Fairfield City Council v Deguara - [2019] NSWWCCPD 1

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Fairfield City Council v Deguara [2019] NSWWCCPD 1
APPELLANT:	Fairfield City Council
RESPONDENT:	Peter Deguara
INSURER:	Self-insured
FILE NUMBER:	A1-2216/18
ARBITRATOR:	Mr N Read
DATE OF ARBITRATOR’S DECISION:	31 July 2018
DATE OF APPEAL HEARING:	4 December 2018
DATE OF APPEAL DECISION:	18 January 2019
SUBJECT MATTER OF DECISION:	Whether the requirement to establish employment was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) applies to a hearing loss claim made pursuant to s 17 of the 1987 Act; s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 – date upon which the worker became aware of his injury; application of Heatcraft Australia Pty Ltd v Lapa [2007] NSWWCCPD 27, Ingham’s Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17, Unilever Australia Ltd v Petrevska [2013] NSWCA 373; 13 DDCR 260; loss of hearing and further loss of hearing – separate injuries; Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 applied; procedural fairness – discretion to refuse an application to cross-examine
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Saul, instructed by Leigh Virtue & Associates
Respondent:	Mr S Grant, instructed by Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 31 July 2018 is confirmed.

INTRODUCTION

Mr Peter Deguara was employed by Fairfield City Council (Fairfield) in the road construction crew from approximately 1984 until August 2013. He also worked in the maintenance crews from time to time.
On 7 September 1992, Mr Deguara made a claim against Fairfield for lump sum compensation in respect of noise induced hearing loss. The matter resolved by way of agreement between the parties that Mr Deguara suffered from 1.7% binaural hearing loss.
Mr Deguara made a second claim for lump sum compensation on 21 April 2017 in respect of a further 12% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), based on the opinion of Dr Joseph Scoppa, ear, nose and throat specialist. Mr Deguara also claimed the cost of hearing aids pursuant to s 60 of the 1987 Act.
Fairfield disputed Mr Deguara’s claim.

BACKGROUND

Mr Deguara’s binaural hearing loss had also been assessed on 14 July 2008 by Quality Occupational Health at the request of Fairfield. The report recorded that Mr Deguara suffered from 39.7% binaural hearing loss.[1] The test was undertaken “for the purpose of preplacement only” and Mr Deguara did not pursue a claim for compensation in respect of that assessment.
[1] Application to Resolve a Dispute (ARD), pp 8–9.
Following Mr Deguara’s second claim for compensation made on 21 April 2017, Fairfield arranged for Mr Deguara to attend Dr John Seymour, ear, nose and throat specialist, for assessment. Dr Seymour assessed Mr Deguara as suffering from 7% WPI resulting from noise exposure.
By letter dated 3 July 2017, Fairfield disputed Mr Deguara’s claim.[2] The claim was disputed on the basis that Fairfield alleged:
(a)    Mr Deguara did not sustain an injury as alleged;
(b)    his employment did not have the tendencies, incidents and characteristics necessary to cause hearing loss;
(c)    Fairfield was not the last “noisy” employer;
(d)    employment with Fairfield was not the main contributing factor to the cause or aggravation of the disease;
(e)    the degree of impairment (if any) did not exceed 10%, so that no compensation was payable;
(f)    any medical treatment was not reasonably necessary as a result of injury, and
(g)    Mr Deguara was precluded from claiming compensation because he had failed to comply with the requirements in respect of giving notice of injury (s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) and the time frames prescribed for making a claim (s 261 of the 1998 Act).
[2] Reply to Application to Resolve a Dispute (Reply), pp 15–16.
The claim proceeded to arbitration on 4 June 2018. The issues that remained in dispute were identified by the Arbitrator as:
(a)    whether Mr Deguara suffered an injury;
(b)    whether employment was a main contributing factor to the injury;
(c)    whether the claim was defeated by operation of ss 254 and 261 of the 1998 Act, and
(d)    whether the hearing aids were reasonably necessary.
The Arbitrator issued a Certificate of Determination dated 31 July 2018. He determined that Mr Deguara suffered from noise induced hearing loss and that Mr Deguara’s employment with Fairfield was the main contributing factor to the hearing loss. The Arbitrator further found that ss 254 and 261 of the 1998 Act did not prevent Mr Deguara from claiming compensation and that hearing aids were reasonably necessary. He remitted the matter to the Registrar for referral to an Approved Medical Specialist for assessment of Mr Deguara’s binaural hearing loss.
Fairfield appealed the Arbitrator’s decision.

ON THE PAPERS

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.”
Fairfield requested an oral hearing of the appeal. Fairfield submitted an oral hearing was required because at the time of filing the Application – Appeal Against Decision of Arbitrator (the appeal), the transcript of the arbitration was not available. Fairfield also submitted that an oral hearing was required because of the complex legal and factual issues involved in the appeal and because of “important distinguishing features associated with the [a]ppeal so far as those features relate to the [a]uthorities of the Court of Appeal relied on by the Arbitrator in coming to his decision.”[3]
[3] Fairfield’s appeal submissions, [3].
Mr Deguara said that the appeal could be determined ‘on the papers’, without making any submissions to that effect or in response to Fairfield’s submissions.
Fairfield took the opportunity to file supplementary submissions following receipt of the transcript. Fairfield does not identify why the issues on appeal are complex or what are the distinguishing features of the appeal. Nor do its submissions identify, discuss or refer to any decision relied on by the Arbitrator.
In accordance with Practice Direction No 1, the factors that I am required to consider include whether an oral hearing has been requested, whether the parties have addressed on all issues and the complexity of the legal and/or factual issues.
Fairfield has had the opportunity to make written submissions. It has also taken the opportunity to make supplementary submissions upon receipt of the transcript of the arbitration. Mr Deguara has had the opportunity to respond.
Practice Direction No 1 (as it provided at the time of filing the submissions) required as follows:
“It is the responsibility of the parties to ensure that the Presidential member is properly and comprehensively informed in writing of the grounds of and issues on appeal, and that any objection to a determination on the papers is clearly stated and supported by specific and cogent reasons.”
The parties cannot expect that a request for an oral hearing will be granted and in the circumstances, an oral hearing would not normally be warranted.
However, as discussed below, the parties had failed to address a number of matters in their submissions.
Fairfield assert that the decision appealed is not interlocutory. Mr Deguara does not address whether the decision is or is not interlocutory. As discussed below, I formed the view that submissions should have been made as to whether the decision is a final decision, or why leave ought, or ought not, to be granted in the event that the decision appealed against is interlocutory.
Fairfield, in its submissions made following receipt of the transcript, amended its submissions on appeal by substituting page five of the original submissions. Mr Deguara had not addressed those amended submissions.
Neither party identified any Court of Appeal authorities relevant to the appeal.
In the circumstances, in order to remedy the less than satisfactory state of the written submissions and to dispose of the appeal efficiently and in a timely manner, an oral hearing of the appeal was appropriate.

THRESHOLD MATTERS

The appeal was filed within the time prescribed by s 352(4) of the 1998 Act.
Neither party made submissions in respect of why the amount of compensation at issue and the percentage of compensation awarded satisfied the threshold to appeal required pursuant to s 352(3) of the 1998 Act.
The Arbitrator ordered Fairfield to pay the costs of Mr Deguara’s bilateral hearing aids (which are claimed to be $5,237.80) and associated expenses. Further, Mr Deguara claims $17,050 in respect of 12% WPI pursuant to s 66 of the 1987 Act. The total amount claimed, which is at issue in this appeal, exceeds the monetary threshold required by s 352(3) of the 1998 Act.

Whether the decision appealed against is interlocutory in nature

Section 352(3A) of the 1998 Act provides that there is no appeal against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless it is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
At the oral hearing on 4 December 2018, Fairfield maintained that the decision was a final order because the issues of injury, the issues relating to notice of injury (s 254 of the 1998 Act) and the requirement to notify the claim pursuant to s 261 of the 1998 Act had been finally determined. In the alternative, if the matter was interlocutory, leave to appeal ought to be granted because to deal with the matter before the referral to the Approved Medical Specialist would avoid costs and delay.
Mr Deguara asserted that whether the decision was interlocutory was a matter for the Commission, but if not, the decision was final and not interlocutory.
The determination of whether an order is final or interlocutory requires a consideration of whether the determination finally determines the rights of the parties in respect of a principal cause pending between them. The question is answered by determining whether the legal, rather than the practical, effect of the judgment is final.[4]
[4] Despot v Registrar General of New South Wales [2016] NSWCA 5 per Gleeson JA (Leeming JA and Sackville AJA agreeing), [93].
The Arbitrator has determined the substantive issues of injury, and whether Mr Deguara gave notice of injury and brought his claim for compensation within the time limits prescribed by ss 254 and 261 of the 1998 Act. Those principal issues between the parties have been finally dealt with and on that basis the Arbitrator’s determination is final, rather than interlocutory.

