Irvin v LA Logistics Pty Ltd

[2010] NSWWCCPD 40

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

1. 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.

1. 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.

1. 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.

1. Both employers disputed that Mr Irvin’s employment with them was noisy.

1. In support of his claims, Mr Irvin relied on the report from Dr Joseph Scoppa, dated 9 December 2008.

1. 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.

1. The section 74…