Paabo v State Rail Authority of New South Wales - [2013] NSWWCCPD 45

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Paabo v State Rail Authority of New South Wales [2013] NSWWCCPD 45
APPELLANT:	Hellart Paabo
FIRST RESPONDENT:	State Rail Authority of New South Wales
SECOND RESPONDENT:	Pacific National (NSW) Pty Limited
FIRST RESPONDENT’S INSURER:	QBE Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER:	Asciano Services Pty Limited t/as Pacific National
FILE NUMBER:	A1-4354/12
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	28 March 2013
DATE OF APPEAL DECISION:	30 August 2013
SUBJECT MATTER OF DECISION:	Boilermakers’ deafness; claim for lump sum compensation for further loss of hearing; when worker first aware of receipt of injury; notice of claim; whether failure to claim within time excused because of ignorance; s 261 Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr L Morgan instructed by Carroll & O’Dea
First Respondent:	Mr P Perry instructed by Moray & Agnew
Second Respondent:	Mr D Saul instructed by Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1. Orders 1, 2 and 3 of the Arbitrator’s determination of 28 March 2013, are confirmed. 2. Order 4 is revoked and the following order made in its place: “4. The applicant’s failure to make a claim within the time required by s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was occasioned by ignorance of his rights and obligations under the legislation and is therefore not a bar to the recovery of compensation pursuant to s 261(4) of the 1998 Act.” 3. Order 5 is revoked and the following orders made in its place: “5. An award for the first respondent in respect of the claim for lump sum compensation. 5A. The claim for lump sum compensation against the second respondent is remitted to the Registrar for referral to an Approved Medical Specialist for assessment to assess the applicant’s claim for binaural hearing loss with a deemed date of injury of 22 May 1998.” 4. Order 7 is revoked and the following orders made in its place: “7. The second respondent is to pay the applicant worker’s costs. A 30 per cent uplift for complexity pursuant to Sch 6 Pt 2 Table 4 Item 4 of the Workers Compensation Regulation 2010 is certified for the costs of all parties. 8. The first respondent is to pay its own costs.” 5. The second respondent is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST. The first respondent is to pay its own costs.

INTRODUCTION

This appeal concerns a claim for lump sum compensation for an injury that is a further loss of hearing of such a nature as to be caused by a gradual process, alleged to have been caused by his employment with the first and second respondents between 1992 and 1998 (s 17(1) of the Workers Compensation Act 1987 (the 1987 Act)). The main issue in dispute focuses on the notice of claim provisions in s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Compensation cannot be recovered unless a claim for compensation has been made within six months after the injury or accident happened (s 261(1). If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is, for the purposes of s 261, taken to have been received “when the worker first became so aware” (s 261(6)).
The failure to make a claim within the time required by s 261 is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause and the claim is made within three years after the injury or accident happened, or the claim is not made within three years but is in respect of an injury resulting in death or serious and permanent disablement of the worker (s 261(4)).
The issues before the Arbitrator concerned when the worker became aware that he had received his injury, whether he claimed compensation within six months of that date and, if not, whether his failure to claim within time was occasioned by ignorance, mistake, absence from the State or other reasonable cause. It is conceded that his employment was employment to the nature of which his injury was due (s 17(1)(a)(i)).
Mr Paabo has worked as a train driver for virtually all his adult life. For the purpose of this claim, his employment may be divided into three periods:
(a)     between March 1960 and 30 June 1996, when he worked for the first respondent, State Rail Authority of New South Wales (SRA);
(b)     between 1 July 1996 and 22 May 1998, when he worked for the second respondent, originally known as Freight Corporation (FreightCorp), but later known as Pacific National (NSW) Pty Ltd, and
(c)     between February 2001 and February 2011, when he worked for National Rail Corporation Ltd (National Rail), which was later acquired by Asciano Ltd trading as Pacific National (Asciano). At all material times, National Rail (in its various corporate forms) was insured under the Commonwealth workers compensation scheme.
It is apparent from the above summary that, due to various name changes and/or corporate takeovers, discussed in more detail below, the exact legal identity of Mr Paabo’s employer has changed over the years and that the name Pacific National has been used to cover several different legal entities. However, it is not disputed that, however they are described, for the period covering the present claim, that is, from 1992 to 1998, Mr Paabo was employed by the first and second respondents.
The first respondent conceded that Mr Paabo’s employment with it was employment to the nature of which the injury was due. While the second respondent did not make that concession, it called no evidence to the contrary.
In or about March 2009, Mr Paabo made a claim for lump sum compensation (the details of which are not in evidence) in respect of his hearing impairment on his then employer. On 17 March 2011, that claim was rejected on the ground that it fell below the statutory impairment threshold under the relevant Commonwealth legislation, namely, the Safety, Rehabilitation and Compensation Act 1998 (Cth) (SRC Act).
On 8 and 9 September 2011, after receiving legal advice, Mr Paabo made a claim against the first and second respondents, for the lump sum compensation under s 66 of the 1987 Act (that is, under the NSW legislation) for his injury due to his employment between 1992 and 1998. Both the respondents were insured under the New South Wales workers compensation legislation. Both disputed his claim on the ground that it had been made outside the time limit in s 261 of the 1998 Act.
The Arbitrator found that Mr Paabo became aware he had received an injury on or about 16 March 2009, and that, as he did not claim compensation within six months of that date, as required by s 261(1), his claim was statute barred. The Arbitrator was not satisfied that Mr Paabo’s failure to claim within time was occasioned by ignorance, mistake, absence from the State or other reasonable cause and he made awards in favour of both respondents.
Before setting out the background material in detail, it is important to note a preliminary matter. Normally, where a worker is still employed in employment to the nature of which the injury was due, the injury is deemed to have happened at the time the notice was given. However, as at 16 March 2009, Mr Paabo’s employer was insured under the Commonwealth scheme. As a result, applying Lennon v TNT Australia Pty Ltd [2013] NSWCA 77 at [43], he acquired an entitlement under the 1987 Act on the last day of his employment with the second respondent. This unusual result follows because, even if his injury is taken to have occurred while National Rail was insured under the Commonwealth scheme, his entitlement under the NSW legislation is preserved by s 108A(7)(b) of the SRC Act.