THE EVIDENCE

Mr Deguara’s evidence

Mr Deguara provided a statement dated 29 August 2016.[5] He said that he worked for Fairfield for almost 29 years. Prior to that employment, he had been employed in office work in the banking industry. Mr Deguara described the work that he did with Fairfield and said that working on the roads was extremely noisy. He worked in and around a machine called a road planer, which removed the layers of the road surface by chewing up the top layer. He said he also worked near a large saw machine, which cut through surfaces. He operated backhoes, graders and rollers and a whacker packer, or compacting machine, was also used.
[5] ARD, pp 15–16.
Mr Deguara said that all this equipment was very noisy, the noise was fairly constant and was added to by the noise of the general traffic.
He said he had no noisy hobbies.
Mr Deguara mentioned that in 1993 he received compensation for 1.7% binaural hearing loss. He added that he had other hearing tests organised by his employer that disclosed he had hearing loss exceeding 50% in both ears. He described suffering from ringing in the ears, that his right ear was worse (which he ascribed to driving near trucks with his right window down), and difficulties with speech discrimination.
Mr Deguara advised that he needed to look at people and lip read to know what they were saying and he found his hearing problems very frustrating. He said he would very much like to have hearing aids.
Mr Deguara provided a supplementary statement dated 13 October 2017.[6] He confirmed that he had no other employment than in the banking industry and with Fairfield. He further confirmed that the claim he made in 1993 was brought about by Fairfield encouraging all its outdoor employees to undergo hearing tests, which Fairfield organised.
[6] ARD, pp 17–19.
Mr Deguara said that in 2008, Fairfield again arranged for his hearing to be tested and the report indicated that he did have binaural hearing loss. He said that it was never explained to him that this loss was work-related or otherwise. He did not recall any paperwork associated with a notice of injury, claim form or compensation.
Mr Deguara confirmed he continued to work for Fairfield until 16 August 2013. He described the ongoing difficulties with his hearing, and with communicating, sleeping and socialising.
Mr Deguara said that he was not acquainted with any lawyers and had no reason to consult a lawyer after 1993. He said he tried to pretend his hearing was not a problem.
Mr Deguara further said that while he was not unaware of an entitlement to claim for industrial deafness, he was not aware of any obligation to give notice to his employer of an injury and of any time limits for making a claim. He added that after ceasing work, he had more time to socialise and he became more aware of his hearing problems, which were causing strain in his relationships, especially with his wife. Mr Deguara said that it was his wife who prompted him, very strongly and not very long ago, to have his hearing checked. It was then he consulted Hearing Aid Services Australia, who he consulted on 12 August 2016.
Mr Deguara stated that he was advised by Hearing Aid Services Australia that his hearing loss was quite serious. He was also advised that the frequencies shown on the test results suggested the hearing loss was work-related. Mr Deguara was given the name of a lawyer, but on 15 August 2016 he contacted the lawyers recommended by his former trade union, who arranged a consultation and referred him to see Dr Scoppa.
In a further statement dated 2 February 2018,[7] Mr Deguara denied that he was given any details of the nature of his hearing loss or any advice that his hearing loss was sustained at work following the assessment in 2008. Mr Deguara recalled that, after the assessment by Hearing Aid Services Australia in 2016, they spoke to him, saying words to the effect of “some of your hearing loss may be from noise exposure at work.” He said that he was certainly aware that his hearing loss was getting worse, but that he assumed it was likely to be age-related deterioration. He added that since his consultation with his lawyers on 15 August 2016, he left all procedural steps in relation to his claim with his lawyers.
[7] ARD, p 20.
Mr Deguara referred to an entry in his treating general practitioner’s notes where Dr Renato Di Mascio recorded industrial hearing loss, examined Mr Deguara’s ears and noted “drum/ audiogram tympanogram”. Mr Deguara recalled very little of that consultation, but stated he was never referred for an audiogram or tympanogram. He conceded he may have complained of hearing problems, but certainly did not recall the doctor suggesting he had industrial deafness.
Mr Deguara’s legal representative, Mr Scott Dougall also provided a statement dated 6 February 2018.[8] Mr Dougall said that he first met Mr Deguara in conference on 15 August 2016. Mr Deguara showed Mr Dougall documents from Hearing Aid Services Australia that revealed there was a recent hearing test and that the audiologist had suggested that the hearing loss may be work-related.
[8] ARD, p 21.
Mr Dougall said that Mr Deguara told him of the nature of the work he had performed at Fairfield. Mr Dougall said that he advised Mr Deguara that there was a potential claim against Fairfield, but that it was necessary to obtain an opinion from a medicolegal specialist. Arrangements were made for that examination, but in the mean-time it was necessary to obtain Mr Deguara’s treating doctor’s notes, Fairfield’s employment records and he needed to apply for legal funding.
Mr Dougall stated that Mr Deguara attended Dr Scoppa on 28 February 2017, who had never treated Mr Deguara.
Mr Dougall said that Dr Scoppa’s report was received some weeks after that examination. Dr Scoppa opined that on the balance of probabilities, Mr Deguara’s employment was a substantial contributing factor to his industrial deafness.
Mr Dougall stated that a claim form was sent to Mr Deguara for his signature and following its return, was forwarded to Fairfield on 21 April 2017.
Mr Deguara relied on the opinion of Dr Scoppa. Dr Scoppa’s report dated 28 February 2017 and the hearing assessment report were annexed to the ARD.[9]
[9] ARD, pp 1–8.
Dr Scoppa recorded a history of Mr Deguara’s hearing difficulties and noted that there was a long history of exposure to the noise of plant machinery including graders, loaders, whacker-packers, backhoes, compactors, road planers, compressors, jack hammers and power tools over the course of 8 to 12 hours per day.
Dr Scoppa performed an audiological evaluation and on the basis of the results, assessed a total binaural hearing impairment of 66.7%, of which 41% was unrelated to noise exposure, leaving a balance of 26.7% binaural hearing loss attributable to industrial deafness (allowing 2% for tinnitus and deducting 1% for presbycusis). The binaural hearing loss due to industrial deafness was converted to 13% WPI.
Dr Scoppa opined that Mr Deguara’s hearing loss was not entirely due to noise exposure because of the presence of low tone involvement. He formed the view that the hearing loss in both ears at 2000 Hz and above was due to industrial deafness. He stated that on the basis of the history of employment, the tendencies, incidents and characteristics of that employment would give rise to a real risk of boilermakers’ deafness or deafness of a like origin. He added that the employment was a substantial contributing factor to the noise induced hearing loss. He also considered that bilateral digital hearing aids would benefit and were reasonably necessary for rehabilitation of Mr Deguara’s noise induced hearing loss.
Dr Scoppa opined that after deduction for the previously compensated hearing loss of 1.7%, Mr Deguara had suffered a further loss of 12% WPI.
The Hearing Assessment Report dated 14 July 2008 was also annexed to the ARD.[10] That document described Mr Deguara’s occupation with Fairfield as “working-ganger”, using “jack hammers and power tools at work”. The binaural hearing loss was recorded as 39.7%. The document indicated that the hearing test was for “preplacement only”.
[10] ARD, pp 8–9.
The results of the test performed by Hearing Aid Services Australia on 12 August 2016, recorded a finding of 53.9% binaural hearing loss. That document was also in evidence.
Mr Deguara further relied on a letter and quotation for hearings aids from Ms Meredith Krejzlik, audiometrist, as well as an account for the cost of those hearing aids. Ms Krejzlik identified the areas of difficulty Mr Deguara was experiencing as a result of his hearing impairment and made a recommendation of the type of hearing aid that would most benefit Mr Deguara. The quotation indicated that the cost of the hearing aids (including fitting) was $5,237.80.
Further documents were annexed to the ARD.[11] Those documents comprised:
(a)    a letter dated 15 March 1993 from Goldrick Farrell Mullan, solicitors, directed to Mr Deguara, confirming that the offer of $1,422.13 made by Fairfield in respect of 1.7% binaural hearing loss had been accepted. It advised that the relevant forms to finalise the claim had been sent to Fairfield;
(b)    a copy of the permanent impairment claim form dated 18 April 2017, claiming 12% WPI, as well as a covering letter of service of the claim directed to Fairfield and dated 24 April 2017 (with a copy of Dr Scoppa’s report annexed);
(c)    a letter from Leigh Virtue & Associates dated 3 July 2017 disputing the claim and enclosing a copy of the report of Dr Seymour dated 29 May 2017, and
(d)    a letter dated 21 August 2017 from Mr Deguara’s legal representatives to Leigh Virtue & Associates in response to a Notice for Production and an authority to release information sent by Leigh Virtue & Associates. Mr Deguara’s legal representatives advised that as no conduct money was provided and the terms of the notice were too broad, in their view, the notice was not valid.
[11] ARD, pp 22–32.

By way of an Application to Admit Late Documents dated 2 July 2018, Mr Deguara filed a further letter from his legal representatives directed to Leigh Virtue & Associates, informing them that any request to cross-examine witnesses should have been made at the teleconference. The letter alleged no such request was made, and in any event if that request included Mr Dougall, he was not available on the day of arbitration.

Fairfield’s evidence

Fairfield relied on the opinion of Dr Seymour, provided in his report dated 29 May 2017.[12]
[12] Reply, pp 7–12.
Dr Seymour took a history of Mr Deguara’s slowly progressive hearing loss over the previous twenty years, with the loss being more evident in the last ten years. Dr Seymour recorded the history of Mr Deguara’s employment, including that Mr Deguara was consistently exposed to noisy tools and equipment each day for eight to ten hours. Dr Seymour further noted the lack of any relevant medical history (other than the claim made in 1993) and the absence of other noise exposure.
Dr Seymour performed a clinical examination and audiometric testing. He assessed the WPI as 8% after deduction for presbycusis, which resulted in a WPI of 7% after the previously compensated 1.7% binaural hearing loss was taken into account. Dr Seymour was of the opinion that it was reasonable to attribute the assessed hearing loss to acoustic trauma from industrial noise during Mr Deguara’s employment with Fairfield.
Fairfield further relied on documents produced by Fairfield District Medical Centre.[13] The notes made by Dr Di Mascio included an entry on 5 January 2016, where the following was noted:
“Industrial hearing loss
Canals clear
Slight scarring drum
Audiogram, Tympanogram”.[14]

THE ARBITRATOR’S REASONS

[13] Reply, pp 20–29.

[14] Reply, p 29.

Preliminary matter

At the arbitration, Fairfield indicated that it wished to reserve its position in respect of an application to cross-examine Mr Dougall, Mr Deguara’s legal representative. Fairfield said that a decision as to whether it wished to cross-examine would be made following the submissions made by Mr Deguara. Mr Deguara objected to that approach, submitting that submissions ought not be made until after the evidence was closed, including any oral evidence. Fairfield confirmed it wished to cross-examine Mr Dougall, indicating that it had given Mr Deguara notice, but also noting that Mr Dougall was not available.
Fairfield submitted that it had made an application at the teleconference to issue a direction on Mr Deguara’s legal representatives to produce their file, and that application was declined. The application to cross-examine was therefore being made because it was the first opportunity Fairfield had to test Mr Dougall’s statement evidence. Fairfield said that it wished to test Mr Dougall’s evidence as to whether there was any reasonable cause for Mr Deguara failing to make his claim within the time prescribed by s 261(4) of the 1998 Act.
Mr Deguara opposed the application and any application for adjournment of the matter as a result of Mr Dougall being unavailable to give oral evidence.
The Arbitrator delivered an oral determination of the application to cross-examine Mr Dougall.[15] The Arbitrator noted that there was no right to cross-examine in Commission proceedings, and that any decision as to whether to allow cross-examination was a discretionary matter. The Arbitrator said the factors to be considered were:
(a)    whether the evidence needed to be clarified;
(b)    whether the evidence needed to be tested, and
(c)    whether there were adverse matters material to the decision which should be put to the witness where there was no previous opportunity to address those matters.
[15] Transcript of Arbitration Proceedings of 10 July 2018 (T), T 5.12–6.9.
The Arbitrator said that on the basis of Fairfield’s submissions, he was not satisfied that Fairfield had been deprived of the opportunity to test the evidence or that cross-examination would clarify the evidence. The Arbitrator observed that the evidence was before him and Mr Deguara would have the opportunity to make submissions on that evidence, and would either succeed or not succeed. The Arbitrator declined to allow the cross-examination and the matter proceeded to arbitration.

