Pasminco Ltd v Walters
[2005] NSWWCCPD 30
•4 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Pasminco Ltd v Walters [2005] NSW WCC PD 30
APPELLANT: Pasminco Ltd
RESPONDENT: Leslie Walters
INSURER: Pasminco Ltd
FILE NUMBER: WCC 9905-2003
DATE OF ARBITRATOR'S DECISION: 8 March 2004 (amended on 5 April 2004 and further amended on 4 May 2004)
DATE OF APPEAL DECISION: 4 May 2005
SUBJECT MATTER OF DECISION: Industrial deafness; application of the Savings and Transitional Provisions; status of former section 131 of the Workers Compensation Act 1987 Medical Panel Certificate, and interest.
PRESIDENTIAL MEMBER: Acting Deputy President Michael J McGrowdie
HEARING: On the papers
REPRESENTATION: Appellant: Moray & Agnew Solicitors
Respondent: Paul J Keady & Associates Pty Ltd
ORDERS MADE ON APPEAL: The decision of the Arbitrator amended on 4 May 2004 is confirmed other than determination 4 which is revoked.
BACKGROUND TO THE APPEAL
On 5 April 2004 Pasminco Limited, formerly AC Mines Limited and Pasminco Australia Limited t/as Pasminco Mining, (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 8 March 2004, amended on 5 April 2004 and further amended on 4 May 2004.
The Respondent to the Appeal is Leslie Walters (‘the Respondent Worker’).
The Respondent Worker commenced employment with the Appellant Employer on 23 December 1988 as an underground miner in Broken Hill.
By way of letter dated 22 October 2002 from Paul J Keady & Associates Pty Ltd, solicitors, the Respondent Worker claimed lump sum compensation in the sum of $16,463.95 pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of a 28.18% binaural hearing loss from the Appellant Employer as the Respondent Worker's last noisy employer when he retired from work on 14 February 1992.
In support of that claim the Respondent Worker relied upon a report dated 27 August 2002 of Glen Carter, Audiometrist of Nationwide Hearing Services Pty Ltd which refers to a 26.18% binaural hearing loss (and not 28.18%, which was reported to be the loss in the left ear).
The Respondent Worker also claimed lump sum compensation for pain and suffering pursuant to section 67 and the costs of hearing aids pursuant to section 60 of the 1987 Act.
Contained in the letter of claim was a statement that “... we are instructed that Mr Walters has not had a prior claim for hearing loss with you or his earlier employers”.
The Respondent Worker lodged an Application to Resolve Dispute (‘the Application’) upon the basis that a decision on the claim had not been made by the Appellant Employer as a self-insurer.
The Application was registered by the Commission on 14 May 2003.
The Commission arranged for the Respondent Worker to be examined by an Approved Medical Specialist, namely Dr Raymond Carroll, on 12 September 2003.
A Reply to Application to Resolve Dispute was received by the Commission on 26 August 2003 from Moray Agnew, solicitors for the Appellant Employer and filed pursuant to an order extending the time for filing of the late Reply.
Supporting documents were lodged with the Reply and included various earlier claims for hearing loss made by the Respondent Worker as well as an agreement dated 26 June 1995 signed by the Respondent Worker to accept from the Appellant Employer the sum of $9,384.54 in respect of an 11.7% binaural hearing loss.
There is a reference in the agreement to the Respondent Worker having been medically examined on 13 May 1993 and to a certificate dated 13 May 1993.
Dr Carroll issued a Medical Assessment Certificate dated 18 September 2003 giving an assessment of binaural hearing loss of 17.6%.
An initial teleconference was conducted by the Arbitrator on 28 October 2003 at which time an agreement was reached that the Appellant Employer would pay for the cost of hearing aids. The sections 66 and 67 claims remained in issue.
The Respondent Employer furnished written submissions to the Commission by letter dated 13 November 2003.
In those submissions, the Respondent Employer stated that
“the worker commenced in the mines at Broken Hill on 4 December 1972. He became an employee of the respondent on 23 December 1988. He worked for the respondent until he was retrenched on 14 February 1992”.
It was further stated in those submissions that:
“... based on the Medical Panel assessment of 13 May 1993 (the respondent paid the worker s66 lump sum of $9,384.57 in respect of an 11.7% binaural hearing loss. The lump sum appears to have been calculated incorrectly by subtracting the non-boilermaker's deafness component of the worker's loss from the industrial deafness component as assessed by the medical panel”.
The Respondent Worker furnished written submissions to the Commission by letter dated 26 November 2003.
