Fairfield City Council v Elek
[2016] NSWWCCPD 52
•1 November 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Fairfield City Council v Elek [2016] NSWWCCPD 52 | |
| APPELLANT: | Fairfield City Council | |
| RESPONDENT: | Ivan Elek | |
| INSURER: | Self-insurer | |
| FILE NUMBER: | A1-1751/16 | |
| ARBITRATOR: | Mr G Capel | |
| DATE OF ARBITRATOR’S DECISION: | 7 July 2016 | |
| DATE OF APPEAL DECISION: | 1 November 2016 | |
| SUBJECT MATTER OF DECISION: | Section 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 – application of Unilever Australia Ltd v Petrevska [2013] NSWCA 373; 13 DDCR 260; section 254(3)(a) of the 1998 Act; deciding a dispute on a basis not put – application of Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 at [82]-[84]; alleged errors in fact finding | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates |
| Respondent: | Villari Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 7 July 2016 is revoked. The matter is remitted for redetermination by another Arbitrator, limited to the question of whether the respondent is entitled to rely on s 254(3)(a) of the 1998 Act, for the purpose of establishing that there are “special circumstances”, within the meaning of s 254(2) of that Act. | |
INTRODUCTION
This appeal concerns challenges by an employer to findings by an Arbitrator, going to the ‘claim’ and ‘notice of injury’ provisions of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in a matter involving hearing loss.
BACKGROUND
Ivan Elek (the respondent) was employed by Fairfield City Council (the appellant) from about 1974 to 24 August 2012, when he resigned. He worked as a gardener and greenkeeper. He said he was exposed to noise from lawn mowers, whipper snippers, rollers, power tools, blowers and “general workplace noise”. He described it as “a very noisy workplace”. He has not been in employment since.
The respondent had a previous claim against the appellant for lump sum compensation for hearing impairment. This resolved, and an agreement pursuant to s 66A of the Workers Compensation Act 1987 (the 1987 Act) was registered on 29 September 2005. It provided for payment to the respondent of $6,250 in respect of five per cent whole person impairment.
The respondent was assessed by Dr Kleiner, an ear, nose and throat specialist, in a report dated 19 August 2014, as suffering from 16 per cent whole person impairment in respect of hearing impairment. This was an additional 11 per cent whole person impairment, beyond that previously compensated.
The respondent’s solicitors furnished the appellant with a “Notice of Claim” dated 29 October 2014. The claim was for lump sum compensation in respect of the further 11 per cent whole person impairment assessed by Dr Kleiner, together with the cost of hearing aids. The accompanying documents included the report of Dr Kleiner (misdescribed as a report of “Dr Fagan” in the Notice), a quote for hearing aids from Freedom Hearing dated 23 October 2014, and a copy of the earlier s 66A agreement.
The appellant obtained a report of Dr Seymour dated 23 March 2015. Dr Seymour had previously assessed the respondent, and reported on 17 December 2004, in connection with the earlier claim. Dr Seymour, on 23 March 2015, assessed the respondent as suffering seven per cent whole person impairment in respect of hearing impairment, that is, a further two per cent beyond the impairment previously compensated.
The respondent declined the claim in a s 74 notice dated 13 April 2015. It denied that employment was the “main contributing factor” to the respondent’s disease, denied that the impairment exceeded 10 per cent, and denied that the claimed medical expenses were “reasonably necessary as a result of injury”. The s 74 notice also asserted that the respondent had failed to give notice and make a claim within the periods required in the 1998 Act, and said that he was “precluded from recovering the payment of compensation” as a consequence.
The respondent commenced proceedings number 4691/15 in the Commission, claiming lump sum compensation and medical expenses.
The respondent was assessed by Dr Harrison, an ear, nose and throat surgeon who is an Approved Medical Specialist (AMS), on 8 September 2015. The referral was for assessment of a ‘general medical dispute’, and was not “conclusively presumed to be correct” (s 326 of the 1998 Act). Dr Harrison’s opinion was sought on whether the proposed treatment (the provision of hearing aids) was reasonably necessary as a result of the injury. He answered this question in the affirmative.
These proceedings were discontinued on 17 September 2015, a notation on the Consent Orders (apparently referring to the Workers Compensation Amendment Act 2015) saying:
“… amendments to s 59A of the 1987 Act, when proclaimed, will be beneficial to the Applicant in respect of his claim for the payment of the cost of binaural hearing aids.”
THE CURRENT ARBITRAL PROCEEDINGS
The current proceedings were commenced by Application to Resolve a Dispute registered on 6 April 2016 (the Application). The claim was for a further lump sum in respect of 11 per cent whole person impairment, and medical expenses for the provision of hearing aids. The appellant, in its Reply, confirmed the matters in dispute were in accordance with the dispute notice (the s 74 notice referred to above). The Reply also had attached an “Amended Schedule of Directions”. This document listed 25 people and bodies, in respect of which the appellant apparently proposed seeking leave for the issue of directions for production (Pt 13 rr 13.3 and 13.4 of the Workers Compensation Commission Rules 2011 [the Rules]).