The Arbitrator’s substantive reasons

Injury and main contributing factor

The Arbitrator identified the issues in dispute, as recorded above at [8]. He noted the evidence relating to Mr Deguara’s previous binaural hearing loss claim and the assessment of the hearing loss in 2008. He further noted the reference to industrial hearing loss in the general practitioner’s notes.
The Arbitrator reviewed the chronological events leading to Mr Deguara’s claim and the lay evidence setting out the steps taken. He proceeded to a consideration of the evidence of Dr Scoppa, Dr Seymour and Ms Krejzlik.
In his reasons for determination, the Arbitrator observed that the onus of proving injury rested with Mr Deguara, and that he must feel an actual persuasion of the existence of the fact, in accordance with Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[16] He quoted s 17 of the 1987 Act. The Arbitrator said that the terms of s 17(1) make it clear that an injury could be a loss, or further loss, of hearing. He observed that s 17 reflected that industrial deafness is a gradual process and contemplates that further claims can be made.
[16] [2008] NSWCA 246, [44].
The Arbitrator noted that at the arbitration, Fairfield conceded that Mr Deguara’s employment had the tendencies, incidents and characteristics of the type that gave rise to a real risk of injury, in accordance with the principle enunciated in Blayney Shire Council v Lobley.[17] The Arbitrator considered in any event that on the basis of Mr Deguara’s uncontested evidence, which was consistent with the history provided to both Dr Scoppa and Dr Seymour, he was satisfied as to the noisy nature of Mr Deguara’s employment with Fairfield.
[17] (1995) 12 NSWCCR 52 (Lobley).
The Arbitrator determined that the injury was “a further loss”, which he said was relevant to the determination of the issues raised in respect of giving notice of injury and making the claim within the time prescribed by ss 254 and 261 of the 1998 Act.[18]
[18] Deguara v Fairfield City Council [2018] NSWWCC 181 (reasons), [45].
The Arbitrator determined that employment was the main contributing factor to Mr Deguara’s further hearing loss. The Arbitrator reasoned that although part of the further hearing loss was age-related and part work-related, employment was the main contributing factor to the part of the loss that was work-related. He said Mr Deguara did not claim compensation for the non-work-related component. The Arbitrator said that he relied on Mr Deguara’s evidence that he did not engage in any other noisy activities outside of work, and he also relied on the opinions of Dr Scoppa and Dr Seymour. The Arbitrator observed that while Dr Scoppa did not use the precise words of the legislation in respect of his opinion on causation, that of itself was not determinative.
The Arbitrator concluded that the weight of the evidence and expert opinions supported that employment was a main contributing factor to Mr Deguara’s injury and he was satisfied that Mr Deguara suffered an injury within the meaning of ss 4 and 17 of the 1987 Act.

Notice of Injury

The Arbitrator reproduced s 254 of the 1998 Act. He noted that Mr Deguara bore the onus of establishing special circumstances within the meaning of s 254(3)(a) of the 1998 Act. The Arbitrator further noted that it was common ground between the parties that the first notice of injury was given on 21 April 2017 and the claim was made on 21 April 2017, which satisfied ss 260 and 261 of the 1998 Act.
The Arbitrator observed that Mr Deguara was required to establish special circumstances existed in order to be entitled to make a claim for compensation.
The Arbitrator said that Mr Deguara’s submissions in respect of failure to give notice of injury primarily relied on s 254(3)(b), in particular the excuse of “ignorance”. Citing G C Singleton & Co Pty Ltd v Lean,[19] the Arbitrator said that “ignorance” may include a case where the worker is not aware of specific time limitations.
[19] [1970] ALR 129.
The Arbitrator reviewed Mr Deguara’s evidence, noting that Mr Deguara stated he had not consulted a lawyer since his claim in 1993 and was unaware of the time limitations. The Arbitrator noted that there was no evidence that contradicted Mr Deguara’s statement, and there was no available inference that Mr Deguara knew a claim must be made within a reasonable time frame. The Arbitrator accepted Mr Deguara’s evidence, and determined that special circumstances as provided by s 254(3)(b) existed.
The Arbitrator further determined that Fairfield had not been prejudiced by Mr Deguara’s failure to give notice prior to ceasing employment with Fairfield. He said that although the delay in notifying the injury was lengthy, that of itself did not give rise to any prejudice. Relying on Camden Council v Hancock,[20] the Arbitrator said that an actual injustice must be demonstrated, not merely a potential injustice.
[20] [2005] NSWWCCPD 6, [59].
The Arbitrator added that it was difficult to see how any prejudice could arise in circumstances where it was conceded that the employment was of the type that could give rise to injury and Fairfield had the opportunity to properly determine the claim after receipt of Dr Seymour’s report. The Arbitrator also considered that it could be inferred from the nature of the work and the requirement for Mr Deguara to undergo the hearing test undertaken in 1993 and 2008, that Fairfield were aware of the potential for further injury.
The Arbitrator concluded that on the basis of Mr Deguara’s explanation for the delay and the absence of prejudice to Fairfield, he was satisfied that Mr Deguara had made out “special circumstances” pursuant to ss 254(3)(a) and 254(3)(b) of the 1998 Act and there was no bar to the recovery of compensation because of a failure to give notice of injury.

Notice of claim

The Arbitrator recorded the contents of s 261 of the 1998 Act. He discussed the concept of “awareness” of an injury within the meaning of ss 4 and 17 of the 1987 Act and, citing Heatcraft Australia Pty Ltd v Lapa,[21] said that the awareness was not merely awareness of a physical condition.
[21] [2007] NSWWCCPD 27 (Lapa), [37].
The Arbitrator referred to and quoted from Inghams Enterprises Pty Ltd v Jones[22] as authority for the proposition that for a worker to be aware of boilermaker’s deafness, he or she must be aware they are suffering from a sensori-neural hearing loss of such a nature as to be contracted by gradual process, and that their hearing loss has been contributed to by their employment.
[22] [2012] NSWWCCPD 17 (Jones).
The Arbitrator also referred to Tobias AJA’s observations in Unilever Australia Ltd v Petrevska,[23] that knowledge of symptoms was insufficient to establish awareness. His Honour said that because of the nature of sensori-neural hearing loss, what was required was that Ms Petrevska obtain specialist advice that the condition arose out of her employment. It was not until that advice was obtained that Ms Petrevska could have been aware of her injury.
[23] [2013] NSWCA 373; 13 DDCR 260 (Petrevska), [43].
The Arbitrator further referred to the passage from Macfarlan JA’s judgment in Petrevska,[24] where his Honour said that the opinion of a medically unqualified worker would rarely be of value and would rarely constitute knowledge that the worker was aware the hearing loss was caused by his or her noisy employment.
[24] Petrevska, [34].
The Arbitrator identified that the critical issue was when, on the basis of the evidence, did Mr Deguara became aware that he had received an injury, such injury being a further loss of hearing. The Arbitrator noted Fairfield’s submission that Mr Deguara must have become aware he had received an injury in 1992 or 1993 when he made his first claim for industrial deafness, or alternatively in 2008 after he was assessed by Quality Occupational Health. The Arbitrator further noted Mr Deguara’s submission that he first became aware of the injury when he received the report of Dr Scoppa dated 28 February 2017. Alternatively, he first became aware on 12 August 2016, when he attended Hearing Aid Services Australia.
The Arbitrator did not accept that Mr Deguara first became aware of the further injury in 1992. He said that the further loss of hearing had not, at that time, crystallised and it was illogical that Mr Deguara could have been aware of an injury that had not yet manifested itself. The injury, which was a further injury, was in respect of the period from after the 1993 claim was resolved.
The Arbitrator determined that he was also not satisfied that Mr Deguara became aware he had suffered an injury on 14 July 2008, when he underwent further hearing testing. The Arbitrator said that despite the reference on the assessment form to the potential to submit a claim if the hearing loss was greater than 6%, there was no evidence that Mr Deguara was told the further hearing loss was due to his employment. Mr Deguara’s evidence was that it was never explained to him whether the hearing loss assessed in 2008 was as a result of his employment. Further, Mr Deguara remained in employment with Fairfield for an additional five years.
The Arbitrator found Mr Deguara’s evidence that he had not been told that his hearing loss was employment related was an “acceptable proposition,” given that sensori-neural hearing loss may be attributable to a number of causes, particularly when part of Mr Deguara’s further hearing loss was age-related.
The Arbitrator accepted Mr Deguara’s evidence and applying Jones and Petrevska, found that it could not be established that Mr Deguara had actual knowledge that he received an injury in 2008. Despite having had a claim over 15 years earlier, and his unqualified evidence that there were no external causes, the Arbitrator said that constructive knowledge was not sufficient.
The Arbitrator noted that the test performed on 12 August 2016 did not identify who performed the assessment, and accepted that the advice from Hearing Aid Services Australia on 12 August 2016 was only a suggestion. It was not definitive as to the cause of the further hearing loss.
The Arbitrator determined that Dr Scoppa’s report dated 28 February 2017 provided the specialist advice necessary to confirm that the further hearing loss had a causal connection with Mr Deguara’s employment, and Mr Deguara acquired the requisite knowledge at, or shortly after, the examination with Dr Scoppa. Prior to that, Mr Deguara may have speculated as to the cause, but that was insufficient.
The Arbitrator concluded that as he had found Mr Deguara did not become aware of the connection between his hearing loss and the noisy employment until 28 February 2017, the claim for compensation had been made within the time prescribed by s 261(1) of the 1998 Act.

The claim for the cost of hearing aids

The Arbitrator noted that Mr Deguara sought payment of the cost of hearing aids pursuant to s 60(1) of the 1987 Act, for which a quotation had been provided.
The Arbitrator observed that s 60(1) of the 1987 Act provided that if, as a result of injury, treatment expenses were reasonably necessary, the employer was liable for the cost of such treatment.
The Arbitrator referred to the decision of Burke CCJ in Rose v Health Commission (NSW),[25] in which his Honour said that the treatment must be for the purpose of limiting the deleterious effect of the injury, such as surgery, medication, or some other service intended to alleviate the injury, or arrest or abate the progress of the injury, for it to be reasonably necessary.
[25] (1986) 2 NSWCCR 32 (Rose), [42].
The Arbitrator referred to Bartolo v Western Sydney Area Health Service,[26] a further decision of Burke CCJ, where His Honour said that if it is better that the worker have the treatment than not, then it is reasonably necessary.
[26] (1997) 14 NSWCCR 233 (Bartolo).
The Arbitrator then quoted from the decision of Deputy President Roche in Diab v NRMA Ltd,[27] in which the Deputy President set out some of the matters that were relevant to a consideration of whether the treatment was reasonably necessary.
[27] [2014] NSWWCCPD 72 (Diab), [88]–[89].
The Arbitrator considered the evidence of Dr Scoppa and Dr Seymour, who were both of the opinion that Mr Deguara would benefit from the use of hearing aids.
The Arbitrator concluded that it was better that Mr Deguara had the benefit of hearing aids, rather than they be forborne. He took into account the long period of time over which Mr Deguara suffered from hearing loss, the severity of the symptoms, and that both medical experts considered the treatment would benefit Mr Deguara. He made the finding that the provision of hearing aids was reasonably necessary treatment.
The Certificate of Determination issued on 31 July 2018 records:
“1.     The applicant’s claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist to assess permanent impairment as follows:
a)      Body Parts/systems: Bilateral hearing loss
b)      Date of Injury: 16 August 2013 (deemed)
2.     The documents to be referred to the Approved Medical Specialist are:
a)      Application to Resolve a Dispute, and attachments;
b)      Reply, and attachments.
3. Award for the applicant on the claim for medical expenses under s 60 of the Workers Compensation Act 1987. The respondent is to pay the cost of the applicant’s bilateral hearing aids, and associated expenses.”

