Grain Handling Authority v Graincorp Operations Limited - [2007] NSWWCCPD 54

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…

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: [2007] NSWWCCPD 54
Decision Date: 15 February 2007

CaseChat Overview and Summary

The appeal in Grain Handling Authority v Graincorp Operations Limited was brought by the Grain Handling Authority against a decision made by an arbitrator of the Workers Compensation Commission. The dispute involved claims for compensation related to further loss of hearing and the provision of hearing aids by the Second Respondent, Ian McLeod, who was employed by both the Grain Handling Authority and Graincorp Operations Limited at different times. The key legal issues centered on the interpretation and application of sections 17 and 22 of the Workers Compensation Act 1987, particularly in relation to the liability for paying compensation and the necessity of providing hearing aids.

The court reviewed the appeal on the papers, noting that the appeal met the threshold requirements for quantum, despite the Appellant's actual liability being less than $5,000. The appeal questioned the Arbitrator's decision to apportion liability for the hearing aids between the Appellant and the First Respondent, as well as the Arbitrator's determination that the provision of hearing aids was reasonably necessary. The court found that the Arbitrator erred in his interpretation and application of section 17 of the Act, which specifically addresses the liability for compensation in cases of gradual hearing loss. The court concluded that under section 17, the First Respondent was primarily liable for the compensation related to the hearing loss, as the Second Respondent was employed by the First Respondent at the time of the further loss of hearing.

The court revoked the Arbitrator's decision and substituted its own, ordering that the First Respondent is to pay the costs of the hearing aids and related expenses as well as the costs of the appeal. The court also confirmed the order regarding the lump sum compensation for the impairment resulting from the hearing loss.

Orders