Pacific National Pty Ltd v Schattler - [2011] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Pacific National Pty Ltd v Schattler [2011] NSWWCCPD 73
APPELLANT:		Pacific National Pty Ltd
RESPONDENT:		Ingo Schattler
INSURER:		Pacific National (NSW) Pty Ltd
FILE NUMBER:		A1-4728/11
ARBITRATOR:	Ms Margaret Dalley
DATE OF ARBITRATOR’S DECISION:		9 September 2011
DATE OF APPEAL DECISION:		20 December 2011
SUBJECT MATTER OF DECISION:		Notice of claim; factual error as to time worker first becomes aware that he has received injury; ss 261(1) and 261(6) of Workplace Injury Management and Workers Compensation Act 1998; adequacy of reasons.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue and Associates
Respondent:	Hanna Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 9 September 2011 is revoked, and the following orders are made in its place: “1. Award for the respondent. 2. No order as to costs of this arbitration.” No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

Ingo Schattler was employed by Pacific National Pty Ltd (the appellant) between an unspecified date in 1979 and 13 February 1999 as a car wagon assembler. Mr Schattler was subsequently employed by Sweetha International Pty Ltd (Sweetha) as a flagman between 1999 and a date in April 2004.
On 8 December 2010 notice was given to the appellant by Mr Schattler’s solicitors of a claim in respect of lump sum compensation. That claim was for $7,709.00 in respect of 11.86 per cent binaural hearing loss made pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
It appears that the appellant investigated the claim following receipt of that correspondence and arranged a medical examination of Mr Schattler by Dr J H Seymour, ear, nose and throat specialist. The claim was declined and notice of the appellant’s decision was given to Mr Schattler’s solicitors by way of correspondence dated 10 February 2011. That decision was subsequently reviewed by the appellant but the declinature was affirmed and notice was given by correspondence dated 30 May 2011. The reasons given by the appellant for disputing liability were:
(a) the claim had been made outside the statutory time limit as fixed by s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b) any assessable hearing loss was, in terms of s 69A of the 1987 Act, below the threshold fixed in respect of entitlement, and
(c) that the appellant was not the last employer to employ Mr Schattler in an employment to the nature of which the injury was due.
An Application to Resolve a Dispute (the Application) was filed on behalf of Mr Schattler with the Commission in June 2011. The Application came before Arbitrator Margaret Dalley for conciliation and arbitration on 25 August 2011. The matter proceeded to hearing and the Arbitrator, following submissions put on behalf of each party, reserved her decision. A Certificate of Determination was issued on 9 September 2011. That Certificate was accompanied by the Arbitrator’s Statement of Reasons (Reasons) in the course of which findings were made in favour of Mr Schattler. The Arbitrator’s orders are recorded in that Certificate as follows:
“The Commission determines:
1.That the applicant’s claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 be remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of the percentage of binaural hearing loss;
(a) The deemed date of injury is 13 February 1999; and
(b)The documents to be referred to the AMS are the Application and the Reply and all attached documents and the Application to Admit Late Documents filed by the respondent on 15 August 2011.
2. That the respondent pay the applicant’s costs as agreed or assessed.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

The issues in dispute raised by the appellant are whether the Arbitrator erred in the following respects:
(a)     failing to give reasons or, in the alternative, any adequate reasons for her decision;
(b)     in the manner of determining when Mr Schattler first became aware that he had received relevant injury (s 261(6) of the 1998 Act), and
(c)     in the manner of her consideration of the evidence of expert medical witnesses concerning the issue of “last noisy employment”.
The issues as summarised are taken from the appellant’s “Grounds of Appeal” which appear at [8] of submissions which accompany this appeal.

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.”
The appellant has submitted that this appeal should not be determined on the papers but “rather should be given an oral hearing before a presidential member”. No persuasive argument has been provided in support of that submission. A transcript (T) of the proceedings before the Arbitrator has been produced and provided to each party. That transcript records submissions advanced by counsel at the hearing. Each party has provided submissions concerning the matters raised on appeal. Those submissions include supplementary argument forwarded by the appellant’s solicitors under cover of correspondence addressed to the Commission dated 6 December 2011.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me and following consideration of the appellant’s argument which seeks a hearing, 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. I note that Mr Schattler consents to the matter proceeding in that manner.