GROUNDS OF APPEAL

Fairfield appeals the Arbitrator’s determination on the following grounds:
(a) Ground 1: The Arbitrator erred in law in considering that s 17 of the 1987 Act had application in respect of the question of injury (as opposed to it being a deeming provision in respect of liability);
(b)    Ground 2: The Arbitrator erred in fact and law in his consideration and determination of the issue of “main contributing factor”;
(c)    Ground 3: The Arbitrator erred in fact and law in his consideration and determination of the issues under ss 254, 260 and 261 of the 1998 Act, including by reversing the onus of proof and making a finding which is against the weight of the evidence;
(d)    Ground 4: The Arbitrator erred in law in making a distinction between loss of hearing and a further loss of hearing;
(e)    Ground 5: The Arbitrator erred in fact and law in his consideration of the advice given to the appellant by Hearing Aid Services Australia on 12 August 2016, and
(f)    Ground 6: The Arbitrator erred in denying Fairfield procedural fairness.

LEGISLATION

Section 4 of the 1987 Act defines “injury” and relevantly provides as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and …”
Section 17 of the 1987 Act provides as follows (omitting those subsections that relate only to the identification of the employer liable):
“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 he or she gave notice of injury, employed in 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) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c)     compensation is payable by: …”

Section 254 of the 1998 Act sets out the time limit within which an injury must be notified, and the circumstances in which a failure to comply with the time limit may be excused. It provides:
“254 Notice of injury must be given to employer
(1)     Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is 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.
(2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)     Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act.
(4)     In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances:
(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.
(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
Section 261 of the 1998 Act sets out time limits within which a claim for compensation must be made, and the circumstances in which a failure to claim within the prescribed time will be excused. The section provides:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered 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 after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section 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 in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

SUBMISSIONS

Fairfield provided written submissions in support of the appeal when the appeal was filed, but filed further submissions on 10 September 2018, after receipt of the transcript. An amended page 5 of the original submissions was attached to those submissions. The amendment, together with the further submissions, have been incorporated into Fairfield’s substantive written submissions, summarised below.

Ground 1: The Arbitrator erred in law in considering that s 17 of the 1987 Act had application in respect of the question of injury (as opposed to it being a deeming provision in respect of liability)

Fairfield submits that the Arbitrator fell into error by taking into account s 17 of the 1987 Act in his determination of the question of injury. Fairfield says that s 17 (like ss 15 and 16 of the 1987 Act) simply provides a mechanism for determining a deemed date of injury and for fixing liability. It says the question of injury is determined solely by reference to s 4 of the 1987 Act.
Fairfield contends that this error has led to the Arbitrator erroneously making a distinction between loss of hearing and further loss of hearing. Fairfield says there is no such distinction, and a determination of the issues required a consideration of the alleged injury, which was bilateral hearing loss.
In its oral submissions, Fairfield maintained that ss 15, 16 and 17 are exceptional provisions and that there is no difference between diseases within the meaning of s 15 and s 16 of the 1987 Act, such as a skin cancer case or a back injury, and a noise induced hearing loss. It submitted that injury pursuant to s 4 must be satisfied before there is a consideration of s 17. Further, Fairfield submitted that despite the reference to “injury” and “further injury” in s 17, there is no such distinction in respect of hearing loss (which is a disease), and the hearing loss is all part of the same injury.
Mr Deguara says that following his claim in 1992 (which established his employment was noisy), he continued to work in that employment until retirement on 16 August 2013. After retirement, he noticed a deterioration in his hearing. He submits that he became aware that his current, quite severe, hearing loss was work-related. He says that his current claim is distinct from the 1992 claim as it is a further claim with a deemed date of injury being the date he ceased work with Fairfield.
Mr Deguara contends that on that basis, both s 4 and s 17 were “in play” and the Arbitrator did not fall into error.
Mr Deguara submits that there is no basis to assert that the Arbitrator considered that s 17 “had application so far as injury was concerned”. Mr Deguara says that no error is disclosed.
In reply to Mr Deguara’s submissions, Fairfield contends that Mr Deguara’s submissions do not engage with this ground of appeal. Fairfield submits that the reference to “injury” in s 261 of the 1998 Act can only be a reference to “injury” as defined in s 4 of the 1987 Act and has nothing to do with the deeming provision of s 17 of the 1987 Act.

Ground 2: The Arbitrator erred in fact and law in his consideration and determination of the issue of “main contributing factor”

Fairfield submits that no specific evidence was adduced in support of the issue as to whether employment with Fairfield was the main contributing factor to the injury, identified specifically as bilateral hearing loss. Fairfield says that Mr Deguara carried the onus of proof and failed to adduce evidence capable of discharging that onus.
Fairfield refers to the opinion of Dr Scoppa (Mr Deguara’s medical expert), where Dr Scoppa clearly identified the hearing loss as being mainly caused by factors other than noisy employment. Fairfield refers to Dr Scoppa’s assessment of a total binaural loss of 66.6%, but Dr Scoppa’s opinion as to the loss attributable to occupational hearing loss was only 24.7%. Fairfield says that that evidence establishes that the main contributing factor to the binaural hearing loss was non-occupational.
Fairfield submits that its position is further supported by Dr Scoppa’s opinion that the hearing loss in both ears at and above 2000 Hz was due to industrial deafness, and the loss below that level was not related to industrial deafness.
Fairfield concludes that the onus of proving that employment was the main contributing factor rests with Mr Deguara and he has failed to discharge that onus. Further, the available evidence supports Fairfield’s position that employment is not the main contributing factor to the binaural hearing loss.
In its oral submissions, Fairfield asserted that both Dr Scoppa and Dr Seymour found that most of Mr Deguara’s hearing loss was attributable to non-work-related causes. Those other causes were the main contributing factor to the binaural hearing loss. Fairfield later conceded however, that Dr Seymour did not find any hearing loss below the level of frequencies required to establish noise induced hearing loss, but maintained that Dr Seymour had only highlighted the loss that was compensable.
In respect of the application of Lobley, Fairfield submitted that case was determined prior to the amendment of s 4(b)(ii) of the 1987 Act.
Fairfield further conceded that on the basis of Dr Seymour’s report, there was evidence that employment was the main contributing factor. However, it submitted that Mr Deguara bore the onus of proof and Mr Deguara based his case on the opinion of Dr Scoppa.
Mr Deguara states that there was no controversy about the fact that he sustained industrial hearing loss. He submits that neither Dr Scoppa nor Dr Seymour were of the view that his industrial deafness had a complex aetiology. It was, he submits, deafness caused by exposure to noise in employment.
Mr Deguara refers to and quotes Dr Seymour’s opinion that the hearing loss was attributable to acoustic trauma sustained in the course of Mr Deguara’s employment with Fairfield.
Mr Deguara further refers to Dr Scoppa’s opinion, and submits that despite the fact that Dr Scoppa recorded losses below 2000 Hz, that does not diminish the fact that Mr Deguara’s employment with Fairfield was the sole contributing factor to his condition of boilermaker’s deafness.
Mr Deguara maintains that no error of fact or law has been demonstrated.
In his oral submissions, Mr Deguara submitted that s 17 stands apart from ss 15 and 16 and the “main contributing factor” is irrelevant to a consideration of noise induced hearing loss, because of the test in Lobley. Relying on Lobley, he said there was no need for him to prove a causal connection. Mr Deguara submitted that there was no dispute that his employment had the tendencies, incidents and characteristics of noisy employment. Mr Deguara contended that the Arbitrator did not need to address the question of main contributing factor, but even if he did, it would not change the outcome because all of the evidence supports that employment was the main contributing factor to the aggravation. He referred to Murray v Shillingsworth.[28]
[28] [2006] NSWCA 367; 68 NSWLR 451 (Murray).
In reply, Fairfield contends that Mr Deguara categorises the claim as one of “industrial deafness”, which is a term of art and should be correctly identified as binaural hearing loss. Fairfield maintains that the matter for determination was whether employment was the main contributing factor to Mr Deguara’s binaural hearing loss.

Ground 3: The Arbitrator erred in fact and law in his consideration and determination of the issues under ss 254, 260 and 261 of the 1998 Act, including by reversing the onus of proof and making a finding which is against the weight of the evidence

