Grain Handling Authority v Graincorp Operations Limited
[2007] NSWWCCPD 54
•15 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Grain Handling Authority v Graincorp Operations Limited and Anor [2007] NSWWCCPD 54
APPELLANT: Grain Handling Authority
FIRST RESPONDENT: Graincorp Operations Limited
SECOND RESPONDENT: Ian McLeod
INSURERS:Appellant – GIO General Limited
First Respondent – Self Insurer
FILE NUMBER: WCC20926-05
DATE OF ARBITRATOR’S DECISION: 4 July 2006
DATE OF APPEAL DECISION: 15 February 2007
SUBJECT MATTER OF DECISION: Sections 17, 22 and 60 of the Workers Compensation Act 1987 and claim for further loss of hearing.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers.
REPRESENTATION: Appellant: Hicksons Lawyers
First Respondent: Goldbergs
Second Respondent: Whitelaw McDonald
ORDERS MADE ON APPEAL: 1. Time to Appeal is extended to 3 August 2006.
2. Orders 2 and 3 of the Arbitrator’s decision dated 4 July 2006 are revoked and the following order is made in their place:
1. The First Respondent is to pay the Applicant’s Section 60 expenses pursuant to the provisions of the Workers Compensation Act 1987 on production of accounts or receipts.
2. The First Respondent is to pay the Applicant’s costs as agreed or assessed.
3. Order 1 of the decision of the Arbitrator is confirmed.
4. The First Respondent is to pay the Second Respondent’s costs of this appeal.
BACKGROUND TO THE APPEAL
On 3 August 2006 Grain Handling Authority (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 4 July 2006.
The Respondents to the Appeal are Graincorp Operations Limited (‘the First Respondent’) and Ian McLeod (‘the Second Respondent’).
The Second Respondent, who was born on 24 September 1942, was employed by the Appellant as a Maintenance Supervisor from a date in 1974 to 31 October 1983 at which time his employment was transferred to the First Respondent. The Second Respondent claimed as against the Appellant a lump sum pursuant to section 16 of the Workers Compensation Act 1926 (‘the 1926 Act’) in respect of alleged industrial deafness. The deemed date of injury concerning that claim was September 1983 and payment was made of a lump sum with respect to 12.6% monaural loss of hearing in the right ear and 19.1% monaural loss of hearing in the left ear. Subsequently, on 15 June 1999, the Appellant agreed to meet the cost of hearing aids acquired by the Second Respondent the cost of which being $2,050.
The Second Respondent continued in his employment with the First Respondent and it appears that on 22 August 2005 he gave notice of claim with respect to an alleged further loss of hearing, together with a claim for section 60 expenses pursuant to the Workers Compensation Act 1987 (‘the 1987 Act’) to the First Respondent. It was asserted by Goldbergs Lawyers, Solicitors for the First Respondent, in correspondence dated 6 September 2005 addressed to the Second Respondent’s Solicitors that any claim in respect of hearing aids should be brought against the Appellant. That correspondence was silent as to liability with respect to any notice of claim concerning the alleged further loss of hearing.
On 8 December 2005 the Second Respondent filed an Application to Resolve a Dispute with the Commission against the First Respondent claiming a lump sum in respect of further loss of hearing (section 66 of the 1987 Act) and medical, hospital or related expenses being the sum of $7,552 being for provision of binaural digital hearing aids and associated consultation fee (section 60 of the 1987 Act). The Appellant was subsequently joined as a Respondent to the Application which came before an Arbitrator for determination on 3 July 2006. During conciliation conducted by the Arbitrator a number of matters of fact were agreed which are more fully addressed below. Arbitration of the outstanding issues between the parties was conducted on that day and a decision was delivered ex tempore. A certificate with respect to that determination issued on 4 July 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 4 July 2006 records the Arbitrator’s orders as follows:
“The orders made are as follows:
1.That the First Respondent pay the Applicant as compensation under section 66 of the Workers Compensation Act 1987 the amount of $7,500.00 for 6% whole person impairment.
2.That the Respondents pay the Applicant up to $7,500.00 as compensation under section 60 of the Workers Compensation Act 1987 for the provision of hearing aids, upon production of accounts and receipts, with liability to pay that amount to be apportioned between the Respondents such that the First Respondent pay 45% and the Second Respondent pay 55%.