The matter was listed for a telephone conference before a Commission arbitrator on 12 May 2016. A document headed “Amended Directions for Production –Orders” dated 13 May 2016 recorded that leave was granted (I infer to the appellant) to issue Directions for Production on Triple 333 Medical Centre, Dr R Witkowski and Regents Park Medical Centre, for “Treatment, medical and clinical records of the applicant”.
The matter was listed for an arbitration hearing on 27 June 2016. Mr Stanton of counsel appeared for the respondent, and Mr Macken, solicitor appeared for the appellant. There were no applications to adduce oral evidence. The matter proceeded on the basis of the documentary material, and the parties’ legal representatives made submissions. The Arbitrator reserved his decision.
THE ARBITRATOR’S DECISION
The Commission issued a Certificate of Determination dated 7 July 2016, accompanied by 19 pages of the Arbitrator’s reasons (the reasons).
The Arbitrator noted the agreement of the parties that, if the respondent succeeded, the matter required referral to an AMS to assess whole person impairment, and that the appellant accepted that the provision of hearing aids was reasonably necessary.
The Arbitrator summarised the evidence, both lay and medical, and the parties’ submissions.
The Arbitrator dealt with the issue of ‘injury’. He noted that the appellant’s s 74 notice did not dispute that it was a ‘noisy employer’. He noted the appellant had previously accepted, when resolving the earlier claim in 2005, that “the employment had the tendencies, incidents or characteristics to cause industrial deafness” (Blayney Shire Council v Lobley & Anor (1995) 12 NSWCCR 52 [Lobley]). He referred to the histories recorded by Dr Kleiner, Dr Harrison and Dr Seymour, dealing with noise exposure in the respondent’s employment. He noted the appellant had not adduced evidence inconsistent with those histories. He quoted from Lobley and Dawson and others trading as the Real Cane Syndicate v Dawson [2008] NSWWCCPD 35, dealing with proof of injury in claims for industrial deafness. He said that, even if ‘noisy employment’ were in dispute, he would be satisfied that the respondent’s employment had the “tendencies, incidents or characteristics” to cause hearing loss.
Later in his reasons, at [81]-[86], the Arbitrator referred to s 17 of the 1987 Act, and discussion of that section in Ware v NSW Rural Fire Service [2014] NSWWCCPD 33. The Deputy President in that case referred to the “fiction” that an injury governed by s 17 is taken to be received “in one blow”. He said that once it was established that a worker had “boilermaker’s deafness or sensorineural hearing loss” due to noise exposure at an employer, then that should be an end of the matter.
The Arbitrator said that if he was wrong in this regard, and the requirement to establish that employment was the “main contributing factor” to the injury required consideration, there was inconsistency between the definition of a ‘disease injury’ in s 4 of the 1987 Act (which was amended by the Workers Compensation Legislation Amendment Act 2012 to refer to the need for employment to be the “main contributing factor”) and that in s 4 of the 1998 Act (which requires that employment be a “contributing factor”). The Arbitrator referred to a number of authorities on statutory interpretation. He concluded that when ss 4(b)(i) and 4(b)(ii) of the 1987 Act were amended in 2012, there was an implied repeal of ss 4(b)(i) and 4(b)(ii) of the 1998 Act.
On this basis, if the definition in s 4(b) of the 1987 Act had relevance, it was necessary that the worker establish that employment was the “main contributing factor” to the alleged ‘disease’ injury. The Arbitrator adopted the definition in the Macquarie Dictionary, and said that “main” in the context meant “chief” or “principal”. He referred to the medical reports, and said there was no evidence of significant noise exposure away from work, and the respondent had worked for the appellant for 38 years. He said he was satisfied that the respondent’s employment with the appellant was “the main contributing factor to his hearing loss”.
The Arbitrator next dealt with the appellant’s arguments going to ‘notice’ (s 254 of the 1998 Act) and ‘claim’ (s 261 of the 1998 Act). He referred to s 261(6) of the 1998 Act, and the decisions in Pacific National Pty Ltd v Schattler [2011] NSWWCCPD 73 (Schattler), Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Jones) and Unilever Australia Ltd v Petrevska [2013] NSWCA 373; 13 DDCR 260 (Petrevska). The Arbitrator said that, applying these authorities, the respondent first became aware that he had suffered the relevant injury when he consulted Dr Kleiner on 23 June 2014. A quote for the hearing aids was obtained on 23 October 2014, and the claim was made, and notice given, on 29 October 2014. The claim was made within six months of the respondent becoming aware that he had sustained a further loss of hearing, complying with ss 261(1) and 261(6) of the 1998 Act.
The Arbitrator said that the respondent became aware of his ‘injury’ on 23 June 2014, but did not give notice of it until 29 October 2014, about four months later. The Arbitrator said that the respondent had previously accepted liability for the earlier claim, and “was able to properly determine the current claim after obtaining two reports from its own qualified ENT specialist”. He was not satisfied the failure to give notice of injury in late June 2014, rather than late October 2014, caused any prejudice. He found the respondent had complied with ss 254 and 255 of the 1998 Act.
The Arbitrator made formal findings consistent with the reasons, ordered the appellant to pay medical expenses pursuant to s 60 of the 1987 Act in respect of the hearing aids, and remitted the matter to the Registrar, for referral to an AMS, to assess whole person impairment, with a deemed date of injury of 24 August 2012.
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.”
The appellant, in submissions attached to its Application to Appeal, submitted that the appeal “can be determined on the papers subject to any requirement to address questions raised by the respective submissions by the parties or generally for the proceedings and subject to the requirement to address any matters which arise once the transcript has been provided.” The appellant’s submissions in reply were lodged after the transcript was available to the parties, and after the respondent’s submissions were lodged. The appellant did not seek a formal hearing.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
ISSUES IN DISPUTE
The issues raised in the grounds of appeal are:
(a) whether the Arbitrator made an error of law “in making a finding in the absence of any evidence to support it”;
(b) whether the Arbitrator made an error of law in determining the dispute on a basis not put by or to the parties;
(c) whether the Arbitrator erred in his consideration and determination of the issue as regards ‘notice of injury’, and
(d) whether the Arbitrator erred in the exercise of his discretion in “declining to give leave to issue certain Directions”.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
GROUND NO 1 – MAKING A FINDING IN THE ABSENCE OF ANY EVIDENCE
This ground goes to the defences run by the appellant pursuant to ss 254 and 261 of the 1998 Act.
The Appellant’s Submissions
The Arbitrator, at [71] of the reasons, referred to the respondent’s evidence in his statement dated 22 July 2015 at [4]-[6], going to the respondent’s state of knowledge regarding when he knew he had suffered injury. The passage of the statement (all of the following becomes relevant on the submissions) at [4]-[8] reads:
“4. Although I noticed problems with my hearing after ceasing work with Fairfield City Council, I did not know I had a further loss of hearing that was due to noise exposure. I thought it might have been due to old age, or possibly noise, but I didn’t know for sure.
5. I did not bother to see any doctors about my hearing problems. I just accepted it as something I had to live with.
6. I can recall that some time during 2013 I read an article in the Croatian newspaper about industrial deafness. I realised that many of the symptoms the article spoke about were similar to those that I was experiencing.
7. I saw Villari Lawyers in about November 2013 who provided me with some advice about industrial deafness claims.
8. My lawyers referred me to ear nose and throat specialist Dr Kleiner who I saw on 23 July 2014. Dr Kleiner advised me I was suffering from industrial deafness due to being exposed to noise at work over the years. He advised me I was suffering from a further 11% loss. After learning this I instructed my lawyers to lodge a claim.”
The appellant refers to the reasons at [71], which state:
“According to the applicant’s evidence, he noticed problems with his hearing but did not know that he suffered a further hearing loss due to work related noise exposure. He thought that his hearing issues were due to old age or noise. He read a newspaper, realised that some of his symptoms were similar to those in the article and he then consulted his solicitors for advice. Although he consulted his solicitors in November 2013, it was not until he saw the Ear, Nose and Throat (ENT) specialist, Dr Kleiner, on 23 June 2014 that he became aware that he was suffering from work related industrial deafness. Therefore, applying Petrevska, Jones and Schattler, he first became aware that he had sensorineural hearing loss and that his hearing loss had been contributed to by his employment at the respondent on 23 June 2014.”
The appellant submits that that part of [71] above, which is underlined, was “not supported by the evidence of the respondent as no such statement is made by him”.
The appellant submits that the evidence of the respondent “does not prove that the date of injury should be considered to be anything other than the deemed date of injury of 24 August 2012 by reason of his not knowing that he had sustained an injury.” The appellant also submits that the respondent “at the latest” would have had knowledge of his injury from when he saw Villari Lawyers in November 2013.
The appellant also refers to the reasons at [77]-[79], which state:
“77. It is true that the applicant did not personally give notice to the respondent or the self-insurer. He left it to his solicitor to provide particulars of his injury in the notice of claim on 29 October 2014, so there was a delay in the order of four months. The notice of claim provided particulars consistent with those required in s 255 of the 1998 Act.
78. It would seem that part of the delay was due to the fact that Dr Kleiner did not complete his report until 19 August 2014, almost two months after he examined the applicant. After Dr Kleiner’s report was received, the applicant’s solicitor presumably requested a quote for hearing aids and this was not received until 23 October 2014. The delay was not addressed in the applicant’s statement or by evidence from his solicitor.
