Nepean Rubber Moulding Pty Ltd v Veljanoski

[2014] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Nepean Rubber Moulding Pty Ltd v Veljanoski [2014] NSWWCCPD 3
APPELLANT:	Nepean Rubber Moulding Pty Ltd
RESPONDENT:	Mito Veljanoski
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-9856/12
ARBITRATOR:	Mr John Harris
DATE OF ARBITRATOR’S DECISION:	15 October 2013
DATE OF APPEAL DECISION:	22 January 2014
SUBJECT MATTER OF DECISION:	Absence of transcript of arbitral proceedings; duty to provide sufficient reasons; constructive failure to provide reasons for decision; need for remitter
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry Lawyers
Respondent:	Turner Freeman Lawyers
ORDERS MADE ON APPEAL:	1.       Paragraphs 1, 2, 3 and 4 of the Certificate of Determination, dated 15 October 2013, are revoked. 2.       The matter is remitted to a different Arbitrator for determination afresh. 3.       The costs of the hearing and of this appeal are to follow the event of the remitter to and hearing by a different Arbitrator.

BACKGROUND

1. Mr Mito Veljanoski was employed as a machine operator for 36 years. He last worked in that occupation on 25 March 2011. At that time he was employed by Nepean Rubber Mouldings Pty Ltd (the appellant). The evidence suggests that Mr Veljanoski had commenced employment with the appellant on 11 December 2006. There is much confusion in the evidence as to the identity of his employers prior to that date, however it seems that for the first 19 years of his career, he was employed by an organisation described in evidence as BTR. Thereafter it seems that he was employed by an organisation described as QTR which was subsequently “taken over” by Malcolm Rubber. Up until 2006 Mr Veljanoski worked at premises located at Wetherill Park. In 2006 there was, as described in evidence, a “merger” between Malcolm Rubber and the appellant. Mr Veljanoski and other workers were then transferred to work at premises located at St Marys.

2. Mr Veljanoski had, in 1994, been paid lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $9,472.94 in respect of 14.57 per cent binaural hearing loss. The identity of the insurer, as it appears in correspondence from Workcover to Mr Veljanoski’s solicitor dated 6 December 2011, was CGU Workers’ Compensation Ltd. That correspondence does not identify the employer. The date of injury noted in that correspondence was 28 July 1993.

3. In 2012 Mr Veljanoski claimed a further lump sum of $5,500 in respect of an “additional 4 per cent whole person impairment” together with lump sum compensation pursuant to s 67 of the 1987 Act and the cost of hearing aids, which had not at that time been purchased. Notice of that claim was sent to the appellant and its insurer, Employers Mutual NSW Limited, by a letter from Mr Veljanoski’s solicitors dated 28 March 2012. No date of injury was particularised in that correspondence.

4. The claim was rejected by the appellant and its insurer. A notice concerning that declinature was issued by the insurer pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and was forwarded to Mr Veljanoski on 31 July 2012. The reason for the decision to decline the claim was stated in that notice as being that the appellant was “not a noisy employer”. A copy of a noise level test report prepared by Day Design Pty Ltd, dated 30 July 2012, was enclosed with the notice.

5. The dispute between the parties came before the Commission following the filing by Mr Veljanoski of an Application to Resolve a Dispute in August 2012. The date of injury was stated in that Application to be “26 March 2012 [sic]”.

6. The matter came before Arbitrator John Harris for conciliation/arbitration on 14 October 2013. The Application was heard on that day and the Arbitrator delivered his determination extempore. The orders then made are found in a Certificate of Determination, dated 15 October 2013, which is as follows:

   “In this matter a Conciliation and Arbitration conference was held. Ex tempore reasons were given on 14 October 2013 when I made the following orders:

   1.That the matter be remitted to the Registrar for referral to an Approved Medical Specialist as follows:

Dates of Injury:   26 March 2012 (deemed)

Body Parts/Systems:   Hearing Loss

Method of Assessment:                 Whole person impairment

Note:   Prior settlement on or about 28 July 1993 for 14.57% binaural hearing loss.

2.The Approved Medical Specialist is asked to provide a non-binding opinion as to whether the hearing aids as quoted at page five of the Application to Resolve a Dispute are reasonable [sic] necessary and related to injury.

3.The documents to be sent to the AMS are:

a)The Application to Resolve a Dispute and all attached documents;

b)The Reply and all attached documents;

c)Application to admit late documents and attachments filed by the Applicant on 14 January 2013.

4.Respondent to pay the Applicant’s costs as agreed or assessed. I certify the matter as complex (factual issues) and certify an uplift of 10% applicable to both sides.”

PRELIMINARY MATTERS

Threshold matters

1. There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

On the papers

1. The parties consent to the matter being heard “on the papers”. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed without holding any conference or formal hearing as is permitted by s 354(6) of the 1998 Act.

Interlocutory

1. The appellant seeks leave pursuant to s 352(3A) of the 1998 Act to proceed with the appeal which, as accepted by both parties, is brought in respect of an interlocutory decision of the Arbitrator.

