Murie v Schindlers Lifts Australia Pty Ltd - [2012] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Murie v Schindlers Lifts Australia Pty Ltd [2012] NSWWCCPD 22
APPELLANT:		Christopher Ian Murie
RESPONDENT:		Schindlers Lifts Australia Pty Ltd
INSURER:		Employers Mutual NSW Ltd
FILE NUMBER:		A1-8075/11
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:		28 December 2011
DATE OF APPEAL DECISION:		19 April 2012
SUBJECT MATTER OF DECISION:		Application to extend time to appeal; boilermaker’s deafness; evidence required to establish “employment to the nature of which the injury was due”; s 17 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Turner Freeman Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		Leave to appeal is refused. Each party to pay its own costs of the appeal.

BACKGROUND

The appellant, Christopher Ian Murie, is employed by the respondent, Schindler Lifts Australia Pty Ltd (Schindler), as a fitter and machinist. He claims that, as a result of exposure to loud noise while installing and repairing lifts on a daily basis, including on construction sites, he suffered from industrial deafness and a hearing impairment.
On 1 October 2010, Mr Murie made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) on Schindler and its workers compensation insurer, Employers Mutual NSW Ltd (Employers Mutual) for permanent impairment compensation of $8,250.
On 23 June 2011, Employers Mutual advised the appellant’s solicitors that, relying on the evidence of an independent medical examiner, Dr Kenneth Howison, the claim would not be met. On 24 June 2011, Employers Mutual issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied liability for whole person impairment on the basis that there was no work-related whole person impairment and Schindler was not considered to be “a noisy employer”.
On 14 September 2011, the worker lodged an Application to Resolve a Dispute with the Commission. He claimed lump sum compensation in the sum of $8,250 in respect of a six per cent whole person impairment as a result of hearing loss deemed to have occurred on 26 August 2011. Mr Murie alleged that his hearing loss occurred due to:
“Exposure to loud noise whilst installing and repairing lifts on a daily basis on various sites such as construction sites. Exposed to loud noise from welders, grinders, hammers and machinery. Also exposed to noise from the site generally.”
The respondent lodged a Reply to the Application on 6 October 2011. It confirmed the matters in dispute were in accordance with those notified to the worker in the s 74 notice issued on 24 June 2011. Additionally, the respondent pleaded that it denied having employed Mr Murie in noisy employment, that it was the last “noisy employer” within the meaning of the Act, and the extent of the binaural hearing loss. The Reply also stated that Schindler proposed to rely on additional information to be provided.
On 24 November 2011, the dispute came before a Commission Arbitrator for conciliation and arbitration. Having attempted unsuccessfully to conciliate the matter, the Arbitrator proceeded with the arbitration of the dispute. At the hearing, counsel for both parties made detailed submissions and Mr Murie gave evidence.
In a reserved decision dated 28 December 2011, the Arbitrator determined that Mr Murie had failed to satisfy the onus of establishing that his employment had the tendency, incidents or characteristics of the type that could give rise to industrial deafness. She entered an award in favour of the respondent, Schindler.
Mr Murie appeals the Arbitrator’s determination.

ISSUES ON APPEAL

The issues in dispute on appeal are:
(a)     whether the Arbitrator erred in finding that the appellant had not discharged the burden of proving that the “tendencies, incidents and characteristics” of his employment were of a type that could give rise to the injury in fact suffered;
(b)     whether the Arbitrator erred in determining that the appellant must have support from a medical expert who has recorded a full history of noise exposure within his or her respective report in order that the appellant can satisfy the relevant test;
(c)     whether the appellant should be permitted leave to proceed out of time.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(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.”
Both parties have submitted that the appeal should proceed on the papers, without any formal hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties, 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.

MONETARY THRESHOLD

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
The compensation at issue is $8,250. The monetary threshold in s 352(2) of the 1998 Act is satisfied.

