Inghams Enterprises Pty Ltd v Jones - [2012] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17
APPELLANT:			Inghams Enterprises Pty Ltd
RESPONDENT:			Graeme Arthur Jones
INSURER:			Self-insured
FILE NUMBER:			A1-5439/11
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:			1 November 2011
DATE OF APPEAL HEARING:		23 March 2012
DATE OF APPEAL DECISION:			28 March 2012
SUBJECT MATTER OF DECISION:			Boilermaker’s deafness; notice of claim; meaning of “aware that he or she has received an injury”; ignorance; mistake; s 17 of the Workers Compensation Act 1987; sub-ss 261(4) and 261(6) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr S Grant, instructed by Leigh Virtue & Associates
Respondent:	Mr M Boulton, instructed by RMB Compensation
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 1 November 2011 is revoked and the matter is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $1,200 plus GST.

INTRODUCTION

This appeal concerns the notice of claim provisions in s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in a claim for compensation for a loss of hearing caused by a gradual process. Though the parties and the Arbitrator wrongly referred to s 65 of the 1998 Act, that error is of no consequence because the relevant provisions in each section are substantially the same.
Compensation cannot be recovered unless a claim for compensation has been made within six months after the injury or accident happened (s 261(1), s 65(7)). 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 s 261, taken to have been received “when the worker first became so aware” (s 261(6), s 65(15)).
The failure to make a claim within the time required by s 261 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 the claim is made within three years after the injury or accident happened, or the claim is not made within three years but is in respect of an injury resulting in death or serious and permanent disablement of the worker (s 261(4), s 65(13)).
The disputes in this case concern when the worker became aware that he had received an injury in the nature of a loss of hearing of such a nature as to be caused by a gradual process (referred to in this decision as “boilermaker’s deafness” or “industrial deafness”), whether he claimed compensation within six months of that date and, if not, whether his failure to claim within time was occasioned by ignorance, mistake, absence from the State or other reasonable cause.

BACKGROUND

The respondent worker, Graeme Jones, worked for the appellant employer, Inghams Enterprises Pty Ltd (previously known as Tegel Turkeys), as a maintenance crew member between 1981 and 13 July 1998. It is not disputed that that employment was employment to the nature of which boilermaker’s deafness is due. Mr Jones has claimed lump sum compensation for a 6.3 per cent hearing loss and the anticipated cost of hearing aids.
The only matters in dispute in the appellant’s s 74 notice were “need for treatment” and “impairment”. At the teleconference on 22 August 2011, the appellant employer sought leave to argue that the claim was barred by s 65(7) (s 261(1)) of the 1998 Act, that potential issue having been raised in general (and unsatisfactory) terms in the appellant employer’s reply filed on 18 July 2011. As noted above, the reference to s 65 was incorrect. As the claim was made after 1 January 2002, the applicable section dealing with notice of claim is s 261 of the 1998 Act (see s 60A of the 1998 Act).
The Arbitrator agreed with a submission by counsel for the appellant employer that, as the s 65(7) (s 261(1)) issue was a “matter of law” it did not have to be raised in the s 74 notice. The Arbitrator erred on this point. The Commission has held in dozens of cases that, if an insurer disputes liability in respect of a claim, the legislation demands that the reason/s the insurer disputes liability must be clearly stated and the issues relevant to the decision particularised in a s 74 notice. All issues in dispute, including issues relating to notice of claim, must be properly and fully identified in a s 74 notice, so that a worker knows the case he or she will have to meet and will be able to lodge the relevant evidence. As the notice issue had not been raised in the s 74 notice, leave was needed (under s 289A(4) of the 1998 Act) to rely on it. The Arbitrator did not formally give leave but wrongly proceeded on the basis that it was not a matter that had to be raised in the s 74 notice.
By a direction issued on 22 August 2011, the Arbitrator directed Mr Jones to file and serve any additional material to be relied upon in answer to the appellant employer’s assertion that “the claim was barred by the effluxion of time”. In compliance with that direction, Mr Jones filed two additional statements. While the worker’s solicitor objected to the appellant being allowed to dispute the notice issue, he has not on appeal challenged the Arbitrator’s ruling allowing the appellant to rely on that issue. In these circumstances, I will approach the appeal on the basis that the notice of claim issue was properly before the Arbitrator.
There are five potential dates on which Mr Jones might have become aware he had received an injury (the relevant date):
(a)     13 July 1998, the last day of his employment with the appellant;
(b)     July 2009, when he saw an audiologist to have his hearing tested;
(c)     September/October 2009, when a security guard at Coles (where Mr Jones worked after leaving the appellant) told Mr Jones that he may be able to make a claim for compensation for hearing loss similar to a claim made by the security guard;
(d)     27 January 2010, when Mr Jones saw a audiologist to have his hearing tested and was told he may be entitled to make a workers compensation claim, or
(e)     shortly after Mr Jones received a report from Dr Tamhane, an ear, nose and throat specialist qualified by the worker’s solicitor, dated 16 June 2010 confirming the nature and extent of his hearing loss.
The worker’s solicitor claimed lump sum compensation and the cost of hearing aids on behalf of Mr Jones by letter dated 28 July 2010, after having given notice of injury in a letter dated 4 February 2010. For the claim to have been made within time, the relevant date had to be on or after 16 June 2010.
The Arbitrator held that “awareness of injury” for the purposes of s 65(15) of the 1998 Act (s 261(6)) refers to injury as defined by the legislation and not merely awareness of a physical problem (Roads and Traffic Authority of NSW v McNally [2006] NSWWCCPD 359 (McNally)). He found that Mr Jones had not become aware that he had received an injury until he received a report from Dr Tamhane shortly after 16 June 2010 and that his claim was within time.
If the Arbitrator was wrong on this issue, and Mr Jones became aware he had received an injury more than six months before 28 July 2010, he found that the delay in bringing the claim within time was due to his ignorance as to the requirements for an expert report establishing causality, his ignorance as to time limits and the need to make a formal claim, and his mistaken belief that his solicitor’s letter of 4 February 2010 constituted a claim. He was also satisfied that certain reports Mr Jones had obtained from an audiologist and a subsequent infection in his right ear constituted reasonable grounds for the delay.
The Commission issued a Certificate of Determination on 1 November 2011 in the following terms:
“The Commission determines:
1. The claim under section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist to determine the applicant’s binaural loss of hearing, if any, arising from exposure to loud noise in the course of his employment, the deemed date of injury being 13 July 1998.
2. The claim under section 60(5) of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist to determine whether the provision of hearing aids constitutes reasonable treatment in relation to the applicant’s loss of hearing arising from exposure to loud noise in the course of his employment, the deemed date of injury being 13 July 1998.
3. Costs are reserved.”