BACKGROUND TO THE APPLICATION

Mr Paabo, was employed by first respondent as a freight train driver from March 1960 until 30 June 1996.
On 11 April 1984, Dr Sharrod, chief medical officer for SRA reported that Mr Paabo had submitted to an audiogram which confirmed a hearing loss of 12.3 per cent in the left ear and 15.8 per cent in the right ear. This resulted in a payment of compensation to Mr Paabo.
After a further hearing assessment in May 1991, Mr Paabo received a letter from SRA dated 14 January 1992 confirming that he had suffered a further compensable binaural hearing loss of 5.94 per cent. A cheque for the sum of $3,783.78 in favour of Mr Paabo was attached. The evidence suggests that Mr Paabo did not seek legal advice in respect of either of the payments he received in 1984 or 1992.
On 30 June 1996, SRA was reconstituted into several separate corporations. Its freight division, where Mr Paabo had been employed for many years, became a separate corporation, Freight Corporation otherwise known as FreightCorp.
From 1 July 1996, Mr Paabo was employed by FreightCorp. He continued working in freight operations, performing the same duties as he had performed for SRA, until he accepted a voluntary redundancy in May 1998.
On a date not disclosed in the evidence, after Mr Paabo left FreightCorp’s employment it changed its name to Pacific National (NSW) Pty Limited, the second respondent. To clarify the correct identity of the parties, I convened a teleconference on 28 August 2013, and Mr Macken, solicitor for Pacific National (NSW) Pty Limited, assured me, with the concurrence of the other parties, that the correct position is as outlined above, hence the amendment referred of the second respondent’s name made at the arbitration (see [58] below).
Both SRA and FreightCorp were insured for workers compensation purposes under the New South Wales state legislation.
In February 2001, Mr Paabo re-entered the workforce and was employed by National Rail Corporation Ltd (National Rail) as a train driver. He remained so employed until his retirement in February 2011, aged 71 years. National Rail was insured for workers compensation purposes under the SRC Act.
Subsequently, National Rail and FreightCorp were acquired by Asciano Ltd (Asciano), which trades as Pacific National. It is not clear from the evidence when this amalgamation occurred, but that is of no consequence. I understand that, after the amalgamation, Mr Paabo was employed by Asciano. At all relevant times, National Rail, and its successor in title, Asciano, were insured under the SRC Act.
On 2 March 2001, Dr Euan Watson prepared a pre-employment medical examination, prior to Mr Paabo’s employment with National Rail (as it was then known), recommending a “conditional pass” but noting that Mr Paabo suffered from 29 per cent hearing loss. It is not known if a copy of the assessment was made available to Mr Paabo.
Dr Watson again assessed Mr Paabo’s health on 22 March 2002. This included a screening audiogram. A handwritten notation on the audiogram indicated Mr Paabo suffered a hearing loss of 20.6 per cent at that time.
A further medical assessment was undertaken by Dr Watson on 5 June 2003. This included a repeat audiogram, which indicated a hearing loss of 30 per cent at that point.
On 29 March 2004, Mr Paabo submitted to a further medical assessment by Dr Lee which again included a repeat audiogram. The assessment records a handwritten notation “32% hearing loss.”
On 29 January 2007, Dr T Pincock, prepared a report to Dr G Kelghery, whom I infer was the worker’s general practitioner at that time, reporting that he had seen Mr Paabo for follow up that day. He had a repeat pure tone audiogram by Philip Newall after probing of his ears and the removal of a significant amount of wax two weeks earlier. Dr Pincock stated that this resulted in Mr Paabo’s hearing threshold being boosted enough to get him within the range for workplace safety guidelines.
On 27 February 2008, Mr Greg Nicholl, a clinical audiologist, reported to Dr Novakovic. He stated that Mr Paabo had been referred to the Norwest hearing clinic for audiological assessment. He noted that Mr Paabo was tested in January 2007 by Professor Philip Newall for an assessment of the worker’s compliance with occupational health and safety regulations in relation to his employment as a train driver. He said that Mr Paabo had been identified as having a bilateral sensorineural mild to severe hearing loss.
After reporting on a pure tone audiometry and tympanometry tests Mr Nicholl concluded that Mr Paabo’s hearing loss did not meet the criteria for an unconditional licence to drive trains as prescribed by the relevant medical standards. He added that a conditional licence may be granted for one year by the licencing authority taking into account the opinion of an ears, nose and throat specialist (ENT specialist) and the nature of the driving task subject to periodic review, or if the standard is met with a hearing aid.
Mr Nicholl confirmed that Mr Paabo’s hearing loss was consistent with a loss due to exposure to excessive noise “(occupational and/or recreational)”. He recommended that Mr Paabo be fitted with hearing aids and that he wear hearing protection if possible. The evidence does not disclose if Mr Paabo was made aware of the contents of the report.
On 6 February 2009 Dr Kenneth Howison, an ENT specialist, prepared a report addressed to Christine Payne, the workers compensation administrator of Pacific National (ACT) Pty Ltd (a self-insurer under the Commonwealth system). He acknowledged that Mr Paabo had been referred to him at Ms Payne’s request. He carried out an audiometry on 3 February 2009. He noted that he explained to Mr Paabo that the report was an independent medico-legal examination “and a report will be prepared and used in the assessment of his case”.
Dr Howison recorded an employment history which included the fact that Mr Paabo was suffering from 29 per cent binaural hearing loss when he commenced employment. He said that Mr Paabo explained to him that during his employment he was exposed to engine noise and the noise of shunting. He said that he was unable to use ear protection because of the need to maintain radio contact.
From Mr Paabo’s description of the noise, Dr Howison stated that Mr Paabo’s work exposed him to noise of a nature sufficient to be responsible for the condition of industrial deafness. He noted that Mr Paabo had been aware of his hearing impairment for many years and gave no history of any recreational noise exposure. He assessed that Mr Paabo suffered from binaural high tone sensorineural noise induced deafness of 32.7 per cent which equated to a whole person impairment of 16.3 per cent. He recommended bearing aids be provided.
Dr Howison assessed Mr Paabo’s hearing impairment as follows:
“•     The current hearing loss is 32.7 per cent.
·        The percentage of whole person impairment is 16.3 per cent.
·        The hearing impairment on pre-employment audiogram was 29 per cent, which is 88.7 per cent of the current hearing impairment of 32.7 per cent.
·        The remaining percentage of 11.3 per cent is the percentage of whole person impairment to be compensated.
·        11.3 per cent of whole person impairment of 16.3 per cent equals two per cent.”
On a date which has not been identified in the evidence, but which must have been shortly prior to 16 March 2009, Mr Paabo made a claim on his then employer for lump sum compensation for “industrial deafness” and for the provision of hearing aids relating to his deteriorating hearing. I have assumed that Mr Paabo claimed compensation for a further loss of hearing due to his exposure to noise with National Rail (or its successor in title, Asciano) up to the date of the claim. However, save for the details in the letter of 16 March 2009, there are no other particulars in evidence about this claim. The claim was treated as a claim under SRC Act. That is, as a claim under the Commonwealth legislation.
On 16 March 2009, Mr Paabo received a letter from Ms Payne. It states:
“I am writing to you regarding you claim for workers compensation in respect of, ‘Industrial Deafness’.
Pacific National (ACT) is licensed as a self-insurer for its workers’ compensation claims and will be managing your claim in accordance with the Commonwealth Safety, Rehabilitation and Compensation Act 1998 (the Act).
Terms of Decision
On the basis of the evidence currently available to me I am satisfied that you sustained an injury/illness, namely ‘Industrial Deafness’ which was contributed to in a material degree by your employment. Further in accordance with section 7(4) of the Act, the date of your injury is deemed to be 1^st December 2008, that is, the date on which you first obtained medical treatment for your injury (or the first date on which you were incapacitated due to your injury or impairment).
Therefore, in accordance with section 14(1) of the Act, I determine that Pacific National is liable to pay compensation for that injury/illness.
In accordance with section 16(1) of the Act, Pacific National is liable for the payment of all reasonable costs incurred in obtaining medical treatment, including hearing aids, for this injury. Any medical expenses that you reasonably and necessarily incur relating to this injury will be paid by cheque to the medical provider of the services or as a reimbursement to you.
Your entitlement to permanent impairment will be advised to you in a separate determination.
Reasons For the Decision
1. In order for compensation benefits to be payable, I must be satisfied on the balance of probabilities that you sustained an injury being an ailment, namely ‘Industrial Deafness’, which has been contributed to in a material degree by your employment with Pacific National. I have relied on the opinion of the ENT Specialist, Dr Kenneth Howison, in making a decision and find that the evidence presently available indicates that the disease was contributed to in a material degree by your employment.
2. I therefore determine that Pacific National is liable to pay compensation in respect of this compensation claim.
Please find enclosed a document titled ‘Notice of Rights’, explaining your rights relating to Pacific National’s decision.
If you wish to discuss this matter or need any help or advice concerning your claim, please contact your local Rehabilitation Case Manager…”
On 24 March 2010, Mr Paabo was reviewed at the Norwest ENT clinic. His progress audiogram remained essentially unchanged. His ears were toileted and cleaned.
On 17 March 2011, Rolf Raymond, the workers compensation administrator of Asciano Services Pty Ltd t/as Pacific National (also a licensed self-insurer under the Commonwealth system), wrote to Mr Paabo in reference to his claim for workers compensation in respect of “industrial deafness”. Though not expressly stated, it is tolerably clear that this letter relates to the claim made by Mr Paabo in or about March 2009. Mr Raymond said that Mr Paabo was not entitled to compensation under the SRC Act on the basis that Dr Howison had assessed his additional hearing impairment at two per cent whole person impairment, which was less than the 10 per cent impairment threshold requirement for the payment of lump sum compensation for hearing impairment.
Also on 17 March 2011, Mr Raymond wrote to Mr Paabo’s solicitors, White Barnes. The letter attached a copy of the “Comcare Jurisdictional Policy Advice” and confirming Mr Paabo’s “non-entitlement” to permanent impairment as his assessed impairment fell below the 10 per cent statutory threshold under the Commonwealth.
On 23 March 2011, White Barnes wrote to Pacific National stating that they acted for Mr Paabo “in relation to injury of 1 December 2008”. The letter referred to Pacific National’s letter of 16 March 2009 to Mr Paabo noting that it foreshadowed an offer of compensation would be forthcoming in relation to his claim for permanent impairment compensation. The letter said that Mr Paabo had not received such a communication and that, from enquires by White Barnes, it seemed that the “determination has not been completed”.

