Heatcraft Australia Pty Ltd v Lapa
[2007] NSWWCCPD 27
•30 January 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Heatcraft Australia Pty Ltd v Lapa [2007] NSWWCCPD 27
APPELLANT: Heatcraft Australia Pty Ltd
RESPONDENT: Rocco Lapa
INSURER:Vero Workers Compensation Ltd
FILE NUMBER: WCC7178-06
DATE OF ARBITRATOR’S DECISION: 26 September 2006
DATE OF APPEAL DECISION: 30 January 2006
SUBJECT MATTER OF DECISION: Boilermakers deafness; notice of claim for compensation; section 261 of the Workplace Injury Management and Workers Compensation Act 1998; meaning of ‘other reasonable cause’; section 17 of the Workers Compensation Act 1987; application of A & G Engineering Pty Ltd v Civitarese (1996) NSWLR 41;
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: N W Aussel
Respondent: Carters Law Firm
ORDERS MADE ON APPEAL: The Arbitrator’s decisions dated 26 September 2006 is revoked and the following orders made:
1. Award for the Respondent.
2. No order as to costs.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 October 2006 Heatcraft Australia Pty Ltd (‘the Appellant Employer/Heatcraft’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 September 2006.
The Respondent to the Appeal is Rocco Lapa (‘the Respondent Worker/Mr Lapa’).
Mr Lapa was born on 22 May 1932. He alleges that he worked for James N Kirby Pty Ltd as a process worker at 286 Horsley Road, Milperra for appropriately one and a half years in 1967 and 1968. His duties were said to mostly involve working on an assembly line putting lawnmower parts together. In his statement of 4 May 2006 he says that the work was “extremely noisy” and involved using a handgun to fix bolts onto cylinder heads. Lawnmower engines were tested nearby his workstation.
It is agreed that James N Kirby Pty Ltd changed its name to Heatcraft in 2001 and continues to carry on business at 286 Horsley Road Milperra, where it has been located for many years.
Mr Lapa alleges that he has suffered an injury in the nature of a noise induced hearing loss and that the Appellant Employer is the last employer with whom he worked in employment “to the nature of which the injury was due” (section 17 of the Workers Compensation Act 1987 (‘the 1987 Act’)).
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 9 May 2006 he claims compensation in the sum of $3,657.35 for a binaural hearing loss of 19.3% plus compensation for pain and suffering in the sum of $20,000.00.
By its Reply filed on 16 May 2006 the Appellant Employer put in issue whether:
1.it employed Mr Lapa;
2.its employment was ‘noisy’;
3.it was the last ‘noisy’ employer;
4.Mr Lapa gave notice of injury within the time limits prescribed under the workers compensation legislation;
5.Mr Lapa brought his claim within the time limits specified in the workers compensation legislation;
6.Mr Lapa gave notice of incapacity within the time limits specified in the workers compensation legislation;
7.because of the conduct in paragraphs 4, 5, and 6 above, the employer’s defence had been prejudiced;
8.the losses claimed were the result of his alleged employment with James N Kirby Pty Ltd;
9.the need for hearing aids arose out of his alleged employment with James N Kirby Pty Ltd, and
10.Mr Lapa has any entitlement to compensation under section 67 of the 1987 Act.
The matter was listed for conciliation and arbitration on 15 August 2006 and proceeded to Arbitration with Mr Lapa giving oral evidence. At the conclusion of the Arbitration the Respondent Worker’s solicitor was given leave to file an affidavit setting out steps he took to identify the correct employer. The Appellant Employer was given leave to respond to that additional material.
In a reserved decision the Arbitrator found in favour of Mr Lapa on all issues and referred the matter to an Approved Medical Specialist (‘AMS’) for assessment of the whole person impairment, if any, which Mr Lapa has sustained as a result of his injury, which was deemed to have occurred on 31 December 1968.
The Appellant Employer seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied.
The Appellant Employer challenges the whole of the award and, if successful, the Respondent Worker will recover no compensation. Therefore, the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
The Appellant Employer seeks an oral hearing because of the substantial amount of material to be addressed and the issues involved. I have the benefit of detailed written submissions from both parties. The Appellant Employer has filed submissions in response to the Respondent Worker’s submissions and has had the opportunity to make additional submissions in the light of the transcript that was forwarded to the parties on 14 November 2006. These submissions adequately address the issues raised in the appeal.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 September 2006, records the Arbitrator’s orders as follows:
“1.The Application is to be referred to an Approved Medical Specialist to assess the whole person impairment, if any, which flows from the injury on 31 December 1968.
