JP Cordukes Pty Ltd v Mangarelli
[2005] NSWWCCPD 52
•22 June 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:JP Cordukes Pty Ltd v Mangarelli [2005] NSW WCC PD 52
APPELLANT: JP Cordukes Pty Ltd
RESPONDENT: Carlos Mangarelli
INSURER:National Employers Mutual General Insurance Association Ltd
FILE NUMBER: WCC 14314-03
DATE OF ARBITRATOR’S DECISION: 7 May 2004
DATE OF APPEAL DECISION: 22 June 2005
SUBJECT MATTER OF DECISION: Prior redemption, res judicata
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: NW Aussel, Solicitor
Respondent: Villari & Co, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 May 2004 is revoked and the following decision is made in its place. The Respondent, Mr Mangarelli, is barred from pursuing a claim for compensation in the Workers Compensation Commission of NSW in respect of binaural hearing loss by reason of res judicata arising from the Award of the Compensation Court of New South Wales dated 14 November 1994 in Matter No 16771 of 1994.
No order is made as to costs.
BACKGROUND TO THE APPEAL
On 3 June 2004, the Appellant, JP Cordukes Pty Ltd (‘Cordukes’), sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 7 May 2004.
The Respondent to the Appeal is Carlos Mangarelli. The Insurer is National Employers Mutual General Insurance Association Ltd (‘NEM’).
Mr Mangarelli was born in Uruguay on 9 June 1945 and is now aged 60. He migrated to Australia in 1974. Mr Mangarelli is a carpenter by trade and was employed by Cordukes from 1981. On 2 February 1982, he injured his back in an accident at work and made a claim for workers compensation. On 30 January 1985, Manser J of the Compensation Court of NSW made an award in favour of Mr Mangarelli including weekly compensation payments.
On 14 November 1994, Moran J of the Compensation Court approved a proposed settlement whereby Mr Mangarelli agreed to a redemption in respect of his rights to compensation for the sum of $40,000. On that day, Mr Mangarelli executed a Deed releasing Cordukes from any further liability in respect of any injury arising out of the course of his employment with Cordukes including any injury arising out of the nature and conditions of his employment. The Court Order of that date also notes:
“(4) This redemption includes any and all other injuries received during the course of or arising out of the course of the respondent’s employment with the applicant employer including any claim based upon the nature and conditions of employment …”
On 17 March 2003, Mr Mangarelli was examined by Dr G Lucchese, an Ear, Nose and Throat Surgeon, for the purpose of Dr Lucchese preparing a medico-legal report. In his report dated 19 March 2003, Dr Lucchese found Mr Mangarelli to be suffering from permanent binaural hearing loss of 17.7%, after adjustment for presbycusis. He attributed this hearing loss to exposure to industrial noise, noting that Mr Mangarelli’s last noisy employer was Cordukes.
On 17 April 2003, Mr Mangarelli’s solicitors sent letters addressed (1) to “The Claims Officer, National Employers Mutual”, (2) to “Attention: H Metzmacher, National Employers Mutual”, and (3) to “The Workers Compensation Officer, JP Cordukes Pty Ltd”. The letters included a ‘Notice Of Injury’, dated 17 April 2003, and a claim for compensation for $4,996 for hearing aids and $9,204 in respect of binaural hearing loss, pursuant to sections 60 and 66, respectively, of the Workers Compensation Act 1987 (‘the 1987 Act’). By letter dated 7 July 2003, NEM’s solicitor replied that NEM had no further liability to Mr Mangarelli following the 1994 redemption.
On 2 September 2003, Mr Mangarelli’s solicitors lodged an ‘Application to Resolve a Dispute’ with the Commission. NEM’s solicitors lodged a ‘Reply’ on 24 September 2003.
On 4 December 2003, the Arbitrator held a teleconference with the parties. On 22 January 2004, he conducted a conciliation and, when the parties were unable to reach a settlement, an arbitration hearing. Following the hearing, the parties provided further written submissions and, on 7 May 2004, the Arbitrator made his determination, as set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 7 May 2004, records the Arbitrator’s orders as follows:
“1. That the Applicant is not precluded from bringing this Application for non-economic loss and medical expenses.