3.That the Respondents pay the Applicant’s costs as agreed or assessed.”
It is to be noted that the order numbered 1 relating to payment of section 66 lump sum was made by the Arbitrator against the First Respondent by consent (see Transcript of proceedings conducted 3 July 2006 page 1. 52-58). That such consent was forthcoming is consistent with the proper application of the provisions of sections 17, 68B(4) and the provisions of Schedule 6 Part 6 Clause 5A of the 1987 Act to the facts of the present matter.
PRELIMINARY MATTERS
It is, at this time, convenient to note the following matters which were the subject of agreement between the parties which were noted by the Arbitrator at page 2 lines 1-49 of the Transcript of proceedings 3 July 2006:
(i) During the course of a telephone conference conducted by the Arbitrator on 3 March 2006 it was agreed that the Appellant be joined as Second Respondent to the proceedings. I note that the Appellant appeared during the course of that teleconference by its Solicitor, Mr Wood of Hicksons Lawyers.
(ii) The date of injury particularised in the Application to Resolve a Dispute was amended (PART 3 INJURY DETAILS) to specify 22 August 2005 (particularised as further loss of hearing) and September 1983 (particularised as hearing loss).
(iii) Agreement was reached between the parties that – “the provision of hearing aids of some sort is reasonably necessary treatment to be given to Mr McLeod for his hearing loss or hearing losses” (Transcript page 2 lines 27-31).
(iv) It was agreed that – “Mr McLeod has a 13% whole person impairment in total resulting from both the hearing loss occurring in September 1983 and that occurring in August 2005 … The parties also agreed that Mr McLeod has a total of 25.25% binaural hearing loss from both hearing losses, that is, the hearing loss in September 1983 and the further hearing loss from August 2005.” (Transcript page 2 lines 33-42).
(v) The parties agreed – “That of that total hearing loss 13.9% binaural relates to the September 1983 injury of hearing loss and 11.3% binaural hearing loss results from the injury of further hearing loss in August 2005.” (Transcript page 2 lines 44-49).
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in determining that provision of hearing aids to the Second Respondent at a cost of up to $7,500 was “reasonably necessary” within the meaning of section 60 of the 1987 Act.
(ii)Whether the Arbitrator erred with respect to the order directing apportionment of the liability to pay compensation, being up to $7,500 for the provision of hearing aids, between each of the Respondents as set forth in paragraph 2 of his determination.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, and the submission 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
Section 352(4) of the 1998 Act provides:
“(4)An appeal can only be made within 28 days after the making of the decision appealed against.”
Rule 16.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Sub-rule (11) of Rule 16.2 provides:
“(11) The Commission constituted by a Presidential Member may, if a party satisfies the Presidential Member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The Appellant’s Application was originally filed with the Commission on 31 July 2006 being a date within the time limited by the abovementioned provision. By reason of formal defect contained in the Application the document was rejected by the Registrar of the Commission and advice to that effect addressed to the Appellant’s representatives was communicated in a letter from the Registrar received by them on 3 August 2006.
The Appellant, through its representatives, responded to the Registrar’s correspondence by letter dated 3 August 2006. The contents of that correspondence addressed the formal defects which had appeared in the original Application as filed on 31 July 2006. I treat that correspondence as an Application for Extension of Time as permitted by the provisions of rule 16.2 sub-rule (11) of the Rules.
The principles relevant to the exercise of a discretion to extend time were considered by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479. Those principles have been discussed and applied in numerous decisions of the Commission (see for example Alexandru v State Raul Authority NSW [2004] NSWWCCPD 54).
Had it not been for the formal defect prompting rejection of the Appellant’s Application on 3 August 2006 the Appellant’s conduct in pursuing the appeal would have, in all other respects, complied with the legislative requirements as to the conduct of such an appeal. Having regard to the very brief period by which the time limitation was breached, the conduct of the Appellant in promptly responding to the Registrar’s correspondence and the nature of the litigation, I am of the view that “exceptional circumstances” within the meaning of rule 16.2 sub-rule (11) exist in the present matter.