2.The Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that service on the insurer was sufficient compliance with section 66 of the 1998 Act (‘notice’);
(b)finding that there was evidence that satisfied the provisions of section 261(4) of the 1998 Act (‘notice’);
(c)finding that the Appellant Employer employed the Respondent Worker (‘employment’);
(d)finding that the Appellant Employer was the ‘last noisy employer’ under the legislation (‘last noisy employer’);
(e)finding that the Appellant Employer was liable for all of the Respondent Worker’s noise induced hearing loss regardless of the cause of that loss (‘loss/causation’);
(f)referring the Respondent Worker to an AMS to assess his whole person impairment when the deemed date of injury under the legislation must be 31 December 1968 and, therefore, the loss, if any, must be assessed as a binaural hearing loss under the Table of Disabilities for injuries sustained before 1 January 2002 (‘AMS referral’);
(g)making findings against the evidence and the weight of evidence (‘other matters’), and
(h)misconceiving and misinterpreting the relevant statutory provisions and the applicable case law (‘other matters’);
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
The Appellant Employer seeks to rely of fresh evidence in the form of an affidavit from Dianne Maree Somerville, technical support officer with Vero Workers Compensation Limited (‘Vero’), dated 21 November 2006. She states that Vero holds substantial records of and relating to James N Kirby’s workers’ compensation claims history and that she has conducted a search of those records and been unable to find any record of Mr Lapa having made a prior claim for compensation on any entity insured by Vero, including James N Kirby Pty Ltd.
It is submitted that the evidence should be admitted because in his particulars provided on 1 June 2006 Mr Lapa replied ‘no’ to the question ‘has the Applicant had any prior or subsequent claims for compensation or deafness or damages against any employer’ (question eight of the Appellant Employer’s request for particulars 15 May 2006). At the Arbitration hearing Mr Lapa gave evidence that in fact he had injured his eye whilst working with James N Kirby Pty Ltd. The Appellant Employer submits that that injury was substantial as it required Mr Lapa to be hospitalised and off work for one week. The evidence on this issue is found at page seven line 38:
“MR DAVIS: Q. You told us that you had a claim, or you had a week off when you injured your eye whilst you were working for James N. Kirby. Is that correct?
A. (IN ENGLISH) Yes, yes, yes, yes.Q. And you were paid compensation for that week, were you?
A. Yes.Q. So you made a claim for that compensation?
A. (IN ENGLISH) Not claim.INTERPRETER: When he hurt himself on the eye, he went to the infirmary - is that what you call it - where they --
MR DAVIS: First aid.
INTERPRETER: First aid, and they didn’t want to have anything to do and they just called the ambulance and he was taken to Bankstown Hospital, and then he had a week off and they just paid him for the week off that he had.” (emphasis added)
The evidence is that Mr Lapa did not make a claim for compensation, was off work for only one week and was paid for that week. Whether his employer paid him or its insurer is not clear. If no claim was submitted it is possible that the employer paid for the time off work with no claim being made on the workers compensation insurer. Therefore, the evidence from Ms Somerville is of limited, if any, assistance on the question of employment.
Further, the case did not conclude on 15 August 2006. Both parties were given leave to adduce further evidence at the conclusion of the oral hearing. No application was made to introduce evidence in reply to Mr Lapa’s oral evidence about his eye injury. In these circumstances there is no justification for allowing fresh evidence in on appeal. The evidence was available at the Arbitration hearing and could have been obtained at that time. An appeal under section 352 is not a second hearing. The legislation clearly intends that all available evidence be called at the Arbitration hearing. It is only for the avoidance of “substantial injustice”, where the evidence could not reasonably have been obtained at the Arbitration hearing, that fresh evidence will be allowed on appeal.
I am not satisfied that the evidence from Ms Somerville could not with reasonable diligence have been obtained at the Arbitration hearing. In addition, I am not satisfied that her evidence is of such probative value that any injustice will be occasioned if it is not admitted on appeal.
The application to rely of the evidence of Ms Somerville on appeal is refused.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Notice
The Appellant Employer submits that:
·section 261 of the 1998 Act is absolute and compensation cannot be recovered unless a claim is made within six months of the injury;
·that section 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.
(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) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person 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.(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.”
