Handley v Canterbury City Council - [2020] NSWWCCPD 59

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Handley v Canterbury City Council [2020] NSWWCCPD 59
APPELLANT:	Bradford Martin Handley
RESPONDENT:	Canterbury City Council
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-330/20
ARBITRATOR:	Mr C Burge
DATE OF ARBITRATOR’S DECISION:	15 April 2020
DATE OF APPEAL DECISION:	23 September 2020
SUBJECT MATTER OF DECISION:	Application for an extension of time; s 352(4) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act); r 16.2(5) of the Workers Compensation Commission Rules 2011 – Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; Bryce v Department of Corrective Services [2009] NSWCA 188 applied; failure to determine the claim within the time prescribed by ss 279 and 281 of the 1998 Act not a bar to the Commission’s jurisdiction; s 261(6) of the 1998 Act – awareness of injury –Unilever Australia Ltdv Petrevska [2013] NSWCA 373; 85 NSWLR 677 applied; alleged factual error – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied; s 261(4)(b) of the 1998 Act – serious and permanent disablement – BHP Billiton vEastham [2013] NSWWCCPD 34 discussed and distinguished, Broken Hill Proprietary Company Ltd v Kuhna (1992) 8 NSWCCR 401, Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Hallion, counsel
Whitelaw McDonald Solicitors
Respondent:
Mr N Maley, solicitor
Gilchrist Connell
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION AND BACKGROUND

This case concerns a claim for compensation made by Mr Bradley Martin Handley (the appellant). The appellant sought the costs of hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) and lump sum compensation pursuant to s 66 of the 1987 Act in respect of 9.7% binaural hearing impairment.
The appellant’s legal representatives obtained the assessment of the appellant’s hearing loss from Dr Joseph Scoppa, ear, nose and throat surgeon, who provided a report dated 5 June 2015. Dr Scoppa’s opinion was that Canterbury City Council (the respondent) was liable for the appellant’s industrial deafness claim.
The appellant worked for numerous employers over many years and in various positions, predominantly in New South Wales, but also in the Australian Capital Territory and in Queensland. At the time these proceedings were commenced, the appellant was working as a barman at Gymea Bowling Club. He commenced that employment in May 2017.
Eventually, the appellant, through his legal representatives, made the claim for compensation by letter dated 13 February 2019. The respondent disputed the claim by way of a notice dated 14 January 2020 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent asserted that the appellant had no entitlement to claim compensation because he had not made his claim within six months of his injury or within three years of becoming aware of his injury, as required by subss 261(1), 261(4) and in accordance with subs 261(6) of the 1998 Act.
There was no dispute that the work with the respondent was noisy. There was also no assertion, or indeed any evidence, that any of the appellant’s other employment was sufficiently noisy employment so as to attract liability for the appellant’s noise induced deafness.
The matter came to arbitration on 16 March 2020. The issues for determination were identified as:
(a)    when the appellant first became aware that he had suffered the injury (s 261(6) of the 1998 Act);
(b)    whether the appellant had made his claim within the requisite three years of that awareness (s 261(4)(a) of the 1998 Act), and if not
(c)    did the appellant suffer a serious and permanent disablement as a result of his injury, so that he was entitled to claim compensation in any event (s 261(4)(b) of the 1998 Act.
The Arbitrator determined that the appellant was aware of his injury at least as early as 29 October 2015, he had not made his claim within 3 years of becoming aware of his injury and did not suffer from a serious and permanent disablement as a result of his injury.
The appellant appeals that decision.

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.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the written submissions by the parties indicating that the appeal can 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 pursuant to s 352(3) of the 1998 Act have been met.

