Inghams Enterprises Pty Ltd v Lynch

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Inghams Enterprises Pty Ltd v Lynch [2013] NSWWCCPD 70
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Patricia Lynch
INSURER:	Self-insured
FILE NUMBER:	A1-6310/12
ARBITRATOR:	Ms J Peacock
DATE OF ARBITRATOR’S DECISION:	18 September 2013
DATE OF APPEAL DECISION:	17 December 2013
SUBJECT MATTER OF DECISION:	Boilermaker’s deafness; notice of injury; notice of claim; procedural fairness; ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; awareness of receipt of injury
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Turner Freeman
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 18 September 2013 is revoked and the matter remitted to a different Arbitrator to determine the notice of injury issue under s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and to re-determine whether the failure to claim within six months of 8 July 2011 was occasioned by ignorance, mistake, absence from the State or other reasonable cause under s 261(4) of the 1998 Act. 2.       The appellant employer is to pay one third of the respondent worker’s costs of the appeal, assessed at $844 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

INTRODUCTION

1. This appeal concerns the notice of injury and notice of claim provisions in ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in the context of a claim for compensation for industrial deafness under s 17 of the Workers Compensation Act 1987 (the 1987 Act). In summary, the main issues are:

   (a)     whether the Arbitrator erred in failing to determine whether the worker gave notice of injury as soon as possible after the injury happened and before she voluntarily left the employment in which she was at the time of the injury (s 254 of the 1998 Act);

   (b)     whether the Arbitrator erred in finding that the worker became aware that she had received her injury on 8 July 2011, instead of March 2004, as the employer argued, or in August 2011, as the worker argued (s 261(6) of the 1998 Act);

   (c)     whether the worker’s failure to claim compensation within six months of becoming aware she had received her injury (assuming that she became aware on 8 July 2011, as the Arbitrator found) could be excused because of “other reasonable cause” (s 262(4)), and

   (d)     whether the Arbitrator denied the employer procedural fairness by determining the issue of “other reasonable cause” on a ground not argued.

BACKGROUND

1. The respondent worker, Patricia Lynch, worked as a process worker for the appellant employer, Inghams Enterprises Pty Ltd, from 1990 until 4 January 2008. Though the appellant (surprisingly) disputed noisy employment in its s 74 notice, the appellant’s expert evidence was that Ms Lynch’s employment with it was employment to the nature of…