·where a worker first becomes aware he or she has received an injury after the injury was received the injury is, for the purposes of section 261, “taken to have been received when the worker first became so aware” (section 261(6));
·Mr Lapa would have been aware of his injury in 1980 when he saw Dr Singh, a hearing specialist;
·on Mr Lapa’s own evidence he became aware of his injury on either on 9 February 2004, when he saw Dr Howison, or when he saw his solicitor on 25 March 2004;
·on 8 April 2004 Mr Lapa provided his solicitor with “details as to the location of the Kirby factory” (see affidavit by David Hansen, sworn 21 August 2006, paragraph three);
·in these circumstances Mr Lapa and his solicitor had, by 8 April 2006, all the information they required to give notice of injury to the employer and make a claim for compensation as required by the Act but “nothing happened”;
·a failure to make a claim with six months of the date of injury is not a bar to the recovery of compensation provided the claim is made within three years and it is found that the failure was occasioned by ignorance, mistake, absence from the state or other reasonable cause;
·there is no evidence of ignorance or absence from the state as an occasion for the delay;
·the Arbitrator found at paragraph 31 of his Statement of Reasons for Decision (‘Reasons’) that “…the sheer confusion and complexity of seeking to establish the employer’s identity and the ability to make a proper claim within the time was occasioned by reasonable cause being the confusion and sheer complexity of the issue of employment”;
·the evidence does not support the proposition that there was confusion or complexity;
·any confusion there might have been as regard the employer’s identity could have been resolved by a visit to the employer’s premises at 286 Horsley Road Milperra;
·there was no confusion or complexity which occasioned the failure to give notice of injury within the time required by the Act;
·section 66(2) of the 1998 Act provides for service on the insurer in certain specified circumstances, namely:
“(2) A claim for compensation may be made by serving the claim on an insurer who has indemnified the employer in respect of the claim if:
(a) the person making the claim has reason to believe that the employer may not forward the claim to the insurer in accordance with section 69 (1) (a), or
(b) the employer has refused to receive the claim, or
(c) the person making the claim cannot identify or find the employer, or
(d) the employer (being a natural person) is dead, or
(e) the employer (being a corporation) has been wound up.”
·the Arbitrator did not make any findings to ground his decision pursuant to any of the circumstances set out in section 66(2), and
·therefore, no claim for compensation has been made on it within the time required by section 261 and the worker must fail with his claim.
The Respondent Worker submits:
·the evidence fell well short of establishing that Mr Lapa knew when he saw Dr Singh in 1980 that he had a worked caused hearing loss;
·Mr Lapa was not attending Dr Singh at the suggestion of a solicitor;
·Mr Lapa was ignorant of any work caused hearing loss until 2004;
·Mr Lapa has limited English and saw doctors with an interpreter;
·Mr Lapa was ignorant of any entitlement to compensation for hearing loss until 2004. The ‘ignorance’ referred to in section 261 is “ignorance of the rights deriving from the Act and the obligations imposed by it” (Gregson v L & MR Dimasi Pty Ltd (2000) 20 NSWCCR 520 at [61]);
·the Arbitrator accepted the evidence that Mr Lapa was unaware of his injury, that is, was ignorant of having a right to compensation, until he saw his solicitor in 2004;
·it was never put to Mr Lapa that he was aware of his rights before seeing his solicitor in 2004;
·it is intrinsic to the giving of notice that both the employer and the insurer be identified;
·reliance is placed on the affidavit of David Hansen, solicitor, sworn on 21 August 2006 which sets out in full the steps taken to establish the identity of the employer;
·after setting out the historical matters the Arbitrator found that the delay was reasonable (Reasons, paragraph 31);
·there was overwhelming evidence as to enquiry and investigation to explain the delay until 20 October 2004 when notice was given;
·the Arbitrator’s finding that the delay was occasioned by difficulties in ascertaining the identity of the employer and insurer and that such amounted to reasonable cause was supported by the evidence;
·the Appellant Employer’s Reply did not take issue with the method of service, as distinct from alleged breaches of the time requirements, and this issue was never relied upon by the Appellant Employer at the Arbitration hearing, and
·counsel for the Appellant Employer made no submissions at the Arbitration as to breach of section 66(2) and in these circumstances the determination cannot be criticised on this ground.
The evidence does not support the Appellant Employer’s submission that Mr Lapa would have been aware of his injury when he saw Dr Singh in 1980. First, Mr Lapa was referred to Dr Singh because of his back, not his hearing (transcript page six line 45). Second, in answer to the question of whether the doctor asked Mr Lapa about his employment Mr Lapa answered ‘no’ (transcript page seven line nine). Third, whilst Mr Lapa’s hearing was tested at that time he was not told of the result (transcript page seven line 16). The evidence falls well short of establishing that Mr Lapa was aware that he had sustained a work injury at or about the time he saw Dr Singh and I reject this submission.
