Hatton v Holcim (Australia) Holdings Pty Limited
[2021] NSWPIC 245
•6 July 2021
| DECISION OF PRESIDENT’S DELEGATE | |
| CITATION: | Hatton v Holcim (Australia) Holdings Pty Limited [2021] NSWPIC 245 |
| APPLICANT: | Wayne Hatton |
| RESPONDENT: | Holcim (Australia) Holdings Pty Limited |
| PRESIDENT’S DELEGATE: | Belinda Gamble |
| DATE OF DECISION: | 6 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Industrial deafness; section 60 costs sought for bilateral digital hearing aids; whether the applicant is barred for failing to give notice under sections 254 or 261 of the 1998 Act; Held- applicant prevented from recovering compensation due to the operation of subsection 261(1); claim not made within six months after the injury or accident happened; no evidence to support the applicant fell within an exception to the requirement to bring a claim within the required period; no evidence to support the injury received by the worker had been entered into a register of injuries kept by the respondent; award for the respondent on the claim for medical expenses. |
| DETERMINATIONS MADE: | 1. Award for the respondent on the claim for medical expenses. |
STATEMENT OF REASONS
BACKGROUND
Wayne Hatton, the applicant, was employed by Holcim (Australia) Pty Ltd, the respondent, as a concrete agitator driver.
The applicant suffers from noise induced hearing loss. The applicant made a claim for medical expenses compensation in the form of hearing aids.
The respondent declined liability for the claim, principally on the basis that the applicant had not given a valid notice of injury and had not made his claim for compensation within the required timeframe.
This decision concerns whether the respondent is liable under the NSW workers compensation legislation to pay the costs of the claimed hearing aids.
ISSUES FOR DETERMINATION
The parties agreed the following matters are for determination:
(a) whether the applicant gave a valid notice of injury under the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (notice of injury);
(b) whether the applicant’s claim for compensation is barred by section 261 of the 1998 Act (notice of claim);
(c) whether the respondent was the last noisy employer for the purposes of the claim;
(d) whether the applicant suffered a compensable injury with the respondent; and
(e) whether the hearing aids were a reasonably necessary medical expense within the meaning of section 60 of the Workers Compensation Act 1987.
Matters previously notified as disputed
The above matters for determination were notified in a dispute notice issued under section 74 of the 1998 Act dated 16 November 2018. To the extent the issues were not previously notified, I grant leave to raise them under section 289A(4) of the 1998 Act. The matter had previously been listed for conciliation/arbitration in July 2019 and was discontinued. The issues relating to notice of injury and notice of claim were identified and discussed at the previous conciliation/arbitration. It is in the in the interests of justice for the respondent to be given leave to raise them in these proceedings.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation/arbitration on 8 March 2021.
The parties were represented as follows:
(a) Mr Stephen Glavan, solicitor for the applicant and
(b) Mr Tim Ainsworth, solicitor for the respondent.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application for Expedited Assessment, and attachments (Application), and
(b) Reply, and attachments (Reply).
Oral evidence
There was no application to adduce oral evidence.
Background
In a statement dated 10 May 2019, the applicant recorded his employment history including noisy employment with the respondent and subsequent noisy employment with Hansen Concreting (Reply page 27). The applicant said over the last 10 years (since May 2018) he had started noticing problems with his hearing.
The applicant said he was not aware that it was possible to make a workers compensation claim until he received advice from his lawyers on 15 December 2017. The applicant’s solicitors arranged an examination with and ear nose and throat specialist (Reply page 28).
The applicant said:
“In February 2018 I called my lawyers and advised them I was finishing up my employment with Holcim Australia and was going to commence new employment with Hansen Concreting on 5 March 2018. I advised my lawyers I would be doing the same type of job and would be exposed to the same noise as I was with Holcim
My lawyers advised me that I should provide a Notice of Injury to Holcim Australia on 1 March 2018 by fax and post. This was actually my last day of work with Holcim and was prior to my first day of work with Hanson which was on 5 March 2018”
(Reply page 29).
In a further statement dated 11 September 2020 the applicant gave evidence of the benefits he received from the hearing aids, which were fitted on 18 December 2019 (Application, page 5).
The applicant said he became aware after having undergone a pre-employment assessment with the respondent on 9 February 2017 that he had noise induced hearing loss (Application, page 7).
The applicant said:
“Gillian [the hearing loss assessor] didn’t say anything to me about being able to make a claim. I found out that I was entitled to make a workers compensation claim for my hearing loss when I spoke to my current lawyers in December 2017. My lawyers explained to me that my claim would be made against my current employer (Holcim) as I was still employed there. They also said they would arrange for me to be assessed by an ear nose and throat specialist who would test my hearing and then provide a report…” (Application page 7).
On 1 March 2018 the applicant’s solicitors sent a notice of injury to the respondent by facsimile. The notice stated the applicant had suffered a noise induced hearing loss injury as a result of exposure to load industrial noise in the workplace (Application, pages18-20).
On 17 October 2018 the applicant’s solicitors made a claim for compensation on the respondent, attaching a report from Dr Paul Fagan and a quotation from Freedom Hearing for hearing aids (Reply page 2).
A noise survey report from HSE Australia dated 30 July 2018 concluded that the measured noise level for the following activities exceeded 85 dB(A) at the majority of concrete plants: agitator truck while in loading bay, agitator truck cabin when in loading bay and agitator truck cabin when delivering at client site (Reply page 83).
In an email dated 2 July 2019 Lan Grout, an employee of Holcim, confirmed the applicant had worked as an agitator truck driver and delivered, on average, 3 to 10 truck loads of pre-mix concrete to sites per day (Reply page 1).
Medical evidence
Prior to commencing employment with the respondent, on 9 February 2017, the applicant underwent a preplacement medical assessment. The assessment included a hearing assessment which noted that the applicant suffered from bilateral moderate high frequency noise induced hearing loss (Reply page 45).
In a report dated 1 August 2018, Dr Fagan recorded that the date if injury was 1 March 2018, being the date notice of injury was lodged on Holcim by the applicant’s solicitors (Reply page 4).
Dr Fagan recorded that the applicant has worked with Holcim Australia from February 2017 to 1 March 2018 and from Hanson Concreting from 5 March 2018 to date where he was exposed to noise from vibrating machinery, concrete trucks, pumps, cranes and general workplace noise (Reply page 6).
Dr Fagan opined the last noisy employer with the tendencies, incidents and characteristics to cause occupational noise induced hearing loss was Holcim (Reply page 8).
Dr Fagan opined that the hearing aids in that they would provide superior clarity and intelligibility of speech and the applicant would derive benefit from their use including enhancement in communicating with friends and family, particularly amongst background noise (Reply page 10).
FINDINGS AND REASONS
The applicant’s onus to prove his case on the balance of probabilities extends to all matters for consideration (Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1]).
The standard of proof is the balance of probabilities (see Nguyen v Cosmopolitan Homes(NSW) Pty Ltd [2008] NSWCA 246 at [44]).
Notice of injury
Section 61 of the 1998 Act relevantly provides:
“(1) Compensation may not be recovered under this Act unless notice of the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) Notwithstanding subsection (1), the absence of, or any defect or inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation—
(a) that the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings, or
(b) that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause, or
(c) that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, or
(d) where the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop—
(i) that the summary referred to in section 231 (as in force at the time of the injury) has not been posted up in accordance with that section or the employer has otherwise contravened that section, or
(ii) that the injury has been reported by or on behalf of the employer to an inspector of mines or factories, shops and industries, or
(iii) that the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop, or
(e) that the injury has been reported by the employer to the Nominal Insurer in accordance with this Act.”
I am satisfied that the notice of injury was given to the respondent on 1 March 2018.
The applicant became aware he had suffered noise induced hearing loss on 9 February 2017 (Application, page 7). However, at that point in time the applicant was not employed by the respondent and had not been subjected to the noise associated with driving a concrete agitator.
The applicant has provided no specific evidence concerning when he identified the workplace was noisy. It is possible that the applicant became aware that the respondent’s workplace was noisy at the same time he discovered he was able to make a claim against the respondent in December 2017 (“My lawyers explained to me that my claim would be made against my current employer (Holcim) as I was still employed there.”)
The applicant gave notice of injury on 1 March 2018. The notice was given on the last day the applicant worked for the respondent and therefore before he voluntarily left the employment.
I accept the respondent’s submission that notice of injury was not given “as soon as possible after the injury occurred”.
However, in my view any delay associated with the notice of injury is not a bar to recovery of compensation because the respondent has not been prejudiced in respect of the proceedings.
The respondent has not been prejudiced by any failure by the applicant to provide adequate particulars of the injury. Actual injustice must be demonstrated, not merely potential injustice (Camden Council v Hancock [2005] NSWWCCPD 6 Byron DP at [59]). As opposed the statutory provisions relating to “notice of claim”, there is no requirement for a notice of injury to contain particular information, such as an audiogram.
Further, the respondent has undertaken noise surveys in its workplace covering the period of the applicant’s employment was therefore in a position to respond to the applicant’s assertion that the employment was noisy. The respondent responded to the claim by issuing a dispute notice. Perhaps more importantly, the respondent had actual knowledge the applicant suffered from noise induced hearing loss prior to engaging him to undertake noisy work. The applicant’s claim is not barred by any failure by him to give notice of injury in accordance with section 61 of the 1998 Act.
Notice of claim
Section 261 of the 1998 Act relevantly provides:
“(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.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(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.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(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.
(7) …
(8) …
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
The applicant submitted that he first became aware that he suffered noise induced hearing loss on 9 February 2017.
In that circumstance, the applicant had actual knowledge that he suffered a noise induced hearing loss injury prior to his employment with the respondent. It is not clear to me how the applicant could have been aware that he suffered an injury to which the respondent may be liable at the point of time prior to him commencing employment with the respondent. However, I note the somewhat artificial nature of the hearing loss provisions in the legislation.
In any event, what is clear is that the applicant was aware, as a matter of fact, on 15 December 2017 of his injury and his ability to make a claim against the respondent (Reply page 28).
The claim for compensation was made on 17 October 2018 on the last day of the applicant’s employment with the respondent (Reply page 2).
The claim was not made within six months after the injury happened, as required by subsection 261(1).
Therefore, for the applicant to be entitled to recover compensation, he must be excluded from the operation of section 261(1).
The respondent correctly submitted that there was no evidence to support the claim was occasioned by ignorance, mistake, absence or other reasonable cause. The applicant’s own evidence is that he became aware of his ability to make a claim on the respondent on 15 December 2017 (Reply page 28).
The applicant has not given any evidence that he was ignorant of the relevant statutory timeframes required to bring a claim.
The applicant did not submit that he did not know he was able to make a claim on the respondent until the receipt of Dr Fagan’s report. There was no evidence to support such a submission, and the submission would not have been consistent with the applicant’s evidence concerning his knowledge that he could make a claim on the respondent after seeing his solicitors on 15 December 2017. The claim is therefore not excused under subsection 261(4).
The applicant submitted that subsection 261(9) applied to excuse the requirement to bring the claim within the six-month period.
I note the notice of injury faxed to the respondent on 1 March 2018 requested that particulars of the injury or notice be incorporated into the respondent’s register of injuries for the purposes of sections 254 and 261(9) of the 1998 Act.
Subsection 256(1) of the 1998 Act relevantly provides:
“(1) A register of injuries must be kept in some readily accessible place at every mine, quarry, construction site, factory, workshop, office or shop.
(2) A worker employed at any such mine, quarry, construction site, factory, workshop, office or shop, or any person acting on the worker’s behalf, may enter in the register of injuries particulars of any injury received by the worker...”
Subsection 261(9) is a deeming provision. It deems notice of claim to have been given at the time “when particulars of any injury received by a worker are entered in a register of injuries” [emphasis added]. In order for the subsection to be applicable there must be evidence that particulars of an injury have been entered into a register of injuries. In my view, subsection 261(9) does not apply simply by virtue of a worker giving notice of an injury.
Whilst the applicant gave notice of injury and requested details of the injury to be incorporated into the register of injuries, there is no evidence that particulars of the injury were actually entered into the register by the respondent. The applicant bears the onus of proof on all matters. Evidence of that fact of entry of the details of the injury into the register may have been obtained by written request to the insurer or a notice to produce. There is no evidence upon which to make a finding the particulars were entered into the register. In light of the absence of evidence, I am not satisfied that the requirement to bring the claim within six months may be excused under subsection 261(9).
I find that the applicant cannot recover compensation due to the operation of subsection 261(1). The claim has not been made within six months after the injury or accident happened and there is no evidence to support the applicant falls within an exception to that requirement.
Accordingly, it is unnecessary for me to consider the other issues in dispute. There will be an award for the respondent on the claim for medical expenses.
0
3
0