Irvin v LA Logistics Pty Ltd
[2010] NSWWCCPD 40
•16 April 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Irvin v LA Logistics Pty Ltd and anor [2010] NSWWCCPD 40 | |||||
| APPELLANT: | Phillip Irvin | |||||
| FIRST RESPONDENT: | LA Logistics Pty Ltd | |||||
| SECOND RESPONDENT: | Cemex Australia Pty Limited (formerly known as Rinker Group Limited) | |||||
| FIRST RESPONDENT’S INSURER: | CGU Workers Compensation (NSW) Pty Ltd | |||||
| SECOND RESPONDENT’S INSURER: | Self Insurer | |||||
| FILE NUMBER: | A1-7113/09 | |||||
| ARBITRATOR: | Mr G Adelstein | |||||
| DATE OF ARBITRATOR’S DECISION: | 7 December 2009 | |||||
| DATE OF APPEAL DECISION: | 16 April 2010 | |||||
| SUBJECT MATTER OF DECISION: | Hearing loss; fresh evidence on appeal; section 74; section 261; date of injury, and when worker first became aware of having received an injury. | |||||
| PRESIDENTIAL MEMBER: | President G Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Maurice Blackburn Lawyers | ||||
| First Respondent: Turks Legal Second Respondent: Leigh Virtue & Associates | ||||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 7 December 2009 is revoked and the following decision made: (1) The matter is to be remitted to a different arbitrator for determination afresh. (2) No order as to costs of the first arbitration. The Second Respondent, Cemex Australia Pty Limited, is to pay the Appellant costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
The Appellant, Phillip Irvin, made a claim for lump sum compensation in respect of 4 per cent whole person impairment (‘WPI’) for industrial deafness alleged to have arisen from his employment with both Respondents, LA Logistics Pty Limited (‘LA Logistics’), the First Respondent, and Cemex Australia Pty Limited (formerly known as Rinker Group Limited) (‘Cemex’), the Second Respondent.
Mr Irvin alleged that he was employed as a truck driver with Cemex from September 2002 to 30 September 2005 and was exposed to industrial noise from construction sites, mining activities and other industries. He was also exposed to noise from loading, and unloading of materials onto and off the trucks. On 22 December 2008, Mr Irvin’s solicitors wrote to Cemex making a claim for lump sum compensation in the sum of $5,500.00 in respect of 4 per cent WPI.
Between September 2005 and June 2008, Mr Irvin was employed by LA Logistics as a truck driver. He alleges that, in that period, he was exposed to industrial noise, including the noise from concrete truck motors, mixers, jackhammers, compressors and plant machinery. On 7 May 2009, Mr Irvin made the same claim for compensation for 4 per cent WPI as a result of industrial deafness against LA Logistics.
Both employers disputed that Mr Irvin’s employment with them was noisy.
In support of his claims, Mr Irvin relied on the report from Dr Joseph Scoppa, dated 9 December 2008.
Cemex rejected Mr Irvin’s claim. On 22 January 2009, it issued a poorly drafted notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), in which it relied on eight separate bases for rejecting the claim and relied upon eleven sections of the Workers Compensation Act 1987 (‘the 1987 Act’) and the 1998 Act.
The section 74 notice stated:
“1. Your client has not sustained any injury;
2. Any Hearing Loss, or medication [sic] condition from which your client suffers is not causally connected to his employment with Rinker Group Limited (now known as Cemex Australia Pty Limited);
3. Employment is not a substantial contributing factor to any alleged injury;
4. Your client’s employment with Rinker Group Limited is not noisy employment and is also not relevantly the last noisy employment;
5. Any impairment which your client suffers is not as a consequence of his employment with Rinker Group Limited;
6. Any medical treatment required is not reasonably necessary as a result of injury;
7. Your client has not complied with the requirements of the Legislation, as far as the claiming of compensation benefits is concerned; and
8. Your client is otherwise precluded from recovering compensation benefits by reason of the matters set out in this letter and in the documents attached to it.
In declining liability, the Sections of the Legislation on which we rely are Sections 4, 9, 9A, 17, 60 and 66 of the Workers’ Compensation Act, 1987 and also Sections 74, 260, 261, 282 and 323 of the Workplace Injury Management & Workers’ Compensation Act, 1998.
The issues relevant to this dispute include whether your client has suffered, or continues to suffer, from the effects of any work related injury, whether employment is a substantial contributing factor to any injury, whether your client’s employment with Rinker Group Limited was noisy employment and whether it was the last noisy employment, whether your client has any impairment, as a result of injury, whether your client requires treatment and if so, whether the requirement for treatment is connected to an injury and is reasonably necessary as a result of injury, whether your client has satisfied the requirements of the Legislation, so as to give rise to any entitlement to compensation benefits and whether your client is otherwise precluded from recovering the payment of compensation benefits.”
The documents attached to the notice were the report of Dr Seymour dated 26 May 2008 and a statement of Mr Tresider, private investigator, dated 14 September 2006.
LA Logistics also rejected the claim. It issued a section 74 Notice on 31 July 2009, in which it alleged that it was not the last employer to have employed the worker in employment to the nature of which the injury was due, before notice of injury was given, pursuant to section 17(1)(c) the 1987 Act.
On 4 September 2009, Mr Irvin lodged an Application to Resolve a Dispute (‘the Application’) in the Commission. Both Respondents filed Replies to the Application denying the claim, relying, inter alia, on the dispute notices issued.
Prior to the matter being listed for a conciliation and arbitration hearing, the Arbitrator conducted a telephone conference with the parties. Regrettably, the discussion that ensued was not recorded. However, it appears the parties agreed the central issue for determination concerned which of the two Respondents was the last employer to have employed the worker in employment “to the nature of which the injury was due”, before he gave notice of the injury.
The matter was listed for an arbitration hearing on 26 November 2009. Although it was not an issue that was identified at the telephone conference, the solicitor for Cemex submitted there was a preliminary issue to be determined, namely, that the worker was prohibited from recovering compensation because he had failed to make a claim within six months after the injury as required by section 261(1). Further, it submitted that the failure could not be excused under section 261(4) because more than three years had elapsed between the date of injury and the date of the claim for compensation.
The argument proceeded before the Arbitrator on the basis it was common ground that Mr Irvin first claimed compensation on 22 December 2008, when Mr Irvin’s solicitors wrote to Cemex, making a claim for lump sum compensation on his behalf.
Notwithstanding the allegations made against LA Logistics in the Application, Mr Irvin frankly conceded in his statement of 17 March 2009 that his employment with LA Logistics was not noisy, as his truck was soundproofed and he wore hearing protection when loading his truck. He was not permitted to be within six metres of forklifts.
The Arbitrator proceeded to hear the preliminary issue, noting that, if it was decided against the worker, it would be conclusive of the worker’s claim against Cemex. All parties made submissions before the Arbitrator on the preliminary issue only. The Arbitrator reserved his decision.
On 7 December 2009, the Arbitrator issued a Certificate of Determination and a Statement of Reasons. He found against the worker on the preliminary issue, and entered an award for the First and Second Respondents.
The Arbitrator determined that the “real” date of injury was 30 September 2005, being the date Mr Irvin was last employed by Cemex. It was conceded that the claim for compensation was not made until 22 December 2008. Therefore, as more than six months had elapsed, the Arbitrator determined that the worker failed to satisfy section 261(1).
The Arbitrator then considered whether the delay could be excused pursuant to section 261(4) on the basis of the worker’s ignorance of the relevant time limits. Ultimately, the Arbitrator found on the evidence before him that the worker had not satisfied the onus of establishing ignorance, as the worker’s evidence had failed to address this issue.
Finally, the Arbitrator considered whether the delay could be excused pursuant to section 261(4)(b), if the worker had suffered a serious and permanent disablement. However, the Arbitrator was not satisfied the injury was either serious or disabling.
The basis on which the Arbitrator entered an award for the First Respondent is not clear from his reasons, but it may reasonably be inferred that the Arbitrator was not satisfied that there was any evidence, particularly having regard to Mr Irvin’s concession as recorded at [32]-[35] below, that his employment with the First Respondent was employment to the nature of which the injury of industrial deafness was due.
In an appeal filed on 4 January 2010, Mr Irvin sought leave to appeal the Arbitrator’s determination.
The Second Respondent filed a Notice of Opposition to the Appeal. The solicitor for the First Respondent notified the Commission by letter dated 11 March 2010 that the First Respondent did not intend to file a Notice of Opposition to the appeal.
DECISION UNDER REVIEW
The Certificate of Determination dated 7 December 2009 records the orders as follows:
“1. For the reasons set out in the Statement of Reasons, I am of the view that the worker is debarred from recovery of compensation by reason of his non-compliance with Section 261(1) of the 1998 Act. Accordingly, I make the following orders:
1.1There will be an award for the First and Second Respondents.
1.2I make no order as to costs.”
LEAVE TO APPEAL
Monetary Appeal
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
It is not disputed that the monetary threshold in section 352(2) of the 1998 Act is satisfied.
Time
The appeal was lodged on 4 January 2010, within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commissioner is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise function under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties 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.
FRESH EVIDENCE
In the proceedings before the Arbitrator, Mr Irvin relied on two statements. The first was dated 17 March 2009 and the second was dated 23 November 2009.
Mr Irvin stated that, between September 2002 and 2005 (without specifying actual dates), he was employed by Cemex as a truck driver. He stated that he was exposed to noise from concrete truck motors, mixers, jackhammers, compressors and plant machinery. His duties involved the loading of concrete, gravel and metal onto the truck. He would stand beside the truck whilst it was being loaded at all times. He worked 50 hours a week and was exposed to noise throughout the duration of his shift. Half of his time was spent driving and, whilst the truck was soundproofed, it was not effective, and he was exposed to the noise of a diesel engine. Mr Irvin provided details of his employment history, which is not relevant for present purposes.
From September 2005 to June 2008, he was employed by LA Logistics as a truck driver. Contrary to his allegation in the Application to Resolve a Dispute, he said that his employment was not noisy, as the truck was also soundproofed. When loading and unloading, he wore protective equipment. He did not consider the employment to be noisy employment. He stated, “I was not exposed to any noise, like I was at Cemex Australia Pty Limited”.
From June 2008, Mr Irvin has been employed as a truck driver with Waste Haul Transport, but he has not been exposed to any industrial noise, as he drives a modern, soundproofed truck.
In his second statement, “by way of clarification”, he stated that he first noticed his hearing loss at the end of his employment with Cemex. He began to experience tinnitus prior to 2005.
Mr Irvin said that he experienced regular headaches and discharge, which started to become regular in approximately 2003.
Mr Irvin confirmed that, during his employment with LA Logistics, he did not carry steel cargo and, accordingly, was not exposed to steel-on-steel noise or steel rolling around in the back of the truck. He carried general freight, including Coca-Cola bottles and aluminium. Whilst driving for LA Logistics, he drove a soundproofed truck, and was not exposed to any noise whilst driving the truck. He could converse inside the truck without any difficulty, unlike his employment with Cemex, where the truck was so noisy that he had to turn it off in order to use the mobile phone.
At [10] of his second statement, Mr Irvin said, “At the end of my employment with Cemex Australia Pty Limited, I applied for a job as a truck driver with Linfox, however, I failed the hearing test, and was unable to gain employment”.
On appeal, Mr Irvin seeks leave to rely on a third statement dated 1 December 2009. It states:
“I, Phillip Irvin of East Mona Vale, make the following statement:
1. This statement is to be read in conjunction with my statement dated 17 March 2009.
2. I confirm that I lodged a claim for my industrial deafness with Readymix (now known as Cemex Australia Pty Ltd) in approximately February 2008.
3. I wasn’t aware that I had industrial deafness until Linfox refused to employ me. I was informed that it was because I failed a hearing test and I should lodge a claim for industrial deafness. Up until that time, I thought any hearing loss I had was because of age.
4. They initially rejected my claim because I did not fill in the forms correctly and they did not recognise the hearing test because it was done at a medical centre and not by a recognised audiologist.
5. The insurer then forwarded me new forms to fill in.
6. I completed the forms and lodged them with Readymix (now known as Cemex). They accepted receipt of the claim and indicated that I would be examined by a doctor on their behalf.
7. On 26 May 2008 I was examined by Dr Seymour, on behalf of Readymix.
8. Readymix did not provide me with a report, as they said that it is the property of Readymix. They subsequently denied liability for my claim.
9. From memory, my case manager for the insurer was Andrea Flood.
10. I did receive correspondence from the insurer in respect to my claim, but I am unable to locate it.
I, Phillip Irvin, certify that the above history is true and correct to the best of my knowledge.”
In addition, the Appellant also seeks leave to rely on two statements of his solicitor, Ms Simone Seller, the first dated 30 November 2009 and the second dated 4 January 2010. In her first statement, Ms Seller asserts at [6.I]-[6.III]:
“I. That the Second Respondent was notified of the injury and accepted receipt of the claim prior to 26 May 2008. In support of this submission we rely on the Applicant’s further statement and the report of Dr Seymour, in particular:
· A claim number was provided for the industrial deafness claim lodged prior to 26 May 2008;
· The Applicant was examined by an ENT specialist [Dr Seymour] on 26 May 2008, on behalf of the insurer, in respect to that claim; and
· The claim number, which was quoted in the report of Dr Seymour dated 26 May 2008, is identical to the claim in the current section 74 notice.
II. As the date of injury is 30 September 2005, and the date of claim is prior to 26 May 2008, it is submitted that the worker’s claim for compensation was made inside the three year time limitation, pursuant to section 261 of the Workplace Injury Management and Workers Compensation Act 1998.
III. The claim was lodged as soon as the Applicant was aware that he suffered industrial deafness.”
In a second statement, Ms Seller states that, after the arbitration hearing on 26 November 2009, Mr Irvin informed her that he was refused employment with Linfox because he failed a hearing test in approximately February 2008.
Mr Irvin’s submissions
Mr Irvin submits that:
a. the fresh evidence demonstrates that the claim for compensation was made in February 2008;
b. if this additional evidence is permitted and accepted, then the Arbitrator was in error in finding that the notice of claim was given on 22 December 2008, being the date Mr Irvin’s solicitors wrote to Cemex making a claim for lump sum compensation benefits on his behalf;
c. the fresh evidence shows that, whilst the worker left noisy employment some time in September 2005, he was not aware of his injury until much later. Whilst he may have noticed deterioration in his hearing, it was not until February 2008, when he was refused employment with Linfox as a result of a ‘work-related’ hearing loss, and informed that he was entitled to claim against his previous employer, that he became aware of his injury. Prior to this time, he assumed that his hearing loss was ‘age-related’;
d. as soon as he became aware of his work-related injury, he submitted a claim to Cemex. Whilst the claim was initially rejected, the insurer ultimately accepted receipt of the claim and arranged for Mr Irvin to be examined by Dr Seymour on 26 May 2008;
e. the date of injury for the purposes of s 261(6) of the 1998 Act is February 2008 (the date on which Mr Irvin first became aware he had received an injury). Mr Irvin submits the claim for compensation was also made in February 2008 and, accordingly, the claim was brought within the time limitations imposed by section 261(1);
f. the Arbitrator erroneously relied on assertions made by Cemex, regarding the date of the claim for compensation, which were manifestly false;
g. documents served by Cemex (section 74 notice and Reply) infer that a claim was made prior to 26 May 2008. Mr Irvin was examined by Dr Seymour on 26 May 2008 and his report bears the identical claim number to that recorded on the section 74 notice issued by Cemex on 22 January 2009;
h. at the teleconference, Cemex was asked what matters were in dispute and did not mention section 261. The only issue to be determined was which of the two Respondents last employed the worker in “noisy employment”;
i. if the Appellant had not been misled by the false assertions [by the solicitor for Cemex] in respect of the date of the worker’s claim, he would have argued the case differently and different evidence would have been relied upon and adduced;
j. because of these false assertions, the Arbitrator conducted the proceedings on the basis of wrong facts, infecting the totality of the decision;
k. the Arbitrator’s decision was flawed because he:
a.determined the matter under section 261(4)(b) but, on the basis of the report of Dr Seymour, already in evidence, section 261(4) should never have been in issue;
b.relied on an incorrect assumption that the worker unsuccessfully applied for a position at Linfox in or about September 2005, and
c.failed to consider the submissions in respect of the date of injury for the purposes of section under section 261(6).