Time

Section 352(4) of the 1998 Act provides that an appeal from a decision of an arbitrator can only be made within 28 days after the date of the decision being appealed against.
The Arbitrator issued a Certificate of Determination on 15 April 2020. The time for lodging an appeal expired on 13 May 2020.[1] On 13 May 2020 at 6.03 pm, the appellant attempted to lodge, by email, an Appeal Against Decision of Arbitrator (appeal) from the Arbitrator’s decision on 13 May 2020. The appellant cited difficulties with attempts to lodge the appeal via the Commission’s portal.
[1] Bielecki v Rianthelle Pty Ltd t/as Belfora [2008] NSWWCCPD 53, [45].
Rule 8.1(4) of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides:
“A document that is lodged with or served on the Commission and correspondence directed to the Commission by ECM system or email is received by the Commission at the time of entering the information system at the Commission but if that time is after 5.00 pm New South Wales standard time or New South Wales summer time on any day it is taken to have been received on the next day that is not a Saturday, Sunday or public holiday.”
At the time the appellant’s email was received, the time for lodging the appeal prescribed by s 352(4) of the 1998 Act had expired.
On 14 May 2020, the appellant lodged the appeal on the online portal. The appeal was rejected by a delegate of the Registrar pursuant to s 352(2) of the 1998 Act because the appeal failed to comply with r 16.2(7) of the 2011 Rules and the Commission’s Practice Direction No 6. The delegate of the Registrar advised in writing of the numerous procedural deficiencies in the appeal, which included the failure by the appellant to make an application to file the appeal out of time.
The appellant re-lodged the appeal on 19 May 2020. That appeal was rejected again for failure to comply with the Commission’s procedural requirements, as was a further appeal, which the appellant attempted to lodge on 26 May 2020. Finally, the appellant re-lodged the appeal on 28 May 2020 and the appeal was accepted.
The appellant seeks an extension of the time for making the appeal in accordance with r 16.2(5) of the 2011 Rules. Rules 16.2(5) and 16.2(6) of the 2011 Rules provide as follows:
“(5) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(6) A party who seeks an extension of time as referred to in subrule (5) must—
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The appellant’s submissions as to why the time to appeal the Arbitrator’s decision should be extended are substantially limited to a summary of the administrative discussion that occurred between the appellant’s solicitor, Mr Mario Bechelli and the appellant’s counsel, Mr Hallion. The appellant referred to the requirement that the appeal must be filed within 28 days of the Arbitrator’s decision in accordance with s 352(4) of the 1998 Act. The appellant also cited the decision of Keating P in Kula Systems Pty Ltd v Workers Compensation Nominal Insurer,[2] in which his Honour observed:
“Section 352(4) of the 1998 Act provides:
‘An appeal can only be made within 28 days after the making of the decision appealed against.’
An Arbitrator’s decision is made when the Commission issues a Certificate of Determination. The Certificate of Determination in the present matter was issued on 10 November 2017. Time commences to run from 11 November 2017 and the 28 day was 8 December 2017. The Appeal Application was lodged and registered on 8 December 2017, within 28 days of the decision appealed.
On 14 December 2017, the Registrar issued a Direction directing the appellant to file an Amended Appeal Application to rectify procedural deficiencies. On 11 January 2018, the appellant filed an Amended Appeal Application in compliance with the Registrar’s Direction.
As the original Appeal Application was lodged and registered within time, it follows that the appeal was made in compliance with s 352(4) of the 1998 Act.”[3]
[2] [2018] NSWWCCPD 10 (Kula Systems).
[3] Kula Systems, [20]–[23].
Presumably, the appellant relies on that decision in support of his application to extend time.
In its Opposition to Appeal against Decision of Arbitrator (opposition) the respondent submits that it does not make any submissions concerning “the application for leave to appeal.” I assume that the respondent is referring to the appellant’s application for an extension of time to lodge the appeal.
Rule 16.2(5) requires me to consider whether “exceptional circumstances” exist. In Yacoub v Pilkington (Australia) Ltd,[4] Campbell JA considered the expression and concluded (citations omitted):
“(a)    Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered;
(b)     Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors;
(c)     Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional;
(d)     In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision, and
(e)     Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.”
[4] [2007] NSWCA 290, [66].
If the recitation of the various communications between the appellant’s solicitor and his counsel are intended to be reasons put forward by the appellant in support of the application for an extension of time, the reasons are not satisfactory. It is the responsibility of the legal practitioner to ensure that the appeal is filed within the time required by s 352(4) of the 1998 Act and that it complies with the procedural requirements. Practice Direction No 6 makes it clear that the appeal may be rejected for failure to comply with those requirements. Unfortunately, it is not entirely uncommon for appeals that do not comply with the procedural requirements to be filed on the eve of the expiration of the period within which an appeal must be filed.
The decision in Kula Systems does not assist the appellant. In that case the appeal was accepted within the time prescribed, and a Direction was issued to the appellant to amend the appeal because of a certain procedural irregularity. In this case, the appeal was rejected because of significant procedural non-compliance and it was out of time.
The events referred to by the appellant cannot be considered exceptional.
In any event, whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[5]
[5] Bryce v Department of Corrective Services [2009] NSWCA 188 (per Allsop P (Beazley and Giles JJA agreeing)), [10].
I must also consider whether a refusal to extend the time to appeal would cause a substantial injustice. In order to determine whether substantial injustice would result from a refusal to extend the time, it is necessary for me to consider the merits of the appeal.

THE RELEVANT EVIDENCE

The appellant’s statement evidence

The appellant provided a statutory declaration dated 3 January 2019.[6] The appellant stated that he was employed by the respondent as a pool attendant from 1987 and ceased that employment in 1994. The appellant said that he was employed to work at the Roselands Aquatic Centre, which was owned by the respondent. He described his duties.
[6] Application to Resolve a Dispute (ARD), pp 9–10.
The appellant stated that during his employment he was exposed to excessive noise, which included the noise from:
(a)    pool pumps;
(b)    the plant room;
(c)    large numbers of people in the indoor pool area, which was a confined space in which the noise echoed against the walls and was very loud, and
(d)    young people screaming.
The appellant said that during that period, it was difficult to talk to anyone a metre or more from him without shouting, and this exposure to noise continued for approximately 7 hours per day.
The appellant provided a supplementary statement dated 10 September 2019.[7] In that statement, the appellant described his current employment, his concurrent employment and numerous past employments in which he was employed in a number of different roles. The appellant denied that any of those positions were in noisy employment except for the employment with the respondent. He described in detail the noisy aspect of the employment with the respondent.
[7] ARD, pp 13–14.
The appellant provided a further statement which was unsigned and undated.[8] It appears from the transcript that the appellant signed that document at the arbitration.
[8] Application to Admit Late Documents (AALD), pp 1–2.
The appellant said that “a few years ago” he attended an appointment with Dr Joseph Scoppa, ear, nose and throat surgeon, as arranged by Mr Barry Kilby, legal clerk of Whitelaw McDonald Lawyers. The appellant said that he recalled having a discussion with Mr Kilby about Dr Scoppa’s report after that appointment. He said that he could not recall whether that discussion was over the telephone or face to face. The appellant did not recall the details of the advice Mr Kilby gave him about Dr Scoppa’s report in that particular discussion but he did recall that at some stage, Mr Kilby advised him they would be proceeding with a claim. The appellant said that he had had many discussions with Mr Kilby, both before and after the appointment with Dr Scoppa. The appellant also recalled that Mr Kilby told him that Mr Kilby required more information about his employment after he left the respondent’s employ. This was said to be in order to ascertain whether those employers were “noisy employers” and that the claim may have to be brought against the appellant’s later employer, Sylvania Bowling Club, where the appellant worked until May 2017.
The appellant recollected that, at some stage after that, Mr Kilby advised him that the claim had to be made against the Gymea Bowling Club, where the appellant had been employed since leaving the Sylvania Bowling Club.
The appellant said that his file was then transferred to Mr Mario Bechelli, solicitor at Whitelaw McDonald Lawyers, who made a claim for compensation against the respondent by letter dated 20 November 2018.
The appellant stated that, between the time Dr Scoppa’s report was obtained and until the claim was made against the respondent, it remained unclear to him which employer was liable. The appellant said that, as far as he could recall, up until the claim was made, he had never been given specific advice by Mr Kilby that his claim should be made against the respondent. The appellant was of the view that the issue as to which employer was liable remained unresolved and further investigation was required.

