Hammersley Resources Ltd v Chynoweth
[2005] NSWWCCPD 37
•16 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hamersley Resources Limited formerly known as New Broken Hill Consolidated Limited v Chynoweth [2005] NSW WCC PD 37
APPELLANT: Hamersley Resources Limited formerly known as New Broken Hill Consolidated Limited
RESPONDENT: Keith Chynoweth
INSURER:Hamersley Resources Limited formally known as New Broken Hill Consolidated Limited
FILE NUMBER: WCC 15714-03
DATE OF ARBITRATOR’S DECISION: 23 February 2004
DATE OF APPEAL DECISION: 16 May 2005
SUBJECT MATTER OF DECISION: Section 66 and Schedule 6, Part 6, clause 3 of the Workers Compensation Act 1987; binaural hearing loss; date of injury; effect of section 122 of the Workplace Injury Management and Workers Compensation Act 1998; Medical Panel certificate.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Sassella
HEARING:Determined on the papers
REPRESENTATION: Appellant: Cutler Hughes & Harris
Respondent: Paul J Keady & Associates Pty Ltd
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The costs of the appeal are to be paid by the Appellant Employer, as agreed or assessed.
BACKGROUND TO THE APPEAL
On 3 March 2004, Hamersley Resources Limited formerly known as New Broken Hill Consolidated Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 February 2004.
The Respondent to the appeal is Keith Chynoweth (‘the Respondent Worker’).
The Respondent Worker is aged 75, having been born on 17 November 1929. In 1958 he began working at a power station for New Broken Hill Consolidated Limited, a corporation which, as Hamersley Resources Limited, was self-insured for the purposes of workers compensation. His employment exposed him to industrial noise. He last worked for the Appellant Employer on an uncertain date in July 1986.
The Respondent Worker made claims for workers compensation in respect of industrial deafness in 1978 and in 1986. Both of those claims resulted in the then insurer agreeing to pay the Respondent Worker lump sum compensation under section 16 of the Workers Compensation Act 1926 (Repealed) (‘the 1926 Act’).
On 21 September 1978 the Respondent Worker signed an agreement accepting an assessment of his hearing loss at that time as 2% loss of hearing in his left ear and 1% loss of hearing in his right ear. This resulted in compensation assessed at $208.50 in total. It seems that Mr Chynoweth never received this payment. The Arbitrator’s determination accepts that he did not. At one point it was suggested that this was because he was unaware of the process he had to pursue for payment. However, in the submissions received on behalf of the Respondent Worker in this appeal he seems to accept that he was paid. This appears to be an error in view of the detailed information earlier provided explaining Mr Chynoweth’s non-receipt of this money. I am satisfied on the evidence that the Respondent Worker has not received the $208.50 awarded to him.
On 23 July 1986 the Respondent Worker signed an agreement accepting an assessment of his hearing loss at that time of 4% loss of hearing in his left ear and 5% loss of hearing in his right ear due to industrial deafness. This resulted in compensation of $805.50 in total. The parties agree that these monaural hearing loss assessments equate to 4.2% binaural hearing loss due to industrial deafness.
On 11 October 2000 the Respondent Worker lodged with the Appellant Employer a claim for compensation for non-economic loss related to his hearing loss pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 1 October 2002 the Appellant Employer advised the Respondent Worker that it did not accept liability for the compensation claimed on the basis that the Respondent Worker had been compensated previously for 4.2% binaural hearing loss. In addition, although the Medical Panel had certified that the Respondent Worker suffers from 10% binaural hearing loss, the Appellant Employer did not consent to payment because the deemed date of injury for the then current claim would be the same as for the previous 1986 claim. The Appellant Employer also disputed that hearing loss increases in the absence of exposure to noise.
On 2 October 2003 the Respondent Worker lodged with the Commission an ‘Application to Resolve a Dispute’.
The parties were unable to reach agreement and the Arbitrator determined the matter on the papers without holding a formal conference.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 29 March 2004, records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.That the Respondent [the Appellant Employer in the present appeal] pay to the Applicant the sum of $5,200 pursuant to Section 66 of the Workers Compensation Act 1987 less $805.50.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
The Arbitrator’s reasoning commenced with the finding that the Commission has jurisdiction in this matter despite the Appellant Employer’s argument that it does not because the Respondent Worker has already been paid. The Arbitrator proceeded to find that the measure of the Respondent Worker’s loss is the loss as certified by the Medical Panel, that is 10% binaural hearing loss. He then found that the Respondent Worker had not been paid for that loss as he had been paid for a loss of only 4.2%. He concluded by referring to the transitional provision, Schedule 6, Part 6, clause 3 of the 1987 Act. He found that the Respondent Worker was not precluded from receiving compensation for the full amount of his loss because he had not received compensation for his loss in 1986, having received an amount referable to only 4.2% loss whereas the amount should have been referable to a 10% binaural hearing loss.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
a)Did the Arbitrator err in deciding that he was bound to give effect to the certificate given by a Medical Panel?
b)Did the Arbitrator err in deciding that the Savings, Transitional and Other Provision (‘the Transitional Provisions’) in clause 3, Part 6 of Schedule 6 of the 1987 Act did not stand in the way of the Respondent Worker receiving compensation under section 66 of that Act?
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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, the documents that are before me, and the submissions by the parties which do not suggest other than 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, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(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 regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Section 352(2) of the 1998 Act requires that the amount of compensation at issue on the appeal must be both, at least $5,000 and at least 20% of the amount awarded in the decision appealed against. If the Appellant Employer succeeds on appeal then 100% of the amount awarded is in issue.
The Respondent Worker argues that the amount of compensation at issue on the appeal is less than $5,000 and this threshold is not met. The argument is that the Respondent Worker could receive no more than $4,394.50 under the 1987 Act, which is therefore less than the monetary threshold of $5,000. However, if the evidence discloses that the Respondent Worker is entitled to compensation under section 66 of the 1987 Act referable to 10% binaural hearing loss, and that no deduction is to be made from that amount because compensation was not in fact paid in 1986, then the Respondent Worker’s entitlement would be to compensation of $5,200, an amount exceeding the threshold test set in section 352(2) of the 1998 Act. I am satisfied that both limbs of section 352(2) of the 1998 Act are met.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The Appellant Employer presented a number of submissions which are summarised as follows:
a)The Arbitrator did not provide proper reasons.
b)The Arbitrator failed properly to apply the law.
c)The Arbitrator failed to consider section 17 of the 1987 Act.
d)The Arbitrator did not apply the Transitional Provisions in clause 3, Part 6 of Schedule 6 of the 1987 Act.
e)The Arbitrator failed to give proper weight to the opinion of Dr J H Seymour, Ear, Nose and Throat specialist, dated 28 October 2002.
f)A certificate from a Medical Panel is not always binding. The Compensation Court of New South Wales decision in Kelly v Lake Macquarie City Council (unreported, 3 June 2003) (‘Kelly’) is cited in support.
g)The non-economic loss compensation payable to the Respondent Worker is calculated by reference to the rate in force as at 30 June 1987. The Compensation Court of New South Wales decision in Walters v Cessnock City Council (unreported, 23 October 1991, per Bourke J) and the NSW Court of Appeal decision in D J Batchen Pty Ltd v Saunders (unreported, 27 March 1991) are cited in support.
h)The repealing of section 71 of the 1987 Act does not affect these arguments. The Compensation Court of New South Wales decision in Callaby v State Transport Authority [2000] NSWCC 30 (‘Callaby’) is cited in support.
In addition to submissions on the threshold issue for leave (see paragraph 19 above), the Respondent Worker’s representative presented submissions which are summarised as follows:
a)If leave to appeal is granted, the certificate of the Medical Panel binds the parties under clause 27 of the Workers Compensation Regulation 2003.
b)There was no previous award of compensation in 1978 or 1986 so the Respondent Worker was able to seek an award in 2000. The previous amounts of compensation were settled by agreement between the parties and so could not be conclusive as to the quantification of the Respondent Worker’s compensable hearing loss or as to the amount payable. The only relevance of the earlier payments is as amounts to be deducted from any award flowing as a result of the current proceedings. Reference in support is made to the decision of the NSW Court of Appeal in Australian Iron and Steel Pty Ltd v McAuley ((1984) 1 NSWCCR 33).
c)The proper application of the Transitional Provisions results in a determination that the Respondent Worker is entitled to an award in respect of 10% binaural hearing loss (subject to deduction of amounts already paid). This was the approach by Neilson J in Callaby (paragraph 21(h) above).
d)The loss on which this claim is based is the Respondent Worker’s partial binaural hearing loss, which was assessed conclusively as shown in the certificate of the Medical Panel.
e)The deemed date of injury occasioning the loss is an uncertain day in July 1986 when the Respondent Worker ceased working for New Broken Hill Consolidated/Hammersley Resources.
f)The Respondent Worker has not received payment in respect of that loss.
g)The loss in respect of which previous payments were made is not the same loss in respect of which the present claim is brought.
DISCUSSION AND FINDINGS
One of the submissions is easily dealt with. The Appellant Employer submitted that the Arbitrator provided no proper reasons. In fact, the Arbitrator provided reasons sufficient to satisfy the requirements in Rule 73 of the Workers Compensation Commission Rules 2003. I have summarised the reasons in paragraph 12 above. This submission therefore has no force. The correctness of those reasons is discussed below.
Did the Arbitrator err in deciding that he was bound to give effect to the certificate given by a Medical Panel?
Section 122 of the 1998 Act operates as follows:
· There must be a ‘medical dispute’ that the Registrar of the Workers Compensation Commission (‘the Commission’) can refer to a Medical Panel (section 122(2)).
· One type of medical dispute is a disagreement between a worker and the employer as to the worker’s condition (section 122(1)). There is in this case such a dispute. Section 122(12) provides that, where there is disagreement between a worker and the employer as to whether, or to what extent, the incapacity of the worker is due to the injury, the section applies as if the question were one as to the condition of the worker. Although section 122(12) refers to a dispute as to an “incapacity” as the basis for there being a medical dispute, section 122 applies also to a dispute regarding permanent impairment. Armitage J confirmed this in Kegg v Bankstown City Council (2001) 22 NSWCCR 486 where he held that the expression “medical dispute” in relation to a “worker’s condition” in s 122 of the 1998 Act refers to a dispute about a worker’s entitlements under s 66 of the 1987 Act.
· Where such a dispute exists the Registrar must refer it to a Medical Panel if either the worker or employer applies for such a referral (section 122(2)). It appears from the papers that the Respondent Worker so applied in this case and the Registrar arranged the referral.
· Whereas the Registrar can in some circumstances refer the dispute to a medical referee, this is prohibited where the dispute, as here, concerns the extent of a loss, or further loss, of hearing due to boilermaker’s deafness or any deafness of a similar origin (section 122(3)). The referral must be to a Medical Panel.
· The Medical Panel is to give a certificate as to, in this case, the worker’s condition (section 122(5)). The certificate in this case was dated 25 September 2002. The Medical Panel consisted of Drs P D Niall and J A Cross. The certificate states that the Respondent Worker has partial and bilateral loss of hearing due to boilermaker’s deafness or deafness of similar origin. Further the certificate states that the percentage diminution of hearing loss in the left ear is 18% and in the right ear is 21%. Those figures are stated as not making any deduction in respect of presbycusis (a lessening of hearing acuteness resulting from degenerative changes in the ear that occurs especially in old age). Allowing for presbycusis the panel states that it makes a deduction, in the case of partial deafness of an ear, of an allowance “under section 70” in respect of presbycusis of one-half decibel for each complete year of the worker’s age in excess of 50 years, the Respondent Worker, Mr Chynoweth, was 73 years of age at the date of certification. Allowing then for presbycusis, the percentage hearing loss is recorded as 10% in the left ear and 12% in the right ear. The panel converts these figures to 10% binaural hearing loss. The panel also certifies that the Respondent Worker does not suffer from any loss of hearing of either ear due to a condition or conditions other than the condition known as boilermaker’s deafness or deafness of like origin.
· Any such certificate of a Medical Panel “is conclusive evidence as to the matters certified” (section 122(6)). Some exceptions appear but do not apply here. This means that the certificate is conclusive in stating that Mr Chynoweth now suffers from 10% binaural hearing loss and that he does not suffer from any loss of hearing of either ear due to a condition or conditions other than the condition known as boilermaker’s deafness or any deafness of the like origin.
However, the Appellant Employer has submitted that there is authority that a certificate from a Medical Panel is not always binding. The case of Kelly (paragraph 21 above) requires consideration. The court in that case considered a claim for compensation for binaural hearing loss where the claimed benefits were weekly payments and hearing aids. It was not, as here, a non-economic loss case. A “medical board certificate” was admitted into evidence but, as His Honour held in paragraph 22, “All parties agree that the certificate is not binding in view of the fact that the applicant’s claim is only for weekly payments rather than for a lump sum for industrial deafness under s 66 of the [1987] Act.”
I therefore find that the Kelly case is unconvincing as an authority in the present case. The Medical Panel certificate is conclusive as regards the percentages of hearing loss in each of the Respondent Worker’s ears and as regards his binaural hearing loss. Further, as the Compensation Court of New South Wales held in Smith v Norton (1996) 13 NSWCCR 227, a Medical Panel certificate does more than simply certify the degree of physical impairment the worker is suffering at the time of the Medical Panel’s assessment. The certificate is also conclusive as regards the aetiology of the disease. The certificate confirms that the employment has been a substantial contributing factor to the injury, as required by section 9A(1) of the 1987 Act.
There is authority also that the certificate of a Medical Panel relates to the condition of the worker as at the date of injury. As will be seen below, the deemed date of the Respondent Worker’s injury is the date when he ceased employment with the Appellant Employer, an uncertain day in July 1986. In Australian Iron and Steel Pty Ltd v McAuley (1984) 1 NSWCCR 33 (‘McAuley’) Mahoney JA noted that the Compensation Court judge accepted the finding of the medical board made on 10 August 1983 as establishing that the worker's loss of hearing as at 18 November 1974 was 20 %. This assumed that the Medical Board's finding in 1983 could be taken to establish what was the loss in 1974. The judge accepted that this was appropriate and Mahoney J did not think that exception could be taken to that finding in that appeal. In that case, as in the current case, the worker had not been exposed to any industrial noise after the deemed date of injury.
In Electricity Commission of New South Wales v Mifsud (1986) 7 NSWLR 730 (‘Mifsud’) McHugh J, as he then was, in the Court of Appeal, referred to the McAuley case. He rationalised the McAuley decision by noting that the worker was paid compensation in 1974 on the basis that he had lost only 18.8% in his left ear. However, the Medical Board in 1983 assessed the true level of loss at 20% as at the notional date of injury, 18 November 1974. The Transitional Provision, which, in that case, had the same effect as in the current case, did not defeat the worker’s claim because he had not received the compensation prescribed by section 16 of the 1926 Act.
This was essentially the analysis the Arbitrator in this case adopted. In my view he committed no error in doing so. Relying on the remarks of McHugh J in Mifsud I see no reason to move away from an interpretation of the Medical Panel’s certificate to the effect that the Respondent Worker suffered from an impairment in the nature of binaural hearing loss at a level of 10% as at the notional date of injury, July 1986, as explained in paragraph 31 below. Having received compensation for only 4.2% binaural hearing loss the Respondent Worker remains to be compensated for the additional 5.8% required to match the Medical Panel’s assessment of a 10% loss.
The notional date of injury is established in section 17 of the 1987 Act. Section 17 applies to an injury involving a loss of hearing caused by a gradual process. That was the case in the Respondent Worker’s situation. Section 17 applies despite it being in an Act passed after the Respondent Worker left the noisy employment. Clause 1 of Part 2 of Schedule 6 of the 1987 Act provides that Part 2 of the 1987 Act (which contains section 17) applies whether the injury was received before or after the commencement of Part 2 of the 1987 Act.
Section 17 of the 1987 Act has the effect that the deemed date of injury for hearing loss, caused by a gradual process, is the date when the worker gives notice of the injury if he or she is at that time employed in the employment that caused the injury (section 17(1)(a)(i)) or, if the worker has left employment, on the last day on which the worker was employed in an employment of the type that caused the injury (section 17(1)(a)(ii)). The Respondent Worker gave notice in 1986 on an uncertain date regarding his industrial deafness. He had given similar notice in 1978. The evidence shows (see paragraphs 5 and 6 above) that the Respondent Worker’s industrial deafness disease worsened between 1978 and 1986 when he notified of a fresh injury shortly before ceasing employment. The definition of ‘injury’ in section 4 of the 1987 Act includes the aggravation, acceleration, exacerbation or deterioration of a disease. There was, therefore, a fresh injury in 1986, which was notified to the Appellant Employer while the Respondent Worker, was employed by the Appellant Employer. The deemed date of injury is therefore that uncertain day in 1986 when the Respondent Worker gave notice of the injury.
Did the Arbitrator err in deciding that the Transitional Provisions did not stand in the way of the Respondent Worker receiving compensation under section 66 of the 1987 Act?
Clause 3 is headed “Compensation for loss not payable if awarded or paid under former Act – occupational diseases” and provides that compensation is not payable to a worker who has suffered a loss of a thing mentioned in the Table to Division 4 of Part 3 (ie sections 65 – 73) of the 1987 Act, being an occupational disease within the meaning of section 71 of the 1987 Act, if compensation for the loss was awarded to the worker, or the worker received or agreed to receive compensation for the loss, in accordance with section 16 of the 1926 Act.
At first sight this provision applies to the Respondent Worker in that he was paid compensation under section 16 of the 1926 Act in respect of hearing loss, an item referred to Division 4 of Part 3 of the 1987 Act in sections 69A and 69B. Section 71 of the 1987 Act has been repealed. However, in Callaby (paragraph 21 above) Neilson J decided that an occupational disease within the meaning of section 71 of the 1987 Act ought to be construed as “an occupational disease” within the ordinary meaning of that expression. The result is that, despite the repealing of section 71, workers with industrial deafness whose deemed date of injury was prior to the commencement of the 1987 Act may be compensated in accordance with Schedule 6, Part 6, clause 3A of the 1987 Act if the conditions of that provision are met. The Respondent Worker’s deemed date of injury predated the commencement of the 1987 Act.
However, clause 3, on the reasoning in paragraphs 28 and 29 above, does not operate to debar the Respondent Worker from the benefit of the findings of the Medical Panel because technically he was not compensated under the 1926 Act, as he should have been. The matter would be different if he had received compensation for hearing loss equivalent to a binaural hearing loss impairment rated at 10% or above. Clause 3 would then apply to prevent any further payment under section 66 of the 1987 Act.
Other clauses in Part 6 of Schedule 6 affect the Respondent Worker’s compensation entitlement. Clause 3A(2) provides that, in determining the lump sum compensation payable under section 66 of the 1987 Act, where as here the hearing loss occurred before the commencement of section 66 and was not compensated before the commencement of section 66, then the amount of compensation payable is to be determined as if the relevant maximum amount under section 66(1) were $80,000, the maximum in force on the date of commencement of section 66. The Arbitrator used this figure and correctly applied the statutory formula in determining that the Respondent Worker was entitled to compensation pursuant to section 66 in the amount of $5,200 with a deduction of $805 for the amount paid in 1986.
Schedule 6, Part 6, clause 2 of the 1987 Act prevents any payment in respect of pain and suffering under section 67 of the 1987 Act where, as in the Respondent Worker’s case, the date of injury precedes the date of commencement of section 67. However, the Respondent Worker has not claimed compensation under section 67 so there is no issue here on that matter.
The requirements in clause 9 of Part 6 of Schedule 6 of the 1987 Act, that a worker seeking compensation for permanent impairment resulting from industrial deafness must have at least a 6% binaural hearing loss due to the industrial deafness are satisfied in the present case, noting that the Respondent Worker’s loss has been assessed at 10% binaural hearing loss.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The costs of the appeal are to be paid by the Appellant Employer, as agreed or assessed.
Michael Sassella
Acting Deputy President 16 May 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SASSELLA, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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