Cemex’s submissions
Cemex submits:
a. the evidence the worker now seeks to rely on is not fresh evidence and should not be admitted. In particular, Cemex notes that there is no suggestion that the evidence could not, with reasonable diligence, have been obtained and admitted in the arbitration should that have been necessary;
b. Cemex disputes Ms Seller’s assertion that Mr Irvin was not present during the arbitration hearing, noting that Mr Irvin was present and provided instructions to his solicitor throughout;
c. it was open to the worker to adduce oral evidence at the arbitration hearing if necessary, and this opportunity was not taken. There is a distinction between ‘fresh’ evidence and ‘more’ evidence, as the evidence now sought to be relied on is clearly ‘more’ evidence and should not be admitted;
d. the evidence would not alter the outcome of the proceedings in any event, having regard to the findings of the Arbitrator;
e. the ‘fresh’ evidence does not support the assertion made at [50 (c)], above. In particular, there is no suggestion that the worker was refused employment with Linfox in February 2008; indeed, the evidence at the arbitration was that this happened at the end of the worker’s employment with Cemex in 2005;
f. to the extent that the worker now seeks to run a different case on appeal to that run before the Arbitrator, it should not be permitted (see Autohaus Five Dock Pty Limited v Germanos [2007] NSWWCCPD 86). It is submitted that the worker clearly sought to assert, at first instance, that he was well aware of the significance of the condition of his hearing before ceasing his employment with Cemex. The worker should not now therefore be permitted to attempt to run a different case and rely on inconsistent evidence on appeal, and
g. it was common ground that the notice of claim was given on 22 December 2008 and it was conceded that the claim was made more than three years after the Appellant ceased work with Cemex.
Discussion and findings
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 Number 6 sets out the process for seeking leave of the Commission to give fresh evidence and/or additional evidence on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligations to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see Section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal, the Commission will have regard to, and the parties should make submissions on, whether:
· it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
· the evidence is credible;
· there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
· he is just to admit the evidence on all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
The Court of Appeal considered the introduction of fresh evidence or additional evidence on appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160, that three conditions need to be met before ‘fresh evidence’ can be admitted.
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116, Heydon JA stated [15]: “Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters, the Commission must also keep in mind its statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act), PCR Plaster Settings Pty Ltd v De Brito (No 3) [2008] NSWWCCPD 82.
Although Mr Irvin is unable to demonstrate that the evidence he now seeks to have admitted could not, with reasonable diligence, have been obtained and tendered in the proceedings before the Arbitrator, I have come to the conclusion that it is just to admit the further evidence for the following reasons.
First, the Statement of Reasons required by section 74(2)(a) must clearly state the reasons for disputing a claim. The notice must be expressed in plain language (section 74(2)(b)). The notice issued by Cemex did not conform to those requirements.
The Second Respondent’s section 74 notice was couched in broad terms and, in my view, failed to clearly identify the issues giving rise to the dispute. Numerous sections of both the1987 Act and the 1998 Act were relied upon, and a broad range of matters were referred to, but were ultimately not pressed.
It has been held in numerous recent cases in this Commission that referring to sections of the legislation, without clearly articulating the issues in dispute, is not proper compliance with section 74 (see Rinker Group Pty Limited v McKell [2008] NSWWCCPD 100; Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137; Gray v Busways Gosford EMP Pty Limited [2009] NSWWCCPD 124; Babylon Property & Cleaning Services Pty Limited v Hormoz [2009] NSWWCCPD 161; Sydney Night Patrol & Inquiry Co Pty Ltd v Spasevski [2010] NSWWCCPD 7; Hobden v South East Illawarra Area Health Service [2010] NSWWCCPD 13; Department of Ageing, Disability and Homecare v Mariniello [2010] NSWWCCPD 17; Fletcher International Exports Pty Ltd v Lott and anor [2009] NSWWCCPD 40).