2. That the Respondent pay the Applicant the sum of $4996 for medical expenses pursuant to section 60 of the 1987 Act in relation to hearing aids.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In his ‘Statement of Reasons for Decision’, the Arbitrator noted that if Mr Mangarelli’s claim for non-economic loss was successful, the parties had agreed in principle at the hearing to the claim being in respect of a binaural hearing loss of 17.3%, equating to $8,996 in compensation pursuant to section 66 of the 1987 Act.
On the issue of due service of the notice of injury, the Arbitrator found that there was no evidence that Mr Mangarelli’s claim was not received by Cordukes. For NEM’s solicitors to raise the issue of due service at the hearing without prior notice:
“is contrary to the strict rules of the Commission on presenting a party’s case, and bringing forward evidence to contest the other party’s case. A party is entitled to know in advance of the hearing what case it is to meet, and I find no prejudice to the Respondent in this respect”.
The Arbitrator found that it would be “unjust and unfair” to Mr Mangarelli to allow NEM to seek to rely on a lack of service of the notice of injury on Cordukes in order to escape liability. The Arbitrator was satisfied “that it is probable” that notice of the injury was received by Cordukes, and determined that there had been “substantial compliance with the statutory requirements of service”.
The Arbitrator found Mr Mangarelli to be a truthful witness and accepted his evidence that he did not realise that he had problems with his hearing until he went to see Dr Lucchese. The Arbitrator therefore determined that Mr Mangarelli’s claim was made “within time”, that is within six months of his becoming aware of the injury.
The Arbitrator found, on the balance of probabilities, that the hearing loss in Mr Mangarelli’s right ear was attributable to exposure to industrial noise as detailed in his employment history. The Arbitrator was also:
“not satisfied on the evidence that there was some other noisy contributing environment which contributed to the Applicant’s current medical condition of industrial deafness outside his employment with the Respondent as last employer.”
The Arbitrator accepted Mr Mangarelli’s evidence in relation to the 1994 settlement that he thought he was giving up his rights as they existed then in relation to the claims he had already made. The Arbitrator was, therefore, satisfied that Mr Mangarelli should not be barred from pursuing his current claims because they were not included in that settlement.
The Arbitrator was satisfied that the expenses claimed for hearing aids were reasonably necessary and relied on the unchallenged evidence from Restore Hearing (quotation dated 17 April 2003) in relation to the cost involved of $4996.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1) Whether Mr Mangarelli is barred from making a claim in respect of hearing loss because of the 1994 redemption award of the Compensation Court.
(2) Whether Cordukes received notice (a) of Mr Mangarelli’s hearing loss injury, and (b) of his claim in respect of this injury.
(3) Whether Mr Mangarelli’s claim in respect of his hearing loss injury was made within the required time.
(4) Whether Mr Mangarelli’s ‘Application to Resolve a Dispute’ was properly served on Cordukes.
(5) Whether Cordukes was Mr Mangarelli’s last noisy employer.
(6) Whether there should be a deduction from the degree of permanent impairment resulting from Mr Mangarelli’s hearing loss in respect of noise exposure outside the workplace that contributed to his deafness.
(7) Whether, as a result of Mr Mangarelli’s deafness, hearing aids are reasonably necessary.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Mr Mangarelli’s solicitors that the appeal can proceed to be determined on the basis of these documents. I also note NEM’s solicitor’s submission that the parties should be permitted to make oral presentations. However, given that I have the benefit of extensive written submissions from both parties made following the arbitration hearing and also in relation to this appeal, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which states:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
With regard to section 352(2) of the 1998 Act, the amount of compensation at issue is $4996 in respect of the hearing aids and $8996 in respect of the agreed 17.3% binaural hearing loss should Mr Mangarelli’s claim in respect of non-economic loss succeed. This represents 100% of the amount of compensation at issue. The section 352 threshold having been met, I therefore grant leave to appeal.
SUBMISSIONS
With regard to the first issue, NEM’s solicitor submitted that the Arbitrator made an error of law when he found Mr Mangarelli was not barred from making a claim in respect of hearing loss because of the Compensation Court’s award of 14 November 1994:
“In summary, the terms of the prior redemption clearly set out:
a. that it was to be a redemption of all injuries and not just those that gave rise to the payment of weekly compensation,
b. the date of injury in this current action was prior to the date of redemption; and
c. the worker consented to the award.
Under those circumstances the worker is bound by a res judicata. His recollection of his ‘understanding’ of the effect of the original redemption and orders at the time they were made is irrelevant.”
In submissions following the arbitration hearing, NEM’s Counsel sought to distinguish the facts from those in Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315 (‘Sorcevski’), and relied on a decision on similar facts in Cacozza v Stevens (NSW) Pty Ltd a division of Repco Ltd (Compensation Court of NSW, unreported, 9 December 2003) (‘Cacozza’).
Mr Mangarelli’s solicitor contended:
“Bishop J recognised in Cacozza’s case that a redemption of rights would not stand in the way of an injured worker making a later claim for compensation if the worker misunderstood the effect of that to which he was agreeing.
In the case before His Honour, there was no evidence to establish that the worker had misunderstood the effect of that to which he was agreeing when he had previously redeemed his rights.
In our case, there is such evidence. The Applicant stated that he thought he was giving up his rights in relation to the back injury which occurred on 2.2.83 and did not understand that he may have been giving up rights to claim at a later date for any industrial deafness.”
Mr Mangarelli’s solicitor noted that had there had been a reference to industrial deafness or even to head injury in relation to the redemption (as in Lazos v Aldo Cupillari Pty Ltd (1999) 17 NSWCCR 714 (‘Lazos’)), then “a res judicata would have arisen”. However, the Arbitrator found Mr Mangarelli was unaware of his industrial deafness until he saw Dr Lucchese on 17 March 2003.
With regard to the second issue, NEM’s solicitor submitted there was no evidence upon which the Arbitrator could find that the employer had received any notice of injury and no evidence that the claim had ever been served on the employer. Even having found there was no prejudice to the Respondent, the Arbitrator could not waive failure to prove service of notice. Mr Mangarelli’s solicitor sought to rely on the Arbitrator’s finding that “it is probable that the Applicant’s letter [of 17 April 2003] giving notice of injury was received by the employer”. In any event, there can be no dispute that a notice of claim was served on the insurer given the subsequent course of correspondence.
With regard to the third issue, NEM’s solicitor submitted that Mr Mangarelli, having been aware of his deafness for at least 10 years, failed to make his claim within the required time. Mr Mangarelli’s solicitor submitted that the claim had been made within the required time after Mr Mangarelli first became aware of his deafness on 17 March 2003 when he saw Dr Lucchese.
With regard to the fourth issue, NEM’s solicitor submitted that the Arbitrator failed to make a finding with regard to service of the ‘Application to Resolve a Dispute’. There is no evidence that it was served on the employer. Mr Mangarelli’s solicitor relied on service of the Application on NEM’s solicitor. Any defect in service was cured by NEM’s solicitor filing a Reply to the Application in which he represented himself as the representative or agent of both the employer and the insurer.
With regard to the fifth issue, NEM’s solicitor submitted that the Arbitrator erred in finding Cordukes was the last noisy employer. Mr Mangarelli’s evidence was:
“too vague and irregular to justify a finding, on the balance of probabilities, that the employment was noisy. Dr Lucchese’s opinion is irrelevant since it was based on an incomplete version of the evidence.”
Mr Mangarelli’s solicitors contended that it is not in dispute that Cordukes was Mr Mangarelli’s last employer and he had given evidence of exposure to loud noises in the course of that employment. Dr Lucchese opined in his report of 19 March 2003 that Cordukes was Mr Mangarelli’s last noisy employer and there was no evidence or opinion to contradict this.
With regard to the sixth issue, NEM’s solicitor submitted that Mr Mangarelli’s exposure to a variety of non-work related noise had been clearly established and thus a “deductible proportion” (section 68A of the 1987 Act, then in effect) of at least 10% had to be applied. Mr Mangarelli’s solicitor contended that the only evidence of non-work related noise exposure was that concerning exposure to rifle fire, and Mr Mangarelli’s evidence was that he had always worn effective hearing protection when discharging a firearm. In his report dated 3 October 2003, Dr R Carroll (who examined Mr Mangarelli and prepared a report at the request of NEM) stated that he “could elicit no cause for a sensorineural deafness other than alleged industrial noise exposure”.
Finally, with regard to the seventh issue, NEM’s solicitor submitted that the Arbitrator had failed to take sufficient cognisance of Mr Mangarelli’s evidence indicating that hearing aids were not reasonably necessary because he would not bother to get them if his claim did not succeed. Moreover, Mr Mangarelli appears only to have noticed his deafness in about 1993, suggesting that its onset was due to other causes, and the level of compensable deafness was less than half the level of overall deafness. Mr Mangarelli’s solicitor relied on Dr Lucchese’s opinion (report dated 19 March 2003) that Mr Mangarelli would benefit from hearing aids, there being no contradictory evidence.
EVIDENCE
In the NSW Compensation Court proceedings brought by Mr Mangarelli in 1994 (Matter No 16771 of 1994), he was represented by Paul A Curtis & Co, Solicitors. By letter dated 6 October 1994, NEM’s solicitor, who was also acting for Cordukes, wrote to Paul A Curtis & Co:
“offering the sum of $40,000.00 in full satisfaction of all your client’s rights under the Workers Compensation Act and at Common Law, with waiver of costs orders. This offer includes all injuries or conditions and is not limited to the specific incident presently the subject of weekly payments.”
Paul A Curtis & Co responded by letter dated 19 October 1994 stating that they had been “instructed to accept the offer”.
In the consequent application for redemption of liability in respect of weekly payments made by Cordukes to the Compensation Court, dated 21 October 1994, the ‘Further Particulars’ of the injury included both the incident on 2 February 1982, as a result of which Mr Mangarelli “developed severe pain in his back”, and:
“Any and all other injuries allegedly received during the course of or arising out of the worker’s employment with the Applicant employer including any claim based upon the nature and conditions of the worker’s employment or any associated psychiatric condition or injury.”
In the ‘Short Minutes of Order’, a similar clause appears at paragraph 5(b):
“The said redemption includes any and all other injuries received during the course of or arising out of the course of worker’s employment with the employer including any claim based upon the nature and conditions of employment or any psychiatric condition or injury, or any injury or condition arising out of the administration and/or litigation of the matters referred to in these Short Minutes.”
In the ‘Consent to Redemption Application’ signed by Mr Mangarelli on 14 November 1994, he acknowledged:
“that the total effect of the making of this Award has been explained to me by my Solicitor with the assistance of an accredited Interpreter who has read these documents to me in my language.”
At the bottom of the Consent, the Interpreter certified that she had read the document to Mr Mangarelli in Spanish and had interpreted during the conference when advice in relation to the redemption application was given to him by his Solicitor/Counsel. NEM’s solicitor states that this was the same interpreter who interpreted at the hearing before Judge Moran on 14 November 1994.
The Deed of Release dated 14 November 1994, signed by Mr Mangarelli, defines the injuries that are the subject of the release as including any injuries:
“arising out of or in the course of employment with the Employer, including any claim based upon the nature and conditions of employment or any associated psychiatric condition or injury.”
The transcript of the hearing before Judge Moran on 14 November 1994 includes the record of an examination of Mr Mangarelli by his solicitor. In the course of this, Mr Mangarelli acknowledges that a document shown to him (relating to the redemption but not identified in the transcript) had been explained to him by his solicitor, and that he understands the redemption “brings to an end any rights to compensation in this Court or any other Court from today onwards”. Judge Moran then gives his approval to the proposed settlement and makes an award in accordance with the ‘Short Minutes of Order’.
The formal award of the Court of the same date includes the following paragraph under the heading ‘Notes’:
“(4) This redemption includes any and all other injuries received during the course of or arising out of the course of the respondent worker’s employment with the applicant employer including any claim based upon the nature and conditions of employment, upon any psychiatric condition or injury, or upon any injury or condition arising out of the administration and/or litigation of the matters referred to in this Award.”
At the arbitration hearing on 22 January 2004, an objection from NEM’s solicitor on the ground of relevancy having been overruled by the Arbitrator, Mr Mangarelli was asked by his solicitor what he understood to be the effect of the Award of the Compensation Court on 14 November 1994:
“Q. What did you understand you were doing?
A. That I would end the workers compensation.
Q. In relation to what?
A. Pertaining to the accident I suffered on my back.
Q. Is that the full extent of your understanding of the effect of the award giving you $40,000?
A. Yes.”When cross-examined about this later, Mr Mangarelli said he could not remember what documents had been explained to him at the time of the Compensation Court settlement, except “they were telling me that my compensation would be finished if I accepted”.
In answer to another question from his solicitor, to which NEM’s solicitor also objected, Mr Mangarelli said he had not noticed anything about his hearing before he went to court in November 1994. In cross-examination, he agreed that he had told Dr Lucchese, whom he saw on 17 March 2003, that his family had been complaining to him for about 10 years that he was putting the music on too loud. However, Mr Mangarelli denied having realised he had a hearing problem until he saw Dr Lucchese.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Cordukes must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
With regard to the first issue, Cordukes submits that the Arbitrator made an error of law when he found Mr Mangarelli’s claim in respect of hearing loss was not barred by reason of the Compensation Court Award of 14 November 1994. Cordukes submits Mr Mangarelli is bound by res judicata in respect of that award.
The Latin phrase res judicata pro veritate accipitur means that a thing adjudicated is received as the truth. Thus, a judicial decision is conclusive and cannot be contradicted. Once a matter or issue between parties has been litigated and decided, the parties cannot raise the matter again. Wright C in Gunenc v JRA Ltd t/as Pressed Metal (Compensation Court of NSW, unreported, 25 August 1998) (‘Gunenc’) explained res judicata as follows:
“The purpose of the rule is that where an action has been brought and judgment has been entered or an award has been made, no other proceedings can therefore be maintained in the same cause of action.”
For a fuller discussion of res judicata, see the decision of Acting Deputy President Lansdowne in Quamby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSW WCC PD 43.
In their submissions, the parties referred to a number of cases involving redemptions. In Sorcevski, Burke J found that Mrs Sorcevski had expressly sought to exclude her back condition from the redemption and did not consent to the redemption in the form in which it was presented to the Court. His Honour noted, at 323: “This is an easy allegation to make. It is more difficult to make it convincingly”. However, in Mrs Sorcevski’s case, the interpreter confirmed that Mrs Sorcevski had insisted that her back condition be excluded. Despite this instruction being made to her solicitor, it appears the instruction was not conveyed to her counsel who included her back condition within the ambit of the redemption. The Short Minutes of Order were not translated to Mrs Sorcevski at the time she signed the Consent to Redemption, and she was not aware of the effect it would have upon any claim she might have in respect of her back condition. His Honour found, at 328, “[t]he same situation applied when she deposed to her willingness to redeem.”
As to the legal position, his Honour said:
“In summary, the position seems to be that under section 17 of the Compensation Court Act 1984, and at common law, it is possible, though improbable, that a disposal of litigation, concluded by counsel for a party in a manner outside instruction and such being unknown to the other side, could be set aside by the Court. Such would require highly unusual circumstances.”
His Honour then considered a number of matters relevant to the exercise of his discretion in deciding whether to grant relief for lack of consent. These included: first, whether the parties could be restored to their original position; second, whether, if relief were not granted, there would be significant hardship or injustice to the worker; third, whether there had been delay in seeking reconsideration of the award, and fourth, whether there had been prejudice to the employer. Ultimately, his Honour rescinded the original award, ordered that the Mrs Sorcevski repay the redemption amount to her employer, and relisted the matter for hearing.
NEM’s counsel, rightly, in my view, sought to distinguish the facts of the present case from those in Sorcevski. In the present case, there is a significant amount of evidence of it being made clear at all stages of the negotiation and settlement process that the effect of the redemption was to terminate Mr Mangarelli’s rights in respect of injuries received during the course of or arising out of his employment with Cordukes, including any claim based upon the nature and conditions of his employment.
In the ‘Consent to Redemption Agreement’, Mr Mangarelli acknowledged that the effect of the Award had been explained to him by his solicitor with the assistance of an accredited interpreter, and the accredited interpreter certified that she had read the document to Mr Mangarelli in Spanish and had interpreted during the course of the conference when advice was given to Mr Mangarelli by his solicitor. At the hearing before Judge Moran on 14 November 1994, Mr Mangarelli confirmed in evidence that a document shown to him (relating to the redemption but not identified in the transcript) had been explained to him by his solicitor, and that he understood the redemption ended any rights he had to compensation.
The arbitration hearing took place over nine years after the redemption. It is understandable that Mr Mangarelli might not then have a clear recollection of the course of events and the advice given to him in relation to the redemption.
In my view, apart from Mr Mangarelli’s understandably vague recollection of the course of events surrounding the 1994 redemption, there is no evidence to support Mr Mangarelli’s solicitor’s contention that Mr Mangarelli did not consent to the redemption of all rights he might have in respect of injuries arising out of or in the course of his employment by Cordukes. I am not satisfied that there was sufficient evidence for the Arbitrator to find Mr Mangarelli misunderstood the effect of the redemption to which he agreed.
In Cacozza, a decision also involving binaural hearing loss, Bishop J said, in his opinion, the matter turned upon the operation of section 17(1) of the 1987 Act. This provides, relevantly, that in a case of hearing loss of such a nature as to be caused by a gradual process, the date of injury, where the worker is not employed in the noisy employment at the time notice of the injury is given, is deemed to be the last day on which the worker was employed in that noisy environment. In Mr Mangarelli’s case, the effect of this is that the deemed date of injury is 2 February 1982, and thus his hearing loss is regarded as an existing injury at the time of the 1994 redemption, notwithstanding that he may not have been aware of the injury at that time. Bishop J said, at paragraph 14:
“The fact that in a case such as this one, the worker did not know he had an injury in 1977 until 2001 is in my opinion legally irrelevant.”
His Honour concurred with Wright C’s observations in Gunenc. Wright C said, at page 2, that in his view Sorcevski could be:
“distinguished on the particular facts of the matter, as Mrs Sorcevski had a clear misunderstanding of what the redemption incorporated and it was her express wish that her back condition be excluded from that bargain.”
Mr Mangarelli’s solicitor also referred to the decision in Lazos. In that case, Truss J, in the Compensation Court of NSW, held that a redemption that included “injuries to the head” included injuries to the sense organs in the head and, thus, hearing loss was included in the redemption. Mr Mangarelli’s solicitor contended that had “there been a reference to industrial deafness or even head injury, a res judicata would have arisen”. However, this ignores the breadth of injuries described in the 1994 redemption and Compensation Court documents, which seem to me to catch Mr Mangarelli’s hearing loss in the way similar documents did in Cacozza.
Thus, in my view, Mr Mangarelli is barred by res judicata from pursuing this claim for compensation in respect of hearing loss as a result of the Compensation Court Award of 14 November 1994. The Arbitrator made an error of law in determining that Mr Mangarelli was not so barred and, therefore, his decision must be revoked.
Having so determined, it is unnecessary for me to deal with the other issues raised by the parties.
DECISION
The decision of the Arbitrator dated 7 May 2004 is revoked and the following decision is made in its place. The Respondent, Mr Mangarelli, is barred from pursuing a claim for compensation in the Workers Compensation Commission of NSW in respect of hearing loss by reason of res judicata arising from the Award of the Compensation Court of New South Wales dated 14 November 1994 in Matter No 16771 of 1994.
COSTS
In the proceedings before the Arbitrator, NEM’s solicitor submitted that the Application had been brought “frivolously, vexatiously or without proper justification”, and sought an order for costs. NEM’s solicitor contended that Mr Mangarelli had endeavoured to “manufacture a ‘misunderstanding’ as to the terms of the redemption”.
I note the Arbitrator found Mr Mangarelli to be a “truthful witness” and I therefore do not accept that Mr Mangarelli endeavoured to manufacture a misunderstanding as contended by NEM’s solicitor. I also note Wright C’s comments in a similar situation in Gunenc, at page 3, when he said that “hearing losses are an insidious type of injury where the symptoms may not be perceptible to the injured worker”. I am not satisfied that the claim was “frivolous or vexatious … or made without proper justification” and thus, pursuant to section 341(4) of the 1998 Act, the Commission may not order the payment of costs by Mr Mangarelli. I therefore make no order as to costs.
Robin Handley
Acting Deputy President
22 June 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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