On 24 March 2011, White Barnes wrote to Pacific National in relation to the “decision of 17 March 2011” stating “the method by which you have assessed our clients [sic] permanent impairment is not correct” and requesting that the decision be reviewed.
On 10 May 2011, Mr Paabo lodged an Application for Review of Decision in the Administrative Appeals Tribunal in reference to Pacific National’s decision of 17 March 2011. The Application was subsequently withdrawn and was not further pursued.
On 23 August 2011, Dr Peter Noyce, an ENT specialist, prepared a report addressed to Mr Scott Dougall, Mr Paabo’s solicitor at White Barnes, having examined Mr Paabo on 17 August 2011. He explained to Mr Paabo that the purpose of the examination was for an independent medico-legal examination with regards to a workers compensation claim. Mr Paabo reported progressive hearing loss over the previous 10 to 15 years particularly in background noise such as in restaurants or watching television. He recorded Mr Paabo’s previous claims and noted that there was no history of any exposure to noise from hobbies or recreational pursuits. Dr Noyce recorded Mr Paabo’s work history details and details of his medical examination and audiological assessment.
Dr Noyce assessed that Mr Paabo suffered 39.9 per cent binaural hearing loss which equated to a whole person impairment of 19.95 per cent. If the binaural hearing loss is calculated in accordance with Dr Howison’s approach the loss would equate to a binaural hearing loss of 45.4 per cent and the same whole person impairment of 19.95 per cent.
Dr Noyce finally concluded:
“Mr Paabo has a permanent bilateral high tone sensorineural deafness due to acoustic trauma from loud noise in the work environment. His hearing loss is permanent and would not be fixed by medical or surgical treatment and has reached maximum medical improvement. Mr Paabo would benefit from fitting of bilateral hearing aids.
Using the NAL 1998 tables for the frequencies from 500 to 4000 cps inclusive, Mr Paabo had a BHL in 2001, immediately prior to his employment with Pacific National, of 32 per cent. At the end of his employment with Pacific National in 2011 Mr Paabo had a BHL of 39.9 per cent. Mr Paabo suffered a BHL of 7.9 per cent while working for Pacific National. A BHL of 7.9 cent equates to a whole person impairment of 3.95 per cent.”
On 26 August 2011, Mr Dougall wrote to Mr Paabo advising him of his rights following the receipt of Dr Noyce’s report. He informed Mr Paabo that, as at 2 March 2001, he had suffered a further 11.06 per cent binaural hearing loss (how Mr Dougall arrived at that figure is unexplained but not critical to the issues on appeal). This, he said, was a loss attributable to Mr Paabo’s employment with State Rail Authority/Rail Corp and, if Dr Noyce’s opinion was accepted, Mr Paabo would be entitled to compensation of $7,189.00. (The reference to Rail Corp was incorrect and should have been a reference to FreightCorp, but nothing turns on that error).
Mr Dougall also advised that Dr Noyce had assessed Mr Paabo to have suffered 3.95 per cent impairment attributable to his employment with Pacific National. He advised that that loss was insufficient to satisfy the threshold for compensation under the Commonwealth legislation and recommended that, based on Dr Noyce’s opinion, a claim should be lodged for industrial deafness with Rail Corp and the claim for permanent impairment against Pacific National should be discontinued (this was presumably a reference to the proceedings in the Administrative Appeals Tribunal).
On 8 September 2011, Mr Dougall wrote to the workers compensation officer at Asciano Services Pty Limited (Asciano Services), a licensed insurer under the Commonwealth legislation, claiming compensation under ss 66 and 67 of the 1987 Act on behalf of Mr Paabo. The letter attached a completed permanent impairment claim form, which sought compensation for “further binaural hearing loss” of 11.06 per cent based on the reports of Dr Noyce of 23 August 2011 and Dr Watson of 2 March 2001. The claim identified a date of injury of May 1998.
On 9 September 2011, Mr Dougall wrote to “Railcorp/Staterail [sic] Authority”, also claiming benefits under ss 66 and 67 of the 1987 Act on behalf of Mr Paabo. The claims made and the documents relied upon were identical to those relied upon in the claim addressed to Asciano Services.
On 16 September 2011, Mr Dougall wrote to “Pacific National (formerly Freightcorp)”. This was also a letter in the form of a letter of demand seeking compensation pursuant to ss 66 and 67 of the 1987 Act on the same basis as that referred to in the letter of 8 September 2011.
On 20 September 2011, Asciano Services replied to White Barnes. It asserted that the claim had been incorrectly made against Asciano and returned the claim form noting that the claim was based on Mr Paabo’s entitlements under the 1987 Act, for which it could not be held liable. It also noted that the proceedings in the Administrative Appeals Tribunal had recently been dismissed.
On 27 September 2011, Mr Dougall, again wrote to “Pacific National (formerly Freightcorp)” asserting that the claim had been made pursuant to the New South Wales workers compensation scheme with respect to Mr Paabo’s employment with “Freightcorp/Pacific National” to May 1998.
On 11 October 2011, Asciano Services wrote to White Barnes solicitors again rejecting the claim on the basis that Mr Paabo had never been employed by FreightCorp, stating that his prior employment was with SRA in 1996 and subsequently with Rail Corp until he went into retirement. (It was conceded by counsel at the hearing that this statement was incorrect and that Mr Paabo had been employed by FreightCorp to May 1998 and that FreightCorp became Pacific National (NSW) Pty Ltd, the second respondent.)
In contravention of s 74 of the 1998 Act neither respondent issued a notice to the claimant providing a concise statement of the reasons for disputing liability.
On 8 May 2012, Mr Paabo lodged an Application to Resolve a Dispute (the Application) with the Commission. On 23 August 2012, he lodged an amended Application to Resolve a Dispute. He claimed $7,189 in respect of 11.6 per cent binaural hearing loss against both respondents. He claimed the loss was due to being exposed to a loud, noisy environment during the course of his employment with both respondents during a discrete period of employment between Mr Paabo’s last claim for compensation in 1992 and his voluntary retirement in May 1998.
On 18 May 2012, “Pacific National (formerly FreightCorp)” filed a Reply to the Application to Resolve a Dispute. It alleged that if the worker were found to be employed by it (which is disputed) leave would be sought to dispute liability on the basis of the claim “not having been made in accordance with the time required by the Act”.
On 6 September 2012, SRA filed a Reply. It accepted that there was a failure to determine the claim and sought leave to dispute the claim for the following reasons:
(a)     it was not an employer who employed the worker in employment to the nature of which the injury is due at the relevant time for the purposes of s 17 of the 1987 Act;
(b)     the claim for further lump sum compensation had not been duly made against it, as required by s 65 of the 1998 Act, and
(c)     the claim was received by it after 19 June 2012 and was subject to the amendments to ss 66 and 67 arising from the Workers Compensation Legislation Act 2012.
On 12 March 2013, the matter came before a Commission Arbitrator for an arbitration hearing. All parties were represented by counsel. No oral evidence was called. The Arbitrator reserved his decision. At the arbitration hearing, the description of the second respondent was amended, by consent, to “Pacific National (NSW) Pty Ltd”.
On 28 March 2013, the Arbitrator determined the matter in favour of the respondents on the grounds that Mr Paabo had become aware he had sustained an injury on 16 March 2009 but had failed to make a claim in accordance with the provisions of s 261(1) which could not be excused under either s 261(3) or (4). He delivered a Statement of Reasons on the same date.
In a Certificate of Determination dated 28 March 2013 the Commission determined:
“The Commission determines:
1. The second respondent was the last employer who employed the applicant in an employment to the nature of which the injury, namely sensorineural hearing loss, was due for the purposes of section 17(1)(a)(ii) of the Workers Compensation Act 1987. The deemed date of injury is 22 May 1998.
2. The applicant became aware that he sustained an injury on 16 March 2009 in accordance with section 261(6) of the Workplace Injury Management and Workers Compensation
Act 1998.
3. A notice of claim was not duly made on the respondents in accordance with section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998.
4. The applicant is excluded from relying on section 261(3) and section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998.
The Commission orders:
5. Award for the respondents in respect of the claim for lump sum compensation.
6. No order in respect of the claim for medical expenses. Liberty to the parties to file written submissions within 14 days.
7. No order as to costs. I certify a 30 per cent uplift for complexity for the respondents pursuant to Schedule 6 Part 2 Table 4 Item 4 of the Workers Compensation Regulation 2010 due to the issues arising from this claim.”
Mr Paabo appeals the Arbitrator’s determination.

PRELIMINARY MATTERS

There is no dispute that the threshold requirements as to quantum in s 352(3) of the 1998 Act have been met.
However, notwithstanding statements to the contrary in the Application Appeal against Decision of Arbitrator, the requirement that the appeal be lodged within 28 days of the making of the decision appealed against, as provided by s 352(4), has not been met. The last day for the appeal to be filed within time was 26 April 2013.
The appellant seeks an order extending the time for the making of this appeal. The circumstances are somewhat unusual. Although the appeal documents stated that the matter was filed within time and all the parties accepted that to be the case, it did not emerge until the hearing of the appeal that the application was, in fact, out of time. As the parties were ready to proceed on the day, I permitted argument to proceed on the merits of the appeal subject to orders for the filing of submissions in relation to the extension of time application. I have now been provided with submissions on that issue from all parties.
The discretion to extend the time for the making of an appeal is governed by sub-r 12 of Pt 16 r 16.2 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) which provides:
“(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.”
In support of the application Mr Scott Dougall, swore an affidavit on 17 July 2013. Mr Dougall’s affidavit provides a chronology of the events leading up to the appeal.
On 28 March 2013, the Arbitrator’s Certificate of Determination and Statement of Reasons was issued.
Good Friday fell the following day, 29 March and Easter Monday was 1 April 2013.
Mr Dougall states that to the best of his inquiries, the decision was received in his office on 3 April 2013 and was forwarded immediately to his client and counsel, Mr Morgan. An advice was sought from Mr Morgan, among other things, on the merits of an appeal from the Arbitrator’s decision.
Instructions to appeal the Arbitrator’s decision were received from the applicant on 19 April 2013. Mr Dougall was on annual leave from 22 April to 29 April 2013.
Mr Morgan prepared a chronology and submissions in support of the appeal and these were forwarded to Mr Dougall’s office on 24 April 2013.
By emails dated 24 April 2013, (within time) a chronology and the appellant’s submissions were served on the solicitors for the first and second respondent and were forwarded to the Commission.
Upon his return from annual leave on Monday, 29 April 2013, Mr Dougall noticed that the formal documentation, being a Form 9 Application Appeal against Decision of Arbitrator had not been filed. A Form 9 was prepared and filed that day which was registered in the Commission on 30 April 2013, four days out of time.
Mr Dougall stated that the document registered on 30 April 2013 referred to the need for an extension of time to be dealt with as a threshold issue. The submissions prepared by Mr Morgan that was served prior to the expiration of the time limit did not.
In their Notices of Opposition to the Appeal, neither respondent raised compliance with s 352(4) as a threshold issue.

Mr Paabo’s submissions on the application to extend time

Mr Morgan, counsel for Mr Paabo submitted that “exceptional circumstances” are not a pre-condition to an extension of time but it is a matter that is required to be considered in the exercise of the discretion under Pt 16 r 16: Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159.
The absence of “exceptional circumstances” is not necessarily fatal to the exercise of the Commission’s discretion.
The discretion to extend time is to enable the Commission to do justice between the parties. The discretion may only be exercised in favour of an applicant upon proof that 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 to extend time: Department of Education and Communities v Layton [2012] NSWWCCPD 2; citing with approval: Gallo v Dawson [1990] HCA 30; 93 ALR 479 (Gallo).
Mr Morgan submitted based on the authority in ING Administration Pty Limited v Singh [2008] NSWWCCPD 48 (Singh), that given the submissions and chronology were forwarded to the Commission within time, there is no need to extend time.
Every effort was made by the appellant’s solicitor to put the Commission and the respondents on notice that the appeal was contemplated and indeed the relevant documentation setting out the grounds of appeal and chronology was served on 27^th day following the decision. The formal documentation, however, was not forwarded to the Commission until 29 April 2013 when Mr Dougall returned from vacation. This, it is submitted, is prompt action taken to rectify the issue once the absence of formal documentation was noted: see Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2007] NSWWCCPD 161.
The respondents made no submissions in opposition to the extension of time nor pointed to any prejudice in their final oppositions in the appeal.
Mr Morgan acknowledged that mere oversight is not a ground upon which to establish “exceptional circumstances” nor is administrative oversight a bar to recovery. He submitted the following factors should be taken into account:
(a)     Mr Dougall acted immediately to rectify the formal aspects of the documentation once their absence was identified;
(b)     the appeal has raised issues which are strongly arguable and the subject of lengthy argument, before me on 2 July 2013;
(c) in accordance with sub-r 13 of Pt 16 r 16.2, the appellant notified the respondents as soon as practicable of its intention to seek an extension of time which was included in the formal documentation registered on 30 April 2013 and served on 8 May 2013, and
(d)     the absence of any objection to an extension of time in the formal opposition to the appeal filed by both respondents.
In similar circumstances to the instant case an extension of time was granted for the filing of an appeal filed six days after the expiration of the time period fixed by the Act in Kleinbergs v Central West Pathology Service [2007] NSWWCCPD 206 (Kleinbergs).
In Forests NSW v Hancock No. 2 [2007] NSWWCCPD 191 (Hancock), Snell ADP granted an extension of time in similar circumstances to the instant matter. He noted that technical non-compliance was due to the absence of a sealed Certificate of Determination being attached to the original appeal document which was filed within time. The Acting Deputy President held though this constituted exceptional circumstances within the meaning of sub-r 11 of Pt 16 r 16.2 which enlivens the discretion to extend time. He noted citing Gallo that strict compliance with the rules would work an injustice.
Mr Morgan argues that substantial injustice would be worked upon a worker employed in 38 years of constant exposure to the noisy environment as a train driver if he is held out of his availability to pursue what is a very arguable case with respect to his entitlement to be compensated with respect to noise induced hearing loss occasioned by his employment as a train driver. In Ljubicic v Akora Holdings Pty Ltd [2007] NSWWCCPD 160, it was held that where an appellant lost the right to appeal in circumstances in which he would succeed if leave were granted, would give rise to a demonstrable and substantial injustice.

First respondent’s submissions

The first respondent submitted that the application seeking leave to hear the appeal out of time is a matter to be determined by the Commission.

Second respondent’s submissions

The second respondent submitted that the reason for the extension of time application not being addressed in its Notice of Opposition was because the appellant’s submissions incorrectly asserted that the appeal had been filed within time.
The appellant properly concedes that administrative oversight does not constitute exceptional circumstances. As the only reason the appeal was filed out of time was administrative oversight, exceptional circumstances are not established.
The second respondent submitted that the appeal is without merit for the reasons submitted at the hearing and in its written submissions and that failure to extend time would not result in substantial injustice, or indeed any injustice, such that the discretion should not be exercised to extend time in any event.

Consideration

The appellant concedes that the failure to the lodge the formal appeal documentation within the time prescribed by s 352 was due to administrative oversight by Mr Paabo’s solicitor. The appellant also readily concedes that administrative oversight is not a ground upon which to establish “exceptional circumstances”. As that is the only ground upon which the appellant relies, it follows that exceptional circumstances are not established.
However, the question of whether strict compliance with the time limits would work an injustice, must also be considered.
In Gallo, McHugh J observed that the following factors are relevant to that inquiry:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or the refusal of the application to extend time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)     the fact that, upon inquiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
Although the requirements of s 352(4) were not complied with within the time stipulated, the respondents were on notice within time of the appellant’s intention to proceed with an appeal and the grounds and reasons relied upon. Neither of the respondents has sought to argue any prejudice arising from the formal appeal being lodged out of time.
Notwithstanding Mr Paabo’s solicitor’s administrative oversight, he did act promptly to rectify the omission once it was discovered.

For reasons I shall come to in due course, I am of the view that the Mr Paabo has strong prospects of succeeding on the appeal. In the circumstances to refuse the application for an extension of time would work a demonstrable and substantial injustice on Mr Paabo. For these reasons I am of the view that the application to extend time should be granted. This is consistent with the approach previously adopted by the Commission in Singh, Kleinbergs and Hancock. In addition, as the submissions were served on the respondents on 24 April 2013, there can be no prejudice to the respondents, nor have the respondents submitted they are prejudiced.
For the reasons given I order that the time for the lodging of the appeal be extended to 30 April 2013.

THE EVIDENCE

Mr Hellart Paabo’s evidence

Mr Paabo provided two statements. The first is a signed statement dated 20 February 2012. The second, a supplementary statement, is unsigned and undated.
Mr Paabo’s evidence relevant to the issues on this appeal may be summarised as follows. He commenced employment with SRA as a trainee. He initially worked as a cleaner, acting fireman, fireman and was subsequently appointed as a driver. At a point in time which has not been identified, he was sent to Dubbo in New South Wales where he worked on steam trains. He states this was extremely noisy work. From 1963 he worked in the Sydney area.
Mr Paabo states that he was exposed to the noise of running engines and to the loud noise associated with shunting, particularly wagons. He was also exposed to the noise of preparing engines which is performed whilst the engines were running. The noise to which he was exposed was constant and went throughout the entirety of the shift. He was unable to wear hearing protection due to the need to be in constant radio contact. In order to speak to co-workers Mr Paabo stated that he needed to get very close to them and raise his voice in order to be heard. He states that it was impossible to have a normal conversation whilst the trains were operating, and added “the noise to which I was exposed was the same whilst I worked on the railways irrespective of the employing entity I worked for”.
Whilst he was employed by SRA, Mr Paabo was sent for regular checks by it with respect to his hearing. He recalls that on two separate occasions he was sent a letter in the mail and a cheque representing compensation for hearing losses sustained at work. These cheques were prompted by complaints made by him to his supervisors that he was struggling to hear at work which resulted in him being tested and subsequently compensated for his hearing losses. He did not receive any legal advice when those claims were made and resolved.
On 5 March 1984, Mr Paabo resolved a claim for permanent impairment compensation for loss of hearing on the basis of 12.3 per cent loss of hearing in the left ear and a 15.8 per cent loss of hearing in the right ear.
On 14 January 1992, he received compensation for a further 5.9 per cent binaural hearing loss.
On or about 30 June 1996, SRA was split into three corporations. Mr Paabo said that the freight rail division where he worked became Freight Corporation otherwise known as ‘FreightCorp’. A separate entity concerned with infrastructure was established which became known as Railway Services Authority and fixed and real assets were transferred to a third entity Rail Access Corporation.
On 1 July 1996, Mr Paabo’s employment was transferred from SRA to FreightCorp. His accrued entitlements and seniority remained intact and were transferred from one entity to the other. The work that he performed was the same with FreightCorp as it was with SRA.
Mr Paabo ceased employment with FreightCorp on 22 May 1998 when he accepted a voluntary redundancy. He was retired for a few years but became bored and returned to the workforce. He recommenced employment with National Rail (which later became Asciano t/as Pacific National) from February 2001 and remained so employed until he ceased work permanently in February 2011.
Prior to commencing employment with National Rail, Mr Paabo had a pre-employment medical examination, which included a hearing test. It demonstrated loss of hearing of 29 per cent. The examination was conducted on 2 March 2001 at a doctor’s surgery in Kitchener Parade, Bankstown. He recalled being told by the examiner that his hearing was “not flash”. Mr Paabo stated that he was aware that his hearing was not good and noted that he had been compensated for hearing loss in the past. There is no evidence about whether Mr Paabo was advised of the outcome of the assessment, or whether he was aware of any further loss in 2001.
During the course of his employment with National Rail, Mr Paabo’s hearing deteriorated and it was causing problems with respect to his employment in terms of whether or not he had a sufficiently safe level of hearing to continue in his job.
In 2007, Dr Pincock cleaned Mr Paabo’s ears, retested him and found him fit to continue working.
On 27 February 2008, Mr Paabo’s general practitioner, Dr Novakovic, referred him to an audiologist Mr G Nicholl. Mr Paabo said that, following receipt of a report from Mr Nicholl, Dr Novakovic informed him that if hearing aids were fitted he would be fit to continue to drive trains.
On 3 February 2009, Mr Paabo was assessed by Dr Howison, an ENT specialist, at the request of the “Pacific National Workers Compensation Unit.” As a result of the assessment by Dr Howison, Pacific National (ACT) Pty Ltd agreed to pay for hearing aids which Mr Paabo said were not effective.
Mr Paabo said that at about this time, which I infer is around February 2009, he became concerned that his hearing had deteriorated as a result of his employment. Prior to ceasing work with National Rail in February 2011, he sought advice from his union and was referred to Mr Dougall at White Barnes solicitors.
Mr Paabo said he recalled receiving a letter from Pacific National on 17 March 2011 stating that, based on Dr Howison’s assessment, he was not entitled to compensation as his hearing loss was under the relevant threshold imposed by the Commonwealth legislation. (Presumably this is the letter from Mr Raymond of 17 March 2011 (see [36] above).)
On 23 August 2011, Mr Paabo was assessed by Dr Noyce, an ENT specialist, at the request of his solicitor Mr Dougall. Mr Paabo stated:
“It was not until after I saw Dr Noyce and he made his report available to Mr Dougall that I was told by Mr Dougall that I may have suffered deterioration in my hearing between 1992 and 1998 and that I might be entitled to make a claim for compensation against either the State Rail Authority or Freightcorp.”
Mr Paabo added:
“I had not been aware at any stage prior to this particular point that I suffered deteriorated in my condition due to the employment with SRA/Freight Corp between 1992 and 1998.”