TIME

An appeal against an Arbitrator’s decision must be made within 28 days “after the making of the decision appealed against” (s 352(4)).
The Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by s 294(1) of the 1998 Act” (Pt 16.2 r 2 of the Workers Compensation Commission Rules 2011).
The Commission issued a certificate of determination under s 294 on 28 December 2011 and time under s 352 ran from that date.
Having regard to the provisions of s 36 of the Interpretation Act with regard to the reckoning of time, the last day to appeal within time was 25 January 2012.
The application, Appeal Against Decision of Arbitrator, was registered in the Commission on 20 February 2012. Therefore, the appeal was lodged 26 days out of time.
The appeal notice acknowledged that the appeal was not filed within time, but failed to include any submissions in support of an extension of time to appeal.
On 20 February 2012, the Registrar’s delegate issued a direction requiring the appellant to file and serve submissions by 5 March 2012 as to why the time for lodging the appeal should be extended. The respondent was directed to file any submissions in reply by 2 April 2012.
In contravention of the direction, the appellant lodged further submissions with respect to the extension of time dated 5 March 2012, but lodged with the Commission on 6 March 2012. The appellant seeks an extension of time to lodge the appeal for the following reasons.
The appellant submits that, at the time of receipt of the Arbitrator’s decision on or about 29 December 2011, the appellant’s solicitors were working with a “skeleton staff” on account of the Christmas/New Year period. The appellant’s solicitors did not return to full capacity until about 3 January 2012.
On 6 January 2012, the appellant’s solicitor wrote to the Commission indicating that his client had instructed him to “assess his appeal entitlements” and requested access to a transcript of the arbitration hearing of 24 November 2011.
On 9 January 2012, the Commission made available an audio CD recording of the arbitration hearing. Notwithstanding the best efforts of Commission staff and the appellant’s legal representatives, I accept that, for technical reasons, the appellant’s legal representatives were unable to play the CD.
The appellant’s solicitor asserts that, at the time of providing his submissions with respect to the leave issue (that is, 5 March 2012), the transcript had still not been made available. He said:
“It is for this reason that the appellant’s solicitors were delayed in drafting the very laconic submissions in support of the appellant’s appeal which were submitted on or about 10 February 2012. [sic]”
The appellant’s submissions of 5 March 2012 at [26]–[29] made reference to a number of decisions of the Commission regarding the difficulties encountered by Presidential members conducting a review of proceedings in the absence of a transcript. As the transcript of the Arbitration is available to the parties and to the Commission, the authorities referred to are irrelevant to the issues on this appeal and, for that reason, I do not propose to address them further.
The appellant asserts, wrongly, that the appeal “appears to have been lodged 11 working days late”. As I indicated, it was lodged 26 days out of time.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011, which is in the following terms:
“(12)The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The appellant asserts that, in the circumstances of this case, the “exceptional circumstances” are:
(a)     The receipt of the Arbitrators decision during the Christmas/New Year period;
(b)     The difficulties encountered in obtaining an audio CD recording of the proceedings, and
(c)     The inability to confer with counsel in respect of an appeal prior to 16 January 2012.
The appellant further submits that the failure to grant an extension of time would result in a demonstrable and substantial injustice, in that the appellant will lose the right to the compensation claimed.
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458, where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194–5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263–4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The respondent has opposed the extension of time to appeal and has submitted that the appellant has failed to show exceptional circumstances, or that any substantial injustice would be caused by the refusal to grant an extension of time.
I am not satisfied that there are any grounds for extending time to appeal. My reasons are as follows.
It is clear from the appellant’s submissions that the solicitor with carriage of the matter was aware of the Arbitrator’s decision by 5 January 2012, eight days after the decision was forwarded to the parties, and was also aware of the time limits imposed under s 352(4) for lodging an appeal.
On 16 January 2012, the appellant’s solicitor and counsel discussed the prospects of an appeal. At that point, there were still nine days remaining to lodge an appeal before the time limit expired. No explanation has been offered by the appellant as to why that period was not sufficient to prepare and lodge a notice of appeal.
The receipt by the appellant’s solicitors of the Arbitrator’s decision during the Christmas/New Year period does not, in my view, constitute exceptional circumstances. The appellant’s solicitors returned to full capacity within several days of the decision being given. Indeed, by 16 January 2012, well within the time limit for lodging an appeal, the appellant’s solicitor had already conferred with his client with respect to the prospects of an appeal.
I do not accept that the inability to confer with counsel until 16 January 2012 constituted exceptional circumstances for the reasons referred to at [36] of this decision. Even if the appellant’s counsel was not available during the whole of the appeal period, it is not uncommon for the appellant’s solicitor to draft a notice of appeal without the assistance of counsel. Alternatively, the appellant’s solicitor could have obtained advice from other counsel.
The lack of an available transcript is not a bar to lodging an appeal within the prescribed time. The appellant’s solicitor who had carriage of the matter and counsel had access to all of the documentary evidence relied upon by both parties, as well as the reasons for the determination, which canvassed the issues, arguments and evidence.