Fairfield identifies the statement made by the Arbitrator at [53] of his reasons that it was common ground that the claim made on 21 April 2017 satisfied the requirements of s 260 and s 261 of the 1998 Act. Fairfield submits that this is a mis-statement of the position and that the “common ground” was that 21 April 2017 was the date of the claim. Fairfield contends that the issue raised and argued by Fairfield was that the claim contravened the requirements of those sections.
Fairfield submits that the Arbitrator also mis-stated the evidence at [57] of his reasons in relation to when Mr Deguara first consulted a lawyer. Fairfield says that it was common ground that Mr Deguara consulted his current legal representatives on 15 August 2016.
Fairfield contends that it follows that Mr Deguara became aware of all time limits on 15 August 2016, if not before.
Further, it says, Mr Deguara’s counsel made the submission at the arbitration that Mr Deguara first became aware of his injury on 15 August 2016 (when he consulted his solicitor), as an alternative to his case that he first became aware of the injury on or about 28 February 2017.
Fairfield maintains that the last date upon which it could properly be said that Mr Deguara became aware he suffered an injury was on 12 August 2016, when he attended Hearing Aid Services Australia.
Fairfield puts as its primary position that Mr Deguara first became aware of his injury in 1993, when he successfully claimed compensation benefits for “that injury”.[29] In the alternative, Fairfield submits, Mr Deguara was certainly aware that he had an injury by 14 July 2008.
[29] Fairfield’s submissions on appeal, p 3, [16].
In support of those assertions, Fairfield relies on the following evidence:
(a)    Mr Deguara had previously made a claim for industrial deafness in 1993, so that he was well aware of the relationship between his exposure to noise and his hearing loss;
(b)    the history provided to Dr Seymour by Mr Deguara was that he had been aware of hearing loss for 20 years, and that it was more evident over the last ten years;
(c)    Mr Deguara was clearly aware that he was suffering a binaural hearing loss of 39.7% for which he could have submitted a claim in 2008. Fairfield asserts that the document recording that test was “clearly provided by [Mr Deguara] to his solicitor”;[30]
(d)    Mr Deguara attended a consultation with his general practitioner on 5 January 2016, and the general practitioner made a specific note on that day of “industrial hearing loss”;
(e)    Mr Deguara’s initial statement was made just nine days after consulting his legal; representative. It referred to the excessively noisy aspects of his employment, his earlier claim for industrial deafness for which he received compensation, and specifically attributing his hearing loss only to exposure in the workplace. Fairfield asserts that in the statement, Mr Deguara refers to a “specific explanation given to him recently by the audiologist.”[31] Fairfield presumes that could only have been the audiological examination on 12 August 2016, and
(f)    In his further statement dated 13 October 2017, Mr Deguara referred to the hearing test performed on 12 August 2016 and stated that he was given advice by the person conducting the test that he had quite a serious hearing loss and it was suggested that the loss was work-related.
[30] Fairfield’s submissions on appeal, p 4, [16(c)].
[31] Fairfield’s submissions on appeal, p 4, [16(e)].
Fairfield submits that the overwhelming weight of all of the evidence establishes that Mr Deguara was well aware of his injury at least by 12 August 2016 and almost certainly in 2008. Fairfield contends that the Arbitrator’s finding that Mr Deguara first became aware of his injury on or about 28 February 2017 was not supported by the evidence.
Fairfield further submits that the Arbitrator’s finding that Mr Deguara’s consideration of whether his hearing loss was related to industrial noise was “speculation” was also unsupported by the evidence.
Fairfield contends that the Arbitrator reversed the onus of proof in determining that he was not persuaded that he could draw an inference that Mr Deguara was aware of his injury at an earlier period in time. Fairfield says that a perusal of the transcript of the arbitration proceedings discloses that the Arbitrator was specifically reminded that Mr Deguara bore the onus of proof.
Further, Fairfield asserts that the suggestion by the Arbitrator that “there was some relevant lack of qualification on the part of the audiologist”[32] was:
(a)    not supported by the evidence;
(b)    not the subject of submissions, and
(c)    not raised by the Arbitrator during the arbitration.
[32] Fairfield’s submissions on appeal, p 5, [18].
Fairfield contends that there has been a denial of procedural fairness. In addition, Fairfield says that if Mr Deguara chose to rely on the audiologist being unqualified, then it was incumbent upon him to prove that to be the case, which he did not. The Arbitrator therefore reversed the onus of proof.
In its oral submissions, Fairfield maintained its position that Mr Deguara first became aware of his injury in 1993, when he knew about noise induced deafness, had made a claim and received compensation for his loss. In the alternative Fairfield reiterated that, on the basis of the information contained in the audiological assessment in 2008 conducted by Quality Occupational Health, Mr Deguara would have been aware of his injury at the time of that assessment. Fairfield observed that Mr Deguara acknowledged in his statement evidence that he was aware of his injury.
Fairfield referred to the decision in Petrevska, and submitted that each case turns on its own facts. To say that Mr Deguara did not have the necessary awareness in 2016 when he saw the audiologist, or when he saw his solicitor, and was not aware until he saw Dr Scoppa, was placing the bar too high. It submits that the audiology report produced in August 2016 was sufficient to give him that awareness. Fairfield submitted it would be fanciful to contemplate that at time of receipt of the audiological report, Mr Deguara did not have the “awareness” as prescribed by s 261(6) of the 1998 Act.
Fairfield submitted that the clinical record of Dr Di Mascio dated 8 September 2016, which was after the audiologist’s report, indicates that at that stage, a medical expert became involved. Further, Mr Deguara’s lack of awareness as to the time limits for giving notice of injury and making a claim was not relevant to the question of whether he had the requisite knowledge or “other reasonable cause” for failing to make a claim.
In respect of s 254, Fairfield conceded that it was not prejudiced by Mr Deguara’s failure to notify the injury.
Mr Deguara submits that the Arbitrator’s reasons at [52] show that he clearly proceeded on the basis that Mr Deguara bore the onus of establishing that special circumstances existed for the purposes of s 254(3), s 261(4) and s 261(6) of the 1998 Act.

Further, Mr Deguara submits that there was no “mis-statement” at [53] of the Arbitrator’s reasons that it was common ground between the parties that the notice given on 21 April 2017 satisfied the requirements of ss 260 and 261 of the 1998 Act. Mr Deguara submits that there was no argument advanced, either in the notice issued pursuant to s 74 of the 1998 Act, or at arbitration, that the notice given was in any way defective.
Mr Deguara also disputes Fairfield’s allegation that the Arbitrator “mis-stated” the evidence at [57] of his reasons. Mr Deguara submits that his evidence was that he was unaware of any time limits, and it was open to the Arbitrator to accept that evidence. Mr Deguara asserts there was no evidence to contradict his relevant evidence, and it was on that basis that the Arbitrator considered that Mr Deguara had discharged the onus of establishing special circumstances within the meaning of s 254(3)(b).
Mr Deguara submits that the matters relied upon by Fairfield (reproduced at [135(a)–(f)] above) do not go to Mr Deguara’s knowledge of the time limits. He observes that they are matters that go to his awareness that the deterioration in his hearing was in fact related to his employment.
Mr Deguara disputes the Arbitrator reversed the onus of proof in his finding that Mr Deguara first became aware that he had received an injury at the time he consulted Dr Scoppa or shortly thereafter, and that he was not persuaded that he could draw an inference that Mr Deguara became aware at an earlier time. Mr Deguara submits there was no error of fact in so finding.
Mr Deguara further submits that the authorities of Lapa, Jones and Petrevska are all apposite, and adopts those authorities in his submissions in opposition to the appeal.
In submissions at the hearing, Mr Deguara submitted that the requisite knowledge is knowledge of the further injury for which he could make a claim, which was when he consulted Dr Scoppa.
Mr Deguara further submitted that the Arbitrator’s consideration of the word “suggestion” was a determination of fact. It is not sufficient to disturb that finding on the basis that a different outcome is preferred. He contended that the Arbitrator’s findings were open to him on the evidence.
In reply, Fairfield maintains its submission that there could be no doubt that Mr Deguara had the requisite knowledge at the time he consulted his legal representatives. Fairfield relies on Jones,[33] where it is said by Fairfield that Deputy President Roche made the same observation.

Ground 4: The Arbitrator erred in law in making a distinction between loss of hearing and a further loss of hearing

[33] Jones, [93].

In relation to this ground of appeal, Fairfield relies on its submissions made in respect of ground 1 of the appeal, recorded at [108]–[114] above.
In oral submissions, Fairfield submitted that there was no evidence to suggest the injury was an aggravation.
Mr Deguara submits that the Arbitrator was correct to treat the injury as a further injury to the injury for which compensation was paid in 1993. Mr Deguara contends that there is no merit in the argument that the injury is the same injury for which compensation was paid in 1993. Mr Deguara refers to the Arbitrator’s comment at [71] of his reasons that such a finding would be illogical.
He submitted orally that s 17 contemplates a further injury and does not simply contemplate a loss from the initial injury. There was, he said a continuation of the noisy employment that led to a furtherance of the injury, that is, an aggravation.

Ground 5: The Arbitrator erred in fact and law in his consideration of the advice given to the appellant by Hearing Aid Services Australia on 12 August 2016

Fairfield submits that the Arbitrator erroneously elevated the word “suggestion” to a significance it does not have, with the result that it erroneously diminished the state of Mr Deguara’s awareness. Fairfield asserts that Mr Deguara was aware at that time that his hearing loss was attributable to his employment, and that was more than sufficient to establish that he was aware of the injury as at 12 August 2016.
Fairfield further submits that by elevating the word “suggestion” in that manner, once again the Arbitrator has reversed the onus of proof.
Mr Deguara submits under this ground of appeal that in the Commission, there is no right to cross-examine a witness and, in the exercising his discretion, the Arbitrator clearly took into account the matters that he was required to take into account in his determination as to whether to allow cross-examination. He says that there was no error demonstrated.
The submission immediately above appears to relate to ground 6 of the appeal. Accordingly, it is taken to have been made in respect of that ground of appeal.
In reply to Mr Deguara’s submissions, Fairfield again contends that Mr Deguara’s submissions do not engage with this ground of appeal.
Fairfield, in its reply in respect of ground 6, accepts the proposition that there is no legal right in the Commission to cross-examine, but says that it was procedurally unfair to deny it the opportunity to cross-examine Mr Dougall in circumstances where the Arbitrator was prepared to determine the matter in part by reference to Mr Deguara’s ignorance of certain matters.

Ground 6: The Arbitrator erred in denying Fairfield procedural fairness

Fairfield contends that there was a denial of procedural fairness in the conduct of the proceedings, in:
(a) the manner in which the Arbitrator dealt with the statement of Mr Dougall, when Fairfield had requested he be available for cross-examination, and
(b) determining the matter on a basis not put by the parties, namely the comments about the audiologist’s qualifications. Fairfield says that the transcript discloses that there was no submission by either party to in relation to the audiologist’s qualifications, and nor did the Arbitrator raise that observation during the arbitration. Fairfield cites Seltsam Pty Ltd v Ghaleb.[34]
[34] [2005] NSWCA 208; 3 DDCR 1 (Ghaleb).
Fairfield submits that the transcript reveals that Fairfield made an application to cross-examine Mr Dougall, and the failure to allow cross-examination constituted a lack of procedural fairness, as does the failure to allow Fairfield to issue a direction on Mr Deguara’s representatives to produce their file.
In its oral submissions, Fairfield maintained that the Arbitrator gave no consideration to the application to cross-examine, and that cross-examination of Mr Dougall was critical, particularly in respect of how he received the audiometric test report. It submitted that the need to cross-examine Mr Dougall came about because of the first Arbitrator’s refusal to allow it to issue a direction for the production of the file held by Mr Deguara’s legal representatives. Fairfield said the intention to apply to cross-examine was conveyed to Mr Dougall and the application made at the arbitration was not made on the spur of the moment.
Fairfield concludes that the appeal should be allowed, the decision should be revoked and be substituted by an award in its favour.
Mr Deguara submits that the Arbitrator drew a distinction between the “suggestion” made that Mr Deguara’s hearing loss was work-related and “knowledge” that it was so. Mr Deguara submits that the Arbitrator correctly observed that the records from Hearing Aid Services Australia did not disclose who conducted the test, or whether that person was qualified to give an opinion on causation. Mr Deguara contends that the Arbitrator did not determine the matter on a basis that was different to the manner in which the case was presented.
The submission immediately above appears to relate to ground 5 of the appeal and is considered accordingly.
In his oral submissions, Mr Deguara asserted that there is no right to cross-examine in the Commission. In any event, the matters that would be the subject of cross-examination would be subject to legal professional privilege. He submitted the only evidence that would not be privileged would be matters already known, such as when Mr Deguara consulted Mr Dougall, that an appointment was arranged for Mr Deguara to attend Dr Scoppa, a claim was made and an ARD filed in the Commission.
Mr Deguara contended that it was his knowledge that was relevant, not Mr Dougall’s knowledge.
Mr Deguara submitted that it was difficult to see how the cross-examination would have changed the outcome, and that it was a matter within the Arbitrator’s discretion. He asserted that to establish procedural unfairness, Fairfield was required to establish that cross-examination would have changed the whole case, which it could not.
In relation to the audiologist’s qualifications, Mr Deguara said that the Arbitrator’s comments were mere observations. In any event, Fairfield could have obtained that evidence prior to the arbitration. Mr Deguara submitted that there was no procedural unfairness.
Mr Deguara concludes that the appeal should be dismissed.
In reply, Fairfield maintains that there is no reference in the transcript to any submission or discussion about the qualifications of the person who conducted the hearing test in August 2016.