Second, at the telephone conference, it appears to be common ground that the only matter to be determined concerned which of the two Respondents was the last employer to have employed the worker in employment to the nature of which the injury was due. As the Arbitrator stated at the arbitration hearing (T1.53):
“what was argued and what seemed to be very much the whole thrust of this argument as far as you are concerned, the other Respondent was concerned and the Applicant was concerned was, it being a case of industrial deafness, who was the last noisy employer”. (emphasis added)
It is clear that Mr Irvin’s counsel, in reliance on what was said at the telephone conference, was taken by surprise when the section 261 notice of claim issue was raised at the commencement of the hearing. She said at (T4.48):
“it has taken me by surprise. I didn’t appreciate that it was of significance and…”
Had the issue of the worker’s compliance with section 261 been clearly articulated in the section 74 notice, or had Cemex’s solicitor sought leave to dispute the notice of claim at the telephone conference, the prejudice to the worker might have been overcome, as Mr Irvin and his legal advisers would have had the opportunity to consider the evidence on that issue.
If I am wrong, and the notice of claim issue had been properly identified in the section 74 notice, then it had been effectively abandoned at the teleconference as a matter to be contested at the hearing. In my view, Cemex should not have been permitted to argue that issue without proper notice to the worker. Whilst Cemex submits it did not abandon the issue, it submits that its preserved it rights to argue the point by prefacing its remarks at the teleconference with the statement that, in its view, the worker could not succeed against it “even if the First Respondent was not found to be the last noisy employer”. I do not consider that subtle reference to have been sufficient to put the worker on notice that the issue would be pressed.
Third, the Arbitrator proceeded, with the concurrence of the parties, on the basis that the worker first gave notice of his claim against Cemex when his solicitors wrote to Cemex on 22 December 2008, notifying it of the worker’s claim. It should have been apparent to the Arbitrator and the parties that Mr Irvin had been examined by an ear, nose and throat specialist, Dr Seymour, on 26 May 2008, seven months earlier. As identified in Ms Seller’s statement of 30 November 2008, that examination took place in response to a claim for industrial deafness submitted by Mr Irvin prior to May 2008. This is graphically illustrated by the claim number referred to by Dr Seymour in his report of 26 May 2008, being the same claim number referred to in Rinker’s section 74 notice. This would be impossible if, as Cemex asserts, the claim was not made until December 2008.
The lodgement of a claim prior to December 2008 is consistent with Mr Irvin’s further statement evidence, where he states at [2] of his statement of 1 December 2009 that he lodged his claim in February 2008.
Cemex submits that the Arbitrator’s conclusions concerning the date of injury and the notice of claim were correct on the evidence before him. This ignores the worker’s submission that the parties’ agreement that notice of the claim was first given on 22 December 2008 was wrong. Cemex does not make any attempt to explain how Dr Seymour came to be retained to examine the worker in May 2008, whilst at the same time maintaining its submission that the Arbitrator was correct to find the date of notice of claim was December 2008, nor does it attempt to explain how a claim number was generated as early as May 2008.
In its Reply of 23 September 2009, Cemex attached only two documents, the report of Dr Seymour and a statement of Bruce Tresider concerning his discussions with a Mr Anthony Lewis, the manager of LA Logistics, the First Respondent. Importantly, the Reply omitted any claim form submitted by the worker, any correspondence with him regarding the alleged initial rejection of his claim, or any other documents relevant to the Second Respondent’s decision to have the worker assessed by Dr Seymour in May 2008.
I consider the worker’s evidence credible. What he now says about the notice issue is corroborated by the claim number appearing on Dr Seymour’s report, well before the date accepted by the Arbitrator as the date of notice of claim.
I accept Cemex’s submission that the worker has not demonstrated that the evidence now sought to be adduced could not, with reasonable diligence, have been obtained by him and tendered in the proceedings before the Arbitrator. Whilst that is a significant factor in determining whether to allow the evidence, it is not of itself determinative.
Mr Irvin concedes that clearer instructions regarding ‘Notice of Claim’ could have been given, but this did not occur, as the only issue raised at the telephone conference for determination concerned which of the two named Respondents was the last employer to have employed the worker in employment to the nature of which the injury was due before he gave notice of injury.
If Mr Irvin submitted a claim in February 2008, soon after becoming aware that he suffered an injury in the form of industrial deafness, in the circumstances he now describes, then the Arbitrator’s decision is incorrect.
It has been said many times by Presidential members that proceedings before Arbitrators are not to be regarded as a trial run. Cases are to be fully prepared and argued. Regrettably, the appeal in this matter was provoked by poor preparation on both sides of the record. The worker’s statement was incomplete and inaccurate on critical issues. His counsel made concessions during the course of the hearing that were not warranted. The parties are in dispute as to whether the worker was even present during the arbitration hearing. On the present state of the evidence, I cannot determine whether he was present or not, but clearly he should have been present, as should all applicants, whilst the matter is proceeding before an Arbitrator. His presence may have obviated much of the confusion that occurred during the arbitration hearing.
The use of the section 74 notices and the teleconference procedures are designed to ensure that parties clearly understand the issues to be determined by an arbitrator if the parties are unable to resolve the dispute themselves. That objective will be thwarted if respondents are permitted, in the absence of an application for leave, to ambush applicants at the arbitration hearing with technical defences that have not been clearly identified. That is what I believe occurred in this case. This is so even if the technical defence is obliquely mentioned amongst a morass of issues in a carefully crafted section 74 notice which is clearly focused on preserving the respondent’s rights on all issues, rather than stating in plain language the reason the respondent disputes liability, as is required by the section 74.
Section 354 of the 1998 Act requires the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. For the reasons I have given, I believe it is just to admit the further evidence to ensure that the Commission may determine the substantial merits of this case.
I admit as additional evidence on appeal the following documents:
a.Statement of Mr Irvin dated 1 December 2009.
b.Statements of Ms Seller dated 30 November 2009 and 4 January 2010.
CONCLUSION
Whilst I have sufficient evidence to be satisfied that the evidence relied upon by the Arbitrator was unreliable, I do not consider that I have sufficient material before me to make findings regarding the date of injury nor the date of the worker’s claim for compensation. Both Respondents should be given an opportunity to test the further evidence. It will be necessary for the parties to be given an opportunity to obtain relevant documents, including documents from Linfox concerning the worker’s application for employment to that company, and the hearing assessment undertaken by it. I would have thought that it would also be necessary for the worker to obtain access to any claim records submitted by him to Cemex resulting in his referral to Dr Seymour in May 2008.
If the worker’s evidence is ultimately accepted on re-hearing, the evidence would not support a finding that the worker was in breach of the requirements of section 261 of the 1998 Act, and there would be no impediment to his application proceeding on the merits. It follows that the Arbitrator’s decision must be revoked and the matter be remitted to another arbitrator for a re-determination.
Whilst I have considered the remaining submissions made by Cemex concerning the Arbitrator’s findings, they are premised on an acceptance of the evidence before the Arbitrator. For the reasons given, I have found that evidence to be unreliable. It is therefore unnecessary to further consider those submissions.
Having regard to my observations regarding the manner in which this case was prepared and presented on both sides of the record, resulting in a second arbitration, I do not consider it appropriate that either party be entitled to costs of the first arbitration hearing.
DECISION
The decision of the Arbitrator dated 7 December 2009 is revoked and the following decision is made in its place:
1. The matter is to be remitted to a different arbitrator for determination afresh.
2. No order as to costs of the first arbitration.
COSTS
The Second Respondent, Cemex Australia Pty Limited, is to pay the Appellant’s costs of the appeal.
His Hon Judge G Keating
President
16 April 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON JUDGE G KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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