The Appellant has raised substantial issues for determination in its Application and I am of the opinion that, should the Appellant lose the right to seek leave to appeal, demonstrable and substantial injustice in terms of the aforementioned sub-rule would likely occur.
In its Notice of Opposition to Appeal Against Decision of Arbitrator the First Respondent has, in paragraphs 1-6 inclusive of Submissions attached to that document, opposed the granting of leave as sought by the Appellant to appeal against the Arbitrator’s decision. The thrust of those Submissions is that the threshold requirements as to quantum stipulated by section 352(2) of the 1998 Act have not been met. That last mentioned sub-section provides:
“352(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulation) and
(b)at least 20% of the amount awarded in the decision appealed against.”
The Arbitrator has made an order, pursuant to section 60 of the 1987 Act with respect to liability to pay compensation in the sum of up to $7,500. The Arbitrator has further ordered that an apportionment of that sum be made as between the Appellant and the First Respondent pursuant to section 22 of the 1987 Act. Whilst it is true, as argued on behalf of the First Respondent, that the Appellant’s monetary liability following such order is less than $5,000, it is the Appellant’s argument that upon proper application of relevant provisions of the 1987 Act it is the First Respondent that should properly bear liability for payment of the sum of up to $7,500 pursuant to section 60 of the 1987 Act. Shortly stated I am of the opinion that the “amount of compensation at issue on the appeal” in terms of section 352(2) of the 1998 Act is the sum of $7,500. The fact that, as submitted by the First Respondent, there exists evidence that a sum less than $5,000 should have been ordered by the Commission as being payable pursuant to section 60 is not to the point. The Arbitrator accepted the evidence as to the reasonable necessity of the hearing aids costing up to $7,500 and made an order accordingly. It is the Appellant’s argument that the First Respondent should bear that liability. The fact that the cost of the hearing aids has not yet been incurred by the Second Respondent has implications with respect to the Commission’s powers to make orders and that issue is addressed below.
The amount of compensation at issue on the appeal exceeds the sum of $5,000 and is at least 20% of the amount awarded in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act as to quantum which must be met before a grant of leave to appeal may be made by the Commission.
I formally order that time to apply for leave to appeal be extended to 3 August 2006 being the date of refiling of the Appellant’s Application. Having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
There is before the Commission a Transcript of proceedings conducted before the Arbitrator on 3 July 2006. That Transcript records the matters which were the subject of agreement as noted above (paragraph 8). That Transcript also records the submissions of the parties’ representatives and the Arbitrator’s Reasons for Determination (‘Reasons’).
Evidence adduced on behalf of the Second Respondent in support of his claim is summarised at Part 5.1 of his original Application. Included among those documents was a Statement by the Second Respondent (undated) which outlined his employment history, noise exposure and details of the first claim made with respect to hearing loss in 1983 and detail of payments made by the Appellant in respect of both hearing loss and provision of hearing aids.
The Second Respondent, in support of the quantum of his claim brought pursuant to section 60 of the 1987 Act, annexed to his original Application a report of Dr S. Valentine Fernandes (ENT and Facial Cosmetic Surgeon) dated 27 June 2005 and a report from Hunter Hearing Pty Limited signed by Ms Gay Steele, Audiometrist, dated 29 August 2005. Dr Fernandes’ report stated that the Second Respondent “would benefit from bilateral hearing aids with high tone emphasis seeking clarity and adaptive directionality, best achieved with Artificial Intelligence”. Ms Steele in her report expressed the view that the Second Respondent would benefit from hearing aids that were “100% digital, fully automatic, have a microphone providing both omni and directional sound sourcing ensuring excellent speech recognition in most listening environments”. Ms Steele noted the cost of such hearing aids as being $7,500. A medical account of Dr Heard relating to referral to “Ear Specialist” dated 29 April 2005 in the sum of $52 was also annexed to the original Application.