THE ARBITRATOR’S REASONS AND DECISION

The Arbitrator identified the issues in dispute:
(a) as against SRA: whether a claim was duly made under s 261 of the 1998 Act, and whether it was the last noisy employer to have employed the worker, and
(b) as against the second respondent: whether a claim was duly made under s 261 of the 1998 Act, whether the second respondent was a noisy employer and, alternatively, whether it was the last noisy employer to have employed the worker.
The Arbitrator’s reasons relevant to the issues in dispute may be summarised as follows.

When did the applicant become aware that he had sustained an injury?

While the Arbitrator discussed the possibility that Mr Paabo became aware that he had received an injury in 2001 or 2004, he ultimately concluded (at [77]–[78]) that Mr Paabo first became aware that he had suffered an injury in the form of sensorineural hearing loss that had been contribute to by his employment as a train driver when he received Ms Payne’s letter on or about 16 March 2009.

When should the claim have been made?

The Arbitrator noted that the notice of claim should have been made under s 261(1) or s 261(6) of the 1998 Act within six months of 16 March 2009. However, this was subject to the provisions of s 261(3) and s 261(4) of the 1998 Act.
He rejected Mr Morgan’s submission that, by operation of s 261(3) of the 1998 Act, the claims previously made on SRA and FreightCorp were subsumed by the second respondent when it acquired the interests of FreightCorp.
He said that s 261(3) relates to claims for single injury that could give rise to various entitlements such as weekly compensation, lump sum compensation or a claim for medical expenses, it does not relate to liability arising from an earlier injury.

Failure to claim due to ignorance, mistake, absence from the state or other reasonable cause

The Arbitrator was satisfied that Mr Paabo could not rely on s 261(4)(a) of the 1998 Act to excuse the requirement to bring a claim within six months of 16 March 2009 because:
(a)     Mr Paabo’s statements were silent as to why he did not seek legal advice following the hearing tests in 2001 and 2004, or after he was contacted by Asciano Services on or about 16 March 2009. He did not comment about his state of knowledge in the six months after 16 March 2009 or in the six months after he saw his solicitor for the purposes of the claim that was made on Asciano;
(b)     his statements were silent as to whether he was ignorant of his rights under the 1998 Act or whether he lacked knowledge of the claims procedure and the time limits for making a claim;
(c)     there was no evidence to suggest that Mr Paabo did not seek advice or instruct his solicitor to make a claim on his behalf because he was under some mistaken impression about his injury or entitlements;
(d)     there was no evidence as to why a claim was not made on the respondents at the time the claim was made on Asciano in March 2011 [sic 2009], and
(e)     he was not absent from the State and no other reasonable explanation was put forward other than he did not realise that he had suffered a deterioration and did not realise he had an entitlement to make a claim for lump sum compensation until his solicitor advised him in August 2011.

Claim for medical expenses

Although a claim for medical expenses was included in the Application, the claim was not quantified. Further, no notices of claim for medical expenses were served on the respondents, there were no quotes for the hearing aids attached to the Application and there was no evidence that full particulars of the claim for medical expenses were provided to the respondents.
As neither counsel made submissions in relation to the issue, the Arbitrator made no order in respect of the claim for medical expenses and gave the parties liberty to file written submissions within 14 days.

ISSUES ON APPEAL

In contravention of Practice Note 6 the appellant’s grounds of appeal have not been clearly stated.
However, from the written submissions filed and counsel’s oral submissions, the issues for determination on appeal concern whether the Arbitrator erred:
(a)     by finding that the worker first became aware he had suffered an injury (hearing loss) on 16 March 2009;
(b)    in the alternative, failing to find that the worker first became aware that he had suffered an injury when he submitted to an independent medio legal assessment and sought legal advice in 2011;
(c)     by failing to find that the worker made a claim for compensation on 16 March 2009;
(d)     by failing to find that any failure by the worker to claim within time, was occasioned by ignorance, mistake or other reasonable cause, and
(e)     by failing to refer a claim for the provision of hearing aids pursuant to s 60(5).

SUBMISSIONS

Mr Paabo’s submissions

When Mr Paabo became aware he had received an injury

Where an injured worker, such as Mr Paabo, first becomes aware that he or she received an injury, the injury is taken to have been received when the worker first became so aware: s 261(6) of the 1998 Act.
The Arbitrator found that Mr Paabo first became aware that he had suffered an injury in the form of sensorineural hearing loss, which had been contributed to by his employment as a train driver, on or about 16 March 2009. Mr Morgan of counsel, who appeared for Mr Paabo, submitted that the Arbitrator erred in making that finding and submitted that the correct finding was that Mr Paabo first became aware that he had suffered an injury in 2011, when he was advised by his solicitor of Dr Noyce’s opinion.
Ms Payne’s letter of 16 March 2009 acknowledged that Pacific National had received a claim from Mr Paabo “for workers compensation in respect of industrial deafness”. At its own initiative, Pacific National determined to deal with that claim under the SRC Act. It accepted liability and made arrangements for the applicant to be examined by Dr Howison.
Mr Morgan submitted that, as the Arbitrator found that Mr Paabo first became aware of his injury on 16 March 2009, and given that Pacific National had conceded the receipt of a claim on 16 March 2009, that should have resulted in a finding that s 261 was satisfied.
In the alternative, Mr Morgan submitted that for the purposes of s 261(3) of the 1998 Act a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of an injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
By an admission contained in the correspondence of 16 March 2009, Pacific National had received a “claim for compensation” but had chosen to deal with it under the Commonwealth legislation. The reference in s 261(3) is to “any claim for compensation in respect of the injury” and, as a result, a claim for compensation for the purposes of s 261(1) had been made. The Arbitrator erred in failing to so find.
In the alternative, on the facts of this case Mr Paabo could not be said to have had the requisite knowledge for the purposes of s 261(6) until he was examined by an ENT specialist and given legal advice as to the consequences of such assessment.
Mr Paabo could not have had the requisite knowledge that his employment, between May 1992 (i.e. after his second compensation claim) and his redundancy on 22 May 1998, had caused an injury being a “further loss of hearing” in circumstances where he continued in noisy employment until 2011 (albeit with a break between May 1998 and February 2001). It was not until 2011, that medical specialists were able to identify those parts of the particular employment, if any, that gave rise to any “further loss of hearing” (Inghams Enterprises).
When sent for medical assessment before recommencing employment in 2001, Mr Paabo indicated on his pre-employment questionnaire that his hearing was “ok”. The various hearing tests to which he submitted were of dubious benefit as they “recorded” wildly varying results being binaural losses of 29 per cent in 2001 down to 20.6 per cent in 2002, then 30 per cent in 2003 and 32 per cent in 2004. Dr Howison assessed 32.7 per cent in 2009 and Dr Noyce 32 per cent in 2011.
Testing conducted at the request of the employer as above could not be such as to impart the requisite knowledge to a worker that he had sustained what was a further loss of hearing and it was attributable to his employment between 1992 and 1998.
If it were accepted that Mr Paabo knew that his hearing was deteriorating, it is more credible that he would have attributed it to his employment from 2001 to 2009 rather than deterioration during the remote period of employment between 1992 and 1998. Pacific National Pty Limited v Schattler [2011] NSWWCCPD 73 is distinguishable on the facts. The matter was compounded by the confusion as to who Mr Paabo’s employer was at the point leading up to his redundancy in 1998.

Ignorance, mistake, other reasonable cause

Mr Morgan submitted that mistake was not touched on by the Arbitrator, but mistake in bringing a claim under the Commonwealth scheme is clearly evident in the correspondence.
The Arbitrator dismissed “other reasonable cause” in circumstances where the identity of the periods of employment, the identity of the employer and the relevant scheme that responded remained, in part, unclear until the hearing before the Arbitrator began.
On the facts of this case, it is unclear as to who was responsible for the injury and who the relevant person or entity was against whom the worker was entitled to make a claim.
In a beneficial scheme, regard should be had to the employer’s own conduct in transferring the worker’s employment between various legal entities when analysing what amounts to “ignorance, mistake or reasonable cause”. Even though the worker effectively worked for the same employer from 1961 to 2011, it was difficult, even for the employer, to identify who employed the worker at any particular point.

Serious and permanent disablement

An allegation made in the written submissions, that the failure to claim within time could be excused under s 261(4) of the 1998 Act on the basis of serious and permanent disablement, was abandoned at the hearing of the appeal.

Provision of hearing aids

The Application included a claim pursuant to s 60(5) for hearing aids. All medical examiners commented on the need for same.
The Arbitrator erred in not referring the matter to an Approved Medical Specialist (AMS) to assess the entitlement to same.

SRA’s submissions

SRA submitted that the Arbitrator’s findings with respect to date of injury, notice of injury, date of the claim, and his findings with respect to serious and permanent disablement should be confirmed. SRA adopted and relied on the second respondent’s submissions.
With respect to the claim for the provision of hearing aids SRA submitted that the Arbitrator’s preliminary view that the claim had not been duly made should be confirmed. The claim had not been quantified nor has any quotation or medical evidence outlining costs involved been provided. The letters of demand passing between the worker’s solicitors and the respondents seek only compensation in respect of the hearing impairment. In these circumstances the claim has not been duly made in accordance with ss 260 and 282 of the 1998 Act.

Second Respondent’s submissions

When was Mr Paabo aware he received an injury?

The Arbitrator’s findings with respect to when Mr Paabo first became aware of his injury in the form of sensorineural hearing loss, being a date on or about 16 March 2009, was correct.

When did Mr Paabo make his claim?

The appellant’s argument on appeal that Mr Paabo made a claim for compensation on the second respondent on 16 March 2009 was not argued before the Arbitrator hence the Arbitrator cannot be found to have fallen into error.
At the arbitration, Mr Morgan argued that Mr Paabo was not aware at any stage or given any legal advice with respect to his rights or entitlements concerning his hearing loss before he saw his solicitor Mr Dougall in 2011 (T8.15).
Mr Paabo’s submission before the Arbitrator that his claim against SRA was somehow deemed to have been made against the second respondent by virtue of ss 261(3) and 261(8), was properly rejected by the Arbitrator as having “little merit” (Reasons at [82]).

Can the failure to make a claim within time be excused: s261(4)?

The onus of proof contained in s 261(4) rests with Mr Paabo.
The Arbitrator correctly found:
(a)     that the worker’s statements are silent as to why he did not seek legal advice following hearing tests in 2001 and 2004 or after he was contacted by Asciano Services on or about 16 March 2009;
(b)     Mr Paabo’s statements are silent as to whether he was ignorant of his rights or whether he lacked the requisite knowledge;
(c)     there was no evidence as to why a claim was not made on the respondents at the same time as the claim was made on Asciano in March 2011, especially in light of Dr Howison’s report;
(d)     Mr Paabo was not absent from the State and no other reasonable explanation has been put forward other than he did not realise that he suffered from deteriorating hearing, and
(e) whilst there may have been uncertainty as to his employer, no evidence has been put forward by Mr Paabo or his solicitor that might reasonably explain why there was a failure to comply with s 261(1).

For the reasons outlined above Mr Paabo failed to discharge the onus under s 261(4) to prove that he is excluded from the operation of s 261(1), if it is found that the claim was made within three years after the injury happened or the worker first became aware of the injury.

CONSIDERATION

Legislation

Section 261 of the 1998 Act provides:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     …
(8)     …
(9)     …”

When did Mr Paabo first become aware that he had sustained an injury?

I agree with the respondents’ submissions that the Arbitrator was correct to find that Mr Paabo was aware on 16 March 2009 that he had received an injury. That was the date of the letter from Ms Payne referred to at [34] above. That correspondence confirmed, among other things, that his employer was satisfied:
“that you sustained an injury/illness, namely ‘industrial deafness’ which was contributed to in a material degree by your employment.”
This evidence provided a sound basis for the Arbitrator’s conclusion on this issue and, in light of it, Mr Morgan’s submission that Mr Paabo did not become aware that he had suffered a work related injury until 2011, when he sought legal advice, must be rejected.
Moreover, Mr Paabo acknowledged that, after seeing Dr Howison in 2009, Asciano agreed to pay for hearing aids which were provided to him. He said in his evidence that it was around this time that he became concerned that his hearing had deteriorated as a result of his employment with National Rail (or its successor in title, Asciano). Thus, he was aware on or about 16 March 2009 that he had received an injury.

When was the claim made?

At the arbitration, Mr Morgan submitted that Mr Paabo had not become aware of his injury until he sought legal advice in 2011. He submitted that Mr Paabo’s claim was submitted within six months of receiving that advice and was therefore in time. On appeal, however, he sought to advance an alternative argument that was not agitated before the Arbitrator.
He argued that, if it is accepted that Mr Paabo became aware that he had sustained an injury as found by the Arbitrator in March 2009, then the provisions of s 261(1) were satisfied because the correspondence of 16 March 2009 demonstrates that a claim had been made shortly prior to that date. In circumstances where no such argument was put to the Arbitrator, the submission that the Arbitrator erred in not making that finding cannot be sustained. An Arbitrator cannot fall into error by failing to deal with an issue that was never argued: Brambles Industries Ltd v Bell [2010] NSWCA 162.
Given the terms in which the letter of 16 March 2009 from Ms Payne to Mr Paabo is couched, the only reasonable inference available, which is the inference I draw, is that it responded to a claim made under the SRC Act, not under the NSW Workers Compensation Acts. Given that, by then, Mr Paabo had been employed by National Rail (and its successors in title), for some eight years, the claim probably concerned a claim for loss of hearing sustained during the course of his employment with that employer, which would have fallen for determination under the SRC Act, and is an entirely different claim to the claim the subject of these proceedings. This is consistent with the way in which Mr Raymond responded to the claim, that is, as a claim under the SRC Act. It is also consistent with Mr Paabo abandoning the claim (and the subsequent proceedings in the Administrative Appeals Tribunal) when it became apparent that the impairment as assessed by Dr Howison was insufficient to satisfy the threshold of the lump sum compensation under the SRC Act. There is no evidence to support the submission that the claim made on or about March 2009 was a claim under the New South Wales legislation.
I reject Mr Morgan’s submission that the claim made by Mr Paabo in March 2009 satisfies the provisions of s 261(3) of the 1998 Act because Mr Paabo was considered to have made a claim for compensation when he made “any claim for compensation” in respect of the injury concerned. No reasoned argument or authority was advanced to support the submission. “Compensation” is defined in s 4 of the 1998 Act “means compensation under the Workers Compensation Acts and includes any monetary benefit under those Acts”. For the reasons given, there is no evidence that Mr Paabo made a claim for compensation under the Workers Compensation Acts in 2009.
Section 261(3) of the 1998 Act is concerned with a different issue, namely whether claims for particular compensation benefits that would otherwise be considered to be out of time, might be saved in circumstances where a claim for a different benefit type in respect of the same injury was made within time. That is not the case in this matter.
For these reasons the Arbitrator’s finding that a claim was not made on the respondents until 8 September 2011, which was outside the six months’ time limit prescribed by s 261(1) but within the time prescribed by s 261(4)(a) of the 1998 Act, was correct.

Can the failure to claim within time be excused?

In Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 (Gregson). Burke CCJ considered the meaning of “ignorance” under s 65(13) of the 1989 Act, which is in similar terms as s 261(4) of the 1998 Act. His Honour held:
“the ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
His Honour’s comments were applied and followed by the Commission in Westlake v Sydney Sympthony Orchestra Subscribers Committee [2009] NSWWCCPD 12 at [61]–[62], Irvin v LA Logistics Pty Ltd [2011] NSWWCCPD 23 and Inghams Enterprises at [93].
Whilst the Arbitrator found (at [85]), that Mr Paabo indicated he had not received any legal advice in regard to his obligation to report injuries or when to report them, his finding that Mr Paabo’s statements were silent as to whether he was ignorant of his rights under the 1998 Act, or whether he lacked knowledge of the claims procedure and the time limits involved for making a claim for hearing loss, was contrary to Mr Paabo’s evidence.
Mr Paabo stated that it was not until he sought advice from his solicitor, Mr Dougall, following the assessment by Dr Noyce, that he became aware that he may be entitled to bring a claim either against the first respondent or the second respondent in respect of the further loss of hearing in the discrete period between 1992 and 1998 (see paragraph [111] of this decision). He went on to say that he was not aware at any stage prior to the receipt of that advice that he had suffered deterioration in his hearing due to his employment with either the first respondent or the second respondent between 1992 and 1998.
For the same reason, the submissions by counsel for both respondents to the effect that Mr Paabo’s statements were silent on the issue of his state of knowledge are also wrong. The submission by Mr Saul that, although there is uncertainty as to the identity of his employer at various points, there was no evidence put forward by Mr Paabo, or his solicitor, that might reasonably explain the failure to comply with s 261(1) of the 1998 Act, is rejected for the reasons stated above.
The Arbitrator’s finding (at [85]) was not open on the evidence and was an error. Accordingly, the finding by the Arbitrator (at [91]) that Mr Paabo was unable to rely on the provisions of s 261(4)(a) of the 1998 Act must be revoked and re-determined. As there was no oral evidence called, and there is no issue as to Mr Paabo’s credit, I am in as good a position as an Arbitrator to conduct that redetermination and none of the parties objected to that course.
Mr Paabo’s evidence about the state of his knowledge in or about February/March 2009 is entirely consistent with the evidence in relation to the manner in which his earlier claims were dealt with. When he complained to SRA about his hearing, he was sent for hearing assessments. Following such assessments in 1984 and again in 1992 he was sent a letter in the mail regarding the outcome of the assessments and a cheque representing compensation for hearing losses sustained at that point. He did not seek or obtain legal advice on either of those occasions. Nor did he do so in 2009.
The Arbitrator’s observation (at [84]) that Mr Paabo’s statements were silent as to why he did not seek legal advice following the hearing tests in 2001 and 2004, or after he was contacted by Asciano on or about 16 March 2009, was not to the point. The critical fact is that he was unaware of his rights and obligations under the legislation until he received advice from Mr Dougall in August 2011 (see [111] and [112] above). That is, it was not until he received appropriate legal advice, based on expert evidence from Dr Noyce, that he was aware that he was entitled to claim against the respondents.
Similarly, with respect to the claim in March 2009, I note that the correspondence at that time was between Pacific National (ACT) Pty Ltd and Mr Paabo. There is no evidence that he was at that time legally represented or that he had obtained legal advice. The response from Pacific National (ACT) Pty Ltd stated that Mr Paabo’s claim had been accepted and that his “entitlement to permanent impairment will be advised to you in a separate determination”. It made no reference to the statutory impairment threshold or any other impediment to the acceptance of his claim. It stated that liability had been accepted.
The first reference to a solicitor acting on behalf of Mr Paabo appears to be around March 2011. This is about the same time that Mr Paabo was notified, for the first time, that his claim had been rejected. Why it took Pacific National (ACT) Pty Ltd two years to finally process Mr Paabo’s claim has not been explained, however, the compelling inference is that this was a significant factor leading to the delay in making his claim under the 1987 Act. Mr Paabo acted promptly in obtaining legal advice when advised by Pacific National (ACT) Pty Ltd that his claim was rejected, notwithstanding its earlier advice to the contrary.
I accepted Mr Paabo’s unchallenged evidence that he was not aware of his right to bring a claim under the 1987 Act for the further loss of hearing relating to his employment during the discrete period between 1992 and 1998, until after he saw Dr Noyce and obtained advice from his solicitor. This occurred between 23 and 26 August 2011. It was not until late August 2011, that Mr Paabo became aware of his rights and obligations with respect to claims for compensation for hearing loss. It follows that, up to that point, Mr Paabo was “ignorant” of his rights and obligations deriving from the 1998 Act (Gregson).
For these reasons the Arbitrator’s finding that Mr Paabo could not rely on the provisions of s 261(4) was wrong. Mr Paabo has discharged the onus of proof that his failure to make his claim within six months of 16 March 2009 was occasioned by his ignorance of his rights and obligations under the 1987 Act. Therefore, in accordance with the provisions of s 261(4), as the claim was made within three years of Mr Paabo first becoming aware of his injury, his failure to make the claim within time is not a bar to recovery.
I would add, that the circumstances in which Mr Paabo found himself, leading to his non-compliance with s 261(1), might equally be excused under the “other reasonable cause” exemption found in s 261(4). However, as that issue was not argued, I make no finding in relation to it.

Noisy Employment

SRA conceded that Mr Paabo was employed by it in employment to the nature of which his injury was due within the meaning of s 17(1)(a)(ii) of the 1987 Act. The second respondent made no such concession but offered no submissions to the contrary either before the Arbitrator or on appeal, and called no evidence on this issue.
The Arbitrator found (at [64]) that the second respondent was a “noisy employer” and that Mr Paabo had “sustained injury arising out of or in the course of [his] employment at the second respondent due to exposure to noise”. That finding was not challenged on appeal and was consistent with the evidence from Dr Noyce. In the circumstances, the Arbitrator’s finding (at [66]) that the second respondent was the last noisy employer to have employed Mr Paabo under the New South Wales scheme in employment to the nature of which the injury was due for the purpose of s 17(1)(a)(ii) of the 1987 Act was correct and is confirmed.

Claim for medical expenses

The Arbitrator found that a claim for medical expenses, namely, hearing aids, had not been duly made. The reasons for so finding are set out at [97] to [101] of his decision. The finding was challenged on appeal but no submissions were made in relation to it nor any reasoned argument or authority advanced to suggest it was an error. In the circumstances that finding is also confirmed.

DECISION

Orders 1, 2 and 3 of the Arbitrator’s determination of 28 March 2013, are confirmed.
Order 4 is revoked and the following order made in its place:
“4. The applicant’s failure to make a claim within the time required by s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was occasioned by ignorance of his rights and obligations under the legislation and is therefore not a bar to the recovery of compensation pursuant to s 261(4) of the 1998 Act.”
Order 5 is revoked and the following orders made in its place:
“5. An award for the first respondent in respect of the claim for lump sum compensation.
5A. The claim for lump sum compensation against the second respondent is remitted to the Registrar for referral to an Approved Medical Specialist for assessment to assess the applicant’s claim for binaural hearing loss with a deemed date of injury of 22 May 1998.”
Order 7 is revoked and the following orders made in its place:
“7. The second respondent is to pay the applicant worker’s costs. A 30 per cent uplift for complexity pursuant to Sch 6 Pt 2 Table 4 Item 4 of the Workers Compensation Regulation 2010 is certified for the costs of all parties.
8. The first respondent is to pay its own costs.”

COSTS

The second respondent is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST. The first respondent is to pay its own costs.

Judge Keating
President

30 August 2013

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

ASSOCIATE