackhammers and other workplace noise.
(iii)The Arbitrator erred in adopting the reasoning in Jansen v Australian Iron and Steel Pty Limited [1983] 57 WCR (NSW) 147 to the effect that expert evidence of noise levels is required to determine if the workplace constituted noisy employment. The Appellant submitted that “in some circumstances the Appellant (and for that matter other Officers of the Respondent) are the only individuals able to make an assessment in respect of whether a piece of plant and equipment is, in fact, noisy.” The Appellant noted that in this case some of the machinery, for instance the Caterpillar backhoe, had in fact been disposed of by the Respondent and was not available for testing.
(iv)The Arbitrator’s “case management” has prejudiced the Appellant. The Appellant asserts that he would have considered incurring the “significant expense” of “audiological testing” once an AMS had determined whether he meets the 6% threshold under section 69A of the 1987 Act. The Appellant submitted: “[T]he decision of the Arbitrator, in determining liability as a priority, has therefore adversely affected the Appellant’s preparation of this matter for hearing. In addition, the Arbitrator’s conduct has created circumstances whereby the respective financial positions of the Appellant and the Respondent has been a determining factor in respect of the outcome of this matter.”
The Appellant submitted that the Arbitrator should have found that his employment with the Respondent was employment “of a nature to which the injury was due” and that he was entitled to compensation for permanent impairment for hearing loss.
The Respondent has filed a Reply to the appeal or Application for Leave to Appeal, identifying four separate aspects of the appeal that may be summarized as follows:
(i)The Arbitrator’s decision was not against the weight of the evidence. The Arbitrator considered all of the evidence including the evidence of the worker and the report regarding the noise emission of a jackhammer. The Respondent submitted that the worker’s expert evidence regarding noise levels: “ . . . fails to reveal the basis upon which the noise exposure has been tested (i.e. actual use and/or proximity) and is therefore not to be preferred to the report submitted by the Respondent . . .”
(ii)It was appropriate for the Arbitrator to accept the authority of Jansen v Australian Iron and Steel Pty Limited [1983] 57 WCR (NSW) 147. The Respondent submitted that: “the Arbitrator’s application of that authority was neither a misinterpretation of that case law…nor an erroneous application of it.”
(iii)The Appellant provided no evidence as to the level of noise exposure from the plant and machinery used in his employment and could not establish the extent and degree of noise exposure. It was therefore open to the Arbitrator to make the determination.
(iv)There is no “. . . automatic right to an examination by an AMS” and even if the Appellant had been examined by an AMS this has no bearing on the issue of liability, which the Arbitrator correctly determined. The Appellant’s preparation “for hearing” was not adversely affected as Rule 38 of the Workers Compensation Commission Rules 2003 requires all documents that are to be relied upon by the Applicant to be filed with the ‘Application to Resolve a Dispute’. The parties had the benefit of two telephone conferences and any “. . . prejudice is a result of lack of preparation in the Application”.

DISCUSSION AND FINDINGS

Noisy Employment

A critical issue in dispute concerns the Arbitrator’s finding that the Respondent employer was not a ‘noisy employer’ against whom the Appellant could make a claim in accordance with section 17 of the 1987 Act. Section 17 provides, in part, as follows:
17 Loss of hearing—special provisions
(1)If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a)  for the purposes of this Act, the injury shall be deemed to have happened:
(i)  where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii)  where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,....
The Arbitrator correctly stated that the worker has the onus of proving that the Respondent was a ‘noisy employer’ in the terms required by subsection 17(1) of the 1987 Act (Galdemar v Astar Enterprises Pty Ltd (1988) NSW CC 47, Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52 at 55 (“Lobley”)). This requires the worker to prove, on the balance of probabilities, that his employment with Hastings Council was “employment to the nature of which the injury was due”. Where the worker satisfies this test the “evidentiary onus then shifts to such employer sued to seek to establish that protective measures in fact in place excluded the possibility of any such injury” (Lobley at [64]).
The Court in Lobley, reviewed the relevant authorities in relation to the interpretation of section 17(1) of the 1987 Act, and similar provisions, and concluded, (per Cole JA), that:
. . .It follows from these authorities that in determining whether, at the time when notice of injury was given, Mr. Lobley was “employed in an employment to the nature of which the injury was due”, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the “tendencies, incidents or characteristics” of that employment were of a type which could give rise to the injury in fact suffered (at [64])
and further:
. . it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance, the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due (at [65]).
Establishing that the “tendencies, incidents or characteristics” of particular employment were of a type to give rise to hearing loss is a forensic task relying upon the weight of some or all of: the worker’s evidence, the proof of relevant facts about the specific employment, the applicability of various industry standards, expert scientific and acoustical testing and reports, and medical evidence in relation to the worker’s particular circumstances, vulnerabilities and injury. It will be for the decision-maker to weigh all of the evidence and, if satisfied, on a real, as opposed to merely theoretical level, that: “ . . there were a sufficient number of incidents, characteristics and tendencies in the workplace to translate into a permanent hearing impairment, then the employment could be characterized as ‘noisy’” (Gordon v General Cargo Forwarders Pty Ltd [2000] 20 NSW CC 48, see also Ambulance Service of NSW v Daniel (2000) 19 NSW CCR 697).

Weight of Evidence as to Noise Exposure

The Appellant seeks to rely upon comments about noise levels made by Judge Neilson in the mater of Callaby v State Transit Authority of NSW [2000] NSW CC 30 (‘Callaby’). The Arbitrator also purports to rely upon these comments to conclude that a “. . . safe noise level is 85db” (at [29] of the reasons). In Callaby Neilson J, does not make this statement himself, but quotes from Geraghty J, in the matter of Wright v State Transit Authority NSW (7 February 1996, No 31343 of 1993) as follows:
There also seems to be general agreement that a maximum sound of 115dB(a) would constitute, in one second, the equivalent of a daily noise dose of 1. Such noise could cause instantaneous damage.
These comments should not be seen as evidence in the instant case. Neilson J, also said in Callaby that:
. . . a judgment on a question of fact creates no precedent and is not binding of course on any person other than the parties to the proceedings. However, it is a guide to the sort of evidence that this Court generally hears.
The Appellant objects to the Arbitrator’s finding that “current regulations for noise in the workplace state no person shall be exposed to a Daily Noise Dose of 1. or a sound level greater than 140dB”. The Arbitrator accepted that “ . . . workplace noise should generally be contained between 85dB(A) over an 8 hour period with the LA max of instantaneous level of 115dB(A) to ensure it was not found to be ‘noisy’”. These noise level indicators were set out in the expert reports of H K Clarke & Associates, on “Occupational Noise Exposure of Plant and Equipment for Hastings Council”, dated 3 October 2002 (‘the Clarke Report’), submitted by the employer. The Arbitrator was entitled to prefer them to the particular factual conclusions made in the matter of Callaby, discussed above, and proffered by the Appellant.
In most cases concerning hearing loss the relevant industry standards for noise are in evidence and form the basis upon which findings about the effects of certain noise exposures may be made. The relevant standards include the Factories (Health and Safety–Hearing Conservation) Regulation 1979, the Worksafe Australia National Standard for Occupational Health Noise and the Occupational Health and Safety (Noise) Regulation 1996. The latter sets a Leq noise level of 85 dB over 8 hours and a peak level of 140 dB. These standards are well known but must not be strictly applied without consideration of whether a worker has a particular vulnerability to hearing loss, as a result of exposure to noise, that is less than the minimum for risk (Price v NSW Fire Brigade, NSW CC No 31146/93, 27 Feb 1995, Unreported, Ambulance Service of NSW v Daniel (2000) 19 NSW CCR 697, Gordon v General Cargo Forwarders Pty Ltd [2000] NSW CC 48).
A plain reading of the Arbitrator’s reasons for decision does not support the Appellant’s submission that the Arbitrator failed to take into account the evidence of the worker’s exposure to noise from the operation of jackhammers. The Arbitrator clearly considered and accepted the worker’s evidence that he sometimes operated heavy machinery other than the Case backhoe; in particular, that he occasionally operated a jackhammer. The Arbitrator also accepted the evidence that the worker at times worked in close proximity to jackhammers and other machinery. Clarke reported on noise levels of some of the machinery the worker operated. These reports state that the Case backhoe did not exceed the noise levels that would carry a real risk of hearing loss. The Caterpillar backhoe was not available for testing. The reports did not test the level of noise exposure that resulted from working in close proximity to other machinery, including jackhammers.
The Appellant’s evidence of the noise levels of a jackhammer was in the form of a one page extract, Table 2.9, from “Occupational Hearing Loss”, an article by Robert and Joseph Sataloff, undated and not otherwise referenced. The Appellant also submitted a one-page extract from WorkSafe (Western Australia) that described “Decibel levels of common sounds”. In the latter publication a chainsaw was mentioned but not a jackhammer. This general, undated information is very poor evidence for the worker’s claim that his specific employment at Hastings Council was ‘noisy’ and I see no error by the Arbitrator in not finding these documents persuasive. This evidence does not, as the Appellant contends, establish that the noise from the jackhammer operated by him exceeded 120 dB.

The Arbitrator properly considered the evidence of both the level of noise and the extent of the exposure to noise, and found that there was no persuasive evidence that the worker was exposed to noise levels above 85 db for sufficient duration to cause a daily noise dose of 1 to be exceeded. This finding was based, partly, on the Arbitrator’s view of the law in relation to the evidence required to support a finding that noise levels in the workplace were sufficient to cause hearing loss. The Arbitrator, and the Respondent relied upon the case of Jansen v Australian Iron and Steel Pty Ltd [1983] 57 WCR (NSW) 147 (‘Jansen’) as authority for the proposition that “[e]vidence as to whether noise is sufficient to cause hearing loss is not evidence which can be given by the Applicant. The court requires expert evidence on the noise levels in order to determine if the workplace constitutes ‘noisy employment’”. The Arbitrator took into account the worker’s own evidence that his employment was noisy however found that she “ . . . cannot consider that to be evidence that he was exposed to noise which exceeded a DND of 1. or a level of noise exceeding 140db”.
In Jansen the only evidence before the Court to support the claim of ‘noisy employment’ was the worker’s statement that the workplace was noisy. Expert medical evidence did not support the claim that the noise in the workplace could cause hearing loss. The Court found that Mr. Jansen “. . . had no material which connected the noise level with damage to the nerves of his ears” and that it was impossible for a layman to establish this fact (at page 148).
Jansen was considered by the full Federal Court in Costello v Citra Constructions Limited 22 FCR 247. In that case the Court heard an appeal from the Supreme Court of the ACT in relation to a claim by Mr Costello for workers compensation for hearing loss. Mr Costello did not adduce expert evidence as to the precise noise levels generated by the machinery that he had operated. However the Court found that the absence of this type of expert evidence was not fatal to Mr Costello’s claim. The fact that the worker could have had better evidence did not restrict the tribunal of fact from reaching a decision based on the evidence it did have before it. Mr Costello successfully relied upon his own evidence of the ‘noisy’ conditions of his employment and an expert medical report that attributed the cause of his hearing loss to his employment. Kelly J, said, (at [20]) that:
Although expert evidence is undoubtedly necessary to prove a case of work-induced deafness, it is not necessary that it be of the extent and particularity claimed on behalf of the respondents. Clearly the appellant in this case, as a mere lay witness, could not give evidence of the causal connection between the noise level of his work place and his deafness. This must necessarily have been a matter for expert testimony. But the law does not prescribe the mode or content of that expert testimony.
The Court in Costello distinguished Jansen as “. . . of no assistance” (at [27]) and pointed out that in Jansen the worker had no expert evidence, medical or technical, at all that linked his deafness with his employment.
In Ambulance Service of NSW v Daniel [2000] NSWCA 116 (9 May 2000) the NSW Court of Appeal considered whether the evidence of Mr Daniel alone, was sufficient to enable the tribunal of fact to conclude that his employment was ‘noisy’. The Court, Hodgson CJ in Eq, with whom Sheller JA and Beazley JA agreed, found that, without the assistance of expert evidence as to the noise levels of the workplace and expert opinion on the link between these noise levels and the likelihood of hearing loss, the worker was not able to satisfy the onus of proving noisy employment.
Taking these authorities into account, the task of the Arbitrator may be described as: to consider the whole of the evidence before her that goes to the incidents, characteristics and tendencies of the respondent’s work environment, and to determine, on the balance of probabilities, whether that employment presented a real risk of the worker sustaining hearing impairment (see also Gordon v General Cargo Forwarders Pty Ltd [2000] NSWCC 48 at [106]). In my view the Arbitrator was not bound by the decision in Jansen to view the absence of one type of expert evidence as fatal to the worker’s claim. In doing so the Arbitrator erred in that she considered only the expert evidence on noise levels of the machinery in the reports of H K Clarke and did not consider the whole of the evidence in determining whether the employment was ‘noisy’. Having found that the Arbitrator made an error of law, it is necessary to further review the decision to determine whether it should be revoked.