The employer has challenged the Arbitrator’s findings and determination.

PRELIMINARY MATTER

Though the appellant has submitted that the Arbitrator’s decision was not interlocutory, and the worker’s solicitor has submitted that the interlocutory question is “not applicable”, it is strongly arguable that the Arbitrator’s determination was an interlocutory decision because it did not finally dispose of the parties’ rights (Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443–444).
There is no appeal under s 352 of the 1998 Act against an interlocutory decision by an Arbitrator except with leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute (s 352(3A)).
If the appeal is successful, the decision made will prevent Mr Jones from pursuing his claim for compensation for hearing loss and will alleviate the need for an assessment by an Approved Medical Specialist (AMS). It is therefore desirable for the proper and effective determination of the dispute that I grant leave to appeal.
If it is necessary, I grant leave to appeal.

ISSUES ON APPEAL

The issues in dispute on appeal are whether the Arbitrator erred in:
(a)     his consideration and determination of the issue of when Mr Jones first became aware that he had received an injury;
(b)     failing to have proper regard to the evidentiary onus carried by Mr Jones in respect of the disputed issues;
(c) his consideration and determination of what constitutes “ignorance” for the purpose of s 65(13) of the 1998 Act (see s 261(4)), and
(d)     having regard to the state of knowledge of the solicitor for Mr Jones in the determination of the disputed issues.

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.”
On the issue of whether the appeal could be determined “on the papers”, the appellant’s solicitor, Mr Macken, submitted in the Appeal Application filed on 21 November 2011:
“The Appellant is of the view that this is a matter which should not be determined on the papers but rather should be given an oral hearing before a Presidential Member. While the Appellant has attempted to address relevant issues in these Submissions, this has been done in the absence of Transcript having been provided and further the Appellant submits that it is only able to be certain that all relevant issues are addressed in the context of an oral hearing. The Appellant also notes that the dispute concerns mixed questions of fact and law and that there are issues relating to the Applicant’s credit.”
The submissions then outlined the four grounds of appeal set out at [19] above. Under “Submissions in Support”, Mr Macken said that the submissions in support could not be concluded until a transcript was provided and the appellant would “complete submissions in support of the grounds of appeal relied on once the transcript has been provided so that such submissions are able to be completed with reference to the Transcript”.
The Commission provided the parties with a copy of the transcript on 29 November 2011 and Mr Macken filed “Appellant’s Further Submissions Following Receipt of Transcript” on 28 December 2011.
On 11 January 2012, the solicitor for Mr Jones, Mr Khan, filed a Notice of Opposition in which he submitted that the appeal should be determined on the papers, noting that Mr Jones had been cross-examined and the Arbitrator no doubt took into account “the demeanour as well [as] the content of the answers of the worker”. He said the issue was whether the Arbitrator’s findings were sufficiently supported by the evidence or inferences from the evidence before him.
As the appellant’s submissions did not comply with Practice Direction No 6, in that they did not deal clearly and succinctly with each ground of appeal, I issued a Direction on 3 February 2012 directing the parties to file and serve further submissions. Pursuant to this Direction, Mr Macken filed further submissions on17 February 2012 and Mr Khan filed further submissions on 2 March 2012. Though the Direction allowed for submission in response by the appellant, the Commission received no such submissions.
As the additional submissions from Mr Macken still did not deal with all relevant issues, I listed the matter for an oral hearing. I say more about this issue under “Costs of the Appeal” below.

EVIDENCE

Mr Jones worked for the appellant from 1981 until 13 July 1998. It is not disputed that his employment was employment to the nature of which loss of hearing of such a nature as to be caused by a gradual process was due (s 17(1) Workers Compensation Act 1987 (the 1987 Act)). Prior to working with the appellant, Mr Jones worked in a noisy environment at BHP steelworks at Port Kembla. After leaving the appellant, he worked as a duty manager at Coles at Bowral. That employment did not expose him to any loud noise.
Mr Jones has provided three statements and was cross-examined at the arbitration. In his first statement, dated 25 May 2011, he said that he had noticed his hearing had gradually been deteriorating since the time he worked for the appellant. In his second statement, dated 14 September 2011, he said that he noticed some hearing loss, which was not too significant, when he worked at Coles. He added that, when he ceased working with the appellant, he was not informed of his right to make a claim for compensation for loss of hearing. He had never previously made a claim for workers compensation.
In late 2009, while still working for Coles, a security guard told Mr Jones that he had made a claim for loss of hearing from exposure to loud noises at work. Mr Jones told the guard that he had been exposed to significant loud noises in his previous employment. The guard told Mr Jones that he “may be able to make a claim for compensation similar to what he [the guard] had done”. After this conversation, Mr Jones spoke to his wife. She said she had noticed that his hearing was “not the best”, and that he should investigate the matter further, as it may be an opportunity to obtain some hearing aids.
Mr Jones said, at [10] and [11] of his second statement:
“I then decided to contact an Audiometrist to see if they could provide further information on how I could get some hearing aids for my loss of hearing. I had a consultation with Kenneth McGradearing [sic] Life in his Barrack Heights office in or around January 2010. During the consultation I informed Mr McGrade of my work history and he indicated that I may be entitled to make a workers compensation claim in which case the cost of my hearing aids would then be funded by a workers compensation insurer. Mr McGrade indicated that there was a solicitor in the office where he practiced who may be able to provide me with further advice regarding pursuing a workers compensation claim. I believe it was that same day that I consulted with a solicitor from RMB Lawyers regarding my hearing loss. I consulted with Imran Khan of RMB Lawyers who took a detailed work history from me and confirmed that my exposure to loud noise during my employment with Tegal [sic] Turkeys could make me legible [sic] to pursue a workers compensation claim. Mr Khan then obtained my hearing loss results from Hearing Life to determine my actual level of hearing loss. Once that information had been obtained I understand Mr Khan then lodged a claim upon Inghams with respect to my hearing loss.
Prior to discussing the matter with the security guard in late 2009 I was not aware that I could make a claim for compensation. Even after discussing the matter with the security guard, I was not aware of the procedures and the process to be followed to lodge a claim. It was not until I consulted Mr Khan of RMB Lawyers that I became aware of the process in lodging a claim for hearing loss and since that time I have done all within my power to have the claim lodged as a [sic] as possible.”
Mr Jones said (at [12] of his second statement) that he had “some noticeable hearing loss” when he ceased work for the appellant, but it was “not that severe where it impacted on [his] everyday life”. He added:
“This is one of the reasons why I did not seek to pursue a claim for compensation as I am not the type of individual to attempt to seek money by way of a workers compensation claim. The only item attracting me to pursue a workers compensation claim for loss of hearing was the fact that I could then obtain hearing aids paid for by a workers compensation insurer. This was the prime motivation behind contacting Hearing Life and also the reasons why I then obtained legal advice from RMB Lawyers.”
In his third statement, dated 18 October 2011, Mr Jones said at [4]:
“I confirm that I have been noticing some hearing loss and it was not until I discussed my hearing loss with a security guard at work who informed me that he had made a claim for hearing loss and that I also may be [sic] a similar claim for compensation. This conversation occurred in around September/October 2009 and it was not until I had this conversation that I was aware that I may have hearing loss related to my employment as opposed to my hearing deteriorating over time due to age. Prior to this I was not aware that hearing loss could have been caused by exposure to loud noise at work.”
The conversation with the security guard was the impetus behind Mr Jones consulting Hearing Life on or around 27 January 2010. Mr Jones said at [6] of his statement of 18 October 2011:
“It was not until I consulted Hearing Life on around 27 January 2010 that I found out that I had sufficient hearing loss to entitle me to make a claim for compensation for my loss of hearing. Before that time I knew that I had some hearing loss but did not know what proportion of that loss was work related and whether I could make a claim for compensation for that loss.”
Shortly after swimming on 26 January 2010, Mr Jones developed a sore throat and cough. On 25 February 2010, he was diagnosed as having a perforation of the right ear drum and his general practitioner referred him to Dr Pearson, an ear, nose and throat specialist, whom he saw on 25 March 2010. By that time, he had noticed some increased hearing loss in his right ear, which felt blocked due to his congested sinuses. Dr Pearson diagnosed an infection in the right ear. With treatment, the hearing in his right ear improved to the level it had been prior to the infection.
Mr Jones saw Dr Tamhane for medicolegal purposes on 26 May 2010. Dr Tamhane took a history that the worker’s hearing had been gradually deteriorating over the last few years and that he had intermittent tinnitus in both ears. Mr Jones had suffered from recurrent middle ear infections in the past and had been treated by a left myringoplasty (an operation to repair a tympanic membrane perforation by grafting). Since that operation, he had not suffered any further infections in the left ear. In January 2010, he had an infection in his right ear, which resolved. He was not involved in any recreational activities that would expose him to loud noise.

Under “employment history”, Dr Tamhane recorded that Mr Jones was exposed to considerable loud noise when he worked with Australian Iron and Steel for five to seven years. He then worked for the appellant and was exposed to noise from various machines as well as pneumatic tools. He left that job in 1998 and worked at Coles.
Dr Tamhane concluded that the work with the appellant gave rise to a real risk of boilermaker’s deafness. It was more than likely that the worker’s high tone sensorineural hearing loss in certain frequencies was a direct result of exposure to loud noise while working for the appellant. Part of the hearing loss in the left ear was of unknown origin. He thought Mr Jones would benefit from hearing aids.
Documents produced by Hearing Life reveal that Mr Jones first attended that organisation on 29 July 2009 when he saw Penelope Barrett, audiologist. Ms Barrett took a history that Mr Jones suffered “lots of trauma” on the left “(R) ↓ but better” and had trouble hearing in most situations. There is a record of a bad left ear infection as a teenager and of previous “TM Perforations” on the left and of previous surgery to the that ear, namely, “TM, mastoidectomy”. Under “Noise exposure”, the following appears “metal trade 30 yrs, music loud”. Ms Barrett’s case history notes for 29 July 2009 record that Mr Jones was interested in “trialling devices”. A letter and brochures (about hearing aids) were sent to Mr Jones on 4 August 2009.
Ms Barrett reported to the worker’s general practitioner, Dr Challender, on 29 July 2009 that Mr Jones had reported longstanding loss of hearing in the left ear due to trauma. Testing indicated mild hearing loss in the right ear and a mild to moderate hearing loss in the left ear. Due to the “asymmetrical nature of the hearing test”, Ms Barrett suggested that a further ENT investigation was warranted. She requested written medical clearance once Dr Challender was confident there were no contraindications to Mr Jones wearing hearing devices so she could proceed with fitting them. There is no evidence that Dr Challender responded to this letter or that Mr Jones trialled hearing aids in 2009.
On being referred to documents from Hearing Life in cross-examination, Mr Jones agreed that he had seen an audiologist at that organisation in July 2009.
Mr McGrade wrote to Dr Challender on 2 February 2010 enclosing a copy of the air and bone conduction audiometry performed on 27 January 2010. He added:
“The audiogram indicates a bilateral, slightly asymmetrical loss of hearing which is of mild-to-moderately severe mixed nature in the left ear, and of mild-to-moderate sensorineural nature in the right ear. There were also reports of constant mostly left-sided tinnitus.
In view of the asymmetrical nature of the hearing thresholds in the high frequencies in the presence of an air bone gap in the left ear, you may feel that referral to an ENT specialist is warranted. This patient was seen by an ENT specialist many years ago.
The patient would benefit from a binaural hearing aid fitting, following a successful trial. Please advise me as to whether or not you are aware of there being any medical contraindications to him using a hearing aid in either ear.”

There are two responses to this letter, both dated 10 May 2010. One is from Dr Challender, in which he said that, as he had not seen Mr Jones since October 2008, he would have to see him again before he could comment. The other has an indecipherable signature and has a tick next to “I have examined the above patient and in my opinion there are no medical contra-indications to proceeding with hearing aid fitting for this patient”. This document appears to be a fax from Dr Tamhane’s surgery on 12 July 2010 and the inference is that he signed it.
Also on 2 February 2010, at the request of Mr Khan, Mr McGrade wrote to Mr Khan providing a quote for two different hearing aids for Mr Jones.
Included in the documents produced by Hearing Life is a document headed “Agreement for Acceptance of Goods”, which is an acknowledgement that Mr Jones accepted hearing aids from Sonic Innovations for the purpose of a free trial. The aids were to be returned no later than 3 February 2010. The document is marked “RET’D” written across the page.
On 4 February 2010, Mr Khan served on the appellant a “Workers Compensation Act 1987 Industrial Deafness – Notice of Injury Form” (notice of injury form) dated 29 January 2010. The letter said, among other things:
“We advise that our client now suffers from industrial deafness and that we intend on [sic] lodging a claim for compensation for permanent impairment as well as for the cost of hearing aids.”
On 25 February 2010, Dr Armstrong, the worker’s treating general practitioner, wrote to Dr Pearson advising that Mr Jones had a perforated right eardrum and persistent upper respiratory tract infection and bronchitis.
Dr Pearson saw Mr Jones on 25 March 2010 and reported to Dr Armstrong on that day. He said:
“Thank you for referring this pleasant 59-year old man who was swimming in contaminated water earlier this year. This resulted in right sided otalgia and purulent discharge. He has noted significant hearing loss after this time. Intercurrently, Graeme is undergoing a claim application for industrial deafness with his former employer. I note he is otherwise in reasonable health.
On assessment there is purulent discharge within the right canal. This was cleared under microscope, revealing a large central perforation with acutely inflamed edges. He has right sided, moderate conductive hearing loss with tuning fork tests. The rest of his examination, including his sinonasal assessment, is normal.”

THE LEGISLATION

The relevant legislation is s 261 of the 1998 Act. I have included in square brackets, so far as it is relevant to the present claim, the equivalent provision in s 65:

“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. [s 65(7)]
(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. [s 65(13)]
(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. [s 65(15)]

(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.”

THE ARBITRATOR’S DECISION

After recounting the worker’s evidence and his inaccurate recollection of when he first attended at Hearing Life, the Arbitrator said (at [35]) that he was unable to accept the worker’s statement “as an accurate account unless there is corroboration from another source”. The Arbitrator thought it was notable that Ms Barrett’s report to Dr Challender made no reference to work-related hearing loss. The Arbitrator accepted the evidence from Mr Jones that he did not trial hearing aids in 2009 because of the expense. The fact that the trial took place after the January 2010 consultation was corroborated by documentary evidence.
On the basis of this material, the Arbitrator found (at [41]) that the audiometry conducted by Hearing Life in July 2009 did not support the contention that Mr Jones became aware at that time that he had a work-related hearing loss which might entitle him to a compensation claim. This was based on the “implication” to be drawn from the fact that Mr Jones did not proceed with the trial of hearing aids, which suggested that he was not aware that he could make a claim for them.
After referring to McNally, and stating that “awareness of injury” for the purposes of s 65(15) (s 261(6)) refers to injury as defined in the legislation, not merely awareness of a physical problem, the Arbitrator added (at [49]) that, based on the letter from Ms Barrett to Dr Challender, the results of the testing in July 2009 were “equivocal and required further investigation”. He added, “[n]either that testing nor the opinions expressed could form the basis of a claim for hearing loss induced by noise”. Accordingly, he did not accept that Mr Jones became aware of his injury in or about July 2009.
The Arbitrator said (at [42]) that, in cross-examination, Mr Jones “confirmed that his conversation with the security guard concerning noise induced hearing loss had alerted him to the fact that it was possible to claim workers compensation for such an injury”. The Arbitrator said (at [50]) that, following this conversation, Mr Jones “became aware that it was open to a worker who had been exposed to loud noise in the workplace to bring a claim for workers compensation if that exposure had resulted in damage to hearing”.
However, (at [51]), the Arbitrator did not accept that Mr Jones was aware (as at September or October 2009) that a formal claim supported by expert evidence of the connection between his hearing loss and his employment was required or that there was a time limit for making that claim. He was not satisfied Mr Jones knew (as at September or October 2009) that his hearing loss was related to his work-related noise exposure. The Arbitrator thought that Mr Jones “clearly suspected this because he followed up with a further visit to Hearing Life in January 2010” and the “possibility of a claim was raised during the course of that test and Mr Jones immediately consulted Mr Khan”.
The Arbitrator said (at [52]) that Mr Khan notified the appellant of injury in the nature of noise-induced hearing loss (by letter dated 4 February 2010 enclosing the notice of injury form), but did not make a claim at that time. While it has been held that, in certain circumstances, a claim form can provide both notice of injury under s 254 and notice of claim under s 261 (Visy Board Pty Ltd v Nguyen [2010] NSWWCCPD 101 at [59]), the appellant has not pressed that argument on appeal, though a similar argument was raised before the Arbitrator.
The Arbitrator was satisfied that (as at January/February 2010) neither Mr Jones nor Mr Khan were in possession of sufficient information to found a claim. The report from Mr McGrade (presumably to Dr Challender dated 2 February 2010) drew attention to anomalies in the testing and the mixed aetiology and recommended a referral to a specialist.
The Arbitrator said (at [54]) it was not until Dr Tamhane’s report on 16 June 2010 that Mr Jones and his solicitor “could be satisfied that there was evidence linking at least part of the hearing loss to exposure to loud noise while working for the [appellant]”. It was clear from Dr Tamhane’s report that there were three causes of the worker’s hearing loss: first, the loss in the left ear of uncertain origin, but probably related to earlier damage to that ear, second, the noise-induced component, and, third, age.
While the Arbitrator said (at [56]) that Mr Jones affirmed in cross-examination that he was aware by January 2010 that he had a compensation claim, he discounted that evidence because it was apparent that, at that time, Mr Jones did not understand the relationship between his noise-related deafness, the problems he had with his left ear, and loss of hearing due to ageing. He understood the worker’s answers to mean that he understood he had a workers compensation claim provided he could produce evidence to show that the noise to which he had been exposed in his workplace was causally related to his hearing loss or part of it. It followed that Mr Jones was not aware he had received an injury, in the sense explained in McNally, until after he received Dr Tamhane’s report dated 16 June 2010. As he claimed compensation within six months of that date, he had claimed compensation within six months of his injury.
If he was wrong on the issue of when Mr Jones became aware he suffered his injury, the Arbitrator determined that s 65(13) (s 261(4)) applied and that Mr Jones failed to claim within six months after he became aware he had received an injury because:
(a)     if the relevant date was in July 2009, Mr Jones was totally unaware of any right to make a workers compensation claim at least up to September or October 2009 when he spoke to the security guard;
(b)     if the relevant date was September or October 2009 then, though Mr Jones may have suspected there was a connection between his hearing loss and his noisy working environment with the appellant, he was not aware of any time limits, the necessity to make a formal claim, nor whether the necessary expert evidence was available to make the necessary causal connection between his employment and his hearing loss;
(c)     if the relevant date was 27 January 2010, Mr Jones still suffered from the same ignorance as to whether there was any expert evidence to prove the necessary causal connection and ignorant of any time limit. He mistakenly believed that, following his visit to Mr Khan on 27 January 2010, a claim had been made on his behalf, and
(d)     the equivocal reports from Hearing Life and the subsequent infection in the right ear provided reasonable cause for the claim not being made within six months of 27 January 2010.