The First Respondent in its Reply to Application to Resolve a Dispute relied upon that material listed in Part 4.1 of the Reply and annexed to that document. Included among that material was a report of Dr JH Seymour (Ear Nose and Throat Specialist Surgeon) dated 27 September 2005. That report included an expression of opinion by Dr Seymour that “…the Applicant does require renewal of his present hearing aids. You will note that entirely suitable digital aids can be prescribed for this Applicant for a great deal less than that quoted by Hunter Heading [sic] Aids. Directional microphones, which can be obtained for an additional $200 are strongly recommended.” It is to be noted that Dr Seymour was of the opinion that there had been no increase in the Second Respondent’s compensable hearing loss since his claim in 1983. An enclosure with Dr Seymour’s report outlined the cost of available hearing aids of a type suitable, in Dr Seymour’s view, for use by the Second Respondent ranging between $2,400 and $3,050. Dr Seymour recommended further expenditure of $200 per aid for provision of Directional microphones.
The Appellant filed a Reply to Application to Resolve a Dispute on 23 December 2005 (which appears to pre-date its formal joinder) and it is noted that no evidence was adduced by that party for consideration by the Arbitrator.
A Medical Assessment Certificate (‘MAC’) dated 18 May 2006 issued by Dr Brian J Williams (Approved Medical Specialist) was before the Arbitrator. That Certificate stated that the Second Respondent had suffered sensorineural hearing loss caused by occupational noise exposure being total BHI of 25.2% (equivalent to 13% whole person impairment). Dr Williams further stated that, taking into account previously determined level of industrial deafness in 1983, the Second Respondent had suffered a further loss since that time of 11.3% binaural hearing (the equivalent of 5.83% Whole Person Impairment). Attached to the MAC is a copy of the Arbitrator’s Request for Assessment of Permanent Impairment dated 3 March 2006. That Request included the following statement:
“This is a claim relating to further hearing loss, the deemed date of which is 22 August 2005.”
The Appellant’s submissions on this appeal may be summarised as follows:-
(i)The Arbitrator erred in law in determining that liability to pay the compensation sought by the Second Respondent was to be apportioned as between the Appellant and the First Respondent pursuant to section 22 of the 1987 Act.
(ii)That the Arbitrator erred in law in failing to correctly apply the provisions of section 17 of the 1987 Act to the relevant facts of the claim. It is argued by the Appellant that section 17 makes special provision for determination of liability and in particular questions of “contribution” in cases of claims arising from injuries being a loss or further loss of hearing. It is asserted that any question of “contribution” is to be determined by the proper application of that section, to the exclusion of section 22 of the 1987 Act, in particular the provisions of section 17(d) and 17(e)(ii) of the 1987 Act.
The matters set out above are a summary of the Appellant’s submissions which appear in paragraphs 2.1 to 2.12 of its Submissions.
The First Respondent in its Submissions seeks to support the reasoning process, conclusions and orders of the Arbitrator and asserts that the Appellant:
“…had a clearly established liability for payment of section 60 expenses to the worker and that section 17 of the Act does not operate to relieve the Appellant of that responsibility even in the event of a further hearing loss being found.” (at paragraph 28 of “Submissions”).
The First Respondent in earlier submissions sought to develop an argument that section 17 of the 1987 Act was limited in its operation. It was argued that that section:
“…is a section designed to determine liability for compensation at a particular point in time.” (para 15 Submissions).
It was further submitted that:
“… section 17 does not operate to relieve a party from its liability to pay compensation to a worker where that liability has already been established and compensation found to be payable.”(para 17 Submissions).
These submissions followed a summary of detail of the agreed facts relating to the earlier payment by the Appellant of the cost of hearing aids.
The First Respondent further argued that:
“In this instance there were two injuries. The first injury was one that has a date of injury of 2 September 1983 and there was a further injury with a deemed date of injury of 22 August 2005. Section 17 does not apply where there are two dates of injury that have been determined in the matter as in this case.”(para 18 Submissions).
The Second Respondent proceeds in its submission to illustrate what it asserts is the proper application of section 17 to various factual situations including the question of liability in the case of further hearing loss with respect to payment of benefits pursuant to sections 66 and 67 of the 1987 Act as well as in circumstances where there was no liability pursuant to section 60 of that Act determined or admitted prior to the deemed date of the further loss of hearing. It is argued that in the circumstances of this case:
“…the application of section 22 of the Act was entirely appropriate.”
