Eraring Energy v Brownlie
[2008] NSWWCCPD 42
•8 April 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Eraring Energy v Brownlie [2008] NSWWCCPD 42
APPELLANT: Eraring Energy
RESPONDENT: Dennis Warren Brownlie
INSURER:Self-Insured
FILE NUMBER: WCC5509-07
DATE OF ARBITRATOR’S DECISION: 24 September 2007
DATE OF APPEAL DECISION: 8 April 2008
SUBJECT MATTER OF DECISION: Boilermaker’s deafness; determination of ‘last noisy employer’ in a claim for “further loss of hearing” under section 17 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Goldrick Farrell Mullan
Respondent: Aubrey Brown Partners
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 24 September 2007 is revoked and the following order made:
“1.Award for the Respondent Employer.
2.No order as to costs.”
No order as to costs of the appeal.
INTRODUCTION
This appeal concerns the determination of the identity of the last noisy employer in respect of a claim for a “further loss of hearing” under section 17 of the Workers Compensation Act 1987 (‘the 1987 Act’).
BACKGROUND
Dennis Brownlie (‘the Respondent Worker’) is currently 63 years old. He has had several employers throughout his career, but for the purposes of this decision the following are relevant:
a) 1978 – 1988 employed by Eraring Energy (formerly known as the Electricity Commission of New South Wales) (‘the Appellant Employer/Eraring’) as a trade assistant;
b) 1993 – 1994 employed by Sarah Lee in the wash room, as a cleaner;
c) 1994 – 1996 employed at Peate Island Medical Centre as a cleaner, and
d) 1996 – 2005 employed by Arnott’s Biscuits in Queensland as a cream mixer.
In 1991 Mr Brownlie brought a claim for compensation for binaural hearing loss against Eraring in the former Compensation Court of NSW (‘the first claim’). That claim was presumably made on the basis that he had sustained an injury, being a hearing loss, of such a nature as to be caused by a gradual process, that is, boilermaker’s deafness or deafness of a similar origin (section 17(2) of the 1987 Act). The evidence does not suggest Mr Brownlie has any other kind of hearing loss. The parties settled the first claim on 26 February 1991 on the basis of an award for Mr Brownlie in the sum of $3,100.80 in respect of a hearing loss of 5.16% (‘the hearing loss’). Whilst the Terms of Settlement are in evidence, they do not indicate the deemed date of injury, but I assume that the deemed date of injury was the last day on which Mr Brownlie worked for Eraring.
Since the 1991 settlement Mr Brownlie worked for Sarah Lee (found by the Arbitrator not to be noisy), Peate Island Medical Centre (agreed not to be noisy), and Arnott’s Queensland (found by the Arbitrator to be noisy). Over time, Mr Brownlie’s hearing has deteriorated. By letter from his solicitor dated 30 June 2006 he “made a further claim in respect of industrial deafness” (emphasis added) against Eraring in the sum of $8,216.00 in respect of a binaural hearing loss of 12.64%, representing his alleged current hearing loss (17.8%) less his previous agreed loss (5.16%) (‘the further loss’). Eraring denied liability for the claim for further hearing loss and on 23 July 2007 Mr Brownlie’s solicitors filed an Application to Resolve a Dispute (‘the Application’) in the Commission claiming lump sum compensation in the terms set out in their letter of 30 June 2006.
The matter proceeded to arbitration on 5 September 2007 and in a reserved decision delivered on 24 September 2007 the Arbitrator determined that Eraring was the last relevant noisy employer under the terms of section 17 of the 1987 Act and that it was therefore liable for Mr Brownlie’s hearing loss.
By an appeal initially filed on 19 October 2007 Eraring seeks leave to appeal against the Arbitrator’s determination. The Respondent Worker’s solicitors filed a Notice of Opposition to Appeal Against Decision of Arbitrator on 29 November 2007 which states “The Respondent Worker is impecunious and unwilling to risk any adverse costs order. Accordingly, the worker makes a submitting appearance only”. I am satisfied that Mr Brownlie is aware of the appeal, had received legal advice and that he has had the opportunity to be heard on the appeal.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
I am satisfied that the thresholds in section 352(2) are satisfied.
Time
The appeal was initially filed within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act, but rejected by the registry by letter dated 22 October 2007 (received by the Appellant Employer’s solicitors on 23 October 2007) because Part 2 of Form 9 (Appeal Against Decision of the Arbitrator) had been omitted. The appeal was filed again on 23 October 2007, one day out of time. By facsimile dated 31 October 2007, the registry requested the Appellant Employer to provide submissions in support of an extension of time in which to appeal.
The appeal was filed again on 2 November 2007 with submissions setting out the above history and seeking an extension of time. By email received by the Commission at 9:26am on Wednesday 2 April 2008, the Respondent Worker’s solicitor confirmed that he had received these submissions.
The appeal is out of time because the Appellant Employer’s solicitor failed to complete pages 4, 5 and 6 of Form 9. Practice Direction No 6 makes it crystal clear that Form 9 must be completed “in full” and that written submissions must be attached to the Form. Those submissions are not intended to be a substitute for the Form 9. That a solicitor would simply ignore the clear terms of the Practice Direction is unsatisfactory.
An extension of time in which to appeal can be granted in certain limited circumstances. Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 provides:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
In the absence of any opposition to the application to extend the time in which to appeal, I am prepared, in the exceptional circumstances of this case, to extend the time to appeal for the following reasons:
a) the appeal was initially filed in time;
b) there is no prejudice to the Respondent Worker;
c) the Appellant Employer acted promptly to rectify the defect in the Form 9;
d) the delay is minimal, and
e) the appeal raises points that are strongly arguable.
I extend time to appeal until 2 November 2007 and grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 September 2007, records the Arbitrator’s orders as follows:
“1.The Respondent was the last employer by whom the Applicant was employed in employment to the nature of which his injury, binaural hearing loss, was due.
2.The matter is remitted to the Registrar for referral to an AMS.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in finding that Eraring was the last noisy employer in relation to the Respondent Worker’s claim for further hearing loss and in failing to distinguish the Court of Appeal decision of A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; (1996) 14 NSWCCR 158(‘Civitarese’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
THE ARBITRATOR’S FINDINGS
Mr Brownlie gave evidence that he had a health check-up before he started at Eraring and was “given the okay” (T3.55). Mr Brownlie was then overseas for a period and started work at Sara Lee in 1993 where “there was no real noise exposure” as all he did was clean out tubs and bowls (see Mr Brownlie’s statement 31 August 2007, page two). The Arbitrator accepted this evidence and found that Mr Brownlie’s employment with Sarah Lee was not ‘noisy’ (Statement of Reasons for Decision (‘Reasons’), paragraph 37). This finding is not challenged on appeal.
It is not disputed that Mr Brownlie’s next employment, as a cleaner with Peate Island Medical Hospital, was not noisy.
He then worked with Arnott’s Biscuits in Queensland from 1996 until 2005. As Arnott’s is outside the jurisdiction and not bound by the terms of the 1987 Act, the question of whether Mr Brownlie’s employment with that company was noisy is irrelevant to the current claim. However, the evidence as to the noise to which Mr Brownlie was exposed with Arnott’s was insufficient to establish noisy employment in any event. Mr Brownlie said that there was “some noise” but “it wasn’t very noisy” (Mr Brownlie’s statement 31 August 2007, page two), though he wore earmuffs during this period. This evidence fell well short of establishing that Mr Brownlie’s employment with Arnott’s was employment “to the nature of which the injury [of boilermaker’s deafness or deafness of like origin] was due” within the terms of section 17(1)(a)(ii) of the 1987 Act and the Arbitrator erred in finding that Arnott’s was a noisy employer. As to the evidence required to establish noisy employment under section 17 of the 1987 Act, see the detailed discussion in Dawson and others t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35. This error is of no consequence as Arnott’s is not a New South Wales employer.
The Arbitrator then considered the effect of Civitarese. In that case the worker had worked for a noisy employer in New South Wales for several years and then for a noisy employer in the Northern Territory. There was no issue as to injury (159G) and, for reasons set out below, this is of considerable importance to the analysis of the matter before me. The trial judge found that the last relevant noisy employer was the New South Wales employer. On appeal, the employer argued that section 17(1)(c)(ii) should be read as if the words in bold below were inserted:
“compensation is payable by:
…
(ii) …the last employer by whom the worker was employed in an employment to the nature of which the injury was due but only if the last such employment was in New South Wales before he or she gave notice.”
The Court of Appeal rejected this submission. Beazley JA (Handley and Sheller JJA agreeing) observed, at 160G:
“All that is necessary under the section [section 17] is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann (1932) 47 CLR 426 at 440; Russo v World Services & Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690, section 17 proceeds on a series of fictions or assumptions, upon which a worker’s entitlement to recover an award under section 66 is based.”
As the 1987 Act does not have extra-territorial operation, the Court held that section 17 operated to make the New South Wales employer the last noisy employer (161C). In other words, the appellant was the last employer to whom the legislation applied and it was thus liable to pay the compensation claimed by Mr Civitarese.
Applying Civitarese, the Arbitrator found Eraring to be the last noisy employer.
SUBMISSIONS AND FINDINGS
The Appellant Employer argues that there is a clear distinction between an injury that is a “loss of hearing” and an injury that is a “further loss of hearing”, and the Arbitrator erred in failing to distinguish between the two types of injuries.
The relevant parts of Section 17 provide:
“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,
(b) …,
(c) compensation is payable by:
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury-that employer, or
(ii) where the worker was not so employed-the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice;” (emphasis added)
It is significant to note that section 17 does not talk about the injury being “a disease which is of such a nature as to be contracted by a gradual process” (see section 7(4) and 7(4B) of the Workers Compensation Act 1926 (‘the 1926 Act’), which itself was amended in 1981 to accord with the opening words of the current section 17 of the 1987 Act). It provides that the unusual (“fictional”) basis on which the section proceeds is premised upon an injury being “a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process”. The relevance of this change is that it is not sufficient to merely claim against the last employer in the jurisdiction whose employment was employment to the nature of which “the disease” was due, as was the case, for example, in Russo v World Services & Constructions Pty Ltd [1979] 1 NSWLR 330.
The injury for which Mr Brownlie seeks compensation is a “further loss of hearing”, not “a disease which is of such a nature as to be contracted by a gradual process”. Normally, to recover compensation, a worker must have received an “injury” (section 9 of the 1987 Act) and employment must be a substantial contributing factor to the injury (section 9A of the 1987 Act). However, in respect of an injury that is a “loss, or further loss, of hearing”, section 17 applies and compensation is payable by a New South Wales employer who last employed the worker in “an employment to the nature of which the injury [loss or further loss of hearing] was due”. In other words, as explained below, the relevant employment need not have caused the loss or further loss for which compensation is claimed, but it must have been employment to the nature of which the loss was due.
Whilst the current Application did not make it clear that Mr Brownlie’s claim was for a “further loss of hearing”, that fact was made clear in the Respondent Worker’s solicitor’s letter of 30 June 2006 where the claim was described as a “further claim”. It is also clear from paragraph 43 of the Arbitrator’s Reasons, where he referred to “the present claim involving a subsequent hearing loss”, that the current claim is a claim for “further loss of hearing”. The Commission is not a court (Orellana-Fuentes v Standard Knitting Mill Pty Ltd & Anor; Carey v Blasdom Pty Ltd t/as Ascot Freightlines & Anor (2003) 57 NSWLR 282; [2003] NSWCA 146) and is not bound by strict rules of pleadings. Its proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits (section 354(1) of the 1998 Act). The issue argued by the Appellant Employer on appeal was well and truly raised, argued and considered at the arbitration and Mr Brownlie’s solicitor addressed on it at length (T7-8). Therefore, nothing turns on the fact that the Application did not make it clear that the claim was for a “further loss of hearing”, as it should have.
The Appellant Employer argues that for there to be an injury by way of a further loss there must have been an initial injury by way of a loss of hearing. I agree with that submission. In the present matter the evidence from Mr Brownlie, together with the Terms of Settlement of 4 April 1991, comfortably establishes that he sustained an injury, being a “loss of hearing”, as a result of his employment with Eraring between 1978 and 1988. That is, his injury in the first claim was “a loss of hearing” within the meaning of section 17. His current claim is in respect of an injury that is a “further loss of hearing” and that is “the injury” to which the deeming provisions of section 17 are directed. This interpretation of “injury” is confirmed in section 17(1)(e)(i) where “prior injury” is referred to as “a loss of hearing or a further loss of hearing”.
Given that the injury on which Mr Brownlie now bases his claim is a “further loss of hearing”, that further loss is deemed to have happened, where the worker was not employed in noisy employment at the time when he gave notice of the injury, on the last day on which he was employed in an employment to the nature of which the injury (in this case, the “further loss of hearing”) was due before he gave the notice. That employment must be employment after the initial loss for which Mr Brownlie was compensated in 1991 and cannot be the employment with Eraring between 1978 and 1988. No New South Wales employer employed Mr Brownlie in employment to the nature of which his further hearing loss is due and he has no entitlement to compensation under section 66 of the 1987 Act in respect of his further loss.
Further, this is not a case where Mr Brownlie’s further hearing loss can be said to have resulted from his initial hearing loss. The evidence is undisputed that boilermaker’s deafness is not a progressive condition. Dr Williams, ENT Specialist, observed in his report of 8 June 2006 that occupational induced hearing loss will not progress in the absence of occupation noise (or, I assume, other noise exposure). In other words, once the exposure to noise stops, so does the damage it causes.
I do not agree, however, with the Appellant Employer’s submission that for Mr Brownlie to succeed he had to establish that his further loss of hearing was due to the nature of work he undertook subsequent to his initial hearing loss. Attention must be directed not to whether the employment 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” (Blayney Shire Council v Lobley & another (1995) 12 NSWCCR 52 at 64D). In the present case, the “injury” for which compensation is claimed, and for which liability is disputed, is the “further loss of hearing” and Mr Brownlie’s entitlement is against the last employer by whom he was employed (in New South Wales) in employment to the nature of which his further loss was due. He had to establish that he engaged in noisy employment in New South Wales at some time between 4 April 1991 and 30 June 2006. As he is unable to do that his claim must fail.
As Beazley JA expressly observed in Civitarese, “injury” was not in issue in that case. The Court of Appeal did not consider the issue argued before me. Injury is in issue in the present matter and the Arbitrator erred in his application of Civitarese because that case did not concern the determination of the deemed date of injury in respect of a claim for a “further loss of hearing”.
Whilst the Respondent Worker has not made submissions on appeal, his solicitor made representations before the Arbitrator along the lines set out in the Arbitrator’s decision. I have carefully considered those submissions and, for the reasons set out above, I do not believe they are sustainable.
DECISION
The Arbitrator’s determination dated 24 September 2007 is revoked and the following order made:
“1.Award for the Respondent Employer.
2.No order as to costs.”
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
8 April 2008
I, NING DONG, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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