THRESHOLD MATTERS

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

THE ARBITRAL PROCEEDINGS

The documentary evidence tendered by the parties before the Arbitrator is summarised at [5] of Reasons. That material included all documents attached to the Application and those attached to the Reply. An order had been made by the Arbitrator concerning the admission of the clinical records of Dr Stylis which had been tendered as late documents by the appellant.
The appellant was granted leave at the hearing to cross-examine Mr Schattler. That oral evidence is recorded between T9 and T26.
The issues for determination were noted by the Arbitrator at [3] of Reasons as follows:
“3. The parties agree that the following issues remain in dispute:
(a)Whether notice has been given for the claim [sic] under ss 61, 17(1)(b) and/or s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
(b)Whether the claim is out of time under s 261 of the 1998 Act.
(c)Whether the applicant has established the respondent was a noisy employer under s 17 of the Workers Compensation Act 1987 (the 1987 Act).
(d)Whether the respondent was the last noisy employer under s 17(1)(a)(ii) of the 1987 Act.”
The manner in which the Arbitrator has recorded the “issues for determination” is, to an extent, confusing. In [3(a)] reference is made by the Arbitrator to notice concerning “the claim under ss 61, 17(1)(b) and/or s 254 [of the 1998 Act]”. It is reasonably clear that the Arbitrator intended to note that, among the matters in dispute, was an assertion that notice of injury had not been given in accordance with the relevant provisions of the legislation. That question was not a matter raised by the appellant in its notices concerning its dispute of Mr Schattler’s claim. No objection was taken by Mr Schattler to the inclusion of this matter as being in dispute. Notwithstanding the provisions of s 289A of the 1998 Act, the proceedings were conducted upon the basis that notice of injury had been disputed. The Arbitrator ultimately found in favour of Mr Schattler concerning this matter and, it is convenient to note at this point, no challenge on this appeal has been made to the Arbitrator’s findings concerning the alleged failure to comply with the requirement concerning notice of injury.

Mr Schattler’s evidence

A statement by Mr Schattler dated 4 May 2011 was in evidence. He stated that he was employed as a car wagon assembler by the appellant “from around 1979 until 13 February 1999”. During that employment he had been “exposed to loud noise” which involved metal to metal hammers, changing wheels and wheel sets, performing repairs on freight vehicles and exposure to noise from surrounding boilermakers and carpenters. Mr Schattler stated that he was exposed to noise generated by those activities “on a daily basis, usually eight (8) hours per day, five (5) days per week, over a period of approximately twenty (20) years”.
Mr Schattler stated that he had been employed as a flagman with Sweetha between 1999 and April 2004. He had not been exposed to any loud noise during that employment. He has been in receipt of a carer pension since 2004.
Mr Schattler further states that in July 2010 he attended National Hearing Care, Wollongong (NHC) and underwent a hearing test. Following that test he was advised that he suffered “significant hearing loss”.
A number of days following the hearing test, Mr Schattler had been contacted by Hanna Lawyers at which time he was “given some legal advice regarding my potential entitlement to compensation arising from my hearing loss”. Mr Schattler stated that during that conference he was advised “for the first time that my hearing loss may be related to noise at work and that, as a result, I may be entitled to claim for compensation and hearing aids”. Mr Schattler stated that this was the “first time I have ever been advised that I might claim for compensation for my hearing loss”.
Mr Schattler relied on the evidence of Dr S C Stylis, ear, nose and throat surgeon, found in reports dated 18 November 2010 and 24 January 2011. The first of those reports noted Mr Schattler’s employment history. It was recorded that he was at first employed by the appellant as a boilermaker’s assistant, at which time he was “actively involved in the striking of metal with metal hammers” and was “involved in the repair and fashioning of freight vehicles”. His duties altered after a brief course of retraining and he became a “wagon assembler” which work generated noise and he was surrounded by other tradesmen including carpenters and wagon builders “in the shed making noise as well”. There were also six boilermakers working in the one shed.
Dr Stylis recorded Mr Schattler’s employment between the years 1999 and 2004 with Sweetha. It was noted that he was “mainly involved in setting up protection for people working on the rail line”. That work involved the laying down of detonators. Dr Stylis noted “he was not really exposed to any noise”.
It was recorded that Mr Schattler had been aware of some hearing impairment “over the last four or five years”. An audiogram was conducted and Dr Stylis included an assessment of permanent hearing impairment being corrected binaural hearing impairment of 11.86 per cent due to exposure to industrial noise. A copy of the audiogram conducted on 18 November 2010 was enclosed with the report. Dr Stylis expressed the opinion that Mr Schattler required hearing aids.
The second report of Dr Stylis was addressed to the appellant. That report was in response to correspondence received from the appellant seeking elucidation of certain matters in the earlier report. Dr Stylis rejected a suggestion made by the appellant that there was “a large difference between each ear” concerning hearing impairment.
Correspondence dated 8 December 2010 from Mr Schattler’s solicitors to the appellant which enclosed a “notice of injury” and included a claim made pursuant to s 66 of the 1987 Act for $7,709 in respect of 11.86 per cent binaural hearing loss was in evidence. That correspondence included a copy of Dr Stylis’s report dated 18 November 2010. The notice of injury nominated the “date of last day of employment” with the appellant as being “1999”.
A copy of correspondence dated 10 February 2011 from the appellant to Mr Schattler’s solicitors was in evidence. That correspondence gives notice disputing the claim made with respect to lump sum compensation. The appellant placed reliance upon the provisions of s 261 of the 1998 Act concerning the requirements as to notice of claim. The correspondence enclosed a copy of a report from Dr J Seymour, ear, nose and throat medicolegal consultant, dated 31 January 2011. In that report Dr Seymour assessed Mr Schattler’s binaural hearing loss as being 3.2 per cent. The appellant, relying upon that assessment, disputed Mr Schattler’s claim upon the basis of the provisions of s 69A of the 1987 Act, that is that the threshold for recovery had, in Dr Seymour’s opinion, not been attained and thus there was no entitlement to compensation. The correspondence also records that Mr Schattler’s last day of employment was 13 February 1999. It is accepted by the appellant in that correspondence that that last date of employment “is the deemed date of injury”.
In evidence was correspondence dated 30 May 2011 from the appellant to Mr Schattler’s solicitors which followed a review of the decision to reject the claim. The appellant’s original decision was affirmed. That correspondence reiterates that reliance was placed upon the provisions of s 69A of the 1987 Act concerning thresholds and s 261 of the 1998 Act which concerns the requirement to give notice of claim. An additional reason for rejection of the claim was raised in that correspondence being a denial that the appellant was “the last noisy employer on risk”. It was asserted in the correspondence that Mr Schattler’s employment with Sweetha was, relevantly, noisy.
The report of Dr Seymour enclosed with the earlier correspondence recorded Mr Schattler’s employment history. Exposure to noise experienced by Mr Schattler whilst working for the appellant is noted. Mr Schattler’s employment with Sweetha was also noted and Dr Seymour recorded “he worked at a distance from the track workers and was not exposed to any continuous or significant noise”. The results of an audiogram conducted at Dr Seymour’s request were recorded and it was noted that the results demonstrate a binaural hearing loss of 3.2 per cent. The history recorded by Dr Seymour included a notation that Mr Schattler had “noted deafness for more than 12 years”.
In his oral evidence before the Arbitrator, Mr Schattler was questioned concerning the history of hearing difficulty recorded by Dr Stylis and as recorded by Dr Seymour. He agreed that he told Dr Stylis that he had experienced hearing difficulties for four or five years but that he could not “really remember” telling Dr Seymour that he had such difficulties for a period of twelve years. He stated in evidence that such problems had been experienced for four or five years. When pressed in cross-examination Mr Schattler said that he “probably did say” to Dr Seymour that he had experienced such problems for 12 years.
When questioned concerning work conditions at Sweetha, Mr Schattler stated that his work conditions were not “noisy”. He had been exposed to some noise being that of trains passing on the railway tracks. He stated that he very rarely experienced detonators being ignited. It was stated that he had experienced such detonations “maybe two or three times” whilst working with Sweetha and that he was “500 yards away from where they’re going off”.
Mr Schattler agreed with a suggestion that he did not tell either Dr Stylis or Dr Seymour about the ignition of detonators.
Mr Schattler agreed that he informed Dr Stylis that he had thought he had received compensation for hearing loss in the past, but had been corrected by Dr Stylis who informed him that the compensation which he received had been in respect of an injury to his knee. Mr Schattler, in the course of questioning, stated that he thought that he had received payment in respect of hearing loss.
Mr Schattler stated in evidence that whilst employed by the appellant he had undergone a hearing test arranged by his union and that he was “told that my hearing was not high enough – my hearing loss was not high enough for – to make – to claim on but he sent it in anyway. He sent in the form anyway for request [sic]”.
In re-examination Mr Schattler stated that he had not, whilst employed by the appellant, made a claim for hearing loss and that the reason for not so claiming was that “I didn’t know I had a claimable amount until they told me”.

The appellant’s evidence

The documentary evidence relied upon by the appellant which was attached to its Reply included the report of Dr Seymour dated 31 January 2011 and correspondence addressed to Mr Schattler’s solicitors dated 30 May 2011, each of which had been tendered on behalf of Mr Schattler.
The late documents admitted by the Arbitrator upon the appellant’s application included a copy of a Direction for Production addressed to Dr Stylis requiring production of “all records, correspondence, medical history cards, notes, documents, medical reports, medical certificates, clinical notes, x-rays, x-ray reports relating to Ingo Schattler of 3 Rosewood St Albion Park NSW 2527”. The balance of the documents included an information sheet relating to Mr Schattler’s examination by Dr Stylis, correspondence from Mr Schattler’s solicitors to Dr Stylis dated 29 October 2010 and correspondence from Dr Stylis to Mr Schattler’s solicitors dated 25 November 2010. It is clear that the records as produced were likely deficient. No issue was taken concerning the response to the Notice.

Submissions before the Arbitrator

The appellant argued:
(a) that compensation was not payable given that Mr Schattler had failed to give notice of injury and notice of claim as is required by ss 254 and 261 of the 1998 Act, and
(b) that Mr Schattler had not proven that the appellant was his last relevantly “noisy employer”.
Mr Schattler argued that:
(a) the evidence established that he first became aware that he had received an injury when advised in 2010 and was thus entitled to the benefit of s 261(6) of the 1998 Act and is excused from not making a claim earlier. It was made clear that Mr Schattler’s case was that he first became relevantly aware in July 2010 and that a claim had been made within six months in compliance with the legislation. It was expressly stated by counsel that no reliance was placed upon the provisions of s 261(4) of the 1998 Act, and
(b) reliance was placed upon the evidence of Mr Schattler concerning the frequency of exposure to noisy conditions whilst working with the appellant to establish that it was that employment which was the last relevantly noisy employment. That evidence, it was argued, needed to be considered along with the evidence of Dr Stylis concerning the noise levels generated by the activities described by Mr Schattler. It was put that the argument that Sweetha was the last relevantly noisy employer was a “red herring”.
I note in passing that no argument was advanced with respect to the appellant’s submission that Mr Schattler had failed to give notice of injury as required by the legislation.

The Arbitrator’s decision

The Arbitrator referred to the evidence of Mr Schattler, Dr Stylis and Dr Seymour in determining whether Mr Schattler had established that the appellant had employed him in employment to the nature of which the relevant injury was due. The evidence of those witnesses concerning noise levels and the likely effect, in the views of both Dr Stylis and Dr Seymour, of such exposure, was accepted by the Arbitrator. A finding was made that “the employment with [the appellant] was of a type to give rise to a risk of boilermaker’s deafness” (at [18] of Reasons). The appellant’s arguments which suggested that Mr Schattler’s employment with Sweetha was relevantly noisy were rejected. The Arbitrator proceeded (at [28] of Reasons) to find that the appellant was Mr Schattler’s last employer “in work to the nature of which the injury was due and therefore the deemed date of injury was 13 February 1999”.

The Arbitrator proceeded to consider the arguments raised concerning a suggested failure on the part of Mr Schattler to comply with the requirements as to notice of injury and notice of claim. The Arbitrator determined that the relevant provisions concerning such notice were s 61(1) of the 1987 Act and s 261 of the 1998 Act. The Arbitrator, following a summary of the evidence, concluded at [42] that Mr Schattler:
“was unaware he had an injury in terms of the legislation until informed by the hearing laboratory in July 2010. It was not possible for Mr Schattler to give notice of an injury earlier as he did not know he had suffered an injury which could or should be notified. Notice was therefore given as soon as possible. Nor was it possible for him to make a claim until he was aware that he had suffered an injury for which a claim could be made, under the legislation.”
The Arbitrator had earlier noted the relevance of s 17(1)(b) of the 1987 Act.
Between [43] and [47], the Arbitrator made relevant findings concerning the issues raised in the proceedings, each of which was in favour of Mr Schattler. The matter was remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of hearing loss suffered by Mr Schattler.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
It is convenient to first deal with those complaints raised by the appellant in Ground B. That ground challenges the Arbitrator’s findings concerning the questions of when Mr Schattler first became aware that he had received injury, and his compliance with the statutory requirements as to notice of claim.
It was the appellant’s argument that Mr Schattler had failed to give notice of claim as is required by s 261(1) of the 1998 Act which provides:
“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.”
It was common ground, upon an acceptance that the appellant was Mr Schattler’s last relevant noisy employer, that injury was deemed to have been received on 13 February 1999, his last day of employment with the appellant (s 17(1)(a)(ii) of the 1987 Act).
Mr Schattler accepted, in the course of his submissions, that he had given notice of claim on 8 December 2010 (at T49). He argued that the evidence established that he had first become aware that he had received injury in July 2010. In those circumstances, it was argued, his notice was within time having regard to the provisions of s 261(6) of the 1998 Act which provides:
“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.”
The Arbitrator made findings of fact which appear at [39] above. The appellant, as earlier noted, has not on this appeal challenged the Arbitrator’s findings concerning Mr Schattler’s compliance with the statutory requirements found in s 61 of the 1998 Act concerning notice of injury.
The Arbitrator found as a fact that “Mr Schattler was unaware he had an injury in terms of the legislation until informed by the hearing laboratory in July 2010.” That finding may only be set aside on this appeal in circumstances which have been conveniently stated by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston) where, in the light of relevant authority, the following was stated (at [19]):
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’”