The Appellant’s Employment at Hastings Council

In this matter Mr Edmonston relies upon his own evidence in the form of a statement dated 23 May 2003, the report of Ear, Nose and Throat Specialist Dr Fernandes, dated 28 June 2002, the two report extracts (Table 2.9 and WorkSafe) described above, and a report from Quotation Audio Clinic dated 21 January 2003.
Mr Edmonston’s evidence is that the driving of heavy machinery, from 1988 to 2000, when he was self employed and held no workers compensation insurance, exposed him to industrial noise. He stated that his hearing loss began prior to starting work with Hastings Council. In his employment with Hastings Council he operated a number of pieces of plant and equipment that he considered noisy and in addition he spent a significant part of his working time:
. . . standing alongside other plant and equipment whilst performing associated tasks. Whilst standing alongside plant and equipment an individual does not enjoy the benefits of the insulated cabin. At times, industrial noise during my employment was significant.
Mr Edmonston stated that the most noise emanated from jackhammers, sirens and vehicle engines and that on many occasions he had to shout to be heard above the noise.
There is no doubt that Mr Edmonston has a significant hearing loss. This was assessed by Dr Fernandes, on 28 June 2002, as 8% whole person impairment. Dr Fenandes based his assessment that Mr Edmonston suffered from “noise induced hearing loss” based on “industrial noise exposure for approximately twenty years”, audiometric testing dated 23 March 2002 and the employment history given to him by Mr Edmonston.
As in Costello there is expert evidence of a link between Mr Edmonston’s workplace and his hearing impairment in the form of Dr Fernandes’ opinion. However, there is also probative evidence submitted by the Respondent, that refutes the submission that the employment with Hastings Council was ‘noisy’.
The Respondent relied upon the expert report, the Clarke report, referred to above. The findings of this report are set out in the Arbitrator’s statement of reasons. In summary the report, while it did not test all of the equipment used by Mr Edmonston, found that the equipment operated by Mr Edmonston, such as the Case Backhoe, did not exceed the noise levels that the authors accepted carried a real risk of causing hearing loss. In my view this report is more persuasive evidence of generally acceptable noise levels, and noise levels of particular equipment used by Mr Edmonston, than is the Appellant’s reliance on the two ‘extracts’ (Table 2.9 and Worksafe) and Mr Edmonston’s own evidence that the workplace was ‘noisy’.
The Clarke Report did not measure the levels of noise exposure to employees working in close proximity to the machinery that was used. Nor does it measure noise levels of a jackhammer of the type and for the duration that Mr Edmonston used. Dr Fernandes’ report provides no expert opinion in relation to this type of work or noise exposure. In fact Dr Fernandes’ report does not refer to any history of Mr Edmonston working on or around this type of equipment. The only evidence of this noise exposure is Mr Edmonston’s statement, which contains little detail of the level of noise generated and the length of the exposure.
The Respondent also relied upon the reports of Dr Seymour, Ear Nose and Throat Specialist, dated 22 January 2003 and 20 February 2003. Dr Seymour concluded, on 22 January 2003 that:
It is reasonable to attribute an assessment for noise induced hearing loss and tinnitus to the extent of the latter figure (6.6% binaural; 3.0% WPI), to acoustic trauma from industrial noise sustained in the course of this applicant’s occupation at his several places of noisy employment.
However, following receipt of the Clarke report, Dr Seymour concluded, on 20 February 2003 that:
Taking into account the report of H. K. Clarke and Associates Pty Ltd, Noise Control and Management consultants, of 17.12.02; regarding a noise level survey while using a Case Backhoe 580 SuperLE with the rear window open: it is apparent that the noise levels, 82.7dB A Leq, sustained by the applicant would not be sufficient to give rise to any acoustic trauma.
Accordingly, I consider that all of this applicant’s present hearing loss would have been sustained in his prior employment, i.e. a self employed earth moving business.
Dr Seymour’s reports make no reference, in reciting the employment history provided by the Appellant, to exposure to jackhammer noise, or to noise emanating from machinery and equipment operating where the Appellant was working. In my view Mr Edmonston’s own evidence of the exposure to this noise is not sufficient to conclude that it was capable of causing hearing loss.
Taking the whole of the evidence of the incidents, characteristics and tendencies of the Appellant’s work into account I am not satisfied that the Appellant has discharged the onus of proving that, on the balance of probabilities, his employment at Hastings Council was employment “to the nature of which the injury was due” (subsection 17(1)(a)(i)) of the 1987 Act). For the reasons outlined above I find the evidence presented by the Council is more persuasive on these issues than the Appellant’s evidence.

