Pacific National Pty Ltd v Schattler

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

1. 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.

2. 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).

3. 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.

4. 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…