SUBMISSIONS

The appellant’s initial submissions merely set out the grounds of appeal and made no submissions in support. In his submissions filed on 28 December 2011, Mr Macken made the following points:
(a)     the transcript confirmed that the state of the evidence relied on by Mr Jones was at least unsatisfactory and inconsistent (T46.1–17). This was of particular significance in circumstances where it was Mr Jones who had the onus of proof for those matters on which he sought to rely in excusing his failure to give notification of injury and to claim workers compensation benefits in accordance with the requirements of (and the time limits imposed by) the Act. Where the worker’s evidence was “inherently unreliable, he cannot be said to have discharged the onus of proof in respect of these issues”;
(b)     in circumstances of the unreliability of the worker’s evidence, it was an error on the part of the Arbitrator to seek to infer that answers given by Mr Jones had other than their plain meaning (as he did at [56] of his decision) to support his determination in favour of Mr Jones. The correct approach was to properly analyse the worker’s state of knowledge including knowledge as to his injury having regard to all of his evidence while taking account of the inconsistencies and lack of reliability of that evidence in certain respects;
(c)     on the basis of the worker’s oral evidence at the arbitration, the position is properly summarised as follows:
(i)Mr Jones was aware of his injury (being his hearing loss) by at least July 2009 (T16.10–33);
(ii)Mr Jones was aware of what he believed to be a connection between his hearing loss and his employment with the appellant at that time (T17.25–56 and T21.43–48);
(iii)Mr Jones was aware by at least the early part of 2009 that he was entitled to claim workers compensation benefits for a work injury (T25.5–49), and
(iv)Mr Jones was specifically aware that he could make a claim for workers compensation for his hearing loss by at least September 2009 after speaking to a security guard (T29.12–19).
(d)     as Mr Jones was aware of having received an injury by July 2009 or, at the very latest, by September 2009, his claim for workers compensation benefits made by letter dated 28 July 2010 was out of time “such that the respondent worker cannot recover compensation”;
(e)     the Arbitrator’s comments (at T46.1–17) were “apposite and in particular [were] correctly reflective of the inadequacy of the evidence on behalf of the respondent worker in respect of the relevant issues such that that evidence did not discharge the onus of proof necessary to establish an entitlement to the compensation benefits sought”, and
(f)      the appropriate approach is for the appeal to be allowed, for the determination to be revoked and an award entered in favour of the appellant with no order as to costs.
In his submissions filed on 17 February 2012, Mr Macken referred to the Application to Resolve a Dispute (the Application), which pleaded a date of injury of 13 July 1998, a date of notice of 4 February 2010 and a date of claim of 28 July 2010. He submitted that Mr Jones is barred from receiving compensation in respect of his hearing loss because:
(a) he failed to make a claim for compensation within six months after the injury (s 261(1));
(b) he had not discharged the onus of proving that such a failure to make his claim was “occasioned by ignorance, mistake, absence from the State or other reasonable cause”, and is therefore not entitled to the three year extension, and
(c) he is not assisted by s 261(6).
Under the heading “Credit”, Mr Macken submitted that the worker’s credit was successfully impugned before the Arbitrator (Arbitrator’s decision at [35], T14–T32, and T49.15) and the Arbitrator “so found”. Having arrived at this conclusion, the Arbitrator should have “proceeded with great caution in accepting the evidence of the [worker], particularly when determining whether the [worker] had discharged his onus of proving all the elements in s 261 or s 65”.
Under the heading “Section 261(6) – ‘first becomes aware’”, Mr Macken submitted that Mr Jones was aware:
(a)     that his employment with the appellant was noisy; that he had to shout to be heard; and that his hearing had deteriorated over the years (T17.5 and T17.30);
(b)     that his exposure to loud noise while working for the appellant could be responsible for his hearing loss (T17.45);
(c)     of the extent of his hearing loss when he first attended Hearing Life in July 2009, a matter not disclosed by him in his statement or to medicolegal doctors, and that he required hearing aids;
(d)     of how to make a compensation claim (T24–25);
(e)     that he had compensable rights for his hearing loss resulting from his noise exposure with the appellant after a conversation with a security guard in September/October 2009 (worker’s statement dated 18 October 2011), and
(f)      that he had “sufficient hearing loss to entitle [him] to make a claim for compensation for [his] loss of hearing, when he next consulted Hearing Life on 27 January 2010” (the worker’s statement dated 18 October 2010).

Based on the above matters, Mr Macken submitted that Mr Jones was “aware” that he “received an injury by way of boilermaker’s deafness” either:
(a)     on 13 July 1998, the last day of his employment and the date pleaded in the Application;
(b)     in July 2009, when he first consulted Hearing Life;
(c)     in September/October 2009, when he had the conversation with the security guard, or
(d)     “in or around January 2010” when he next consulted Hearing Life (the worker’s statement dated 14 September 2011), or on 27 January 2010, as submitted by Mr Khan at the arbitration (T44.35).
As Mr Jones did not claim compensation until 28 July 2010, Mr Macken submitted that any of the above dates “must disentitle the [worker] to compensation pursuant to s 261(1); claim not being made within 6 months after the ‘injury’”, and the Arbitrator erred accepting the worker’s evidence and finding that the worker “became aware of his injury … following the receipt of the report of Dr Tamhane, that is shortly after 26 [sic] June 2010” (Arbitrator’s decision at [60]) and erred in finding “that the claim was made within six months of the date on which Mr Jones became aware” (Arbitrator’s decision at [61]).
Under “Ignorance, Mistake or Other Reasonable Cause”, Mr Macken submitted that the Arbitrator erred in finding that Mr Jones failed to claim within six months of the date of injury because of “ignorance”. He said:
(a)     the Arbitrator did not and should not have accepted Mr Jones as a witness of truth and relied on his evidence “without corroboration from other sources” (Arbitrator’s decision at [35]) and should not have accepted the evidence from Mr Jones in respect of “ignorance”;
(b)     the Arbitrator failed to properly deal with the burden of proof that the worker carries;
(c)     (the Arbitrator erred) in finding that Mr Jones “was ignorant of his right to claim compensation for work-related deafness at least up to September or October 2009 when he spoke to the security guard (Arbitrator’s decision at [65]), and
(d)     (the Arbitrator erred) in finding that Mr Jones was still ignorant on 27 January 2010 (Arbitrator’s decision at [67]).
Mr Macken added that the Arbitrator erred in finding that the worker’s failure to make his claim within six months was due to “mistake” or “other reasonable cause” (Arbitrator’s decision at [72]) because Mr Khan did not rely on any ground other than ignorance (T43.35–40). Regarding “mistake”, Mr Macken said the Arbitrator erred in having regard to the state of knowledge of the worker’s solicitor or the worker’s alleged mistaken belief that his solicitor’s letter dated 4 February 2010 constituted a claim (Arbitrator decision at [72]). Knowledge of the solicitor was imputed to be knowledge of the worker.
In any event, Mr Macken submitted that, on all of the available evidence, Mr Jones failed to discharge his onus of proving “ignorance, mistake or any other reasonable cause”, and the Arbitrator erred in finding to the contrary.
The written submissions made on behalf of Mr Jones may be summarised as follows:
(a)     the Arbitrator was aware of the credibility issues and mindful to scrutinise the worker’s evidence carefully. Inconsistencies in the worker’s evidence did not prevent him from discharging the onus of proof;
(b)     the Arbitrator incorrectly stated (at [56]) that Mr Jones affirmed in cross-examination that he was aware he had a compensation claim at least by January 2010. There is nothing in the transcript to that effect. At T25.31–34, Mr Jones affirmed that he knew by January 2009 that he had workers compensation rights in relation to stress of his work at Coles. He did not affirm anywhere in cross-examination that he knew by January 2010 that he had compensation rights against the appellant in relation to hearing loss;
(c)     the first sentence of [6] of the worker’s statement of 18 October 2011 was entitled to be discounted by the Arbitrator when taken into account with the other evidence referred to by the Arbitrator and for the reasons given at [56] of the Arbitrator’s decision;
(d)     Mr Jones was aware that he had a hearing loss by July 2009 when he had an audiometric test at the instigation of his wife. There is no evidence that he knew that that loss arose out of or in the course of any employment such as to constitute an injury within the meaning of the relevant Acts. He was told hearing aids would help, but he could not afford them after a quote in August 2009 and undergoing a trial in late January/early February 2010;
(e)     Mr Jones knew that hearing loss could be caused by loud noise at work and, after speaking to a security guard in September 2009, he was tipped off that he may have rights to claim compensation for the loss. There is no evidence that he was aware at that time that his injury arose out of or in the course of his employment. There was only knowledge that if it did then he could claim;
(f)      Mr Jones was aware in January 2009 that he could claim compensation for stress at work at Coles but he chose not to make such a claim;
(g)     there is no evidence upon which the worker could know that his hearing loss arose out of or in the course of employment until expert evidence (by Dr Tamhane) was provided. The worker had previously had an operation on an ear in his mid-twenties. He had had an audiometric test, but had been referred by the audiometrist to an ENT specialist;
(h)     Mr Jones could not know whether or not his hearing loss was of such a nature as to arise out of or in the course of employment until he had been told of that by an appropriate expert. The first expert opinion was from Dr Tamhane in his report dated 16 May 2010;
(i)      the Arbitrator’s finding (at [60]) was the only finding open on the evidence, regardless of the inconsistencies;
(j)      if the Arbitrator’s finding (at [60]) was wrong, there is no reason to disturb his finding of reasonable excuse for not claiming until Dr Tamhane’s report was available;
(k)     Mr Jones relied on ignorance and/or other reasonable excuse at the arbitration (T43.34; T44.10). The Arbitrator also relied on the worker being mistaken in his belief that a claim had been made and was not in error in making such a finding based on the evidence, and
(l)      a worker (particularly one who has had previous surgery on an ear and whose case is complicated by the factors referred to by the appellant’s counsel at T37.20–30) is reasonably excused from claiming until after consulting an appropriate doctor who informs him and/or his solicitor that his hearing loss is of such a nature as to arise out of or in the course of employment.
At the oral hearing of the appeal, Mr Grant, of counsel, appeared for the appellant and Mr Boulton, of counsel, appeared for Mr Jones. Neither counsel had appeared at the arbitration. Mr Grant submitted that the Arbitrator erred in not finding that Mr Jones was aware he had received an injury in either July 2009 or September 2009, and that there was no evidence that Mr Jones had failed to claim within six months because of any of the factors in s 261(4). He said that a worker is aware that he has received an injury when he is aware he has a hearing loss, that he worked in a noisy place, and that he could make a claim.
In the course of submissions, I suggested to Mr Grant that, on the face of it, it appeared that, in determining the matter on the basis that Mr Jones was not aware he had received an injury until after 16 June 2010, the Arbitrator determined the case on a basis that had never been argued. Mr Khan submitted to the Arbitrator that the date of injury was 27 January 2010 (T48.51). Mr Khan made no submissions along the lines found by the Arbitrator that, as at January 2010, Mr Jones did not understand the relationship between his noise-related deafness, the problems with his left ear and loss of hearing due to ageing.
When these points were raised, Mr Grant responded that the Arbitrator had erred in the manner suggested and submitted that, in addition, there was no evidence that Mr Jones did not understand the matters stated by the Arbitrator at [56] of his decision. Mr Boulton submitted that these points had not been raised in the written submissions and that he was taken by surprise. After submitting that a worker is only aware he has received an injury when he is aware he has received a s 4 injury (McNally), and that, if the Arbitrator erred in the manner alleged, it made no difference to the result, he asked for time to consider the new point.
In the course of submissions, I suggested to the parties that, if the Arbitrator erred, the matter would have to be re-determined. Given the credit issues involved, a point emphasised by Mr Grant at the oral hearing, the parties agreed that, if the Arbitrator’s decision were set aside, the appropriate course was for the matter to be remitted to another Arbitrator for re-determination of all issues. If I adopted that course, Mr Boulton did not seek time to make further submissions on the new point.

DISCUSSION AND FINDINGS

While the appeal turns on the point noted at [70] above, it is appropriate that I deal with several of the main issues argued in the written and oral submissions.
The bald assertion that the worker’s credit was impugned does not go to whether the Arbitrator erred in his approach or conclusion and did not prevent the worker succeeding with his claim. The credit issue related to the mistake by Mr Jones as to when he first attended at Hearing Life. Contrary to his statements, Mr Jones first attended at Hearing Life in July 2009. He readily admitted that was the “detail I forgot about” (T15.11). That matter was neither one of deliberate dishonesty nor one of Mr Jones being untruthful on his oath. He openly conceded his error. That fact did not mean that the Arbitrator erred in finding in his favour or that he had to find in favour of the appellant.
The Arbitrator did not conclude that the worker’s evidence was “inherently unreliable”. He said (at [35]) that he was unable to accept the worker’s “statement as an accurate account unless there is corroboration from another source”. This was in reference to the worker’s statement, admitted in his oral evidence to be wrong, that he first went to Hearing Life in January 2010. The Arbitrator then dealt with the other evidence in the case.
The Arbitrator’s comments at T46.1–17, relied on by the appellant on appeal, were that the worker’s case “was in pieces”, that there were statements that were acknowledged to be inaccurate, and consideration should be given to discontinuing the claim. However, unless they are said to support an alleged error in the conduct of the hearing that has affected the outcome, which has not been alleged, those comments are of limited, if any, relevance in determining if the Arbitrator erred in his decision.
As Mr Khan elected to proceed with the case, the Arbitrator was required to determine the issues on the evidence presented. In doing that, he scrutinised the worker’s evidence and that of his expert witnesses. He did not conclude that the worker’s evidence was “inherently unreliable” and, having seen and heard Mr Jones give evidence, he was entitled to give the evidence such weight as he thought appropriate. I reject the submission that the worker’s evidence was inherently unreliable and that he therefore cannot be said to have discharged the onus of proof. Nevertheless, there were inconsistencies that required his evidence to be considered with care, and which make it unsafe for me to re-determine the matter on appeal, if the decision is set aside because of error.
The next complaint is that the Arbitrator erred when he said (at [56]) that he discounted the worker’s evidence in cross-examination. The Arbitrator said, at [56]:
“In cross-examination Mr Jones affirmed that he was aware that he had a compensation claim at least by January 2010. I discount his answers in that regard. It is apparent that Mr Jones did not understand the relationship between his noise related deafness, the problems he had h [sic] with the left ear and loss of hearing due to ageing. I understood Mr Jones’ answers to mean that he understood that he had workers compensation claim provided that he could produce evidence to show that the noise to which he had been exposed in his workplace was causally related to his hearing loss or part of it.”