Procedural fairness

The Appellant submitted that “. . . the Arbitrator mishandled the case management of this matter as the parties attempted to prepare the matter for hearing”. In particular the Appellant objects to the Arbitrator’s determination of the question of liability, prior to the referral to an Approved Medical Specialist (‘AMS’) and submits that this has disadvantaged him. The Appellant submitted that he “. . .was in no financial position to outlay several thousand dollars for audiological testing until at the very least a determination was made as to whether the Applicant exceed (sic) the threshold outlined in Section 69A of the Workers Compensation Act 1987”.
The Respondent opposed this submission and relies upon the application of sections 120 and 293 of the 1998 Act, (in relation to the discretion to refer a matter to an AMS) and the requirements of the Workers Compensation Commission Rules 2003 (‘the Rules’). The Respondent also refers to the power of the Commission to proceed to determine the application on the papers without holding a conference or hearing, if satisfied that sufficient information has been supplied to it in connection with proceedings (section 354(6) of the 1998 Act). The Respondent submitted that no prejudice has resulted to either party as a result of the Arbitrator’s conduct of this matter.
The Appellant’s submission on this issue is without merit and reflects a lack of understanding of the conduct of proceedings in the Commission.
The Rules set out the way in which an Application to Resolve a Dispute is to be commenced in the Commission and the requirements in relation to the filing of a Reply and evidence by both parties (at the time of the filing of the original application the Interim Workers Compensation Rules 2001 were in force, however the substantive relevant provisions are the same).
Rule 38 provides, in part, as follows:
38       Material to be lodged with application
(1)For the purposes of section 290 of the 1998 Act, the applicant must lodge and serve with the application to resolve a dispute all information and documents on which the applicant proposes to rely and that are in the possession or control of the applicant at that time.
(2)Subject to subrules (3) – (5), an applicant may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a)the applicant has lodged and served with the application for dispute resolution, or, as the case may require, any response, in the proceedings, a statement revealing:
(i)      the specific nature of the evidence, and
(ii)the reliance the applicant intends to place on the evidence, and
(iii)the reasons why the evidence is not available at the time of service, and
(iv)    the time it is expected to be available, and
(b) the evidence is served on all other parties, and lodged, as soon as practicable after the evidence becomes available.
(3) The Commission may, for the avoidance of injustice, allow an applicant to introduce evidence that the applicant would otherwise be prevented from introducing because of the operation of subrule (2).
In this matter the worker did not make any reference to a report of ‘audiological testing’ as a document that was ‘not yet available’ but expected, in the ‘Application to Resolve a Dispute’ filed in the original proceedings.
At the first telephone conference on 20 March 2003 the worker’s legal representative indicated that he was arranging for noise level tests to be carried out on all the equipment used by the worker at the Hastings Council. On the basis that this report would be available by 8 May 2003 a second teleconference was scheduled. This is not the Commission’s usual practice (which is to hold only one teleconference) and it appears that the benefit of a second teleconference, where settlement of the dispute could be discussed, was offered to accommodate the fact that the worker’s evidence was not yet complete.
On 6 May 2003 the worker’s legal representative sought to have the matter ‘stood over’ for two months because the audiological testing had not been carried out. This request was refused and the Arbitrator gave directions that the parties file all further evidence and submissions on or before 23 May 2003, for the Appellant, and 6 June 2003, for the Respondent. The Arbitrator also directed that the question of liability was to be determined on the papers following the receipt of further evidence and submissions.
This approach is consistent with the statutory objectives of the Commission (found in section 367 of the 1998 Act) in particular the desire to be fair, just, informal and timely in resolution of workers compensation disputes. The notion that matters will be ‘stood over’ in the Commission for long, or indefinite, periods is inconsistent with the achievement of these objectives.
The Applicant duly filed further evidence and submissions on 23 May, and 27 May 2003. The Respondent also filed further evidence and submissions.
The result was that the Applicant had from 9 December 2002 until 23 May 2003 to file evidence of audiological testing of the workplace, and did not do so. This represents more than a fair extension of time for compliance with the Rules, which required this evidence to be filed, or notified, at the time of the application. The onus is on the Applicant to prepare his case in accordance with the Rules of the Commission and in this matter he did not do so.
It is also entirely appropriate for the Arbitrator to determine the question of liability prior to referral to an AMS and this is the Commission’s common practice. Clearly there will be no need to utilize the resources of the AMS, if no liability is found in the Respondent. The parties’ respective financial positions have no bearing whatsoever on this practice.
There was no denial of procedural fairness to either party in the conduct of this matter.

DECISION

The decision of the Arbitrator is confirmed.

COSTS

The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the 1998 Act. That section provides, relevantly, that:
345Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)   if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)   if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount, as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)   the insurer’s costs on the appeal, and
(b)   the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable   as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.

The parties are urged to come to an agreement as to the costs of the appeal, taking this provision into account.

Dr Gabriel Fleming
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President, Dr Gabriel Fleming, Workers Compensation Commission.

Registrar

Date:

[2003] NSWWCCPD 38

16 December 2003