The evidence establishes the following chronology of key events:
Early January 2004 Mr Lapa attends on Mr Marcel Joukhador, solicitor, at Carters Law Firm (‘Carters’), regarding his hearing difficulties and, presumably sought advice about his rights to compensation. Mr Joukhador made arrangements for Mr Lapa to be examined by Dr Howison;
9 February 2004 Mr Lapa attends on Dr Howison for his hearing to be assessed. Audiometric testing revealed that he had sensori-neural hearing loss in each ear;
11 February 2004 Dr Howison prepares a report addressed to Carters;
5 March 2004 Carters receive Dr Howison’s report;
25 March 2004 Mr Lapa attends on Mr Joukhador and the contents of Dr Howison’s report are discussed;
8 April 2004 Mr Lapa again attends on Mr Joukhador and “provided details as to the location of the Kirby factory” (see affidavit of David Hansen 21 August 2006, paragraph three);
21 April 2004 Carters wrote to the WorkCover Authority of NSW (‘WorkCover’) seeking “details of the workers compensation insurer for James Kirby Factory located at 286 Horsley Road Milperra for the period 1966 to 1967 (sic)” (annexure ‘A’ to affidavit of David Hansen 21 August 2006);
19 June 2004 Mr Lapa left Australia to travel overseas;
1 July 2004Carters request a business name search for the name “James Kirby Factory”. The result of this search is not in evidence;
21 August 2004 Mr Lapa returns from overseas;
30 September 2004 Carters request a further business name search for the name “James Kirby who are located at 286 Horsley Drive (sic) Milperra”. The result of that search showed “James Kirby & Associates Pty Ltd” and “James Kirby & Associates”. A hand written note on the solicitor’s file reads, “The name does not appear to be a NSW business name”;
30 September 2004 Letter from Carters to WorkCover requesting a response to their letter of 21 April 2004;
7 October 2004 Letter from WorkCover to Carters providing certain information concerning the insurance position of “Heatcraft Australia/James Kirby Factory”. The insurer is referred to as “Royal Insurance refer to Vero”;
20 October 2004 Carters wrote to Vero Insurance in the following terms:
“We act for the abovenamed [Rocco Lapa] who sustained industrial deafness during the course of his employment with James Kirby Factory at 286 Horsley Road Milperra for the period 1966 to 1967.
We provide the following details:
Client: Rocco Lapa
Address: 66-67 Abbotsbury Drive, Horsley Park
Born: 22 May 1932Our client is seeking to claim 19.3 binaural hearing loss in the sum of $3,657.35 and will also seek to claim $20,000.00 out of the maximum payable of $50,000.00 in respect of pain and suffering.
Kindly note you have 2 months in which to determine whether you will pay our client’s assessment and at the expiration of this time we are entitled to institute proceedings in the workers compensation commission.”
30 March 2005 Letters from Carters to Vero Insurance
and Heatcraft Australia/James Kirby Factory
serving a sealed ‘Application to Resolve a Dispute’ in matter 4418 of 2005. These proceedings were discontinued on 8 May 2006;
7 April 2005 Letter from Carters to Vero Insurance enclosing a completed questionnaire setting out the employer’s name as “Heatcraft Australia/James Kirby P/L” whose address given as “286 Horsley Rd Milperra”;
28 April 2005 Letter from the Appellant Employer’s solicitor (‘Mr Aussel’) to Carters requesting particulars but specifically not admitting insurance or that the named employer was the correct employer;
28 April 2005 Letter from Mr Aussel arranging for a medical examination for Mr Lapa with Dr Carroll;
5 May 2005Letter from Mr Aussel to Carters advising, among other things, that he was “enquiring as to the existence or otherwise of James N Kirby as a corporate entity”;
16 May 2005 Letter from Vero to Carters advising that it does not insure Heatcraft Australia;
20 May 2005 Letter from Mr Aussel to Carters advising that there is no record of Mr Lapa having been employed with ‘James N Kirby’ and requesting particulars of the foreman or leading hand with whom Mr Lapa worked;
30 May 2005 Letter Carters to Mr Aussel attaching an Election to Discontinue Proceedings in matter 4418 of 2005;
30 May 2005 Carters request a “company search” for James Kirby & Associates Pty Ltd” which revealed a company by that name was registered in Victoria on 24 June 2002;
31 May 2005 Letter from Mr Aussel to Carters advising, among other things, that the appointment with Dr Carroll had been cancelled and repeating that Mr Lapa carried the onus to “clearly establish employment and the nature of that employment”;
15 June 2005 Carters request a company search for “Heatcraft Australia Pty Ltd” and a title search for the property at 286 Horsley Road Milperra. The title search reveals the registered proprietor of the relevant land to be “James N Kirby Pty Limited”;
15 June 2005 Letter from Carters to Heatcraft Australia Pty Ltd in the following terms:
“We are instructed to act on behalf of Rocco Lapa in relation to a Workers Compensation claim against his former employer James Kirby Factory. We understand that company is now known as Heatcraft Australia Pty Ltd.