Mr Khan has submitted that the worker gave no evidence in cross-examination that he was aware by at least January 2010 that he had a compensation claim. That submission is correct. Mr Jones did not give that evidence in cross-examination. However, in submissions, Mr Khan put that Mr Jones first became aware he suffered a compensable hearing loss when he saw Mr McGrade on 27 January 2010 (T44.35–45.32 and T48.51). He based that submission on the worker’s statement of 18 October 2011, where he said Mr McGrade told him that he “may be entitled make a workers compensation claim in which case the cost of [his] hearing aids would then be funded by the workers compensation insurer” (see [30] above). I do not accept that the Arbitrator confused the evidence of the worker’s knowledge in January 2010 about his hearing loss with the evidence that in January 2009 he knew he had rights in relation to a potential stress claim against Coles, as Mr Khan submitted.
It follows that, while the Arbitrator erred in saying that Mr Jones gave evidence in cross-examination that he was aware he had a compensation claim by January 2010, Mr Jones did give evidence to that effect in his statement and Mr Khan relied on it to support his submission that the date on which Mr Jones became aware he had received an injury was 27 January 2010. The Arbitrator then said that he discounted the worker’s answers “in that regard” because it was “apparent that Mr Jones did not understand the relationship between his noise related deafness, the problems he had h [sic] with his left ear and loss of hearing due to ageing”.
While Mr Jones gave evidence of prior problems with his left ear, he gave no evidence that he did not understand the relationship between his noise-related deafness, the problems he had in his left ear and loss of hearing due to age, and Mr Khan made no submissions along those lines. There was therefore no proper basis for the Arbitrator to discount the worker’s evidence as he did at [56] and he erred in doing so.
More importantly, by determining that Mr Jones did not become aware of his injury until after the receipt of Dr Tamhane’s report, the Arbitrator decided the case on a basis that was never argued by the worker’s solicitor and without giving the appellant the opportunity to be heard. It is a basic rule of fairness, disregard of which can be an error of law, that a party must have an opportunity to deal with any material ingredient in a Court’s decision-making process (Smith Family v Dafinis (1991) 8 NSWCCR 9).
This principle was applied by Bathurst CJ (McColl JA agreeing) in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75], where it was observed that a decision or award based on a point not raised by the parties or by the Commission constitutes a denial of procedural fairness and is susceptible to challenge under s 353 of the 1998 Act, which is restricted to appeals from Presidential member where a party is “aggrieved by a decision of the Presidential member in point of law”. The same principle applies to proceedings before Arbitrators and appeals under s 352.
While I accept that an Arbitrator is not obliged to decide a case by reference only to the matters put by counsel, and that, in deciding a case, an Arbitrator is entitled to think for himself or herself (Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 212; [1978] 3 All ER 1033 at 1037 per Lord Wilberforce; Klein v Minister for Education [2007] HCA 2; 232 ALR 306 at [38], 315 per Gummow, Hayne and Heydon JJ), if an Arbitrator is minded to determine a case on a basis not argued, he or she is required to give the parties an opportunity to be heard. The Arbitrator erred in failing to do so in this case.
These errors require that the matter be re-determined. As noted above, the parties agreed that, if that was the conclusion I reached, the matter should be remitted to a different Arbitrator for re-determination. While that is the course I propose to adopt, having heard submissions on the issue of when a worker “first becomes aware the he or she has received an injury” (s 261(6)) and the issues in s 261(4), I propose to make some general observations about those issues.
I do not accept Mr Grant’s submission that, in a claim where the injury is boilermaker’s deafness (a loss of hearing of such a nature as to be caused by a gradual process), a worker is aware that he has received an injury when he is aware he has a loss of hearing. Because hearing loss of a gradual process can have many different causes, it is not sufficient that a worker is merely aware of a loss of hearing and that he worked in a noisy place. It is neither appropriate nor reasonable to expect workers to “put two and two together”, as was put in cross-examination at the arbitration (T17.45).
While I accept Mr Boulton’s submission that a worker must be aware that he has received an injury within the meaning of s 4 before he is aware he has received an injury under s 261, that does not require that he be aware that he has a watertight case that is bound to succeed. If that were the test, no worker would be “aware” he had received an injury until he obtained an award of compensation. A worker will usually be aware of when he has received a back injury even though he will not initially be aware of the extent of that injury or the percentage whole person impairment, if any, that might result from it. In general, a worker will be aware he has received an injury if he is aware of facts and circumstances, which, if accepted, give rise to an entitlement to compensation. However, determining awareness of receipt of an injury in the nature of boilermaker’s deafness is more difficult than it is with injuries that result from a specific traumatic or injurious incident.
The Macquarie Dictionary defines “aware” as “cognisant or conscious”; the New Shorter Oxford English Dictionary has, as its second meaning, “conscious, sensible, not ignorant, having knowledge”. In the context of s 261, I believe that “aware” means knowledge or knowing. There is nothing in the section, or the context of the legislation as a whole, that suggests that a worker must become aware in any particular way. The worker may become aware on receipt of one, and only one, piece of information. Alternatively, a worker may first become aware he has received an injury after having received several pieces of information gathered over time.
The test is an objective one, but is based on the individual worker’s knowledge, not the knowledge of some hypothetical reasonable person. The worker must be actually aware, not constructively aware. In determining when a worker became aware he has received an injury it is necessary to have regard to the worker’s state of knowledge at the relevant time. A worker cannot be said to be aware he has received a work injury if he is unaware of the nature of the condition said to constitute the injury or is unaware that it has been caused by work. Because 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.
In a claim for compensation for boilermaker’s deafness, a worker is aware that he has received an injury to which s 17 applies when he is aware of two things. First, that he has sensorineural hearing loss (boilermaker’s deafness and any deafness of a similar origin (s 17(2)), which is a loss of hearing of such a nature as to be contracted by a gradual process. As noted above, because many things unrelated to employment can cause hearing loss, it is not sufficient that the worker is merely aware of a gradual loss of hearing. In addition, and second, though liability will ultimately fall on the employer who last employed the worker in employment to the nature of which the injury was due, as opposed to the employer who actually caused the hearing loss, the worker must be aware that his hearing loss has been contributed to by his employment.

Each case will turn on its own facts. In some cases, a worker will not be aware that he has received an injury until he has obtained expert medical evidence and advice on the relevance of that evidence. That was the situation in Heatcraft Australia Pty Ltd v Lapa [2007] NSWWCCPD 27 (a hearing loss claim) and in Griffin v Qantas Airways Ltd [2010] NSWWCCPD 22 (a psychological injury claim). Neither case is determinative of the result in the present matter, but each provides an example of the kind of information required before a worker will be aware that he has received an injury.
It is important to note the distinction between the worker becoming aware he has received an injury (s 261(6)), on the one hand, and failing to claim within six months of becoming aware because of one or more of the reasons in s 261(4), on the other. Awareness of receipt of an injury is no more than that. Such awareness does not mean that the worker knows that, to make a successful claim for compensation, expert evidence may be required and that the claim must be made within a certain time, as the Arbitrator said at [50] and [56]. Lack of knowledge of the claims procedure, the time limits involved, and/or the need for expert evidence will often provide an excuse under s 261(4), but are not determinative of whether the worker is aware that he has received an injury.
I do not accept Mr Grant’s submission that there is no evidence of ignorance or mistake in the present case. The ignorance referred to in s 261(4) is “ignorance of the rights deriving from the Act and the obligations imposed by it” (Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 at [61]). Mr Jones gave evidence that, even after discussing the matter with the security guard in September/October 2009, he was not aware of “the procedures and the process to be followed to lodge a claim”. That was evidence of ignorance in 2009. However, it is difficult to see, on the current evidence, how Mr Jones could rely on ignorance once he saw Mr Khan on 27 January 2010.
On the issue of mistake, the difficulty is that, even though, contrary to Mr Macken’s submission, Mr Khan did rely on “mistake” in his submissions at the arbitration (see T51.36 and T51.50), the mistake he relied on was (apparently) the failure to obtain a medicolegal report within six months of 27 January 2010. There is no evidence that that mistake caused Mr Jones to delay in making his claim and it was not open to Mr Khan to rely on that “mistake”.
However, Mr Jones said that he understood Mr Khan had lodged a claim on the appellant once he obtained information from Hearing Life (see the worker’s statement at [30] above). In having that understanding, Mr Jones was mistaken. Mr Khan did not make a claim for compensation until 28 July 2010. It follows that I do not accept Mr Macken’s submission that the Arbitrator had regard to the state of Mr Khan’s knowledge on mistake, even though it seems that Mr Khan made the same mistake.
It follows that, if the date on which Mr Jones became aware he received his injury is 27 January 2010, there is evidence which, if accepted, would provide a basis for finding that the claim was not made within six months of that date, namely, because of the worker’s mistaken belief that a claim had already been made. Though the Arbitrator referred to this evidence in his decision, it was not a point on which Mr Khan had submitted, presumably because he believed that the notice of injury form was also the notice of claim.
While it is open to conclude that Mr Jones failed to claim within six months of 27 January 2010 because of his mistaken belief that a claim had been made shortly after his solicitor received information from Hearing Life, as the date on which Mr Jones became aware he received an injury must be determined before the issues in s 261(4) are considered, I express no concluded view on the s 261(4) issues, save to note that the appellant’s submissions on appeal do not lead to the outcome it urged on appeal.

OTHER MATTERS

The Arbitrator further erred when he said (at [68]) that it was “reasonable to delay making the claim until a report was obtained from an ear nose and throat specialist following the equivocal results disclosed by the reports of Hearing Life”. The question is not whether it was reasonable to delay in making a claim, but whether the failure to claim within six months was occasioned by “ignorance, mistake, absence from the State or other reasonable cause”.
The Arbitrator’s finding that the equivocal reports from Hearing Life and the subsequent right ear infection provided a reasonable cause for the claim not being made within six months of 27 January 2010 was also an error. Mr Khan put no argument to that effect and there is no evidence that the right ear infection played a part in Mr Jones not claiming until July 2010.
As the parties did not make submissions on the points noted at [98] and [99] above, I have not based my decision on them, but have included them for the sake of completeness and to avoid confusion in future matters of this kind.

CONCLUSION

I have concluded that the Arbitrator erred in determining the matter on issues that were not argued and, in not allowing the appellant to be heard, deprived the appellant of procedural fairness. I am not satisfied that that error has had no bearing on the outcome. Given the multiple possible dates on which Mr Jones may have become aware that he received an injury and given the credit issue involved, it is appropriate that the matter be remitted to another Arbitrator for re-determination on the basis of such submissions and additional evidence the parties may present.

DECISION

The Arbitrator’s determination of 1 November 2011 is revoked and the matter is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision.
Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

COSTS OF THE APPEAL

Mr Boulton sought costs of the appeal on the ground that the appellant succeeded on grounds it had not argued, either in its written or oral submissions. Mr Grant submitted that each party should pay its own costs of the appeal, but made no submission as to the substance of Mr Boulton’s application.
Applying the principles in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 97–98, a successful appellant employer should not be ordered to pay the costs of an unsuccessful respondent worker unless the employer has:
(a) been guilty of some sort of misconduct;
(b) by its lax conduct, effectively invited the litigation, or
(c) unnecessarily or unreasonably protracted the proceedings.
In the present matter, the first two sets of submissions filed by Mr Macken did not comply with Practice Direction No 6. His final submissions did not address the real issue and were substantially without merit. That necessitated the Commission listing the matter for an oral hearing. The Commission, in the course of that oral hearing, raised the issue that the Arbitrator erred in deciding the case on an issue not argued without giving the parties an opportunity to be heard. Had the appellant’s case been competently prepared, an oral hearing would not have been required. In these circumstances, the appellant’s conduct has unnecessarily protracted the proceedings and it is appropriate that it pay part of the respondent worker’s costs. In the exercise of my discretion, I assess those costs at $1,200 plus GST.
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $1,200 plus GST.

Bill Roche

Deputy President
28 March 2012

I, MARGOT UNDERCLIFFE, 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