79. Although the applicant has made a number of claims in the past, I would be surprised if he was aware of the requirements to report a hearing loss injury as soon as he became aware of it, given that it was two years after he ceased employment. The failure to do this may have been occasioned by ignorance or mistake, but this has not been addressed in his statement.”
The appellant submits that the passages at [77]-[79], which are underlined where quoted above, were not supported by evidence. It is submitted that, in making the above findings at [71] and [77]-[79], which were not supported by evidence, the Arbitrator erred in law.
The Respondent’s Submissions
The respondent submits that, the claim being for a “further loss of hearing”, the relevant question was “when the respondent worker first became aware that he had (a further degree of) sensorineural hearing loss”. The respondent submits that the appellant’s submissions are misconceived, as they ignore the respondent’s statement dated 22 July 2015, and Dr Kleiner’s report dated 19 August 2014. There was evidence to support the finding.
Discussion
Claim
Section 261 relevantly 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.”
The Arbitrator, in his reasons at [66], quoted the following from the decision of Roche DP in Jones at [89] (dealing with when a worker becomes aware that he has received an injury for the purposes of s 261(6) of the 1998 Act):
“The test is an objective one, but is based on the individual worker’s knowledge, not the knowledge of some hypothetical reasonable person. The worker must be actually aware, not constructively aware. In determining when a worker became aware he has received an injury it is necessary to have regard to the worker’s state of knowledge at the relevant time. A worker cannot be said to be aware he has received a work injury if he is unaware of the nature of the condition said to constitute the injury or is unaware that it has been caused by work. Because of the insidious nature of boilermaker’s deafness, and lack of general knowledge in the community of its cause, awareness that a worker has received a s 17 injury will usually require specialised knowledge that will normally come from an appropriate expert in the field.”
The Arbitrator, at [67] of his reasons, noted that Jones was cited with approval by the Court of Appeal in Petrevska. The Arbitrator quoted from Petrevska, including the following from Tobias AJA at [43]:
“Knowledge of symptoms is insufficient as the sub-section requires awareness of the injury and its cause as matters of fact. Although deafness is itself an injury it can be one of gradual onset and was in the present cases. More importantly, gradual loss of hearing is sensorineural. It was therefore necessary in the present case for the respondent to have knowledge as a fact that her deafness was work induced. The difficulty with sensorineural deafness is that it may be due to a number of causes including those which are not so induced. It was insufficient for the respondent to believe that her condition was noise induced due to the possibility of that not being the cause of her type of deafness. Accordingly, in order for the respondent to be aware (or have knowledge) of the fact that her deafness was noise induced, it was necessary for her to obtain specialist advice and until that advice was obtained and confirmed that the condition arose out of her employment, she could not be aware of her injury within the meaning of s 261(6).”
I also note the following passage from Petrevska at [34]-[36], per Macfarlan JA (Meagher JA and Tobias AJA agreeing):
“34. The approach taken by the arbitrator was in my view consistent with the decisions to which I have referred. She made particular reference to Inghams Enterprises [v Jones] which I consider aptly encapsulates the proper approach: that is, because the determination of the cause or causes of sensorineural hearing loss ordinarily requires the application of medical expertise, the opinion of a medically unqualified worker about that issue will rarely be of value, or amount to knowledge of that worker that his or her hearing loss has been caused by the worker's noisy employment. Having rejected the proposition that Mrs Petrevska's belief was sufficient to establish her knowledge of a causal connection between her hearing loss and her employment, the arbitrator understandably turned to the question of when Mrs Petrevska was advised of that matter by a qualified person (see Judgment [48] and [49] quoted in [13] above).
35. On appeal, Deputy President O'Grady's approach was to the same effect (see [15] above) and did not in my view reveal any error of law.
36. In summary, in light of the technical nature of the issue of causation, it was open to the Commission to treat Mrs Petreveska's belief as to what caused her hearing loss as of little, if any, significance. In those circumstances, the date upon which she became aware of the cause of her injury was properly regarded as the date upon which she received relevant medical advice.”
The evidence in the appellant’s statement, quoted at [32] above, amply supports the Arbitrator’s factual finding at [71] of his reasons, having regard to the authorities dealing with when a worker “first becomes aware that he or she has received an injury”, for the purposes of s 261(6) of the 1998 Act. The appellant’s submission that the respondent, at the latest, would have been aware he had suffered the injury by November 2013 when he saw Villari Lawyers, is inconsistent with the authorities quoted above, particularly Petrevska. It is not to the point that the passage of the respondent’s statement, quoted at [32] above, does not contain words to the effect that he did not have awareness until a certain time. Consistent with the passage of Petrevska quoted at [42] above, the belief of a lay person as to the cause of his deafness is likely to be of little, if any, significance. The above passages of the respondent’s statement establish that he noticed a further loss of hearing, did not know for sure what it was caused by, did not see doctors about it, and was eventually referred to Dr Kleiner, who told him he suffered from industrial deafness due to noise exposure. The references to reading information in the Croatian newspaper, and obtaining advice from Villari Lawyers, would not be sufficient to provide relevant awareness, applying Petrevska. The statement supports the finding of fact made by the Arbitrator, at [71] of the reasons, and the Arbitrator clearly refers to the authorities which inform that factual finding.
Dr Kleiner examined the respondent on 23 June 2014. On the evidence accepted by the Arbitrator, that date was when the respondent became aware that he had suffered the relevant injury. Due to the interaction between s 261(1) and s 261(6) the claim was made within time, and the appellant does not have a defence pursuant to s 261(1) of the 1998 Act.
Notice of Injury
Section 254 of the 1998 Act relevantly 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.”
The Arbitrator noted that it was necessary to examine “special circumstances” within the meaning of ss 254(2) and 254(3) of the 1998 Act. He referred to the matters set out in s 254(3)(a) and 254(3)(b) (reasons at [75]-[76]). He noted that the failure to give notice “may have been occasioned by ignorance or mistake, but this has not been addressed in his statement”. He did not rely on s 254(3)(b) in finding there were “special circumstances”. The appellant submits that there were findings at [77]-[79] of the reasons, that were not supported by evidence.
It is submitted that there was no evidence that the respondent “left it to his solicitor to provide particulars of injury” (reasons at [77]). The particulars in the notice of claim dated 29 October 2014 clearly complied with the requirements in s 255 of the 1998 Act, dealing with how notice of injury is given, and the Arbitrator made a finding to that effect, at [77] of the reasons. The requirements of s 254 were satisfied, at the latest, by that date. The Arbitrator approached the issue on the basis that that was the date of notice.
The respondent’s statement dated 22 July 2015 at [8] in my view justifies the inference drawn by the Arbitrator at [77], that the respondent left it to his solicitors to provide particulars of his injury. The Arbitrator has taken 29 October 2014, by when, on any view of it, notice of injury was given, as the date of notice. Even if the drawing of this inference was erroneous, it could not have affected the result, and could not constitute appealable error: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141(Stead) at [16], Toll Pty Ltd v Morrisey [2008] NSWCA 197; 6 DDCR 561(Morrisey) at [10]. The important finding was not whether the giving of notice was left to the solicitors, but rather when notice was given. The finding on that issue was clearly correct, and is not challenged on this appeal.
The appellant submits that the passage at [78] of the reasons, where the Arbitrator said that part of the delay was due to the fact that Dr Kleiner did not complete his report until 19 August 2014, was a finding unsupported by evidence. The relevant part of [78] was not couched as a finding of fact; it commenced “It would seem…” The second sentence in [78] included “the applicant’s solicitor presumably requested a quote…” After referring to these matters, the Arbitrator specifically said “The delay was not addressed in the applicant’s statement or by evidence from his solicitor.” Reading the reasons as a whole (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444), the Arbitrator at [78] speculated on certain matters which may have explained delay, but then specifically avoided relying on such matters, in the absence of appropriate evidence. Such matters did not form any part of the Arbitrator’s finding at [80] of the reasons, that “special circumstances” existed on the basis of s 254(3)(a) of the 1998 Act.
The appellant makes a similar submission going to the reasons at [79], where the Arbitrator said he would be surprised if the respondent was aware of the requirements to report a hearing loss injury. Again, after referring to this as a possible reason for delay, the Arbitrator rejected it, saying “The failure to do this may have been occasioned by ignorance or mistake, but this has not been addressed in his statement.” This matter, again, did not form part of the Arbitrator’s reasons for finding “special circumstances” in his reasons at [80]. There is no substance to the appellant’s submission on this point. Again, even if the submission were accepted, any such error would not be appealable error, as it would not have affected the result. “Special circumstances” were found by reference to s 254(3)(a) of the 1998 Act, not s 254(3)(b).
Ground No 1 fails.
GROUND NO 2 – DETERMINING THE DISPUTE ON A BASIS NOT PUT
This ground also goes to the appellant’s defence based on s 254 of the 1998 Act.
The Appellant’s Submissions
The Arbitrator, at [75] of his reasons, said that it was necessary to examine “special circumstances” within the meaning of ss 254(2) and (3) of the 1998 Act. At [80] he considered whether the appellant was prejudiced by any failure to give notice at the time required by s 254. He concluded that the appellant was not prejudiced, and accordingly any failure to give notice of injury was not a bar to the recovery of compensation: s 254(3)(a).
The appellant submits that the matters the subject of the reasons at [75] and [80] were “not the subject of submissions or argument by the parties and were not put to the parties by the Arbitrator”. It is submitted that this constitutes an error of law; reference is made to Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 (Ghaleb).
The Respondent’s Submissions
The respondent submits that s 254 of the 1998 Act was relied on as a defence by the appellant, so the Arbitrator was obliged to deal with the section “and any related provisions of relevance”. It is submitted that the appellant made specific submissions about the section.
Discussion
The respondent, at the arbitration hearing, submitted that when a claim was made on 29 October 2014 in compliance with ss 260 and 261 of the 1998 Act, this also satisfied the requirements of s 255 of the 1998 Act for giving notice of injury (T10.33-11.32). The Arbitrator accepted this submission (reasons at [77]) and that finding is not challenged on this appeal. It is consistent with Visy Board Pty Ltd v Nguyen [2010] NSWWCCPD 101 at [59].
The appellant’s solicitor, submitting at the arbitration hearing, did not accept that the respondent first became aware of the occurrence of the relevant injury only on 23 July 2014, the date of the consultation with Dr Kleiner. His submissions were consistent with any failure to give notice of injury being measured from when the respondent became aware of the injury, to 29 October 2014 (when he gave notice in writing). Without actually making a concession, his submissions dealt with the period of potential delay as running from 23 July 2014 to 29 October 2014 (T19.4-11). This period was consistent with the approach taken by the respondent’s counsel in submissions at the arbitration hearing. This was generally consistent with the approach taken by the Arbitrator, who at [77] of the reasons referred to “delay in the order of four months”.
The Arbitrator sought the assistance of the respondent’s counsel dealing with s 254 of the 1998 Act (T11.34-12.1). The respondent’s counsel described the relevant provisions of s 254, including sub-clauses (3)(a) and (3)(b). He then submitted that it would be “speculative and improper” to provide a “notice of injury in a further loss of hearing matter if it didn’t actually have an expert opinion that which [sic] clarified that that was so, otherwise you’d be wasting everyone’s time potentially if it turns out that it’s not so” (T12.34-13.5). He continued:
“I submit that there isn’t a failure, it’s just been as soon as possible after the injury happened … read in conjunction with section 261(6) that you don’t become aware of the injury until you’ve got the specialist opinion, which Justice Tobias discussed in Petrevska.” (T13.5-11)
The respondent’s counsel referred to s 254(3), including s 254(3)(a). His primary submission was that there had not been a failure to comply with s 254(1) of the 1998 Act.
The appellant’s counsel submitted that, on the respondent’s case, he was aware he had an injury by way of a further loss of hearing on 23 July 2014 when he saw Dr Kleiner, and he did not give notice until 29 October 2014. It was submitted that this did not amount to giving notice “as soon as possible” (T19.4-11). He submitted that there was no evidence to explain the three month delay (T19.12-20). He submitted that there was “no evidence to say, for example, that he comes within the exceptions provided in section 254. He’s just given no evidence about it.” (T19.22-4).
The first finding challenged in this ground is at [75] of the reasons. Section 61 of the 1998 Act contains provisions in similar (but not identical) terms to those in s 254. Section 61 applies to claims where notice of injury was given prior to 1 January 2002. Section 17(1)(b) of the 1987 Act, which deals with claims for loss or further loss of hearing, provides:
“(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,”
The Arbitrator, in his reasons at [75], observed that this provision assists workers whose reporting obligations fell under s 61, but that there is no equivalent provision to assist in matters where s 254 of the 1998 Act applies. The Arbitrator observed that “This would seem to be a legislative oversight.” He then said “… in the absence of a similar provision, it would seem that one needs to examine the special circumstances in ss 254(2) and 254(3) of the 1998 Act.”
It is true, as the appellant submits, that there were no submissions going to “an anomaly or oversight in the legislation”. However, this does not amount to appealable error. Although elliptically expressed, it was implicit in the passage at [75] that the Arbitrator accepted the appellant’s submission that the respondent had not given notice of injury in compliance with s 254(1). It is only if there is such a failure, that it is potentially necessary for a worker to rely on ss 254(2) and (3), the provisions which the Arbitrator then considered. Both parties had addressed on the issue of whether there had been a failure to comply with s 254(1) of the 1998 Act. I do not accept the appellant’s submission on this ground, going to the reasons at [75].
The Arbitrator, in finding “special circumstances”, applied s 254(3)(a) of the 1998 Act. The appellant on this appeal submits:
“… no submissions were made as to there being no prejudice to the Respondents [sic] (that matter not having been addressed by submissions or evidence)”.
The Arbitrator’s finding of “special circumstances” within the meaning of s 254 of the 1998 Act appeared at [80] of his reasons:
“However, given that the respondent had previously accepted liability and paid lump sum compensation in respect of hearing loss and was able to properly determine the current claim after obtaining two reports from its own qualified ENT specialist, I am not satisfied that the failure to give notice of injury to the respondent in late June 2014, as opposed to late October 2014, caused it any prejudice. In the circumstances, I am satisfied that the applicant complied with ss 254, 255 and 261 of the 1998 Act.”
Addressing before the Arbitrator, the respondent’s counsel read out, in a summarised form, s 254 of the 1998 Act (T12.3-22). He then submitted that the notice of claim also constituted notice of injury (T12.22-33 and T13.11-15). He submitted that notice of injury could not have been appropriately given until there was an “expert opinion” (T12.33-13.5). He then submitted “…I submit that there isn’t a failure, it’s just been as soon as possible after the injury happened” (T13.5-7). The appellant’s counsel submitted to the Arbitrator that there was no evidence to bring the respondent “within the exceptions” in s 254.
When submitting in reply, the respondent’s counsel submitted that there were “special circumstances” within the meaning of s 254(3) of the 1998 Act. He referred to s 254(3)(b), which deals with failure to give notice “occasioned by ignorance, mistake, absence from the State or other reasonable cause”. He said:
“You don’t have knowledge of a further loss of hearing until after you get the specialist opinion that you have a further loss of hearing. So how can you possibly sort of give notice, sort of until you have that, and also other reasonable causes.” (T25.4-8)
The respondent submitted that it was “perfectly reasonable” that the claim, when made, “included the quote for the hearing aids”, which “did not come in until 23rd of October 2014” (T25.29-26.2). He submitted that preparation was “actually proceeding with perfectly reasonable diligence”. He submitted that “all of this provides reasonable cause for why notice in the form of a further loss of injury is not provided as soon as possible after the injury happened” (T26.29-32). The Arbitrator asked the respondent’s counsel whether he was saying “a 2 month delay is consistent with as soon as possible” (this would be consistent with the period from the date of Dr Kleiner’s report to the date of the claim which also comprised notice of injury). The respondent’s counsel responded:
“It’s a perfectly reasonable period of time within which it’s reasonably implicit that the applicant’s solicitors were putting together further documents in terms of the quotation for the hearing aids so that they could be troubling the respondent with just one comprehensive claim, rather than dribbling it out as separate claims.” (T27.6-12)
The respondent’s counsel at T28.29-29.2 submitted:
“I'd submit that if you did think that there was some failure to give a notice of injury as soon as possible after the injury happened, deemed date of injury anyway, that what I've described provides ample reasonable cause for the existence of special circumstances which would preclude the operation of the section occurring the way the respondent advocates.”
Contrary to the appellant’s submissions, the issue of prejudice was addressed by evidence. The matters relied on by the Arbitrator at [80] were based on material in evidence before him. However there is substance, in the submission on appeal, that the question of whether there were “special circumstances” within the meaning of s 254(3)(a) of the 1998 Act was not raised in submissions before the Arbitrator.
The respondent’s submissions clearly raised s 254(3)(b). The Arbitrator did not accept that s 254(3)(b) applied. He referred to the absence of evidence from the respondent or his solicitor addressing delay associated with obtaining a report from Dr Kleiner and a quote for hearing aids (reasons at [78]). He referred to an absence of evidence from the respondent dealing with an awareness of the need to report his injury (reasons at [79]). The Arbitrator found “special circumstances” on the basis of s 254(3)(a), based on a lack of prejudice to the appellant. The parties, in their submissions, had not addressed this issue. The Arbitrator, during the running of the arbitration hearing, had not raised it.
In Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; 10 DDCR 290 Bathurst CJ (McColl JA agreeing) at [75] said:
“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 under s 353: Seltsam v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 at [159]; Escobar v Spindaleri (1986) 7 NSWLR 51 (Escobar) at 60-61; Amaca Pty Limited v Doughan [2011] NSWCA 169 at [33].”
In Jones at [82]-[84] Roche DP said:
“82. More importantly, by determining that Mr Jones did not become aware of his injury until after the receipt of Dr Tamhane’s report, the Arbitrator decided the case on a basis that was never argued by the worker’s solicitor and without giving the appellant the opportunity to be heard. It is a basic rule of fairness, disregard of which can be an error of law, that a party must have an opportunity to deal with any material ingredient in a Court’s decision-making process (Smith Family v Dafinis (1991) 8 NSWCCR 9).
83. This principle was applied by Bathurst CJ (McColl JA agreeing) in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75], where it was observed that a decision or award based on a point not raised by the parties or by the Commission constitutes a denial of procedural fairness and is susceptible to challenge under s 353 of the 1998 Act, which is restricted to appeals from Presidential member where a party is “aggrieved by a decision of the Presidential member in point of law”. The same principle applies to proceedings before Arbitrators and appeals under s 352.