We herby request details of the Worker Compensation insurer at risk for the James Kirby Factory as at 1967.
We attach for your perusal a copy of a letter from the WorkCover Authority dated 7 October 2004. You will note the WorkCover Authority has indicated that Vero Workers Compensation is the insurer at risk for Heatcraft Australia Pty Ltd and James Kirby Factory. We attach a copy of the letter from Vero dated 16 May 2005 wherein Vero denied being the insurer for Heatcraft Australia Pty Ltd.
We hereby request details from you as to the precise name of our client’s employer as at 1967 and the Workers Compensation insurer at risk at that time. As an employee of the company, our client is entitled to this information so he can pursue his entitlement to Workers Compensation.
We are instructed our client was employed on an assembly line assembling lawn mower engines. This information may be of some assistance to you.
We thank you in anticipation [of] your assistance in this regard. Would you please respond within seven days.”
15 June 2005 Letter from Carters to WorkCover requesting that it check its records regarding the insurance for James Kirby Factory in 1967;
17 June 2005 Letter from Mr Aussel to Carters advising that there is no legal entity know as James Kirby Factory and enquiries were being made “as to the correct legal relationship between various legal entities generically know as James N Kirby and Heatcraft Australia Pty Ltd”. The letter added “it is therefore imperative that you establish the precise legal identity of your client’s employer, particularly noting that this claim goes back to 1967”;
12 July 2005 Letter from WorkCover to Carters advising that no policy of insurance was found under James Kirby Factory but under James N Kirby Pty Ltd the insurer for the period 1967 was “Royal Insurance Australia Ltd (please refer to VERO workers Compensation (NSW) Ltd”;
13 July 2005 Letter from Carters to WorkCover advising that Mr Lapa was employed by James N Kirby Pty Ltd and requesting advise of the identity of the workers compensation insurer for that company as at 1967;
13 July 2005 Letter from Carters to James N Kirby Pty Ltd at 86 Bay Street Ultimo advising that they act for Mr Lapa in relation to a compensation claim for industrial deafness arising from his employment with that company and requesting details of its workers compensation insurer as at 1967;
13 July 2005 Carters request a company search for James N Kirby Pty Ltd under three ACN numbers (56717, 56619 and 399860). The search for number 56717 revealed that James N Kirby Pty Ltd changed its name to Heatcraft Australia Pty Ltd on 3 January 2001 and that Heatcraft’s registered office is 286 Horsley Road Milperra;
19 July 2005 Letter from James N Kirby Holdings Pty Limited to Carters advising that the letter of 13 July 2005 was addressed to them in error and had been forwarded to 286 Horsley Road Milperra;
27 July 2005 Letter from Carters to JNK Pty Ltd at 286 Horsley Road Milperra advising that the Mr Lapa wished to bring a claim against his employer, James N Kirby Pty Ltd, for whom he worked in 1967 and requesting that it check its records to advise whether JNK Pty Ltd was Mr Lapa’s employer in 1967. An identical letter was sent to Heatcraft Australia Pty Ltd on the same day;
27 July 2005 Letter from Carters to Mr Aussel advising that, on their instructions, James N Kirby Pty Ltd employed Mr Lapa and that around the time of Mr Lapa’s employment in 1967 there were two companies with that name, one is now known as Heatcraft Australia Pty Ltd and the other is JNK Pty Ltd;
1 August 2005 Letter from WorkCover to Carters advising that the insurer for Heatcraft Australia Pty Ltd formerly James N Kirby Pty Ltd in 1967 was “Royal Insurance – refer to VERO Workers Compensation”;
5 August 2005 Letter from Mr Aussel to Carters responding to the letter of 27 July 2005;
19 September 2005 Letter from Heatcraft Australia Pty Ltd to Carters responding to their letter of 15 June 2005 and advising, among other things, that no “data” could be found that indicated that Mr Lapa ever worked for Heatcraft Australia Pty Ltd;
5 November 2005 Handwritten fax from Carters to Mr Aussel advising that “further enquiries” were being made to ascertain the identity of Mr Lapa’s employer and that “Mr Lapa intends to pursue a claim against the correct employer and insurer when that information comes to hand”;
1 December 2005 Letter from Carters to Heatcraft Australia Pty Ltd advising of the names of two persons said to have worked with Mr Lapa at James N Kirby Pty Ltd in 1967;
