Heatcraft Australia Pty Ltd v Lapa - [2007] NSWWCCPD 27

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Heatcraft Australia Pty Ltd v Lapa and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWWCCPD 27
Decision Date: 30 January 2006

CaseChat Overview and Summary

Heatcraft Australia Pty Ltd sought to appeal an arbitration decision of the Workers Compensation Commission, which awarded compensation to Rocco Lapa for noise-induced hearing loss. The Arbitrator found in favour of Mr Lapa, concluding that he was unaware of his rights to claim compensation until he consulted with his solicitor in 2004, and that the delay in making the claim was due to reasonable cause. The appeal focused on several issues, including whether the Arbitrator erred in finding that Mr Lapa had given sufficient notice of his claim, that Heatcraft Australia was the last employer liable for compensation, and whether the referral to an Approved Medical Specialist for assessment was appropriate. The Deputy President found that the Arbitrator erred in considering the delay as occasioned by reasonable cause, as there was no evidence of confusion or complexity in establishing the employer's identity. The delay in making the claim was not justified, and the appeal was allowed, resulting in Mr Lapa's claim being dismissed. No order was made as to costs.

Orders