DISCUSSION

Fairfield submits that s 17 of the 1987 Act simply provides a mechanism for determining a deemed date of injury and fixes the date of injury.
Section 17 is a separate and special provision of the 1987 Act that is distinct from ss 15 and 16 of the 1987 Act. Sections 15 and 16 do not extend to include s 17, which is specifically excluded from the application of ss 15 and 16 (ss 15(5) and 16(4)). It provides that the injury is deemed to have occurred at either the time the notice was given if the worker was employed in “employment to the nature of which the injury was due”, or if the worker is no longer in such employment, on the last day upon which the worker was so employed.
The phrase “employment to the nature of which the injury was due” has been considered in a number of authorities over many years.
In Lobley, Cole JA stated:
“[I]n 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.”
In Rico Pty Ltd v Road Traffic Authority,[35] Sheller JA made the following useful observations (citations omitted):
“The legislative scheme for awards of compensation for boilermaker’s deafness proceeds on the following assumptions or fictions:
1.      The condition known as ‘boilermaker’s deafness’ is deemed to be a loss of hearing which is of such a nature as to be caused by a gradual process (s17(2)).
2.      A loss of hearing which is of such a nature as to be caused by a gradual process is an injury (s 17(1)).
3.      In the language of Barwick CJ, in Commissioner for Railways v Bain the injury is taken to have happened ‘as it were, in one blow’. If 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, the injury is deemed to have happened at the time when the notice of the injury was given; if the worker was not so employed, when he or she gave notice of the injury, the injury is deemed to have happened on the last day on which the worker was employed in such employment, before he or she gave the notice (s 17(1)(a).”
[35] (1992) 28 NSWLR 679; 8 NSWCCR 515, 689–690.
In this matter, there was no dispute that Mr Deguara’s employment with Fairfield had the tendencies, incidents and characteristics that could give rise to a risk of industrial deafness. The Arbitrator noted that “injury” was in issue and observed that Mr Deguara bore the onus of establishing injury “within the meaning of sections 4 and 17 of the 1998 Act.”[36] The Arbitrator summarised the issue as being “whether [Mr Deguara] sustained an injury within the meaning of s 17 of the Workers Compensation Act 1987.”[37]
[36] Reasons, [36].
[37] Reasons, [5].
The Arbitrator considered the elements of s 17 and summarised the effect of the provision as follows:
“The terms of section 17(1) make it clear that an injury may be a ‘loss’ of hearing or a ‘further loss’ of hearing. Section 17 reflects that industrial deafness is a gradual process and contemplates more than one claim can be made, so long as there is evidence that supports a deterioration in the worker’s condition caused by the relevant employment.” [38]
[38] Reasons, [40].
The Arbitrator quoted the relevant passage from Lobley and applied it to the facts and the medical evidence in this case. He decided that he was satisfied that the history provided by Mr Deguara and the medical opinions of Dr Scoppa and Dr Seymour (which were based on that history) satisfied the test in Lobley.
Section 17 does not simply provide “a mechanism for determining a deemed date of injury and [fix] the date of injury”, as asserted by Fairfield. It creates a series of fictions and presumptions on which a worker’s entitlements are based. It dispenses with the need to establish causation.[39] As observed by Sheller JA, where there is a loss of hearing that is of such a nature to have been caused by gradual process, s 17(1) provides that it is taken to be an injury.
[39] A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158 (Civitarese) per Beazley JA (as her Honour then was) (Handley and Sheller JJA agreeing), [57].
The Arbitrator did not fall into error in the application of s 17 and his consideration of the question of “injury”. This ground of appeal fails.

Ground 2: The Arbitrator erred in fact and law in his consideration and determination of the issue of “main contributing factor”

The definition of “injury” is contained in s 4 of the 1987 Act and includes a “disease injury”, but only if employment is a main contributing factor to contracting the disease (s 4(b)(i)), or the employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (s 4(b)(ii)).
I note Fairfield’s submission that hearing loss is a disease of gradual process so that the requirement to establish employment was the main contributing factor must be satisfied before the worker can claim entitlement pursuant to s 17 of the 1987 Act.
Fairfield asserts that the significant non-work-related hearing loss is the main contributing factor to the bilateral hearing loss.
The provisions relating to noise induced hearing loss were inserted as “special provisions” contained in s 17 of the 1987 Act following the repeal of the Workers’ Compensation Act 1926.
Section 17 of the 1987 Act is not concerned with establishing true causation of the hearing loss, but “proceeds on a series of fictions or assumptions”. It is concerned with the determination of the identity of the employer who employed the worker in employment to the nature of which the injury of boilermakers’ deafness was due. That is, the employer who employed the worker in employment whose tendencies, incidents and characteristics could give rise to a risk of industrial deafness. A worker does not have to establish that his or her employment with the respondent brought about or contributed to the disease (the hearing loss).[40]
[40] Civitarese.
The very purpose of s 17 of the 1987 Act is to remove the need for a worker to establish a causal connection between his noise induced hearing loss and his employment. I note Fairfield’s submission that Lobley and Civitarese were decided before the amendment to s 4(b) was introduced into the 1987 Act, requiring employment to be the main contributing factor. The text of s 17 has not changed, and so the authorities that have interpreted the meaning of the text are still applicable. Section 17 is a separate provision to s 15 and s 16 and is an exception to the requirement to establish a causal connection. Section 15(4A) of the 1987 Act qualifies the phrase “employment to the nature of which an injury was due” by stating that such a reference includes “a reference to employment the nature of which was a contributing factor”. The qualification applies only for the purpose of s 15. There is no equivalent qualification in s 17.
Sections 15 and 16 of the 1987 Act specifically refer to the injury being a “disease” of gradual process (s 15) or an aggravation, exacerbation or acceleration of a disease (s 16). Section 17 makes no reference to the word “disease” and there is no indication in the legislation as to whether it should be considered as a “disease injury” for the purposes of s 4(b)(ii) of the Act or whether the requirement to establish that employment was a main contributing factor applies to the hearing loss injuries. The concept of main contributing factor encompasses considerations going to causation. The authorities establish that, for the purposes of establishing injury of the kind referred to in s 17(1) of the 1987 Act, all that is required is to show that the employment had the tendencies, incidents and characteristics of noisy employment. The authorities continue to apply to claims for compensation made on or after 19 June 2012.[41]
[41] Ware v NSW Rural Fire Service [2014] NSWWCCPD 33, [83]–[90]; State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 (El-Achi) [89]–[91].
On the basis of the above, it cannot be accepted that the hearing loss provisions contained in s 17 are subject to the qualification that employment must be the main contributing factor to or aggravation of the condition.
It was not necessary for the Arbitrator to have considered whether employment was a main contributing factor to the injury or the aggravation.
Fairfield maintains that in Mr Deguara’s case, there is no evidence to suggest that Mr Deguara’s injury was an aggravation injury. It contends that the injury is a single injury, that is bilateral hearing loss. This assertion is also made in support of the fourth ground of appeal, which alleges error on the part of the Arbitrator in determining that Mr Deguara’s loss of hearing was a further injury.
Mr Deguara submits that the Arbitrator was correct to treat the injury as a further injury for which compensation was paid in 1993. He submitted that s 17 contemplates a further injury and in Mr Deguara’s case, there was a continuation of exposure beyond 1993 which led to a furtherance of the injury, which is an aggravation.
It is convenient to incorporate the fourth ground of appeal in this discussion and deal with it accordingly.
Mr Deguara made a claim for hearing loss in 1992 for which he received compensation in 1993. He continued in employment with Fairfield in employment that had the tendencies, incidents and characteristics of employment that had the real risk of causing sensori-neural hearing loss. That was not disputed.
In Sukkar v Adonis Electrics Pty Ltd,[42] Mr Sukkar appealed to the Court of Appeal from a decision of a Presidential member of the Commission in respect of his entitlement to compensation for his noise induced hearing loss. The history of his claim was that Mr Sukkar was employed as an electrician from about 1996. His work had at all material times involved exposure to the noise of use of tools of trade and equipment such as jack hammers and power saws throughout the working day. In 1996 Mr Sukkar made a claim for permanent impairment compensation from Adonis pursuant to s 66 of the 1987 Act in respect of noise induced hearing loss. That claim resulted in payment of $11,093.35 in respect of 12.9% binaural hearing loss.
[42] [2014] NSWCA 459 (Sukkar).
On 19 June 2012 Mr Sukkar served a letter of demand on his employer, with whom he was still employed, claiming $12,375.00 in respect of an additional 9% WPI arising from hearing loss. A dispute arose between the parties as to whether Mr Sukkar was entitled to aggregate the impairments due to the same pathology in order to satisfy the threshold requirement in s 66(1) of the 1987 Act, which had been introduced by the 2012 amendments. The section provides that no compensation is payable pursuant to s 66 unless the assessment is greater than 10% WPI. The question of whether Mr Sukkar was entitled to aggregate the impairments, or whether the claim was in substance two separate claims, with two different dates of injury as prescribed by s 17 of the 1987 Act, was referred to the President of the Commission, Keating J, and in turn to the Court of Appeal.

Justice McColl said as follows:
“The aggregation argument depends upon ‘injury’ in ‘same injury’ in s 322(2) of the 1998 Act referring to the pathology of hearing loss, rather than to the ‘injury’ deemed to have occurred by the operation of s 17(1)(a) of the 1987 Act.
In my view that submission cannot be accepted. The effect of s 17(1)(a) of the 1987 Act was to operate in the worker's favour, as Barwick CJ explained in Bain (at 257), to create a fictional date of injury which could found a compensation claim, even though ‘the condition is a product of past events’. It also created a fictitious ‘incident’ for the purposes of causation, that being the ‘one blow’ to which Barwick CJ also referred.
That fiction was perpetuated by the inclusion in s 17(1) of the words ‘or further loss’ which enabled the worker to make a further claim for compensation in relation to a further deemed injury arising from a deemed incident, despite hearing loss resulting from the same pathology. Indeed, it is not apparent that the current claim is based on the same pathology as the primary judge recorded (at [54]) that the current claim is for ‘a series of micro traumata between 29 August 1996 and 2012’.
The injury the worker claiming for hearing loss suffers is that deemed to have occurred on 19 June 2012, the s 17(1)(a) date. That is a different ‘injury’ from the ‘injury’ the subject of the previous claim which was deemed to have occurred on or shortly before 29 August 1996. The two injuries are not accordingly the ‘same injury’ for the purposes of s 322(2) of the 1998 Act.”[43]
[43] Sukkar, [83]–[86].
It follows that Mr Deguara’s hearing loss injury claimed in 1992 is a separate injury to that claimed on 21 April 2017.
As Mr Deguara submits, his compensable hearing loss assessed in 1992 has been made worse by further ongoing exposure to noise within his employment up to 2013, when he ceased employment. If it is accepted as a disease, then the further exposure can only be considered an aggravation of the existing condition, just as if he had suffered a back injury and further suffered injury to the back which worsened (or aggravated) his back condition. Mr Deguara’s existing sensori-neural hearing loss has been made worse, which is an “aggravation” injury.
If there was a requirement that employment be the main contributing factor, Mr Deguara would succeed in any event. Relevantly, s 4(b)(ii) of the 1987 Act provides that the definition of an “injury” includes a disease injury, which means the aggravation in the course of any employment of a disease, but only if the employment was the main contributing factor to the aggravation of the disease.
In oral submissions on the appeal, Mr Deguara referred to Murray, in which the Court of Appeal considered the application of s 9A of the 1987 Act. In that case, the Court found no error on the part of the trial judge in approaching the question of construction on the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing condition in which the substantial contributing factor (as required by s 9A) had to relate to the acceleration or aggravation, and not to the underlying condition.[44]
[44] Murray (per Einstein JA), [64].
In considering the same point, Hodgson JA also stated:
“I think there may be cases where the question of whether the employment was a substantial contributing factor is affected by whether one considers the work occurrence as an injury simpliciter or as an aggravation of a pre-existing condition. In some cases at least, where an injury simpliciter can be considered as having been contributed to by a pre-existing condition, the employment contribution to that injury could be diluted to that extent. However, if the same event can also be regarded as an aggravation of that pre-existing condition, then the employment contribution to the aggravation may not be diluted by the pre-existing condition (although the compensation would then be strictly limited to the effect of the aggravation).”[45]
[45] Murray, [7].
Put simply, Murray is authority for the proposition that, where the injury is an aggravation injury within the meaning of s 4(b)(ii), the employment has to be the substantial contributing factor to the injury. The reasoning in Murray is equally applicable to a consideration of whether the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. That is, the employment must be the main contributing factor to the aggravation injury.
In this case, the Arbitrator determined that he was satisfied that employment was the main contributing factor to Mr Deguara’s further loss of hearing. He acknowledged that part of Mr Deguara’s hearing loss was age related, but said that employment was the main contributing factor to the component that was “work-related”. He took into account that Mr Deguara had no other noisy activities. He further took into account the opinions of Dr Scoppa and Dr Seymour, who both were of the opinion that Mr Deguara suffered from (at least in part) a further work-related hearing loss. He clarified his finding by saying that “[t]he weight of evidence and expert opinion supports that employment was the main contributing factor to [Mr Deguara’s] injury.”[46] In respect of his consideration of the operation of s 4(b)(ii), the Arbitrator’s conclusion was in accordance with the observations of Einstein JA and Hodgson JA in Murray.
[46] Reasons, [48].
I have determined that the requirement for employment to be the main contributing factor does not apply to a s 17(1) injury. The Arbitrator was delivered somewhat of a red herring by the parties’ submissions, which proceeded on the basis that it did apply. Nonetheless, his conclusion as to the application of that requirement to an aggravation injury was correct. Fairfield’s allegation that the Arbitrator erred in fact and law in his consideration of “main contributing factor” is unfounded and ground 2 of the appeal fails.
For the above reasons, the allegation in ground 4 of the appeal that the Arbitrator erred in law in making a distinction between loss of hearing and further loss of also fails.

While Fairfield complains in this ground of appeal that the Arbitrator erred in fact and law in respect of his consideration and determination of s 254, s 260 and s 261 of the 1998 Act, the submissions made in support of this ground are limited to the state of Mr Deguara’s awareness that he had suffered an injury.
The Arbitrator determined that special circumstances existed in respect of Mr Deguara’s failure to give notice of injury in accordance with s 254(2). He identified those special circumstances as there being no prejudice to the employer (s 254(3)(a)), and the failure was occasioned by ignorance (s 254(3)(b)). The Arbitrator identified the ignorance as being Mr Deguara’s lack of awareness of his injury. Even if the Arbitrator erred in respect of his acceptance that Mr Deguara’s failure to give notice of injury was occasioned by ignorance, Fairfield conceded in the appeal that it could not show any prejudice because of the lateness of the claim. The absence of prejudice is of itself a special circumstance which removes the bar to the recovery of compensation for the purpose of s 254.
On that basis alone, there is no reason to overturn the Arbitrator’s determination in respect of s 254.
Section 260 of the 1998 Act provides for the manner in which a claim is made. As Mr Deguara submits, there was no issue raised in the proceedings before the Arbitrator that the claim made by Mr Deguara did not comply with the requirements set out in that section. The submissions made on appeal do not address any such alleged non-compliance. In the absence of any issue being raised in that regard before him, the Arbitrator’s note in his reasons at [53] that it was “common ground” that the claim made on 21 April 2017 satisfied the requirements of s 260 accurately reflected the position of the parties. In the circumstances, Fairfield’s allegation that the Arbitrator has erred in respect of a consideration of s 260 is unfounded.
The Arbitrator recorded that it was also common ground that Mr Deguara’s claim satisfied the requirements of s 261 of the 1998 Act. That was not the case, and whether s 261 was satisfied was a live issue before him. Despite having made that notation the Arbitrator proceeded to determine that very issue.[47] He considered the submissions of the parties, the requirements of the section and relevant authorities. The Arbitrator’s error in that notation was not a material error. His reasoning process and ultimate determination on that issue was not infected by that error and does not provide a basis upon which the Arbitrator’s ultimate determination could be set aside.
[47] Reasons, [48].
Fairfield submits that Mr Deguara first became aware of his injury in 1993, when he successfully claimed compensation, or in the alternative in 2008. Mr Deguara submits that the requisite knowledge is knowledge of the further injury for which he could make a claim.
The claim before the Arbitrator was in respect of exposure to noise from 1992 until cessation of his employment in August 2013. Mr Deguara could not possibly have been aware in 1993, or in 2008, of his future further injury. The claim finalised in 1993 was a separate claim to the claim made in these proceedings. Mr Deguara may have had an entitlement to claim in 2008, following the assessment of a further noise induced loss, but he did not. Even if he had, that would not have precluded him from making a further claim for the aggravation taken to have arisen from the continuing noisy employment, which did not crystalise until he ceased his employment.
The injury the subject of these proceedings is the injury (being a further injury) deemed to have occurred on the last date of Mr Deguara’s employment. I accept Mr Deguara’s submission, as did the Arbitrator, that it would be a nonsense to say that Mr Deguara was “aware” for the purposes of s 261 of the 1998 Act that he had received his injury before it had crystalised.
Fairfield complains that the Arbitrator mis-stated the evidence as to when Mr Deguara first consulted a lawyer. Fairfield refers to the Arbitrator’s reasons at [57]. The Arbitrator’s reasons contained in that paragraph are in reference to his considerations relevant to s 254 of the 1998 Act. The Arbitrator’s observations were limited to an acceptance by him that Mr Deguara had not had the benefit of legal advice since 1993 and that he was unaware there were any specific time limits within which to bring a claim. The Arbitrator determined that on that basis s 254 was satisfied. I have discussed the concession made by Fairfield that it could show no prejudice and the effect of that concession on any issue as to whether s 254 is satisfied.
The Arbitrator’s determination that s 261 of the 1998 Act was satisfied turns on his findings as to when Mr Deguara had the requisite knowledge (the awareness) that he suffered from sensori-neural hearing loss as a result of his employment. Fairfield submits that the last date upon which Mr Deguara became aware of his injury would have been 12 August 2016, which was the date upon which he underwent audiometric testing. Mr Deguara’s evidence is that it was merely suggested to him that his hearing loss was work-related, which, the Arbitrator determined, was insufficient to constitute “awareness” of the injury.
The Arbitrator’s finding was one of fact. In Raulston v Toll Pty Ltd[48] Deputy President Roche reviewed the authorities relevant to the Commission’s power to disturb a finding of fact and summarised the principles as follows (citations omitted):
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
[48] [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20].
I have discussed above the submissions made by Fairfield that Mr Deguara became aware of his injury in 1993 when he made his first claim, or in 2008 following the audiological assessment by Quality Occupational Health. For the reasons discussed above, I do not accept that the Arbitrator erred in determining that Mr Deguara, on either of those dates, became aware of the injury deemed to have occurred on 16 August 2013.
Applying the decision in Petrevska, the Arbitrator determined that Mr Deguara first became aware of his injury on 28 February 2017, the date upon which he attended Dr Scoppa, or shortly thereafter. In respect of the claim for injury deemed to have occurred in August 2013, the only alternative finding available to the Arbitrator was that Mr Deguara had the necessary awareness of injury on either 12 August 2016 (when he was assessed by Hearing Aid Services Australia), or on 15 August 2016, when he consulted Mr Dougall for legal advice.
Mr Deguara’s evidence is that it was only “suggested” by Hearing Aid Services Australia that his hearing loss may have resulted from exposure to noise in the work place. In the documents from that organisation, there is no record of any discussion with Mr Deguara about the cause of his hearing loss or any opinion offered as to its causation. Further, Fairfield did not seek to cross-examine Mr Deguara about advice he received from them. In the absence of any evidence to the contrary, it was open to the Arbitrator to accept that on 12 August 2016, it had only been suggested to Mr Deguara that his hearing loss was induced by noisy employment, and that Mr Deguara should seek legal advice.
Following the consultation with his legal representatives on 15 August 2016, Mr Deguara provided a written statement, signed on 24 August 2016. In that statement, Mr Deguara provided a history of the noisy aspects of his employment, that he had no noisy hobbies and that in 1993 he had made a claim for compensation in respect of 1.7% binaural hearing loss. He expressed the belief that the greater loss in his right ear was attributable to driving in and around trucks with the driver’s window down. He described his difficulties and indicated that he wished to have hearing aids.
In determining whether Mr Deguara had the requisite knowledge when he consulted Mr Dougall, the Arbitrator considered and applied Lapa, Jones and Petrevska. He summarised those authorities, observing that:
(a)    “awareness of injury” is not merely awareness of a physical problem (Lapa);
(b)    for a worker to be aware he or she is suffering from industrial deafness, he or she must be aware that they are suffering from a sensori-neural loss of such a nature as to be contracted by a gradual process, which has been contributed to by their employment. The test is an objective test and requires actual awareness rather than constructive awareness (Jones), and
(c)    it is insufficient for the worker to believe his or her hearing loss is noise induced because there is a possibility of other causes. The opinion of a medically unqualified worker will rarely be of value. Specialist advice is required to confirm that the hearing loss has been caused by noisy employment (Petrevska).[49]
[49] Reasons, [61]–[65].
Fairfield refers to the following evidence, which it says is overwhelming evidence that Mr Deguara was aware of his injury well before the consultation with Dr Scoppa:
(a)    Mr Deguara had previously claimed for his hearing loss, which indicated he was well aware of the relationship between his hearing problems and his employment;
(b)    the history provided to Dr Seymour was that he had experienced hearing difficulties for 20 years, which had worsened in the last 10 years;
(c)    the document recording the assessment done in 2008 must have been in Mr Deguara’s possession and would have clearly informed Mr Deguara that he suffered from a compensable which had been assessed as 39.7% binaural loss;
(d)    Mr Deguara’s general practitioner recorded industrial deafness in the clinical notes of 6 January 2016, and
(e)    in the context of having undergone a hearing assessment on 12 August 2016, which identified hearing loss, Mr Deguara wrote a statement referring to the noisy aspects of his employment, and in a subsequent statement said that he was not “unaware” of an entitlement to make a claim.
In his reasons, the Arbitrator identified that the injury the subject of the claim was a further injury, and that Mr Deguara’s awareness must be in respect of the further loss of hearing (my emphasis).
The Arbitrator considered the arguments that Mr Deguara would have been aware of his further injury in 1992 and in 2008. He rejected the argument that Mr Deguara had the necessary awareness before the claim had crystalised in 1992. He further rejected that Mr Deguara would have been aware in 2008 because he accepted Mr Deguara’s unchallenged evidence that it was never explained to him that the loss was work-related. The Arbitrator considered that in accordance with Jones and Petrevska, and particularly in the circumstances that Mr Deguara suffered from age related loss of hearing, it could not be said that Mr Deguara had actual knowledge that his further hearing loss was work-related. The Arbitrator referred to Mr Deguara’s statement that he was not “unaware” of an entitlement to make a claim and observed that constructive knowledge was insufficient. Those findings were open to the Arbitrator on the evidence before him.
In his reasons, the Arbitrator did not consider the entry in Dr Di Mascio’s notes on 6 January 2016, although he did refer to the note in his summary of the evidence. Given Mr Deguara denied any recall of having discussed the causal nature of his hearing loss, and the absence of any audiometric assessment at the time which might confirm the diagnosis of noise induced hearing loss, the entry is of no assistance in establishing that Mr Deguara was made aware at that time that his worsening hearing loss was actually as a result of exposure to noise.