84. While I accept that an Arbitrator is not obliged to decide a case by reference only to the matters put by counsel, and that, in deciding a case, an Arbitrator is entitled to think for himself or herself (Saif Ali v Sydney Mitchell & Co[1980] AC 198 at 212; [1978] 3 All ER 1033 at 1037 per Lord Wilberforce; Klein v Minister for Education[2007] HCA 2; 232 ALR 306 at [38], 315 per Gummow, Hayne and Heydon JJ), if an Arbitrator is minded to determine a case on a basis not argued, he or she is required to give the parties an opportunity to be heard. The Arbitrator erred in failing to do so in this case.”
The appellant was deprived of an opportunity to be heard on, and respond to, the issue based on s 254(3)(a) of the 1998 Act. On the authorities, this amounts to a denial of procedural fairness.
Ground No 2 is upheld, on this basis.
GROUND NO 3 – ERROR ON THE ‘NOTICE OF INJURY’ ISSUE
The Appellant’s Submissions
The appellant’s submissions at [20]-[21] state:
“20. The Appellant Employer submits that the Arbitrator was in error in his consideration and determination of the issue of the failure by the Respondent Worker to give notice of injury as soon as possible after the injury as required by the Legislation.
21. The Appellant Employer notes that the Arbitrator determined (the Appellant says in error) that the Respondent Worker was first aware of his injury on 23 June, 2014 (Decision paragraph 71) and it is common ground that notice of injury was not given to the Appellant Employer until on or shortly after the 29 October, 2014 (being three months later). The Appellant submits that on any view of this it could not possibly be said to be as soon as possible after injury as required by the Act.”
The submissions, at [22]-[24], then go on to recite various factors in respect of which the Arbitrator “seeks to excuse the failure to give notice”. These were getting a quote for hearing aids, a delay in completion of Dr Kleiner’s report and “ignorance” (presumably of the requirement to give notice).
The Respondent’s Submissions
The respondent submits that the Arbitrator made a finding based on the existence of “special circumstances” for the purposes of s 254(2) of the 1998 Act. The respondent submits that the Arbitrator was “well able to find an absence of prejudice”, such that “delay in giving notice was not a bar to the recovery of compensation”.
Discussion
This ground is misconceived. It proceeds on the basis that the Arbitrator, in his reasons at [74]-[79], found either:
(a) that the respondent gave notice “as soon as possible” in compliance with s 254(1) of the 1998 Act, and/or
(b) that any failure by the respondent to give notice in compliance with s 254(1) was excused, presumably (having regard to the subject matter of the submissions) on the basis of s 254(3)(b) of the 1998 Act.
The Arbitrator made no such findings. The Arbitrator approached the issue pursuant to s 254(1) on the basis that that provision was not complied with (see [62]-[63] above). The Arbitrator approached the issue regarding “special circumstances” pursuant to s 254(3)(b) on the basis that the evidence did not support a finding based on that sub-section (see [71] above). The Arbitrator did make a finding of “special circumstances” on the basis of s 254(3)(a), dealing with an absence of prejudice. That is discussed above under Ground No 2, and is not the subject of the appellant’s submissions going to ground No 3.
Ground No 3 fails.
GROUND NO 4 – DIRECTIONS FOR PRODUCTION
The Appellant’s Submissions
The appellant submits that, if any of the grounds of appeal numbered 1, 2 or 3 are made out, it is unnecessary to consider Ground No 4. Consistent with that submission, as Ground No 2 was upheld, Ground No 4 is not pressed.
DISPOSITION OF THE APPEAL
Ultimately Ground No 2 (dealing with s 254(3)(a)) was upheld, Grounds Nos 1 and 3 failed, and Ground No 4 was not pressed. The balance of the factual findings of the Arbitrator were not disturbed.
The found error is one going to procedural fairness. It could not be concluded that the error “could make no difference to the result”: Stead at [15]-[16].
The appellant submits that an award in favour of the appellant should be entered.
It is inappropriate that I re-determine the matter, in circumstances where there has been a finding that there was a denial of procedural fairness in the circumstances. Neither party has been heard on the merits, on the application of s 254(3)(a) in the circumstances. Section 354(3) of the 1998 Act requires that the “Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. It is appropriate that the outstanding issue pursuant to s 254(3)(a) of the 1998 Act be determined on its merits, after the parties have an opportunity to be heard. This is generally consistent with the approach taken in authorities such as Stead, Escobar, Ghaleb and Morrisey.
The appropriate order is that the matter be remitted to another Arbitrator for re-determination, on the sole remaining issue of whether the respondent is entitled to rely on s 254(3)(a), for the purpose of establishing that there are “special circumstances”, within the meaning of s 254(2) of the 1998 Act.
DECISION
The Certificate of Determination dated 7 July 2016 is revoked.
The matter is remitted for redetermination by another Arbitrator, limited to the question of whether the respondent is entitled to rely on s 254(3)(a) of the 1998 Act, for the purpose of establishing that there are “special circumstances”, within the meaning of s 254(2) of the 1998 Act.
Michael Snell
Deputy President
1 November 2016
0
13
0