In submissions put in reply to this appeal, Mr Schattler seeks to refute the appellant’s argument that “all of the evidence supported a determination that [he] was aware of his injury substantially prior to July 2010”. It is put that the content of his statement dated 4 May 2011 “clearly explicates the circumstance in which [he] came to realise that he had suffered a compensable injury and the circumstances in which he sought legal advice for this injury” (emphasis in original). Particular reference is made to that evidence summarised at [17] and [18] above and to his oral evidence.
The issue requiring determination by the Arbitrator was when, based on the evidence, Mr Schattler had become aware not of the existence of hearing loss, but of that loss being as a result of an injury within the meaning of that term as found in the legislation.
The Arbitrator’s finding concerning knowledge of injury was founded upon that stated by Mr Schattler at [7] of his statement. That evidence establishes only that he had been informed by NHC that he had “significant hearing loss”. It does not in my view support a finding that it was then that Mr Schattler first became aware of the injury. The Arbitrator at [38] of Reasons observed that Mr Schattler had been told, following the NHC test, that he “had industrial deafness”. That is not the evidence.
The evidence of Mr Schattler concerning his state of mind on this issue is scant. He states at [8] of his statement that his solicitor had, on 16 July 2010:
“given some legal advice regarding my potential entitlement to compensation arising from my hearing loss. During this conference I was advised, for the first time, that my hearing loss may be related to exposure to noise at work and that, as a result, I may be entitled to claim for compensation and hearing aids. This was the first time I have ever been advised that I might claim for compensation for my hearing loss”.
The only reference made by the Arbitrator to advice received by Mr Schattler from his solicitor was that an investigation concerning previous claims for industrial deafness had been made and that an examination by Dr Stylis was arranged by that firm (at [38] of Reasons).
The inference drawn by the Arbitrator concerning first awareness is not, in my view, supported by the evidence which she states was accepted by her. Having said that, it is arguable that the evidence as found at [8] of Mr Schattler’s statement, if accepted, could support an inference such as that drawn by the Arbitrator.
The evidence of Mr Schattler establishes that, until investigations made by his solicitor in 2010, he believed that he had in the past received payment of compensation from the appellant in respect of hearing loss. That belief, after investigation, was established to be wrong. However Mr Schattler’s belief as to payment for a loss is a matter separate and distinct from his awareness of receipt of injury. His belief as to payment, although mistaken, necessarily infers awareness of relevant injury. It follows that awareness of the injury may be implied as having come into being at a time earlier than July 2010 as found by the Arbitrator.
The question remains as to whether the Arbitrator’s conclusion of fact as to requisite knowledge should be disturbed on this appeal. I have earlier noted (at [51] above) that the Arbitrator has misstated the evidence concerning that which Mr Schattler was told by NHC in July 2010. I am also of the view that the Arbitrator has either overlooked the necessary inference of awareness of injury (discussed immediately above) or has given too little weight to the evidence of belief concerning earlier payment which gives rise to that inference. I am also of the view that the inference concerning relevant awareness existing at a time earlier than July 2010 is “so preponderant”, as discussed in Raulston, that the Arbitrator was wrong. In so concluding, I have taken into account the evidence found at [8] of Mr Schattler’s statement. His assertion as to first awareness occurring in July 2010 cannot be accepted in the face of the evidence earlier noted.
It is clear that the Arbitrator’s error has affected her decision and that her decision must be revoked. In all the circumstances, it is appropriate that I, on this appeal, make a new decision in its place.
The evidence is unclear as to how long a period of time Mr Schattler held the mistaken belief that he had been paid in respect of relevant injury. However, it is clear that his belief had been held for some time before his discussions with his solicitor in July 2010. It follows that his awareness of injury, as discussed above, had existed for a period exceeding the six-month period during which notice of claim was required to be made, as provided by s 261(1).
I have earlier (at [31]) noted Mr Schattler’s evidence concerning a hearing test arranged by his union. It is not to the point, in my view, to consider that evidence which suggests, by reason of s 69A thresholds (first introduced by amendment to the 1987 Act in December 1995), that Mr Schattler, at some indeterminate date, had understood he had no entitlement to compensation.
I determine on this appeal that Mr Schattler has failed to give notice of claim as required by the provisions of s 261(1) of the 1998 Act and, as a consequence, compensation cannot be recovered. The appellant is entitled to an award in its favour and appropriate orders appear below.
In the circumstances, it is unnecessary to consider those matters raised by the appellant in Ground A and Ground C. However, should I be in error in concluding that the Arbitrator’s decision was wrong, I propose to deal briefly with those matters raised in argument.
The appellant’s complaint concerning the “adequacy” of the Arbitrator’s reasons concerning her finding as to “awareness of injury” should be accepted for the reasons above stated. In the course of her reasons, the Arbitrator has to some extent misstated the evidence (see [51] above) and has failed to properly address the relevance of that evidence concerning Mr Schattler’s mistaken belief as to payment (see [56] above).
I reject the appellant’s argument that the manner in which the evidence of Dr Stylis and Dr Seymour was treated by the Arbitrator concerning employment with Sweetha demonstrates error. No doubt has been raised concerning the correctness of the histories as recorded by those expert witnesses concerning subsequent employment with Sweetha. No relevant error is demonstrated by reason of the Arbitrator’s reliance upon that evidence.
The challenge to the Arbitrator’s finding that the appellant was Mr Schattler’s “last noisy employer” (Ground C) must be rejected. I have expressed my view as to the Arbitrator’s correct treatment of the evidence of Dr Stylis and Dr Seymour immediately above. That evidence, and the evidence of Mr Schattler concerning work conditions at Sweetha was not, in my view, capable of leading to any conclusion on this issue other than that reached by the Arbitrator. Acceptance of that evidence was open to the Arbitrator and no relevant error has been demonstrated.

DECISION

The determination of the Arbitrator made in the Certificate of Determination dated 9 September 2011 is revoked, and the following orders are made in its place:
“1. Award for the respondent.
2. No order as to costs of this arbitration.”

COSTS

No order as to costs of this appeal.

Kevin O'Grady

Deputy President
20 December 2011

I, CATHRINE LOREN, 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