17 February 2006 Letter from Heatcraft Australia Pty Ltd to Carters relating to Mr Lapa’s alleged co-workers, and
9 May 2006Application to Resolve a Dispute in the present matter is registered in the Commission.
Given the above history I accept that Mr Lapa was ignorant of his rights under the Workers Compensation Acts until he saw his solicitor on 25 March 2004. At paragraph 12 of his affidavit of 21 August 2006 David Hansen submits “the Applicant first became aware of his possible entitlement to claim compensation for hearing loss against the Respondent during his conference with Mr Joukhador on 25 March 2004”. Therefore, under section 261(6) Mr Lapa is taken to have received his injury on 25 March 2004 and was required to make his “claim for compensation” within six months of that date, that is, by 25 September 2004 (section 261(1)).
The chronology establishes that no notice of any kind was given until the letter of 20 October 2004 from Carters to Vero. That letter was outside the six-month period in section 261(1) and could not constitute a valid notice of claim. Even if it is accepted, contrary to my view, that injury for the purposes of section 261 was not received until 8 April 2004, the letter of 20 October 2004 is still outside the six-month time limit in which a claim must be made. Therefore, the question of whether Mr Lapa was entitled to give notice to Vero under section 66(2) does not arise and the detailed submissions on this issue are irrelevant.
The questions to be determined are: whether the failure by Mr Lapa to make a claim within six months of 25 March 2004 was occasioned by “ignorance, mistake, absence from the State or other reasonable cause”, and, was the claim made within three years after the injury. It is not disputed that the claim was made within three years of the injury (for the purposes of section 261) and it is only the first limb of the proviso that must be considered.
The evidence from Mr Lapa is set out in his statements of 4 May 2006 and 3 July 2006 together with his oral evidence given at the Arbitration. In his oral evidence Mr Lapa stated that the first time he became aware that he could make a claim against “Kirbys for boilermaker’s deafness” (transcript page four line 39) was when he received advice from his solicitor “shortly after 11 February 2004” (transcript page four line 35). Neither in his statements nor in his oral evidence did Mr Lapa make any comment about his state of knowledge in the six months after 25 March 2004. Nor did he give any evidence about any ‘mistake’ which may have caused or contributed to the delay in making the claim for compensation.
In the course of the hearing Mr Lapa was recalled to give evidence that he had been overseas in 2004. The evidence appears at page 24 line six:
“Q. And you then told me - I told you that there was some problem in management of your case during the middle part of 2004 because of your absence. Do you remember me telling you that?
A. (IN ENGLISH) Yes, yes, yes, yes, yes, yes.Q. And did I --
A. I need my --Q. Well, look, did I then ask you outside why were you unavailable to progress instructions to your solicitor and keep in contact for a significant period during the middle part of 2004? Do you remember me asking you that?
A. (IN ENGLISH) Yes, yes, yes.Q. And did you tell me that you were urgently recalled to Italy by family members in mid-2004?
A. (IN ITALIAN) Si, si.Q. All right. Well, now, tell the court - tell the Commission, rather, what happened.
INTERPRETER: His niece was very ill and he thought that he was going to get there in time but apparently he was only there in time for the funeral, but that's where he went.”
This evidence was clarified in paragraph five of David Hansen’s affidavit, which confirmed that Mr Lapa and his wife had been overseas from 19 June to 21 August 2004. However, there is no evidence that the making of a claim for compensation was delayed by reason of Mr Lapa being overseas in that period. It is not suggested by Mr Hansen that Mr Lapa’s absence from Australia caused a delay in submitting the claim or in gathering relevant evidence. In these circumstances Mr Lapa’s ‘absence from the State’ does not assist him.