The bulk of the arbitration hearing was taken up with the parties’ submissions. Mr Murie’s oral evidence consisted of just nine pages of transcript and was limited to one issue, namely, the extent of his exposure to industrial noise during his employment with the respondent. His evidence was discussed at length in the Arbitrator’s decision from [14]–[25].
It is not uncommon for parties to lodge appeals within the time prescribed which are supplemented at a later date after the transcript becomes available. Practice Direction 6 specifically provides:
“A copy of the transcript of proceedings, if available, will be obtained by the Registrar and forwarded to each party to the appeal. Any supplementary submissions following receipt of the transcript must be lodged and served within 28 days of the date and the letter from the Registrar addressed to the party enclosing a copy of the transcript. Submissions referring to the transcript should identify the transcript page number and line number as relevant.”
No explanation has been offered as to what steps, if any, were taken to advance the appellant’s appeal rights between the last day for the filing of the appeal on 25 January 2012 and 20 February 2012, when it was finally registered.
Notwithstanding the appellant’s protestation concerning the need for access to a transcript before lodging an appeal notice, the notice lodged on 20 February 2012 was prepared without the benefit of a transcript. The transcript did not become available until 28 February 2012.
The appeal is out of time by a substantial period. Mr Murie has advanced no proper explanation for it being filed so late. The absence of transcript does not, in my view, constitute exceptional circumstances. In fact, it is the norm in appeal proceedings in the Commission that the transcript is generally made available only after a Notice of Appeal is filed. It is for this reason that Practice Direction 6 specifically provides for supplementary submissions to be lodged following the receipt of the transcript.
Whether Mr Murie will suffer any substantial or demonstrable injustice if the Commission refuses leave to appeal requires an assessment of his prospects of success on appeal. This requires a detailed assessment of the merits of the appeal.
The issue before the Arbitrator concerned whether the appellant had satisfied the onus of establishing that his employment by the respondent was employment to the nature of which the injury was due.
In support of the claim, the worker relied on his written statements, his oral evidence, and the reports of Dr T B Raj, both dated 27 September 2010.
Dr Raj’s first report, under the heading “Employment/Noise Exposure History”, noted that the appellant had been employed as a fitter and turner since 1975. He had held two jobs; the first was at Cockatoo Island for 16 years, and the second with the respondent for 19 years. Dr Raj noted that the work at Cockatoo Island involved building ships and refitting submarines. The work involved mainly machine work, such as welding, grinding and hammering, and was “particularly noisy”. The doctor’s history of exposure to noise during the appellant’s employment with the respondent was quite brief. He said:
“At Schindlers Lifts, he was involved in the installation and repairing of lifts. This again involved the use of similar machinery as before, such as welders, grinders, hammers and other similar noisy machines.”
Dr Raj was asked to express an opinion as to whether the noise to which the appellant was exposed during his employment with the respondent was of such a nature that would cause boilermaker’s deafness. He stated:
“In my opinion, based on the history I obtained from the worker, whether the tendencies, incidents and characteristics of the worker’s employment with Schindlers Lifts Australia Pty Ltd are of such a nature to give rise to a real risk of boilermaker’s deafness or another deafness of similar origins.”
In a second report addressed to Employers Mutual, the respondent’s insurer, Dr Raj stated:
“I refer to your letter of 08/03/11 requesting a supplementary report.
I have read all the tasks, which was performed at Schindlers List [sic], but it was difficult for me to assess the noise level. However, in paragraph 4.4.4, it is stated that the noise levels measured around 58 dB. If this is the actual noise level, it is significantly lower than the WorkCover regulations of 85 dbA/8 hrs. The noise level stated will not cause industrial deafness.”
The letter of 8 March 2011 is not in evidence. What documents Dr Raj was referring to when he stated “I have read all of the tasks” is not clear. However, the reference to paragraph 4.4.4 is a reference to an extract from a sales manual referring to the level of noise measured when the lift/escalators are in operation. Ultimately, this evidence was not relied upon.
The worker relied on two statements, the second of which, dated 27 October 2011, was admitted pursuant to an Application to Admit Late Documents. The worker also gave oral evidence at the arbitration hearing and was cross-examined about the extent of his exposure to noise. In the first statement, dated 27 July 2011, Mr Murie stated that, when he commenced working for the respondent, he was working on numerous building sites for approximately four years, undertaking repair and maintenance work. During this period, he said he was exposed to the noise from grinders, drills, power tools and construction noise. He stated that, “shortly after”, for approximately 10 years, he undertook various maintenance and repairs of escalators and lifts. During this period, he claims to have been exposed to loud noise in particular from power tools in order to repair and maintain the lifts and escalators. The balance of that statement is directed towards complaints regarding Dr Howison’s assessment and the impact his hearing loss has had on his day-to-day life.
In the worker’s statement of 10 November 2011, he stated that, when he commenced with Schindlers in around January 1991, he was working mainly on the installation of lifts and worked around numerous construction sites. Again, he stated that that work exposed him to the noise emanating from grinders, electric drills, welders and various other power tools. He also said that he was exposed to various construction noise generated from other tradespersons. This included hammering, electric saws, grinders, compressors, rivet guns and power tools on a regular and daily basis. While undertaking those tasks, he said it was difficult to speak to other tradespersons or colleagues on the construction sites.

Mr Murie stated that, four or five years after his commencement with the respondent, he transferred to working in service and repairs. This involved re-roping lifts, and repairing gearboxes and motors. He said that he used grinders, drills and power tools, and other equipment to assist. Again, he asserted that he was exposed to construction noise. Mr Murie added that, when machinery was being operated, he was unable to communicate with colleagues more than one metre away, and that generally the equipment was switched off when he was communicating with other workers.
Mr Murie stated that, for the last 10 years, he had been servicing escalators. This work involved inspecting switches and oil levels, and involved some electrical repairs. He added, “I am required to undertake the relevant tasks which at times results in being exposed to loud noise”. He concluded his statement by stating:
“In particular the early years of my employment with Schindlers Lifts Australia Pty Ltd exposed me to sufficient hearing loss, as a result of exposure from various construction sites in which I was required to undertake the abovementioned tasks.”
The worker’s evidence was not challenged and the Arbitrator accepted it.
The Arbitrator accepted that the worker was not required to establish that his employment with the respondent actually caused his hearing impairment, but that, in order to determine whether the worker was “employed in an employment to the nature of which the injury was due”, attention must be directed not to whether the employment the worker was engaged in actually caused the injury, but whether the “tendencies, incidents or characteristics” of that employment were of a type that could give rise to the injury in fact suffered (Blayney Shire Council v Lobley (1995) 12 NSWCCR 52).
The Arbitrator proceeded (at [60]) on the basis that it was not necessary for the worker to call an acoustics engineer in every case where there is an allegation of industrial deafness, but what is required is that:
“he or she present detailed evidence … of the nature (volume) and the extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness” (Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson)).
Although the Arbitrator accepted the worker’s evidence, she pointed out a material inconsistency, in that his initial statement indicated that he worked on building sites installing lifts. In his subsequent evidence, he said that his initial work for the respondent involved installing lifts, and he was transferred to repair and maintenance work after four or five years.
The Arbitrator noted at [64] that she derived little assistance from either Dr Raj or Dr Howison. Dr Raj obtained no history of the nature (volume) and extent (duration) of the worker’s exposure to noise. She noted that he had not been given the history of the change in the nature of the Mr Murie’s work from installing to repairing and maintaining equipment.
The Arbitrator concluded at [65] that Dr Raj had not been given access to the worker’s statements and had no evidence regarding the nature and extent of his exposure to the various equipment that he describes. Ultimately, the Arbitrator concluded that the medical evidence adduced by the appellant, consisting of the two reports of Dr Raj, is insufficient to establish that his employment with the respondent had the tendency, incidents or characteristics of the type that could give rise to industrial deafness, and that he had therefore not met the onus.
The appellant’s complaint on appeal is that the Arbitrator ignored the worker’s description of the noise level and that that evidence, when taken in conjunction with Dr Raj’s evidence, satisfies the test. I do not accept that submission. Firstly, the Arbitrator did not ignore the worker’s evidence; she paid particular attention to it and described it in detail in her decision at [14]–[25]. The Arbitrator accepted the worker’s evidence, notwithstanding its inconsistencies. The Arbitrator’s conclusion hinged on the inadequacy of the history relied upon by Dr Raj as a basis for forming an opinion as to whether the tendency, incidents or characteristics of the worker’s employment were such as to give rise to a real risk of boilermaker’s deafness.