The evidence of Mr Kilby

Mr Kilby provided a statement dated 4 March 2020.[9] He said that he had conduct of the appellant’s claim until the file was transferred to Mr Bechelli on 10 September 2018. Mr Kilby annexed a copy of an office memo bearing that date from him to Mr Bechelli (the contents of which will be discussed below).
[9] AALD, pp 3–5.
Mr Kilby advised that, after obtaining a grant of legal assistance from the Workers Compensation Independent Review Office (WIRO) on 6 March 2015, he arranged for the appellant to be examined by Dr Scoppa on 28 May 2015 and he received Dr Scoppa’s report on 5 June 2015.
Mr Kilby said that on 2 June 2015, he had arranged for his secretary, Ms Tracey Meaney, to forward an email to the appellant and that email was also annexed to Mr Kilby’s statement.[10] In the email, Ms Meaney advised the appellant that:
“With reference to the above matter, we confirm your recent attendance upon Dr Scoppa.
Barry has been corresponding with Dr Scoppa to confirm the calculations required for his report, noting he believes Roselands Aquatic Centre are the [sic] responsible for your hearing loss from 1987 to 1994.
As soon as we are in receipt of Dr Scoppa's report, we will forward a copy of same to you and arrange a time for Barry to speak with you about your matter. ·
In the meantime, as your claim could potentially be made against Roselands Aquatic Centre, could you please start reviewing your records to locate any documentation which can confirm not only your employment with Roselands Aquatic Centre, but also your exact last date of employment. (In industrial deafness matters, your last date of employment becomes your ‘date of injury’). The relevant insurer will request this information before considering a claim.”
[10] Annexure “B” to Mr Kilby’s statement, AALD, p 7.
Mr Kilby referred to further documents that were annexed to his statement, namely:
(a)    a file note from Ms Sue Stutchbury, employee of Whitelaw McDonald Lawyers, advising that she had returned the appellant’s call and that the appellant had advised that Dr Scoppa needed to know the last date upon which the appellant had worked for the respondent. Ms Stutchbury also recorded that the appellant was having difficulties finding that information. Ms Stutchbury advised that the information was necessary, and Whitelaw McDonald Lawyers would need to forward an authority to the Australian Taxation Office (ATO), in order to obtain that information;[11]
(b)    a letter dated 12 June 2015 from Mr Kilby to the appellant requesting him to sign an authority for the ATO to release the appellant’s taxation documents;[12]
(c)    an email dated 13 July 2015 directed to Ms Stutchbury from Mr Henry George of Bay Audio, enclosing the appellant’s curriculum vitae, which had been forwarded at the request of the appellant. The curriculum vitae included a list of the appellant’s employment positions from 1995 to 2010;[13]
(d)    a file note dated 24 August 2015 recorded by Ms Meaney, indicating that the ATO could not provide the information requested, and that she would forward an authority to the appellant to sign so that the information could be obtained directly from the respondent;[14]
(e)    a letter dated 28 September 2015 from Mr Kilby to the respondent enclosing the authority signed by the appellant and requesting the exact period of the appellant’s employment with the respondent,[15] and
(f)    a letter dated 7 October 2015 from the respondent to Whitelaw McDonald Lawyers advising that the appellant was first employed by it in a casual position on 22 September 1992, became a permanent employee on 12 October 1996 and resigned his employment on 3 July 1998.[16]
[11] Annexure “C” to Mr Kilby’s statement, AALD, p 8.
[12] Annexure “D” to Mr Kilby’s statement, AALD, p 9.
[13] Annexure “E” to Mr Kilby’s statement, AALD, pp 10–16.
[14] Annexure “G” to Mr Kilby’s statement, AALD, p 18.
[15] Annexure “H” to Mr Kilby’s statement, AALD, p 19.
[16] Annexure “I” to Mr Kilby’s statement, AALD, p 20.

Mr Kilby said that despite having confirmed the dates of the appellant’s employment with the respondent, he was concerned about whether the appellant’s subsequent employment was noisy. He referred to further documents annexed to his statement as follows:
(a)    correspondence dated 29 October 2015 from Ms Meaney to the appellant, in which Ms Meaney enclosed a copy of the letter from the respondent and informed the appellant that he would be required to sign an amended Notice of Injury Form. Ms Meaney also requested further information about the appellant’s employment subsequent to his employment with the respondent;[17]
(b)    a letter from Mr Kilby dated 22 December 2015 to the appellant advising that he had not received a response from the appellant to the letter dated 29 October 2015;[18]
(c)    a letter from Mr Kilby to the appellant dated 1 April 2016, in which Mr Kilby noted a discussion with the appellant in which the appellant confirmed that the work history recorded in the letter dated 29 October 2015 was correct. Mr Kilby indicated that the further information requested in that letter had not been provided;[19]
(d)    further letters from Mr Kilby to the appellant dated 17 May 2016[20] and 11 July 2016, again requesting that information;[21]
(e)    a file note recorded by Ms Alisa Richardson indicating that the appellant had called the office of Whitelaw McDonald Lawyers and advised that he had been away and was attempting to obtain the information requested;[22]
(f)    a letter dated 25 August 2016 from Mr Kilby to the appellant requesting the appellant complete and return an “instruction sheet” that had been forwarded to him on 23 May 2016;[23]
(g)    further correspondence from Mr Kilby to the appellant and file notes taken by Mr Kilby between 21 September 2016 and 4 June 2018 in relation to information and discussions about the appellant’s employment subsequent to employment with the respondent;[24]
(h)    a file note dated 14 November 2016, in which Mr Kilby noted that from the commencement of the claim it was his view that Sylvania Bowling Club was the correct respondent, but that both the appellant and Dr Scoppa did not believe that to be the case.[25]
[17] Annexure “J” to Mr Kilby’s statement, AALD, pp 21–22.
[18] Annexure “K” to Mr Kilby’s statement, AALD, p 23.
[19] Annexure “L” to Mr Kilby’s statement, AALD, p 24.
[20] Annexure “M” to Mr Kilby’s statement, AALD, p 25.
[21] Annexure “N” to Mr Kilby’s statement, AALD, p 26.
[22] Annexure “O” to Mr Kilby’s statement, AALD, p 27.
[23] Annexure “P” to Mr Kilby’s statement, AALD, p 28.
[24] Annexures “R”, “T”, “U”, “V”, “Ý”, “Z”, “AA” and “BB” to Mr Kilby’s statement, AALD, pp 30–40.
[25] Annexure “S” to Mr Kilby’s statement, AALD, p 31.