The Second Respondent has provided written Submissions in response to the Appellant’s Application which note that:
“No issue has been taken with [sic] orders 1 and 3 of the Arbitrator.”
It is asserted (at paragraph 2.4) that:
“Insofar as order 2 was concerned, both the First and Second Respondents accepted the reasonableness of the Applicant’s claim pursuant to section 60 WCA Act for the provision of hearing aids up to the value of $7,500 upon production of accounts and receipts (T3.28 – T3.45, T3.54 – T3.58, T4.17 – T5.4).”
The Second Respondent expressly declined to put any submissions with respect to the question of apportionment of liability as ordered by the Arbitrator. Notwithstanding his adoption of that position it is argued that the question of liability to pay the compensation claimed is to be determined by application of the provisions of section 17 of the 1987 Act. On the present facts the Second Respondent argues that the appropriate order should have been that:
“The cost of the hearing aids claimed … be met by the First Respondent.”
The Second Respondent concludes his submissions with the observation that, in the event that such an order is made, the questions of “contribution” and “apportionment” (section 17 and section 22 of the 1987 Act) remain open for argument.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that afore mentioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
It has been noted above that agreement was reached among the parties as to a number of issues of fact. It is convenient to here examine the record of proceedings before the Arbitrator to identify the issues which remained open for determination at the hearing.
It seems reasonably clear from the Transcript that the Appellant and the First Respondent agreed that the provision of hearing aids to the Second Respondent was “reasonably necessary” in terms of section 60 of the 1987 Act. Discussion relating to this subject appears in the Transcript as particularised in the Second Respondent’s Submissions appearing in paragraph 2.4. The Arbitrator is recorded as saying:
“… everyone is happy if I make an order that one or other of the Respondents, yet to be determined, pay up to $7,500 for the provision of hearing aids.” (T4.26 – T3.29 – emphasis added).
The discussion as recorded which preceded this observation by the Arbitrator does not, in my view, reveal any agreement other than, as noted, that provision of hearing aids is reasonable and that the cost of same would be “up to $7,500”. This left the question of quantum of the Second Respondent’s entitlement open for determination by the Arbitrator. That this was the case is clear having regard to the manner in which the First Respondent presented its evidence and framed its submissions in this appeal with respect to the question of quantum. Given those circumstances it appears that the Arbitrator’s observation before hearing submissions from the parties that “there is now only one dispute” (T4 – 49) that being the question of “apportionment” was a misstatement of the manner in which the matter had been conducted by the parties. The Second Respondent had brought a claim quantified as being $7,552 (Part 4.2 of the original Application) and the “reasonable necessity” of the cost of provision of the particular hearing aids,being $7500, remained in issue between the parties on hearing before the Arbitrator.
The only other issue for determination by the Arbitrator was that described by him as “apportionment”. It is clear that the Arbitrator used the term “apportionment” as a shorthand means of summarising the dispute between the Appellant and the First Respondent as to the proper application of section 17 of the 1987 Act to the relevant facts and the relevance or otherwise of the provisions of section 22 of that Act having regard to the facts agreed as to payments made by the First Respondent to the Second Respondent in 1983 and thereafter.
Section 17 of the 1987 Act, insofar as it is here relevant, provides:
“Loss of hearing – special provisions s 7(4B), (4BB)
17 (1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a) for the purposes of this Act, the injury shall be deemed to have happened –(i)where the worker was, at the time when he or she gave notice of injury, employed in an employment to the nature of which the injury was due – at the time when the notice was given; or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury – on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice;
…
(c)compensation is payable by –
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury – that employer; or
(ii) where the worker was not employed – the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice;
(d)an employer (not being an employer referred to in paragraph (c)(i) or (ii) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c)(i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employer to the nature of which the injury was due during the relevant period;
(e)in paragraph (d), the “relevant period” means –
(i) where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing) – in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury;
(ii) where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury – in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given; and
…
(2) Without limiting the generality of subsection (1), the condition known as “boilermaker’s deafness” and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3) Compensation is payable by an employer as referred to in subsection (1)(c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
It was observed by Beazley JA in A&G Engineering Pty Ltd v Civitarese (1996) 14 NSWCCR 158:
“Section 17 … provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary, under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due.”
Section 17 operates firstly to fix a date as being the deemed date of injury, secondly it alters the “notice provisions” contained in section 61 of the 1998 Act, thirdly the employer primarily liable to pay the compensation is identified and, finally, permits in certain circumstances, recovery by that identified employer of a contribution towards its liability to pay the compensation from earlier employers.
The Arbitrator, in the course of his “Reasons”, addressed the question of the relevance of section 17 to the present facts as recorded between T14.5 and T16.44. It was there stated:
“There is … nothing within the words of section 17, to my mind, that means or that results in liability on the part of an employer to pay compensation for that injury being transferred to a subsequent employer who is liable to pay compensation for an injury of further hearing loss.”(T15.52-57).
The conclusion, last quoted, reached by the Arbitrator was founded upon an analysis by him of the facts as agreed, in particular the fact that there had been an injury, being hearing loss, in 1983 and a second injury, being further hearing loss, in 2005. The Arbitrator proceeded to state:
“Now, the hearing aids represent, in my view, treatment for the totality of the hearing loss that Mr McLeod now has, that is the hearing loss comprise of that which he suffered in September, or which was deemed to have happened in September 1983 and the further hearing loss which was deemed to have happened in August of 2005.” (T16.26-31)
The Arbitrator, having concluded that “the totality of the hearing loss” suffered by the Second Respondent was as a result of both those identified injuries, proceeded to apportion liability between the Appellant and the First Respondent pursuant to section 22 of the 1987 Act.
The First Respondent in its Submissions seeks to support the Arbitrator’s Reasons as summarised above and it is put (at paragraphs 17 and 18 of Submissions):
“17.The First Respondent submits that section 17 does not operate to relieve a party from its liability to pay compensation to a worker where that liability has already been established and compensation found to be payable.
18.In this instance there were two injuries. The first injury was one that has a date of injury of 2 September 1983 and there was a further injury with a deemed date of injury of 22 August 2005. Section 17 does not apply where there are two dates of injury that have been determined in the matter as in this case. ”
I am of the opinion that the First Respondent’s submissions should be rejected and further that the Arbitrator has erred in his approach to the proper construction and application of the provisions of section 17 of the 1987 Act.
The Commission had before it an Application alleging a “further loss” of hearing within the meaning of section 17(1). The proper application of the provisions of section 17 results in the conclusion that the date of injury (being such further loss) was 22 August 2005 (section 17(1)(a)(i)). As the Second Respondent was on that date employed by the First Respondent “in an employment to the nature of which the injury was due” in terms of section 17(1)(c)(i) it follows that compensation as claimed is payable by the First Respondent. I accept the Second Respondent’s submissions (at paragraphs 4.4 – 4.9) that the proper construction of the term “compensation” as it appears in section 17(1)(c) includes compensation payable, as claimed in this matter, pursuant to section 60 in respect of the provision of hearing aids.
The “special provisions” of section 17 operate in the present case to determine the identity of the employer primarily liable to pay the compensation claimed. The section applies in such manner as to exclude the general operation of section 22 of the 1987 Act. It is true, as raised by the First Respondent in its Submissions, that there have been two deemed dates of injury in the present matter. What is not addressed by the First Respondent in its Submissions is the fact that each of those “injuries” were determined to have occurred on particular dates “deemed” by the operation of section 17 of the 1987 Act. That being the case determination of the parties rights in respect of such a claim as the present requires application of section 17 and there is no place for, nor work to be done by, the application of section 22. I note in passing that, in circumstances where an antecedent claim in respect of hearing loss was occasioned by a personal injury within the meaning of section 4(a) of the 1987 Act it may well be that in determining liability to pay compensation with respect to a claim following further loss of hearing within the meaning of section 17 there may arguably be a place for the proper application of section 22 (c.f. Rail Services Australia v Dimovski & Anor [2004] NSWCA 267). This is not such a case.
The Arbitrator, in the course of his Reasons, concluded (at T18.53) that:
“… I’m satisfied that the liability or (sic) the provision of hearing aids up to $7,500 is reasonably necessary treatment to be given for the totality of the hearing loss. ….”
As noted above that finding does not address the issue in dispute between the parties namely the quantum of any entitlement the Second Respondent may have. The use of the term “up to $7,500” does not determine the question of quantum. As I have observed above there was a deal of evidence before the Arbitrator with respect to the cost of appropriate hearing aids available to the Second Respondent. Failure to determine this issue constitutes error on the part of the Arbitrator.
The errors identified above require revocation of the Arbitrator’s decision and substitution with a new decision or alternatively that the matter be remitted for determination in accordance with the matters determined on this appeal. The NSW Court of Appeal in Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344 (unreported) has expressed the view that should an appeal be upheld, it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at paras 28 and 29).
Having regard to the circumstances of this case I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal are corrected without the need to remit the matter for further consideration by an Arbitrator.
Redetermination
The evidence before the Commission with respect to the cost of hearing aids is to be found in the evidence of Dr Fernandes, Ms Steele and Dr Seymour. It may be assumed that the hearing aids nominated by Dr Seymour in his report of 28 September 2005 are recommended by that practitioner having regard to his conclusion stated in his earlier report (27 September 2005) that:
“There has been no increase in this Applicant’s compensable hearing loss since his claim on 7 September 1983.”
That conclusion of Dr Seymour is to be contrasted not only with the opinion of Dr Fernandes but that of the Approved Medical Specialist Dr Williams. It is clear that there has been a significant deterioration of the Second Respondent’s hearing since his earlier claim against the Appellant. In those circumstances I would prefer the evidence of Dr Fernandes as to the need for “bilateral hearing aids with high tone emphasis seeking clarity and adaptive directionality, best achieved with Artificial Intelligence”. That technology is available and it is the evidence of Ms Steele that the cost of same is $7,500. Given the view expressed by Ms Steele that such hearing aids “will greatly assist” the needs of the Second Respondent I conclude that the expenditure of the sum of $7,500 for such devices is reasonably necessary within the meaning of section 60 of the 1987 Act. I also conclude that the Second Respondent is entitled to the further sum of $52 being consultation fee for referral as claimed.
The authorities establish that Section 60 is an “indemnity section” and the meaning of the word “cost” in the context of that section was discussed by the NSW Court of Appeal in NSW Sugar Milling Co-op Ltd v Manning (1998) 44 NSWLR 442. It was there stated by Shepherd A-JA:
“In my opinion, this is not a case where the Act is capable of alternative meanings. The word ‘cost’ in the context in which it appears in s 60 can have no meaning other than one which involves a financial liability on the part of the worker to pay for services provided.”
There is evidence that the Second Respondent has assumed liability to pay consultation fee of $52 to Boulevarde Surgery Toronto and is therefore entitled to an order for payment pursuant to Section 60.
There is no evidence that the Second Respondent has paid or yet incurred liability to pay for the subject hearing aids. It has been determined by Sheahan P in Widdup v Hamilton [2006] NSWWCCPD 258 that the Commission has no power pursuant to Section 60 to make a “declaration of liability” in respect of hospital and medical treatment. In the present circumstances I consider it appropriate, given the parties’ agreement that provision of hearing aids is reasonably necessary and my findings above as to cost of their provision, to make a general order pursuant to Section 60 of the 1987 Act, such being against the First Respondent.
For the reasons set out above I conclude that the question of liability for payment of the sum of $7,552 pursuant to section 60 of the 1987 Act is governed by the operation of section 17 of that Act. At the time the Second Respondent gave notice of the further loss of hearing he was engaged in employment to the nature of which the injury was due with the First Respondent. In those circumstances the said compensation becomes payable by the First Respondent. There being no other employer as prescribed by section 17(1)(d) there is no entitlement to contribution towards the payment of that sum from any other party.
DECISION
Paragraph 1 of the Arbitrator’s decision dated 4 July 2006 is confirmed and paragraphs 2 and 3 are revoked. The following order is made their place:
1.The First Respondent is to pay the Applicant’s Section 60 expenses pursuant to the provisions of the 1987 Act.
2.The First Respondent is to pay the Applicant’s costs as agreed or assessed.
COSTS
The First Respondent is to pay the Second Respondent’s costs of this appeal.
Kevin O’Grady
Acting Deputy President 15 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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