The Arbitrator correctly applied the principles as discussed in Costello v Citra Constructions Ltd [1990] FCA 9 and Dawson. Even accepting the worker’s evidence and accepting that he told Dr Raj that which he has discussed in his statements, none of that history is exposed in Dr Raj’s reports. More to the point, there is a critical omission from Dr Raj’s history, in that his opinion is based on a history that Mr Murie was involved in the installation and repair of lifts throughout his employment. That is simply not the case. The evidence is that Mr Murie’s initial employment for about four years involved the installation of lifts but, thereafter, he transferred to a repair and service role, where the exposure to noise, on his own evidence, was different. In the latter role, he says that he was exposed at times to the noise of grinders, drills, power tools and various other equipment whereas, in his previous role, he was exposed to hammering, electric saws, grinders, compressors, rivet guns, power tools, and other construction noise on a regular and daily basis. None of these matters are considered in Dr Raj’s evidence and, for these reasons, it was open to the Arbitrator to give it no weight.
The appellant asserts that the Arbitrator erred by asserting that the appellant’s expert, Dr Raj, was required to record the full history for it to be accorded full weight. The Court of Appeal has explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock) (at [85]) that what is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts included those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests”. An error in one part of the history does not necessarily destroy the probative value of the expert’s report. Dr Raj’s report complied with those principles, which made it admissible.
However, in Hancock, Beazley JA (Giles and Tobias JJA agreeing) said at [88]:
“The extent of correspondence between the assumed facts and the facts proven was relevant to the assessment of weight to be given to the reports.”
The Arbitrators decision hinged not on the admissibility of the report, but on the weight to be given to it. She found the very brief history obtained by the doctor, referred to at [48], was at odds with the accepted evidence, for the reasons explained above. I agree that the history obtained by the doctor did not provide a fair climate for the acceptance of his report (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844). The Arbitrator’s finding with respect to Dr Raj’s reports was open on the evidence, she applied the correct legal principles, and no error has been demonstrated.
The appellant submits that, because Dr Raj’s history was not challenged, it must be accepted at face value and that the Arbitrator’s failure to do so was “unsound and unsubstantiated”. The submission is unsupported by authority and, for the reasons given above, I reject it.
The appellant’s submission that any inconsistency in the worker’s evidence was cured by his oral evidence is not to the point. As I said at [61], the Arbitrator’s decision was based on her conclusion that the medical evidence adduced by the appellant, consisting of the two reports of Dr Raj, is insufficient to establish that his employment with the respondent had the tendency, incidents or characteristics of the type that could give rise to industrial deafness, and that he had therefore not met the onus. It was not based on the inconsistencies in the worker’s evidence.

CONCLUSION

The appeal notice was lodged 26 days out of time. The closure of the appellant’s solicitor’s office for a short period over the Christmas period, the absence of transcript and a delay in conferring with counsel are not exceptional circumstances. Practice Direction 6 provides for the procedure for supplementary submissions to be lodged following the receipt of transcript.
For the reasons given, the appeal has no reasonable prospects of success. In all the circumstances, Mr Murie has not established that to lose the right to appeal would result in a demonstrable and substantial injustice. The application to extend time to appeal is refused.

DECISION

Leave to appeal is refused.

COSTS

Each party to pay its own costs of the appeal.

Judge Keating

President
19 April 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE