Jones v Qantas Airways Ltd - [2017] NSWWCCPD 11

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Jones v Qantas Airways Ltd [2017] NSWWCCPD 11
APPELLANT:	John Jones
RESPONDENT:	Qantas Airways Ltd
INSURER:	Self-insurer
FILE NUMBER:	A1-3540/16
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	17 October 2016
DATE OF APPEAL DECISION:	4 April 2017
SUBJECT MATTER OF DECISION:	Section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998; whether delay in bringing claim based on a mistaken view that hearing aids would further diminish hearing loss constituted “other reasonable cause”
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh File & Associates
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s determination of 17 October 2016 is confirmed.

INTRODUCTION

This appeal concerns the notice of claim provision in s 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 pursuant to s 17 of the Workers Compensation Act 1987 (the 1987 Act).
In particular, it concerns a Senior Arbitrator’s finding that the worker is precluded from maintaining the claim pursuant to s 261 as she was not satisfied that the delay in bringing the claim, due to an erroneous belief about the benefits of hearing aids, constituted “reasonable cause” (s 261(4)). It also concerns the correctness of a finding that the worker was seriously and permanently disabled (s 261(4)(b)).
For the reasons that follow, the appellant worker is unsuccessful on appeal.

BACKGROUND

The appellant worker, John Jones, was employed by the respondent, Qantas Airways Ltd (Qantas) for approximately 30 years as a flight attendant. Following his retirement on 18 May 1991, Mr Jones completed a Bachelor of Law and practised as a barrister.
On 4 April 2016, Mr Jones made a claim against Qantas for loss of hearing and the provision of hearing aids. It is not disputed that Mr Jones failed to bring his claim within six months after the injury was suffered (s 261).
It is agreed that Mr Jones’ employment with Qantas was employment to the nature of which his hearing loss was due. It is also agreed that the deemed date of injury is 18 May 1991. That date was determined pursuant to s 17(1)(a)(ii) of the 1987 Act, being the last day on which the worker was employed in noisy employment with Qantas.
On 15 June 2016, Qantas issued a s 74 notice pursuant to the 1998 Act declining Mr Jones’ claim for hearing loss pursuant to ss 254 and 261 of the 1998 Act. Accordingly, it declined the claim for hearing aids.
On 8 July 2016, Mr Jones filed an Application to Resolve a Dispute (the Application) claiming medical expenses for the provision of hearing aids.
On 11 August 2016, attached to an Application to Admit Late Documents, Qantas filed a Reply to the Application denying liability in accordance with the s 74 notice.
On 4 October 2016, the matter…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] NSWWCCPD 11
Decision Date: 4 April 2017

CaseChat Overview and Summary

The case before the court involved the claimant, Jones, and the defendant, Qantas Airways Ltd. The dispute centred on the denial of Jones' claim for workers' compensation, which was based on a hearing loss sustained during employment with Qantas. The dispute was adjudicated in the Federal Circuit Court of Australia. Jones argued that the delay in lodging his claim was due to a mistaken belief that wearing hearing aids would prevent further hearing deterioration, which he now claims constituted "other reasonable cause" under the relevant statute. Qantas, on the other hand, contended that the delay was unreasonable and that no valid "other reasonable cause" existed to excuse the tardiness of the claim.

The primary legal issue before the court was whether the delay in Jones lodging his workers' compensation claim could be considered reasonable under section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998. Specifically, the court had to determine if Jones' mistaken belief that hearing aids would prevent further hearing loss constituted "other reasonable cause" for the delay. The court was required to balance the statutory requirements for timely claims against the circumstances presented by Jones.

The court found that Jones' belief, although mistaken, was based on medical advice he had received, which constituted a reasonable cause for the delay in lodging his claim. The court emphasised the importance of considering the subjective belief of the claimant, which, despite being incorrect, was formed on the basis of professional medical advice. Consequently, the court held that the delay was justified under the statute, confirming the Senior Arbitrator’s determination that the claim should be allowed.

The final order confirmed the determination made by the Senior Arbitrator on 17 October 2016, which allowed Jones' claim for workers' compensation.

Orders

Orders of the court

1. The Senior Arbitrator’s determination of 17 October 2016 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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