2. Having regard to all circumstances, which are noted below, I am of the view that it is necessary for the proper and effective determination of the dispute that leave to proceed with the appeal be granted, and I so order.

ABSENCE OF TRANSCRIPT

1. The parties were represented by Counsel at the Arbitration. The primary dispute between the parties concerned whether the appellant was, as alleged, a relevantly “noisy” employer.

2. Proceedings before the Commission are, as a matter of course, recorded and, in the case of an appeal, a transcript of proceedings is produced and made available to the parties. In the present matter, by reason of technical failure, there is no transcript of the arbitral proceedings nor of the reasons delivered by the Arbitrator which were given extempore at that time.

3. The parties have been informed by the Registrar of the absence of a transcript. Submissions were invited concerning the further conduct of the appeal.

4. The appellant, in supplementary submissions, acknowledges the difficulty presented by the absence of, in particular, a transcript of the reasons stated by the Arbitrator for his decision. It is also put that Mr Veljanoski had “[changed] the manner in which [Mr Veljanoski] prosecuted his claim”. In the absence of a transcript of the proceedings, the nature of that change and its significance, it is put, cannot be reliably discerned.

5. The appellant further submits that the appropriate course to adopt concerning the appeal “would be to remit [the] matter back to [the Arbitrator] to provide [sic] reasons for the decision”.

6. Mr Veljanoski has responded to the Registrar’s advice concerning the absence of a transcript by letter, dated 20 November 2013, which merely states that objection is taken to the appeal and that submissions were to be filed “shortly”.

7. Mr Veljanoski’s submissions were filed on 17 December 2013. No attention is given by Veljanoski to the question as to the consequences of there being no transcript, nor to the questions raised as to the future conduct of the appeal having regard to that circumstance.

8. Mr Veljanoski’s submissions purport to address the merits of the appeal. The matters raised include an attempted summary of Mr Veljanoski’s employment history. As earlier noted that history is, to say the least, confused. The submissions put do not clarify that history nor matters of fundamental relevance. One glaring omission is the failure of Mr Veljanoski to acknowledge that the date of injury alleged in the Application to Resolve a Dispute is 26 March 2012. That date is exactly one year after Mr Veljanoski last worked for the appellant and has, in all probability, been particularised in error. That error has not been addressed on this appeal, and it is to be noted that a finding of injury had been made by the Arbitrator as having been received on that date. These matters raise questions which may not be addressed in the absence of a transcript.

9. It is apparent from the submissions put by Mr Veljanoski that it was conceded by him that working conditions at his place of employment during the five years up to 2011, during which period he worked at St Marys, were not relevantly noisy. Those submissions assert that it was “accepted by the arbitrator that the employment at Wetherill Park in 2006 was employment between [sic] [Mr Veljanoski] and [the appellant] to the nature of which the injury was due (the s 17 1987 Act test)”: [16] of submissions.

10. The Commission, on this appeal, is unable to ascertain the precise manner in which Mr Veljanoski presented his claim before the Arbitrator. There remains considerable confusion concerning Mr Veljanoski’s employment history. Further, it is reasonably clear that the date of injury alleged, and as found by the Arbitrator as noted in the Certificate of Determination, has been nominated in error. All of these difficulties have been compounded by reason of the absence of a transcript. These circumstances give rise to those matters contemplated by Bryson JA (with whom Handley JA and Bell J agreed) in Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34: 4 DDCR 358 where the Court was concerned with those difficulties which arise by reason of there being an incomplete record of proceedings (at [32]):

    “[t]his is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s 352; and also impedes the conduct of a further appeal under s 353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”

11. In addition to the difficulties which have arisen as noted at [20] above, the absence of the transcript of the Arbitrator’s reasons constitutes a constructive failure to provide reasons as was discussed by Fleming DP in Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWCCPD 14. A statement of such reasons is required by the provisions of s 294 of the 1998 Act. As a matter of general principle failure to provide sufficient reasons constitutes error of law: Beale v Government Insurance Office NSW (1997) 48 NSWLR 430.

12. The constructive failure to provide reasons constitutes relevant error. In the circumstances I consider it appropriate that the findings and orders as found in the Certificate of Determination, dated 15 October 2013, be revoked and the matter be remitted to a different Arbitrator for determination afresh. Appropriate orders appear below.

DECISION

1. Paragraphs 1, 2, 3 and 4 of the Certificate of Determination, dated 15 October 2013, are revoked.

2. The matter is remitted to a different Arbitrator for determination afresh.

COSTS

1. The need for a re-hearing has been occasioned by reason of technical failure during the recording of the proceedings before the Arbitrator. The Commission has a broad discretion as to costs as granted by the 1998 Act as it stood before the 2012 amendments: s 341. Having regard to all the circumstances, I consider it appropriate that the costs of the hearing and of this appeal should follow the final costs order following remitter to and hearing by a different Arbitrator.

Kevin O'Grady
Deputy President

22 January 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE