Multi-Fill Pty Ltd v Falls
[2006] NSWWCCPD 57
•4 April 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Multi-Fill Pty Limited v Falls [2006] NSWWCCPD 57
APPELLANT: Multi-Fill Pty Limited by its insurer QBE
Workers Compensation (NSW) Limited
FIRST RESPONDENT: CGU Workers Compensation (NSW) Limited
SECOND RESPONDENT: John Ian Falls
INSURERS:1. CGU Workers Compensation (NSW)
Limited, on risk for Multi-Fill Pty Limited 12.9.94 to 12.9.98.
2. QBE Workers Compensation (NSW)
Limited, on risk for Multi-Fill Pty Limited 13.9.98 to date.
FILE NUMBER: WCC8473-05
DATE OF ARBITRATOR’S DECISION: 19 August 2005
DATE OF APPEAL DECISION: 4 April 2006
SUBJECT MATTER OF DECISION: Section 17 of the Workers Compensation Act 1987; notional date of injury
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: McCulloch & Buggy in the
interests of QBE
FirstRespondent: Moray & Agnew in the
interests of CGU
Second Respondent: Appleton & Co, Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 19
August 2005 is confirmed.
2.The matter is remitted to the Registrar for referral to the Arbitrator at first instance for determination of the substantive issues.
3.Multi-Fill Pty Limited in the interests of QBE is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
John Ian Falls (‘Mr Falls’) was employed by Multi-Fill Pty Ltd (‘Multi-Fill’) as a mixer/compounder in the aerosol industry from June 1995. He claimed that as a consequence of his employment he suffered from the condition known as boilermaker’s deafness.
Mr Falls first completed an ‘Industrial Deafness – Notice of Injury’ form on 17 October 1996. He underwent audiological testing on 12 November 1996, and was assessed by Dr Joseph Scoppa, Ear, Nose and Throat Surgeon, on 19 November 1996. On 21 November 1996 through his then solicitor, he made a claim on Multi-Fill’s then insurer, HIH Winterthur which subsequently became CGU Workers Compensation (NSW) Limited (‘CGU’).
On 11 December 1996, CGU wrote to Multi-Fill advising that the claim was being investigated and confirming that arrangements had been made for Mr Falls to consult Dr Carroll, also an Ear, Nose and Throat Specialist on 17 January 1997.
On 13 February 1997 CGU wrote to Multi-Fill advising that Mr Falls’ “… claim for compensation in relation to an injury sustained on 21 November 1996 has been declined due to his hearing loss not being noise induced.”
Mr Falls apparently then took no further action with respect to this claim and continued in his employ with Multi-Fill.
On 14 September 2004, Mr Falls’ present solicitors wrote to QBE Workers Compensation (NSW) Limited (‘QBE’) the current insurer of Multi-Fill, making a fresh claim in respect of his boilermakers deafness. Enclosed with that letter was a Notice of Injury form dated 13 August 2004 and a further report from Dr Scoppa dated 9 September 2004.
There is little information as to what transpired thereafter, however, on 9 February 2005 QBE’s solicitors wrote to Mr Falls advising that “… we believe that CGU should be involved in any proceedings which issue …”
Ultimately on 3 June 2005, Mr Falls filed an ‘Application to Resolve a Dispute’ in the Commission which nominated two dates of injury, being 5 December 1996 and 14 September 2004, and consequently naming both CGU and QBE as the relevant insurers of Multi-Fill.
On 9 June 2005, QBE filed a ‘Reply’ disputing all aspects of the claim, in particular, the notional date of injury.
On 23 June 2005 CGU filed a ‘Reply’ claiming that by operation of section 17(1)(a)(i) of the Workers Compensation Act 1987 (‘the 1987 Act’), “… the injury alleged by the applicant is deemed to have occurred on 12 September 2004 [sic] being the date on which the applicant gave notice of the injury alleged in these proceedings” and that as a consequence, the claim against CGU was “… without proper justification.”
The matter was listed for teleconference before the Arbitrator on 12 August 2005. On 15 August 2005 the Arbitrator issued a direction to the parties as follows:
“1.The Applicant has leave to amend the Application to Resolve a Dispute to delete the date of Notice of Injury of 05/12/1996. The date of Notice of Injury to be the 14/09/2004 only.
2.The insurer on risk as at 14/09/04 is QBE.
3.The Applicant has leave to amend the Applicant [sic] to withdraw the claim against CGU.
4.A second teleconference is to be scheduled on 12 September 2005 to allow the First Insurer (QBE) time to consider and lodge an appeal. An AMS referral will be arranged at the second teleconference. Should an appeal be lodged, the second teleconference is to be vacated.”
On 19 August 2005, the Arbitrator issued an Order in the following terms:
“Pursuant to rule 69 and pursuant to section 17 of the Workers Compensation Act 1987, the Commission orders that:
1.The Application is amended such that the deemed date of injury is 14 September 2004;
2.The Applicant has leave to withdraw the claim against the Respondent’s insurer CGU.”
A ‘Statement of Reasons’ accompanied this order.
On 9 September 2005, QBE filed an ‘Appeal Against Decision of Arbitrator’. In essence, QBE submits that the Arbitrator erred in finding that the first notice of injury, in 1996, “became a nullity” for the purposes of the proceedings and that CGU “… ought to remain joined to the proceedings …”
On 12 October 2005 CGU filed a ‘Notice of Opposition to the Appeal’ with submissions claiming that the decision of the Arbitrator was correct in the circumstances.
On 17 November 2005 Mr Falls also filed a ‘Notice of Opposition to the Appeal’ similarly asserting that the Arbitrator’s decision was correct.
LEAVE TO APPEAL
The application to appeal involves an interlocutory matter. Pursuant to section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) “… decision includes an … order …” such that the Commission constituted by a Presidential Member has power to review the Arbitrator’s decision.
No amount of compensation has been awarded in this matter however, as Deputy President Byron held in Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD5 “the ‘decision’ in each instance is not restricted to an ‘award’.” In view of this decision, leave to appeal is granted.
Mr Falls’ ‘Notice of Opposition’ was filed out of time in circumstances explained in his letters to the Commission dated 6 October 2005 and 1 November 2005 respectively. The extension of time sought, apparently consented to by all other parties, is granted.
ON THE PAPERS
All parties have submitted that the matter is suitable for a determination ‘on the papers’. Having carefully read the Arbitrator’s direction and order and her detailed ‘Statement of Reasons’, together with all the parties’ submissions on the appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE ARBITRATOR’S STATEMENT OF REASONS
The Arbitrator’s ‘Statement of Reasons’ sets out the sequence of events in similar terms to those set out in the background to this appeal in paras 1 – 8 above. In paragraph 7 of the ‘Statement of Reasons’ she then stated, “At the teleconference, the Applicant sought and was given leave to amend the Application to delete the injury dated 1996. This was granted on the basis that it is the Applicant’s claim and as such bears the onus of proof as to the last noisy place …”
In paragraph 9 she said “QBE states that the date of the first notice of injury in 1996 should be the deemed date of injury and that CGU should thus be included on risk.”
She then recites her obligations under rules 69 and 70 of the Workers Compensation Commission Rules 2003 (‘the Rules’) before concluding at paragraph 12,
“I find on the facts that I am satisfied that the investigations reported upon by Dr Scoppa and Tony Khairy [audiologist] in 1996 were not at the time sufficient to establish hearing loss as a work injury suffered by the Applicant. The Applicant withdrew the claim. I am satisfied that the above does not provide me with sufficient reasons to require the Applicant to include the 1996 injury as a date of injury.”
In paragraph 13, she stated, “I find that the first notice of injury became a nullity for the purpose of this claim insofar as no injury was found. I therefore find that the date of injury for this case to be the 14 September 2004 as claimed.”
CGU is then excused from the proceedings. The Arbitrator noted that the 1987 Act did not make specific provision in circumstances like the present, where there were two notices of injury in respect of hearing loss with the one employer. She concluded at paragraph 15, “In my view and consistent with the underlying principle found in s18, the latest notice of injury where it is an injury of gradual onset is the most appropriate notice to base a deemed date of injury.”
THE SUBMISSIONS
QBE in its submissions relies upon section 17 of the 1987 Act, which makes special provisions for hearing loss claims. There is no dispute that on both occasions that Mr Falls gave notice of his claim, namely in 1996 and 2004, he was at all times employed by Multi-Fill. Section 17 of the 1987 Act provides as follows:
“1.If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a)For the purposes of this Act, the injury shall be deemed to have happened:
(i)where the worker was, at the time when he or she gave notice of the injury, employed in employment to the nature of which the injury was due – at the time when the notice was given; or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury – on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice; …”
QBE then cites the decision of the Court of Appeal in Rico Pty Limited v Roads & Traffic Authority (1992) 28 NSWLR 679 (‘Rico’) in particular Sheller JA who stated that (page 689),
“In the language of Barwick CJ in Commissioner for Railways v Bain (1965) 112 CLR 246 at 256 – 257, the injury [boiler makers deafness] is taken to have happened ‘as it were, at one blow’. If the worker was, at the time when he or she gave notice of the injury employed in an employment to the nature of which the injury was due, the injury is deemed to have happened at the time when the notice of injury was given … Compensation is payable by the worker’s employer at the time when the notice of injury was given …”
QBE submits that “… the key to determining the notional date of injury in industrial deafness matters is the date upon which notice of injury was given” and further that:
“There is no provision in the legislation which allows for a worker to, effectively, withdraw the notice of injury given. Once made, it becomes a fact which cannot be changed, altered or withdrawn.”
This being so, QBE submits, there ought to be two notional dates of injury included in the Application because “… the fact of the notice of injury in 1996 remains …” and therefore “… had the 1996 claim been accepted, compensation would have been payable in respect of the Worker’s losses at that time. Any claim in respect of the subsequent 2004 injury would be in relation to what, if any, deterioration can be shown…”
QBE submits that liability should then be assessed in respect of the hearing loss found both in 1996 and 2004 and concludes that “… the Arbitrator erred in finding that the first notice of injury ‘became a nullity’ for the purposes of these proceedings.”
The report of Dr Scoppa dated 19 November 1996 relied upon by Mr Falls in respect of his notice of injury in 1996 noted that he had a binaural hearing loss of 24.5%. Dr Scoppa then said “Mr Falls’ hearing loss is consistent with industrial deafness …” There was no history of the nature of his employment, or the type or duration of noise exposure he experienced such as would have discharged the onus placed upon Mr Falls as enunciated.
In his report dated 9 September 2004, Dr Scoppa went into considerable detail as to the nature of Mr Falls’ employment and assessed him as having a 51.3% binaural hearing impairment of which 14.8% was due to industrial deafness. That translated into an 8% Whole Person Impairment.
In a Statutory Declaration dated 25 February 2005 annexed to his Application, Mr Falls said “In 1996 I noticed problems with my hearing, and I made a claim at that time against Multi-Fill Pty Limited. However, the employer denied the claim [and] I did not challenge their denial at that time by taking Court proceedings.”
The thrust of the submissions by QBE is that the notice of the injury is the key determinant as to any liability to pay compensation. However, the purpose of the legislation is to create a mechanism for payment of compensation where an injury occurs. Section 17 of the 1987 Act, like many other sections, is predicated upon the finding of ‘injury’, and merely provides a method for fixing the notional date of injury and identifies the employer primarily liable to pay compensation. Compensation is only payable where a proven injury has occurred.
There is no doubt that Mr Falls gave ‘notice of injury’ in 1996. His decision not to proceed with his claim reflects his inability, on the evidence available at the time, to establish ‘injury’ within the meaning of the 1987 Act and in accordance with a number of authorities such as have been referred to above.
As Judge Bishop said in Pearsall v State Transit Authority of NSW, (‘Pearsall’) an unreported decision of the former Compensation Court dated 20 November 1998 at paragraph 28 “… it is not correct as a matter of law that the mere existence of noise is sufficient to find liability … it must be noise of a type and level such as to constitute a potential hazard to hearing.”
No report from Dr Carroll, on whose opinion Mr Falls’ claim was apparently denied by CGU, was before the Commission.
Having elected to ‘withdraw’ the claim made on 21 November 1996, or rather not to commence proceedings in respect of that claim, it follows that the present proceedings before the Commission have been brought on the basis of a claim duly made on 14 September 2004, supported by the report of Dr Scoppa dated 9 September 2004.
As QBE correctly stated by reference to Rico’s case, compensation “… is payable by the worker’s employer at the time that the notice of injury was given.” However, as CGU points out in its submissions, “… this can only refer to the notice of injury relied upon in the proceedings (my emphasis) and in these proceedings, the notice of injury relied upon is the notice in a letter dated 14 September 2004, for which QBE is the relevant insurer.”
It is clear from correspondence between Mr Falls’ solicitors and QBE’s solicitors that CGU was included in the Application at the suggestion of QBE.
It is noted that the benefits Mr Falls claims in his application before the Commission reflect those claimed in the letter dated 14 September 2004, and not those set out in the letter from his former solicitors dated 21 November 1996.
QBE’s submission that both reports of Dr Scoppa “… express the same opinion insofar as the Worker’s duties with the Employer caused the Worker’s hearing loss” and that “it simply cannot be argued or accepted that one report is sufficient to establish a claim for hearing loss but the other, which expresses the same view, is not” does not reflect an accurate interpretation of Dr Scoppa’s reports and is incorrect in light of the decision of Pearsall referred to above.
As to its submissions that CGU “… should not be rewarded for simply denying liability in respect of the claim … QBE should not be penalised for the Worker’s failure to properly pursue that claim at the time” these are notions, as Mr Falls points out in his submissions, that “…may be the motive behind this Appeal but they are misconceived, and they are not relevant or proper considerations to the Appeal.”
I agree with this submission. The issue correctly identified by the Arbitrator was to establish the notional date of injury for the purposes of the proceedings brought by Mr Falls for compensation for hearing loss.
CONCLUSION
The Arbitrator’s decision reflected a proper exercise of her discretion as required by the Rules and was supported by the evidence before her. I can see no error of law, fact or discretion that would justify the revocation of her order.
DECISION
(1) The decision of the Arbitrator is confirmed.
(2) The matter is remitted to the Registrar for referral to the Arbitrator at first instance
for determination of the substantive issues.
COSTS
QBE is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
4 April 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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