Further Documents

On 13 February 2019, Mr Bechelli wrote to the respondent, attaching:
(a)    the medical report of Dr Scoppa dated 5 June 2015;
(b)    a report and quotation for the provision of hearing aids from Bay Audio dated 20 February 2015;
(c)    a statutory declaration as proof of employment, and
(d)    a letter from Bartier Perry lawyers dated 8 February 2019.
The quotation and the letter from Bartier Perry were not in evidence in these proceedings. Presumably the statutory declaration was that signed by the appellant and dated 3 January 2019, summarised at [29]–[31] above. The letter advised that the appellant claimed compensation in respect of a lump sum in respect of 9.7% binaural hearing loss pursuant to s 66 of the 1987 Act and the costs of hearing aids in accordance with s 60 of the 1987 Act.[26]
[26] ARD, p 1.
On 15 August 2019, Mr Bechelli wrote to the respondent referring to the respondent’s request for proof of the appellant’s employment. Mr Bechelli advised that the appellant did not have proof of employment, but that the respondent should contact Mr Trevor Elliott, who had been the pool manager at the time of the appellant’s employment.[27]
[27] ARD, p 11.
On 16 December 2019, an email from Whitelaw McDonald Lawyers sent on behalf of Mr Bechelli attached the appellant’s taxation returns for the years 1994–1998 inclusive, which were said to show that the appellant was employed by the respondent during that time.[28]
[28] ARD, p 15.
In a notice dated 14 January 2020 issued pursuant to s 78 of the 1998 Act, the respondent disputed liability for the appellant’s claim.[29] The reasons for disputing the claim were that the claim was received on 8 February 2019, but that Dr Scoppa had made the appellant aware of his hearing loss and its connection to the appellant’s employment with the respondent in his report dated 5 June 2015. The respondent said that, as the appellant was aware of his industrial deafness injury on 5 June 2015, he was required to give notice of the injury or make a claim for compensation within 6 months of the injury. The respondent said that it had received the claim more than three years from the time the appellant was made aware of his industrial deafness injury, and therefore, the appellant was not entitled to make a claim for his hearing aids.
[29] ARD, pp 21–25.

Dr Joseph Scoppa’s evidence

Dr Scoppa’s report dated 5 June 2015 was in evidence, together with his hearing assessment report.[30] He noted the appellant’s history of onset of hearing difficulties. Dr Scoppa recorded the various employment positions as reported by the appellant and noted that none of those positions were “noisy,” except for the employment with the respondent. Dr Scoppa recorded that, in the employ of the respondent:
(a)    the appellant spent his day working for 8 hours over a period of seven years;
(b)    the appellant was required to work in an indoor pool, which was a relatively confined space;
(c)    there was incredible noise caused by a reflection of noise from patrons and particularly young children who screamed continuously during swimming carnivals and group swimming lessons;
(d)     even if a person shouted, it was difficult to hear them from a metre away, and
(e)    the appellant was exposed to extreme noise one hour per day from the plant room.
[30] ARD, pp 2–8.
Dr Scoppa opined that the history provided was consistent with noise levels well above 85dBA and probably over 90dB.
Dr Scoppa described the examination of the appellant’s hearing and provided the results of the audiometry testing. He was of the view that a part of the appellant’s hearing loss did not result from noisy employment and apportioned the binaural hearing loss after correction for presbycusis and attributable to industrial deafness as 9.7%.
Dr Scoppa advised that from the history provided, in his opinion it was probable that the last noisy employer was the respondent. He concluded that the tendencies, incidents and characteristics of the appellant’s employment with the respondent would, on the balance of probabilities, give rise to a real risk of boilermaker’s deafness, or deafness of similar origin. Dr Scoppa also opined that the respondent’s employment was a substantial contributing factor to the development of industrial deafness.

THE ARBITRATOR’S REASONS

The Arbitrator noted that the appellant sought to amend the claim before the Commission to include a lump sum claim for permanent impairment. The application had, until then, been pleaded as a claim for hearing aids and associated expenses pursuant to s 60 of the 1987 Act. The Arbitrator allowed the amendment on the basis that the respondent conceded that it would not suffer any prejudice if that claim was included.
The Arbitrator further noted that the date of injury was 3 July 1998, which was the last date upon which the appellant was employment by the respondent.
The Arbitrator remarked that, although s 254 of the 1998 Act was raised in the dispute notice issued by the respondent, the submissions at arbitration were limited to matters arising under s 261 of the 1998 Act. The Arbitrator considered s 261, relevantly observing that it provided that:
(a) a claim for compensation could not be recovered unless a claim was made within six months of the injury;
(b) the failure to make the claim within that period was not a bar to recovery if the failure was occasioned by ignorance, mistake or absence from the state, and either:
(i)the claim is made within three years after the injury, or
(ii)the claim is not made within three years but the claim is in respect of the serious and permanent disablement of the worker.
The Arbitrator further observed that s 261(6) of the 1998 Act provides that the injury is taken to have been received when the worker first became aware that he had suffered an injury. The Arbitrator said that, in this case, that would have been, at its earliest, in about June 2015 when the appellant was assessed by Dr Scoppa, whose report was then made available to the appellant’s legal representatives.
The Arbitrator reasoned that if the appellant had become aware at that time, the three-year period would arguably expire in June 2018. The Arbitrator further reasoned that, at the latest, the appellant had the requisite knowledge on 29 October 2015, when the appellant’s legal representatives forwarded an email to him confirming that the last date of his employment with the respondent was 3 July 1998.
The Arbitrator quoted the following passage from the appellant’s statement:
“It remained unclear to me from the time the report of Dr Scoppa was obtained until the claim was made against Canterbury Council on 20 November 2018 as to which employer the claim should be made. As far as I can recall, I was never during this period, given specific advice by Mr Kilby that my claim should be made against Canterbury Bankstown Council in relation to my employment at the Roselands Aquatic Centre. I remained under the impression that the issue as to which employer the claim should be made against remained unresolved and that further investigation was required.”[31]
[31] Appellant’s statement, [10], AALD, p 2.
The Arbitrator concluded that he accepted that evidence but said that the question for determination was when the appellant had an awareness of his injury and not merely an awareness of a physical problem. The Arbitrator cited the authorities of Heatcraft Australia Pty Ltd v Lapa[32] and Roads and Traffic Authority of NSW v McNally.[33] The Arbitrator referred to the decision of Roche DP in Inghams Enterprises Pty Ltd v Jones,[34] in which the Deputy President discussed the concept of awareness of injury in the context of a claim for boilermaker’s deafness. The Arbitrator observed that awareness of injury occurs when firstly the worker is aware that he has a sensori-neural hearing loss and secondly, that his hearing loss was attributable to his employment. The Arbitrator referred to the passage from that decision, where Roche DP said:
“[b]ecause 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.”[35]
[32] [2007] NSWWCCPD 27.
[33] [2006] NSWWCCPD 359.
[34] [2012] NSWWCCPD 17 (Jones).
[35] Jones, [89].
The Arbitrator reasoned that, on that basis, a worker’s awareness that he suffered from a hearing loss and had worked in a noisy place, are together not sufficient because, as Roche DP observed, the worker is not expected to “put two and two together.”[36] The Arbitrator further observed that the worker did not have to be aware that he had a “watertight case that was bound to succeed.”[37]
[36] Jones, [86].
[37] Jones [87].
The Arbitrator said that the test was an objective one, based on the individual’s knowledge at the relevant time and that each case will turn on its own facts.
The Arbitrator concluded that, taking into account the evidence, he believed the appellant had knowledge of his injury from the time he was made aware of the contents of Dr Scoppa’s report. The Arbitrator observed that the evidence of Mr Kilby was that the legal representatives would be seeking clarification from Dr Scoppa of the impact of the subsequent employment. The Arbitrator said, however, that in his view this did not detract from the appellant having the necessary awareness of his injury from mid 2015, when Dr Scoppa’s report was produced.
The Arbitrator said that, on the evidence, in his view the appellant had “knowledge” for the purpose of s 261 of the 1998 Act when he became aware that he suffered a hearing loss and his employment was to blame. The Arbitrator referred to Unilever Australia Ltdv Petrevska,[38] in which the Court of Appeal said that a worker will ordinarily not be aware of the cause of the gradual loss of his hearing, until the worker receives medical advice. Further, it is not sufficient that the worker has an opinion or belief that his hearing loss is related to his employment. What is normally required is expert advice. The Arbitrator observed that the medical advice was received in about June 2015.
[38] [2013] NSWCA 373; 85 NSWLR 677 (Petrevska).
The Arbitrator concluded that the appellant’s claim had been brought outside of the three year limitation of his becoming aware of the injury. The Arbitrator said that on that basis, the appellant must establish that the injury resulted in a serious and permanent disablement, in accordance with s 261(4)(b) of the 1998 Act.
The Arbitrator considered the authorities of Broken Hill Proprietary Company Ltd v Kuhna,[39] and Gregson v L & MR Dimasi Pty Ltd,[40] citing the following observation by Burke CCJ from Gregson:
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.”[41]
[39] (1992) 8 NSWCCR 401 (Kuhna).
[40] [2000] NSWCC 47; 20 NSWCCR 520 (Gregson).
[41] Gregson, [78].
The Arbitrator said that there was no question that hearing loss could cause serious and permanent disablement, as in BHP Billiton vEastham,[42] where the worker provided evidence that he could not perform work if he was required to:
(a)    engage in telephone conversations;
(b)    converse with people, particularly in groups, or
(c)    perform work in circumstances where the ability to hear was necessary for reasons of safety.
[42] [2013] NSWWCCPD 34 (Eastham).
The Arbitrator remarked that the appellant’s evidence was in stark contrast to the evidence in Eastham. The Arbitrator noted that, in the present matter, the appellant’s own evidence about the later employers was that they were not noisy. Further, the only evidence the appellant offered in relation to his serious and permanent disablement was that:
“I have been employed by Sylvania Bowling Club Co-Op Limited as a bar/cellarman from 23 October 2010 to date. This has been relatively quiet employment. There is a lot of noise from patrons that echoes within the Club but in general I am able to have a normal conversation with a person standing about a metre away. The only other noise exposure during the course of this employment is from a DJ for about 3 hours once per month.”[43]
[43] Appellant’s statement 10 September 2019, [3], ARD, p 13.
The Arbitrator observed that there was no evidence from the appellant that went to the question of serious and permanent disablement. The Arbitrator noted that the appellant bore the onus of proof and concluded that he was not satisfied that the appellant suffered a serious and permanent disablement as a result of his hearing impairment.
The Arbitrator referred to the appellant’s submissions about the precise knowledge held by the appellant and his legal representatives and the steps they undertook to investigate whether later employers were liable. The Arbitrator considered that those matters were not relevant to the enquiry the Commission was required to make. The Arbitrator said that the question is that of when the appellant obtained knowledge of his injury in accordance with s 261(6) of the 1998 Act and whether the appellant made his claim within three years of that event. The Arbitrator reiterated that in his view, the appellant did not bring his claim within that three-year period so that it was then incumbent upon the appellant to establish that he suffered from a serious and permanent disablement. The Arbitrator further reiterated that he was not satisfied on the evidence before him that the appellant suffered a serious and permanent disablement and entered an award in favour of the respondent.
The Certificate of Determination issued on 15 April 2020 records:
“The Commission determines:
1.     Leave is granted to amend the Application to Resolve a Dispute to claim permanent impairment compensation in the sum of $6,305 in respect of a 9.7% binaural hearing loss, with a deemed date of injury of 3 July 1998.
2.     The applicant suffered injury by way of binaural hearing loss in the course of his employment with the respondent, with a deemed date of injury of 3 July 1998.
3.     The applicant became aware of his injury in or about June 2018 [sic, 2015].
4.     The applicant’s claim was made more than three years after he became aware of his injury.
5.     The applicant has not demonstrated he suffers a serious and permanent disablement as a result of his injury (section 261(40(b) [sic, (section 261(4)(b))].
6.     Award for the respondent.”

GROUNDS OF APPEAL

The appellant pleads the following grounds of appeal:

Ground 1 – Jurisdiction

The Arbitrator erred in law in determining the issue pursuant to s 261 of the 1998 Act when the respondent failed to satisfy the statutory notice provisions under ss 279 and 281 of the 1998 Act being jurisdictional facts to found jurisdiction for a valid referral of a dispute under s 289 of the 1998 Act.

Ground 2 – Section 261 of the 1998 Act

The Arbitrator erred in law in finding that:
(a)    the appellant had knowledge of his injury from the time he was made aware of the contents of Dr Scoppa’s report;
(b)    the appellant had knowledge of his injury from approximately mid-2015 when Dr Scoppa’s report was produced;
(c)    the appellant had “knowledge” as that term is used in s 261 when he became aware that he had suffered a loss of hearing and that his employment was to blame, and
(d)    the appellant’s claim had been brought outside of the three-year limit of becoming aware of the injury at issue.

Ground 3 – Serious and permanent disablement

The Arbitrator erred in law and in fact in finding that the appellant had not suffered a serious and permanent disablement within the meaning of s 261(4)(b) of the 1998 Act.

LEGISLATION

Section 261 of the 1998 Act 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.
…
(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.
…
(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.
…
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
…”

Section 279 requires that a claim for compensation for medical expenses is to be accepted within 21 days. The section provides:
“279 Liability to be accepted within 21 days
(1) Within 21 days after a claim for medical expenses compensation is made the person on whom the claim is made must determine the claim by accepting or disputing liability.
Note. Section 283 makes failure to comply with this section an offence. Section 78 requires notice of a dispute to be given.
(2) An employer is not required to determine a claim as provided by this section if—
(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and
(b)the employer has complied with all reasonable requests of the insurer with respect to the claim.
Note. A claim forwarded to the insurer is taken to have been made on the insurer.”
Section 281 makes provision for liability to be accepted and the procedures to be followed when a claim for lump sum compensation is made. The section relevantly provides:
“281 Liability to be accepted and settlement offer made
(1)     The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by—
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2)     A claim must be so determined—
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.
Note. Section 283 makes failure to comply with this section an offence. Section 78 requires notice of a dispute to be given. If an offer of settlement is not made as required by this section, the claim can be referred for assessment as soon as the time for making the offer has expired.
(2A) The determination of a claim cannot be delayed beyond 2 months after the claimant has provided to the insurer all relevant particulars about the claim (that delay being on the basis that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable), unless the insurer has within that 2-month period notified the claimant that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable.
(2B) When the person on whom a claim is made accepts or disputes liability, the person must notify the claimant as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages.
(3)     An offer of settlement is to specify an amount of compensation or damages or a manner of determining an amount of compensation or damages.
(4)     If an offer of settlement is made on the basis that the insurer accepts only partial liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is accepted.
(5)     An employer is not required to determine a claim as provided by this section if—
(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and
(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.
Note. A claim forwarded to the insurer is taken to have been made on the insurer.
…”
Sections 289 and 289A place restrictions upon when a dispute can be referred to the Commission. Relevantly, those sections provide:
“289 Restrictions as to when dispute can be referred to Commission
…
(3)     A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
…
(5)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”
and
“289A Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

SUBMISSIONS

Preliminary matter

The respondent filed its opposition on 3 July 2020. On 21 July 2020, the appellant lodged a document dated 17 July 2020 titled “Appellant’s Submissions in Reply,” in which the appellant acknowledged receipt of the transcript of the arbitral proceedings. The transcript had been provided to the appellant by the Commission on 27 May 2020, that is, the day before the appellant successfully lodged the appeal. The appellant indicated that the transcript would be used to supplement both the appellant’s primary submissions, and the submissions in reply to the respondent’s submissions.
A delegate of the Registrar noted that, in the submissions filed on 21 July 2020, the appellant had not sought leave to file submissions in respect of the transcript. Consequently, the delegate of the Registrar issued a Direction dated 21 July 2020, in which he directed the appellant to seek leave to file any submissions on the transcript if he wished to do so. The delegate of the Registrar provided a timetable for this to be attended to, which included an opportunity for the respondent to respond to any such application for leave brought by the appellant, and also gave the appellant the opportunity to reply to the respondent’s response.
On 24 July 2020, the appellant filed a document titled “Appellant’s application for leave to file further submissions being Appellant’s Submissions in Reply.” The appellant made the following submissions:
(a)    the appeal grounds and submissions were drafted without the benefit of a transcript of the arbitral proceedings;
(b)    on 21 April 2020, the Commission’s link to the audio-recording of the arbitration was provided to the appellant’s counsel, Mr Hallion, who was unable to access the link;
(c)    the transcript was forwarded to the appellant’s counsel on 27 May 2020;
(d)    on 20 July 2020, the submissions in reply were sent to the Commission, which were rejected by the Commission on 21 July 2020;
(e)    procedural fairness should allow the appellant to respond to the respondent’s submissions;
(f)    the transcript is only relied upon insofar as it supports the appellant’s primary submissions;
(g)    it is apparent from the respondent’s opposition that the evidence the Arbitrator relied on and the submissions that were made about that evidence is an issue for determination;
(h)    the transcript is to be relied upon to verify matters otherwise reliant upon the recollection of the appellant’s legal representatives;
(i)    the appellant’s submissions are attached to the application, and
(j)    the appellant has complied with the Direction issued by the delegate of the Registrar.
The respondent lodged submissions opposing the application, noting that the Arbitrator’s decision was issued on 15 April 2020 and that the first appeal was lodged out of time and rejected, as were two subsequent appeals.
The respondent submits that the appellant concedes that he had access to the Commission’s portal. The respondent asserts that no proper explanation has been given for the appellant’s failure to pursue the transcript at an earlier time, even in the context of the appellant’s reported technical difficulties. In any event, the respondent submits, the appellant had received the transcript on 27 May 2020, which was one day before he filed his appeal on 28 May 2020. The respondent says that the appellant had ample time to obtain and consider the transcript and provide submissions and therefore should not be afforded a further opportunity.
The respondent contends that the evidence is clearly set out in the ARD, the Reply and the AALD. No oral evidence was given, and the transcript recorded only the parties’ submissions, so that what is recorded on the transcript has no relevance to the Arbitrator’s findings of fact.
The respondent refers to the extensive submissions already made by the appellant in the various appeal applications in the context of the limited value of the claim and submits that the appeal is “burdened by the way in which these proceedings have been managed by the appellant and his advisers.”[44] The respondent asserts that to allow the submissions would be burdensome and unfair and does not direct attention to the real issues in this case.
[44] Respondent’s submissions dated 4 August 2020, [8].
The respondent offers the following response to the appellant’s submissions in reply dated 17 July 2020:
(a)    the matters raised at [2.1]–[2.8] of the appellant’s submissions simply repeat the appellant’s primary submissions;
(b)    the matters raised at [5.1]–[5.19] of the appellant’s submissions are either new submissions or should have been included in the primary submissions because they are reliant upon the transcript, and
(c)    all other submissions raise new matters which ought to have been raised in the appellant’s primary submissions.
The respondent asserts that no regard should be had to the appellant’s submissions dated 24 July 2020.