The Arbitrator’s reason for excusing the six month delay is set out at paragraph 31 of his Reasons where he said:
“Having reviewed all the correspondence and the matters undertaken by both the Respondent and by the Applicant it is quite possible with hindsight to impose a more strict obligation on the Applicant for greater diligence or different undertakings to ascertain the circumstances to enable it to make a claim within the time limits. I have regard however to all the matters set out above and to the evidence before me of what was undertaken and what was certainly a frustrating exercise in delay with receiving advices from WorkCover, obtaining company searches and unravelling a long history. The activities of the Applicant’s solicitors were hampered by the Applicant’s absence from the State but not so as to prevent the time limit being adhered to. I am more (sic) satisfied that the sheer confusion and complexity of seeking to establish the employer’s identity and the ability to make a proper claim within the time was occasioned by reasonable cause being the confusion and the sheer complexity of the issue of employment. I am satisfied that the delay was reasonable.” (emphasis added)
The Arbitrator seems to have relied on ‘other reasonable cause’ as the ground for excusing the non-compliance with section 261(1). That reasonable cause is said to be “the sheer confusion and complexity of seeking to establish the employer’s identity” and “the confusion and sheer complexity of the issue of employment”. For the reasons set out below I do not believe there was any confusion or complexity in establishing the identity of the employer, or the issue of employment, and I believe the Arbitrator was in error in making those findings. If there was uncertainty about the identity of the employer that uncertainty, in all the circumstances of the case, did not establish a ‘reasonable cause’ for Mr Lapa failing to make a claim within six months of 25 March 2004, as required by the legislation. The question to be determined is not whether the delay was reasonable but whether the failure to make a claim within the six months was “occasioned by ignorance, mistake, absence from the State or other reasonable cause”. In this regard the Arbitrator posed the wrong question and this error requires the matter to be redetermined.
The phrase ‘reasonable cause’ was considered in Garratt v Tooheys Ltd [1949] WCR 80 (‘Garratt’). In that case Judge Rainbow said at 86:
“The next question is whether the applicant’s failure was occasioned by some reasonable cause. In its context, cause means the grounds which led the workmen to omit to claim. And the mixture of facts, circumstances and motive which constitute the explanation of the failure must be reasonable. It is sometimes argued that the reasonableness of the cause is only to be measured and considered from the viewpoint of the worker and reference is made for example to King v Port of London Authority [1920] AC 1 where Lord Atkinson at page 24 said: ‘Of course it is reasonable cause having reference to the workman himself’. If this argument means that the inquiry is to be limited to discovering whether the worker believed himself to be acting or thinking reasonably that is not the law: cf Brown v Aveling and Porter, (22 BWCC 165 at 169). It is not the worker who is to be reasonable, it is the cause. As Lord Birkenhead said in King v Port of London Authority, ‘the general atmosphere must always be considered’. The reasonableness is to be measured objectively in the light of every circumstance in the case relevant to showing why the failure to claim occurred: cf Atherton v Chorley Colliery Co Ltd (19 BWCC 314).”
Commenting on Garratt the author of Workers Compensation (New South Wales) second edition, said at page 468:
“The mixture of facts, circumstances and motive which constitute the explanation of the omission must be reasonable, considered from the view point of the worker not in the sense that he considered his omission reasonable, but rather in the sense that the cause of the omission is reasonable in the light of all the circumstances in which the worker found himself.”
The relevant ‘facts and circumstances’ in the present case are that:
a)Mr Lapa provided details “as to the location of the Kirby factory” (286 Horsley Road Milperra) to his solicitor on 8 April 2004;
b)Mr Lapa’s employer had not ceased to exist but had merely changed its name to Heatcraft Australia Pty Ltd;
c)the ‘Kirby factory’ continues to operate (though under a different name) at the same address where Mr Lapa claimed he worked in 1967, namely, 286 Horsley Road Miplerra;
d)the only step taken in the six months after 25 March 2004 to identify the correct legal identity of Mr Lapa’s employer was a business name search requested on 1 July 2004 for the name ‘James Kirby Factory’. The response to that search is not in evidence. No other steps were taken before 25 September 2004 to ascertain the identity of Mr Lapa’s employer;
e)later company searches revealed that James N Kirby Pty Ltd changed its name to Heatcraft Australia Pty Ltd on 3 January 2001. No evidence was called as to why those searches could not have been done in the six months after 25 March 2004;
f)a land title search done in June 2005 revealed that the registered proprietor of the property at 286 Horsley Road Milperra was James N Kirby Pty Ltd. That search could and should have been done before 25 September 2004;
g)the names ‘Heatcraft Australia Pty Ltd’ and ‘James N Kirby Group’ appear on the external walls of the buildings at 286 Horsley Road Milperra as at August 2006 (see affidavit by Gregory Hodgetts Hodgson sworn 28 August 2006 and the photos attached to it), and
h)the office staff at 286 Horsley Road Milperra were “well acquainted with the fact that the factories and business used to be known as James N Kirby and any enquiry to the office by phone or in person would have revealed that fact” (affidavit Mr Hodgson 28 August 2006, paragraph four).