On the basis of the above, it cannot be said that other probabilities so outweigh that chosen by the Arbitrator that the decision is wrong. Nor can it be said that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn, or the available inference in the opposite sense to that chosen by the Arbitrator is so preponderant that the Arbitrator’s decision is wrong.[50]
[50] Raulston, [19]–[20]
Fairfield also alleged that the Arbitrator reversed the onus of proof. Its submissions refer only to the Arbitrator’s observation that he could not draw an inference that Mr Deguara became aware of his injury earlier than 28 February 2017. In doing so, the Arbitrator assessed the primary facts based on the evidence before him and the inferences he could (or could not) draw from those facts. That does not amount to a reversal of the onus of proof.
It follows that on the basis of all of the above, ground 3 of the appeal fails.

Ground 5: The Arbitrator erred in fact and law in his consideration of the advice given to the appellant by Hearing Aid Services Australia on 12 August 2016

Fairfield’s complaint as to the Arbitrator’s finding in relation to the advice Mr Deguara received from Hearing Aid Services Australia has been dealt with in the discussion and findings in respect of ground 3 of this appeal. I have rejected the allegation of error on the part of the Arbitrator’s consideration of that evidence. It follows that ground 5 of this appeal fails.

Ground 6: The Arbitrator erred in denying Fairfield procedural fairness

Fairfield alleges two bases upon which it was denied procedural fairness.
Firstly, it alleges that it was denied the opportunity to address the Arbitrator in respect of the qualifications of the person from Hearing Aid Services Australia who conducted the audiological examination and report.
The High Court discussed the manner in which the courts have approached matters of procedural fairness in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam[51] where Gleeson CJ said:
“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. ... Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
[51] [2003] HCA 6; 214 CLR 1, [37].
As McHugh J said in Re Refugee Review Tribunal; Ex parte AALA:[52]
“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.’”
[52] [2000] HCA 57; 204 CLR 82, [100].
Section 354(2) of the 1998 Act expressly permits the Commission to “inform itself on any matter in such manner” it thinks fit. However, provisions such as s 354 of the 1998 Act do not release the Commission from the obligation to comply with the rules of procedural fairness.[53]
[53] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, [88].
A decision or award based on a point not raised by the parties or by the Commission would constitute a denial of procedural fairness and be susceptible to challenge. Failing to afford procedural fairness is an error that must be corrected unless it could not possibly have affected the outcome.[54]
[54] Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561 (Morrissey), [10].
I accept that no issue was raised by either party and no submissions were made during the arbitration in relation to the qualifications of the person conducting the hearing test on 12 August 2016.
The Arbitrator discussed the evidence in relation to the consultation with Hearing Aid Services Australia. He summarised that evidence and made findings as follows:
“The applicant said that when he saw Hearing Aid Services Australia on 12 August 2016, it was suggested to him that his hearing loss was work related … The records from Hearing Aid Services Australia do not detail who conducted the test, or whether that person was qualified to give an opinion on causation. The applicant’s evidence, which I accept, is that the advice was a suggestion only and was not definitive as to … the cause of the further hearing loss. The applicant subsequently saw his solicitors who referred him to Dr Scoppa.
I find that the applicant first became aware that he had received an injury when he saw Dr Scoppa on 28 February 2017, or shortly thereafter, when he was advised by his solicitors of Dr Scoppa’s opinion on causation. Dr Scoppa’s report provided the specialist advice necessary to confirm that the further loss of hearing had a causal connection to the applicant’s employment.”[55]
[55] Reasons, [72]–[73].
It is clear from the above reasoning that while the Arbitrator made observations in relation to the identification and qualifications of the person conducting the test, his determination was based on the absence of evidence of any definitive advice on causation until Dr Scoppa provided his opinion. Such a finding is consistent with Mr Deguara’s evidence that the causal connection was not confirmed to him until his legal representative received Dr Scoppa’s report. It is also consistent with the absence of any reference to causation in the documents provided by Hearing Aid Services Australia.
The Arbitrator’s observations as to the qualifications of the person performing the hearing test did not infect his reasoning process. His determination was made on the absence of medical opinion as to the causal connection until Dr Scoppa’s report was received. Based on the Arbitrator’s reasons and finding above, there is no possibility the outcome would have been different had the Arbitrator afforded Fairfield the opportunity to call evidence or make submissions as to the qualifications of the person conducting the audiological test.
In accordance with Morrissey, there is no basis upon which to correct any error on behalf of the Arbitrator by failing to afford Fairfield the opportunity to call evidence or make submissions in relation to the Arbitrator’s observations.
The second basis upon which Fairfield alleges it was denied procedural fairness is the Arbitrator’s decision to deny Fairfield the opportunity to cross-examine Mr Deguara’s legal representative, Mr Dougall.
There is no legal right to cross-examine in the Commission and the Arbitrator’s decision as to whether cross-examination ought to be allowed is a discretionary one.
As was stated by Bryson JA in Aluminium Louvres & Ceilings Pty Ltd v Zheng:[56]
“... The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness.”
[56] [2006] NSWCA 34 (Zheng), [25].
His Honour added:
“An assessment of whether the Arbitrator’s decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examinationor to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”[57]
[57] Zheng, [37].
In order to disturb the Arbitrator’s determination not to allow cross-examination of Mr Dougall, Fairfield is required to establish that the Arbitrator erred in respect of the exercise of that discretion. The principles governing an appeal against an Arbitrator’s discretionary exercise are well established. It must be shown that the Arbitrator has:
(a)     acted upon a wrong principle;
(b)     taken into consideration extraneous or irrelevant matters;
(c)    mistaken the facts, or
(d)    failed to take into account a material consideration.[58]
[58] Electrolux Home Products Pty Ltd v Richey & Email Ltd [2006] NSWWCCPD 242; 6 DDCR 426, [45].
Fairfield submits that the need to cross-examine Mr Dougall arose because the previous Arbitrator had refused to allow Fairfield to issue a Notice to Produce on Mr Deguara’s legal representatives to produce Mr Deguara’s file. Fairfield alleges that the Arbitrator gave no consideration to its application, and that cross-examination was critical, particularly in respect of how Mr Dougall came into possession of the audiometric report (presumably dated 15 August 2016), and what advice was given to Mr Deguara.
At the arbitration, Mr Macken (who appeared for Fairfield) submitted that cross-examination was required because he needed to test Mr Dougall’s evidence in relation to whether Mr Deguara had reasonable cause for failing to make the claim within the time prescribed by s 261 of the 1998 Act. He further submitted that Fairfield’s case was that the evidence failed to establish that Mr Deguara had the requisite reasonable cause.
The Arbitrator delivered an ex tempore decision. His reasons for rejecting the application were that:
(a)    Mr Dougall’s statement merely set out the procedural history of the claim as it was known to him;
(b)    whether to allow the application was a discretionary decision;
(c)    matters required to be considered included:
(i)whether the evidence needed to be clarified or tested, or
(ii)whether there were adverse matters material to the decision that needed to be put to the witness.[59]
[59] T 5.13–6.9.
The Arbitrator determined that, on the basis of the reasons put forward for the application, he was not satisfied that cross-examination of Mr Dougall would clarify or test Mr Dougall’s evidence.
It is wrong to say the Arbitrator gave no consideration to the application. The Arbitrator considered and applied the correct principles. Fairfield does not indicate error on the part of the Arbitrator by taking into account irrelevant matters, by mistaking the facts, or a failure to consider a material fact. The Arbitrator formed the view, as he was entitled to do, that the evidence of Mr Dougall was simply a procedural history of the claim, and cross-examination of that evidence would not assist.
Fairfield’s complaint is that the Arbitrator ought to have allowed cross-examination. This was in circumstances where the intended cross-examination traversed areas that may have attracted legal professional privilege. It was also in the context of Fairfield being aware well before the arbitration that the witness was not available. Fairfield has failed to establish error of the kind required to disturb the Arbitrator’s discretionary decision to refuse to allow cross-examination.
This ground of appeal that asserts Fairfield has been denied procedural fairness by not being allowed to cross-examine Mr Dougall has not been made out. The further allegation that it has been denied procedural fairness by not having the opportunity to call evidence about, or submit on, the qualifications of the person who performed the audiological testing on 12 August 2016 has also not been made out.
Ground 6 of the appeal fails.

CONCLUSION

Fairfield has failed to establish any error on the part of the Arbitrator that affected the outcome and the appeal fails.

DECISION

The Certificate of Determination dated 31 July 2018 is confirmed.

Elizabeth Wood

Deputy President

18 January 2019