Consideration

The opportunity provided to the appellant in a timetable issued in respect of the appeal is intended to give the appellant the opportunity to respond to matters raised by the respondent which, if not responded to by the appellant, would result in a degree of procedural unfairness. It is not an opportunity to raise fresh matters or matters arising from the transcript of the arbitral proceedings. The Commission’s practice is consistent with the procedures adopted in many other courts and tribunals.
In an appeal, the Registrar or his delegate will issue a transcript of the proceedings. Clause 27 of the Commission’s Practice Direction No 6 provides that:
“The Registrar will issue the parties with a copy of the transcript of arbitration proceedings and oral decision, if the matter was determined orally. Any supplementary submissions following receipt of the transcript/s must be lodged and served on all parties to the proceedings within 14 days of the date of issue or within such other time as stipulated by the Registrar.”
The appellant concedes that his counsel received the transcript on 27 May 2020, before the compliant appeal application was lodged. Contrary to cl 27 of Practice Direction No 6, the appellant waited almost two months before he sought to lodge submissions on the transcript and did so without making an application for leave to lodge those submissions. There is no explanation as to why the appellant did not incorporate his submissions on the transcript in the primary submissions made in the appeal, or waited for a significant period of almost two months after receipt of the transcript to make those submissions, or failed to make any application for leave to lodge submissions on the transcript until 24 July 2020.
The delay on the part of the appellant’s legal representatives is unacceptable. Further, to allow the appellant’s application would require the Commission to provide the respondent with the opportunity to respond to those submissions that are reliant upon the transcript lodged on 21 July 2020 and 24 July 2020. In the context of the appellant’s dilatory conduct in bringing this appeal, such an outcome would cause yet further undue delay. Thus, to indulge the appellant’s request is inappropriate and unmerited.
The appellant’s application is refused, and the submissions dated 24 July 2020 are rejected, as are those submissions pertaining to the transcript incorporated in the submissions dated 20 July 2020. Otherwise, in the interests of providing the appellant with the opportunity to reply to the respondent’s submissions lodged with its opposition, the appellant’s submissions dated 17 July 2020, lodged on 21 July 2020, are admitted, but solely for the purpose of responding to the respondent’s submissions.

Submissions as to Ground One

The appellant’s submissions

The appellant refers to the Arbitrator’s reasons and says that the Arbitrator identified the question for determination as being when it could be said that the appellant had awareness of his injury. The appellant submits that, at the arbitration, he raised a preliminary matter of the respondent having failed to satisfy the mandatory notice provisions within ss 279 and 281 of the 1998 Act. That is, in order to dispute a claim made pursuant to s 60 of the 1987 Act, notice must be given to the worker within 21 days, and in respect of a claim made pursuant to s 66 of the 1987 Act, notice must be given within two months.
The appellant submits that the required notice was not given until 14 January 2020. The appellant contends that, in order for a valid referral of the dispute under s 261 of the 1998 Act in accordance with s 289 of the 1998 Act, the giving of the requisite notice under ss 279 and 281 of the 1998 Act was a precondition to enlivening the Commission’s jurisdiction.
The appellant concedes that, except for raising the respondent’s non-compliance with those requirements, the issue of jurisdiction was not argued at arbitration. The appellant submits, however, that the issue of jurisdiction can, nonetheless, be raised on the appeal because the parties cannot agree to confer jurisdiction where it does not exist.
The appellant submits that, notwithstanding the beneficial nature of the jurisdiction, an anomalous feature of the outcome of the Arbitrator’s decision is that the appellant has been prevented from enforcing an entitlement in the Commission in circumstances where there is no prejudice to the respondent, no mala fides, or dilatory conduct on the part of the appellant.
The appellant contends that his disentitlement arises from a strict application of a time frame in circumstances where the respondent failed to satisfy the statutory precondition pursuant to ss 279 and 281 of the 1998 Act. The appellant says that s 283 of the 1998 Act makes such non-compliance an offence and leaves the respondent liable for prosecution.
The appellant asserts that there is no saving provision, or any power under the 1998 Act, to “forgive” non-compliance or to extend the time in which to issue a late notice given pursuant to s 78 of the 1998 Act.
The appellant concludes that there was a want of jurisdiction for the Commission to deal with the matters raised in the respondent’s reply. The respondent says that the failure to satisfy the preconditions, or jurisdictional facts, mandated by ss 279 and 281 of the 1998 Act, renders the orders made in respect of s 261 of the 1998 Act void and a nullity and they have no legal effect.

The respondent’s submissions

The respondent submits that there is no evidence that the claim was “duly made.” The respondent contends that the claim was not “duly made” until 16 December 2019, when the appellant provided evidence of his employment with the respondent. The respondent says that it determined the claim on 14 January 2020, which was within 21 days of making the claim.
The respondent concludes that there was no failure to determine the matter pursuant to s 279 or s 281 of the 1998 Act.

The appellant’s submission in reply

The appellant refers to the respondent’s submission that:
(a)    there was no evidence to establish that the appellant had ever duly made a claim for compensation;
(b)    the claim was not duly made until the appellant provided evidence to the respondent of his employment with the respondent, which occurred on 19 December 2019, and
(c)    the respondent determined the claim on 14 January 2020, which was within 21 days of the claim being duly made.
The appellant submits that the reference to “duly made” was a requirement under s 65 of the 1998 Act, which can be disregarded as this claim is brought pursuant to s 260 of the 1998 Act. The appellant says that its claim made on 18 November 2018 complied with s 260 of the 1998 Act and the Workers Compensation Guidelines.
The appellant contends that, in any event, “how there could be an issue with employment that prevented the claim from being determined in November 2018 cannot be reconciled with evidence … of a letter dated 7 October 2015 in which the respondent confirms … the appellant’s last date of employment.”[45] The appellant submits that the respondent’s assertion that there was no valid claim made on 18 November 2018 and that the claim was not made until the appellant provided tax returns should be rejected.

Submissions as to Ground Two – Section 261 of the 1998 Act

[45] Appellant’s submissions dated 17 July 2020, [3.16].

The appellant’s submissions

The appellant submits that the Arbitrator erred by finding that the appellant had knowledge of his injury from approximately mid-2015 when he was made aware of the contents of Dr Scoppa’s report.
The appellant points to the Arbitrator’s rejection of the appellant’s submission that the relevant date upon which the appellant became aware of his injury was not before September 2018, when he received legal advice in relation to causation, the notional injurious event and the “fictitious date” of injury. The appellant referred to the Arbitrator’s observation that that date was “not relevant.”
The appellant quotes from Fairfield City Council v Deguara,[46] in which I observed that:
“Section 17 does not simply provide ‘a mechanism for determining a deemed date of injury and [fix] the date of injury’, as asserted by Fairfield. It creates a series of fictions and presumptions on which a worker’s entitlements are based. It dispenses with the need to establish causation.”[47]
[46] [2019] NSWWCCPD 1 (Deguara).
[47] Deguara, [184] (wrongly cited by the appellant as [187]).
The appellant asserts that s 261(6) of the 1998 Act is “fraught with difficulties” because of the principles of legal causation that apply to an injury within the meaning of s 4 of the 1987 Act and because the concept of factual causation is of no assistance in respect of s 17 of the 1987 Act. The appellant says that s 17 operates under a legal construct that involves a series of fictions and assumptions that create a notional date of injury and the date upon which it happened.
The appellant contends that the Arbitrator’s reasoning in relation to the concept of awareness is that “injury” is to be understood as the “pathology,” as it is used elsewhere in the 1998 Act, rather than in the sense that it is used in s 17 of the 1987 Act (awareness of an injurious event giving rise to the pathology).

The only “disablement” identified by the appellant in the present appeal was the difficulty with speech discrimination while watching television or on the telephone, as recorded by Dr Scoppa. The evidence adduced in Eastham differs significantly to that offered by the appellant in this case. The Arbitrator was correct to identify the factual “stark contrast” between Eastham and the present case. The appellant’s reliance on Eastham is misplaced.
It is not sufficient for the appellant to show that he has a disablement in respect of his capacity to perform work. The disablement must be serious. Adopting the approach taken by Burke CCJ in Gregson, it is the degree of the incapacity that must be assessed.
The appellant’s submission that the Arbitrator failed to have regard to the totality of the evidence does not identify any factual evidence which the Arbitrator failed to consider which might have been probative in terms of the question of whether the appellant’s hearing loss in fact impinged adversely upon his capacity to work. There is no evidence upon which it could be inferred (as suggested by the appellant) that the appellant’s hearing loss impacted his ability to work as a film and television extra. In fact, the appellant was performing that work when he worked at the Sylvania Bowling Club and did not describe any difficulty in performing that role.[74] Further, I do not accept that any inference could be drawn from the evidence that the appellant’s difficulty was a serious impediment to some unidentified employment because of safety issues. In short, there was indeed no evidence before the Arbitrator to establish that any disablement suffered by the appellant was a serious disablement.
[74] Appellant’s statement dated 10 September 2019, [4].
It follows that there was no error on the part of the Arbitrator and this ground of appeal has no merit.

ADDITIONAL MATTERS

The appellant refers to the complexity of bringing a claim pursuant to s 17 of the 1987 Act and the delay in bringing the claim. Much of the complexity arose out of the manner in which the appellant’s claim was handled. The report of Dr Scoppa was in the hands of the appellant’s legal representatives on 5 June 2015. Dr Scoppa reported that the appellant suffered from noise induced hearing loss, the appellant’s employment with the respondent was sufficient to be of the type to cause noise induced hearing loss and that none of the appellant’s other employments were sufficiently noisy. That opinion accorded with the lay belief held by the appellant. For some unexplained reason, the appellant’s legal representative took a different view and launched on a protracted process of trying to identify some other employer who may have been liable, contrary to the opinion of Dr Scoppa and contrary to his client’s instructions. Those investigations never came to fruition and the appellant’s claim which was ultimately brought was the claim that was available to him in October 2015. There was nothing complex about the claim itself. In any event, notions of complexity and the delay in bringing the claim are not matters that are relevant to considerations of the appellant’s awareness or whether the appellant suffered a serious and permanent disablement.
In his submissions, the appellant asserts that the Arbitrator took into account the “pathology,” rather than the injurious event. The appellant does not clarify that submission by reference to the Arbitrator’s reasons or by any other means. There was no issue raised in the proceedings as to whether the appellant suffered an injury within the meaning of s 4 of the 1987 Act. It is apparent from a plain reading of the Arbitrator’s reasons that the Arbitrator did not simply rely upon the appellant’s knowledge of his condition as evidence that the appellant had the requisite “awareness.”

CONCLUSION

None of the appeal grounds raised by the appellant have merit. The appeal has no prospects of success and the failure to extend the time to file the appeal would not result in a substantial injustice to the appellant as required by s 352(4) of the 1998 Act. In accordance with r 16.2(5) of the 2011 Rules, I decline to extend the time to lodge an appeal.

DECISION

The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.

Elizabeth Wood

DEPUTY PRESIDENT

23 September 2020