In light of the above evidence it is my view that there was no ‘reasonable cause’ for Mr Lapa’s failure to make a claim for compensation within six months of 25 March 2004. In that period he knew the location of his alleged employer and gave that information to his solicitor. Nothing was done between 25 March 2004 and 25 September 2004 to make a claim for compensation as required by the legislation. A claim could and should have been sent to the alleged employer at 286 Horsley Road Milperra. That was not done. Apart from the business name search, no steps were taken in the relevant six months to identify the employer. Mr Lapa’s solicitors seem to have acted on the assumption that their client’s employer had ceased to exist. That assumption was unfounded and unjustified. It does not, in the circumstances of this case, provide a ‘reasonable cause’ for failing to make a claim within the required time.
For these reasons the Arbitrator’s decision must be revoked. The consequence of a failure to claim within the time set in section 261 is that “compensation cannot be recovered” and Mr Lapa’s claim must fail.
Employment
The Appellant Employer submits that on the balance of probabilities the memories of Mr Lapa and his witness were probably mistaken as to the identity of their employer in 1967. This is reinforced by the absence of records not only for Mr Lapa but also for two of the four co-workers nominated by Mr Lapa as having worked with him in 1967. Another co-worker (Mr Morabito) nominated by Mr Lapa as having worked with him was found not to have started with the employer until some years after 1967.
The Arbitrator carefully considered the issue of employment and accepted Mr Lapa’s evidence on this issue (Reasons, paragraph 22). That evidence was corroborated by a lay witness (Mr Messina) who stated that he worked with Mr Lapa at James N Kirby Pty Ltd “in approximately 1967”. It was open to the Arbitrator to accept that evidence and I see no error of fact, law or discretion in this finding.
Last Noisy Employer
The Arbitrator accepted Mr Lapa’s evidence that he was self-employed after ceasing work for James N Kirby Pty Ltd (Reasons, paragraph 36). As there was no evidence that Mr Lapa was ever employed by any other entity after 1967, that finding was open on the evidence. I reject the Appellant Employer’s challenge to this part of the decision.
Loss/Causation
On the question of causation the Arbitrator correctly noted at paragraph 37 that:
“S.17 operates so as to make the Respondent the last employer to whom the legislation applies and thus liable to pay compensation (see Russo v World Services & Constructions Pty Ltd [1979] 1 NSW LR 330).”
The Appellant Employer’s submission is that the Arbitrator misapplied himself when considering the extent of any hearing loss due to employment and that it would (if liable for any compensation) only be liable for the noise induced hearing loss attributable to Mr Lapa’s employment up to the time he left James N Kirby Pty Ltd. It is argued that if the evidence establishes that there has been noise exposure subsequent to that date, there should be an deduction for the hearing loss caused by that exposure.
It is true that Mr Lapa was exposed to noise after he left James N Kirby Pty Ltd and that that noise has probably contributed to his current hearing loss. However, the Appellant Employer’s submission that a worker’s entitlement to compensation for noise induced hearing loss should be reduced by the percentage of his or her hearing loss caused by the subsequent noise exposure is not correct. Section 17 of the 1987 Act is not concerned with causation. This issue was raised in A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41 (‘Civitarese’). In that case the worker suffered a work related hearing loss in NSW and was subsequently employed in noisy employment outside NSW. The Beazley JA, with Handley and Sheller JJA agreeing, said at 43:
“Section 17, as the appellant’s case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann (1932) 47 CLR 426 at 440; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690, s17 proceeds on a series of fictions or assumptions, upon which a worker’s entitlement to recover an award under s66 is based.”
The employer in Civitarese argued a worker has to prove that the employer against whom the claim was made, actually caused the loss of hearing the claim was made. The Court of Appeal rejected that argument. For the same reason the Arbitrator was correct to reject exactly the same argument in the present case. I reject this ground of appeal.
AMS Referral
As the notional date of injury in this matter must have been no later than 31 December 1968 any referral to an AMS should have been for assessment of binaural hearing loss under the Table of Disabilities for injuries sustained prior to 1 January 2002 and not for an assessment of whole person impairment. The quantum of compensation would then have been determined at the rate applicable under the 1987 Act on 1 July 1987 (see Schedule 6 Part 6 Clause 3A of the 1987 Act as discussed in Callaby v State Transit Authority (NSW) & another (2000) 21 NSWCCR 216). The application of Schedule 6 Part 6 Clause 3A means that the quantum of compensation claimed in the Application is incorrect, but nothing turns on that fact.
Other Matters
In view of the findings I have made on the notice of claim issue it is not necessary for me to determine or comment on the remaining grounds of appeal.
DECISION
The Arbitrator’s decision dated 26 September 2006 is revoked and the following orders made:
1.Award for the Respondent.
2.No order as to costs.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
30 January 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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