Fairfield City Council v Elek - [2016] NSWWCCPD 52

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWWCCPD 52
Decision Date: 1 November 2016

CaseChat Overview and Summary

In the case of Fairfield City Council v Elek, the respondent sought a review of an Arbitrator’s determination regarding the entitlement to workers' compensation benefits. The dispute arose from the Arbitrator's decision to limit the consideration of evidence and arguments to the specific question of whether the respondent could rely on section 254(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 to establish "special circumstances." The matter was heard in the Dust Diseases Tribunal of New South Wales.

The primary legal issue the court had to address was whether the Arbitrator erred in law by deciding the dispute on a basis not put by the parties and by making alleged errors in fact finding. The respondent argued that the Arbitrator had not properly considered the relevant provisions of the Act and had failed to assess all the evidence that was before them. The council, on the other hand, contended that the Arbitrator correctly exercised their discretion in managing the proceedings and that there was no error in the determination.

The court found that the Arbitrator had indeed erred in law by deciding the dispute on a basis not put by the parties. The court emphasised that the Arbitrator must ensure that all relevant arguments and evidence are considered before making a determination, especially in matters involving statutory interpretation and the application of legislative provisions. Furthermore, the court identified specific errors in fact finding that undermined the Arbitrator's decision. The court concluded that these errors required the matter to be remitted for redetermination by another Arbitrator.

Accordingly, the court revoked the Certificate of Determination dated 7 July 2016 and remitted the matter to be reconsidered by another Arbitrator, limited to the specific issue of whether the respondent is entitled to rely on section 254(3)(a) of the 1998 Act for the purpose of establishing "special circumstances" under section 254(2) of that Act.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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