Reflecting a shift in the Respondent Worker's claim, it was stated in those submissions that:
“1. The applicant seeks an award of compensation in accordance with the Medical Panel Certificate dated 13 May 1993 wherein the Applicant, whilst in the employment of the Respondent in the within proceedings was assessed by the Panel as suffering a 37.1% binaural hearing loss due to industrial deafness”.
The certificate referred to in this submission is the same certificate of 13 May 1993 referred to in the agreement signed by the Respondent Worker on 26 June 1995 being a Medical Panel Certificate given pursuant to the provisions of the now repealed section 131 of the 1987 Act.
It was further submitted by the Respondent Worker:
“3. That the Panel Certificate is conclusively binding as at the deemed date of injury being the date of his last noisy employment being 14 February 1992 which date he was retrenched from the Respondent”.
Accompanying the Respondent Worker's submissions was an affidavit sworn by the Respondent Worker on 26 November 2003 whereby he deposed to the effect that he had no recollection of receiving payment of the sum of $9,384.57 from the Appellant Respondent in 1995 or at all.
Pursuant to leave granted by the Arbitrator, the Appellant Employer filed late documents with the Commission evidencing a payment by the Appellant Employer to the Respondent Worker of $9,384.57 in respect of the agreement.
THE DECISION UNDER REVIEW
Although the Appeal is made in respect of the Certificate of Determination by the Arbitrator of 8 March 2004, this certificate was amended on 5 April 2004 and again on 4 May 2004 pursuant to the slip rule.
The (Amended) Certificate of Determination of 4 May 2004 records the Arbitrator's orders as follows:
“1. That the Respondent pay the Applicant lump sum $29,757.91 pursuant to s66 of the Act in respect of 37.1% binaural hearing loss due to industrial deafness as determined by the Medical Panel Certificate issued by the Workers Compensation Court on 13 May 1993.
2. Respondent to have credit for the payment of $9,384.57 already made to the Applicant.
3. The Respondent pay the Applicant, as lump sum compensation under s67 of the Workers Compensation Act 1987, $12,500.00 in respect of pain and suffering, such sum to be apportioned as to $6,250.00 in respect of past pain and suffering and as to $6,250.00 in respect of future pain and suffering.
4. Interest is payable on the amounts in orders 1 and 3 from 26 June 1995 at the scheduled applicable rates.
5. The Application in respect of s60 of the Act expenses is discontinued by consent. [It is noted that the parties reached agreement on this aspect of the dispute.]
6. The Respondent pay the Applicant's costs as agreed or assessed”.
The Amended Decision sets forth the correct arithmetical calculations in accordance with the Arbitrator's findings as to the Appellant Worker's entitlement to compensation pursuant to section 67 and adds an order for costs which had inadvertently been omitted from the original determination.
As those amendments do not affect any issue arising for determination on the appeal, the appeal can effectively be dealt with by reference to the amended determination of 4 May 2004.
ISSUES IN DISPUTE
The issues in dispute are:
(a)Whether the Medical Panel Certificate issued pursuant to section 131 of the 1987 Act is conclusive evidence of the nature and extent of the Respondent Worker's binaural hearing loss in respect of the injury deemed to have happened on 14 February 1992 being his last day of employment in employment to the nature of which the injury was due, that is, in noisy employment.
(b)Whether the Respondent Worker had suffered binaural hearing loss due to an injury deemed to have happened prior to his commencing employment with the Respondent so that the Respondent Worker's claim for hearing loss against the Appellant Employer would only be a claim for a further loss of hearing.
(c)Whether the Medical Assessment Certificate dated 18 September 2003 issued by Dr Carroll pursuant to section 325 of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’) is conclusive evidence of the Respondent Worker's total hearing loss including any previous loss.
(d)Whether the Respondent Worker has any entitlement to compensation pursuant to section 67 and if so, the assessment of that entitlement.
(e)Whether interest is properly payable on any award.
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”.
Although the Appellant Employer has submitted that the appeal should not be determined on the papers, I am satisfied, having regard to Practice Directions 1 and 6 and the documents that are before me, that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is an appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(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.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s primary decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation in issue on appeal is both
(a) at least $5,000, and
(b) at least 20% of the amount awarded the decision appealed against.
Leave is hereby granted to the Appellant Employer to appeal against the decision of the Arbitrator.
FRESH EVIDENCE
Neither party has sought leave to give evidence on the appeal that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against.
EVIDENCE AND SUBMISSIONS
Accordingly, the evidence on appeal is the evidence that was before the Arbitrator.
The Appellant Employer submits that any entitlement to compensation that the Respondent Worker has, could at its highest, only be “... the difference between 17.1% binaural hearing loss assessed by the Approved Medical Specialist in September 2003 being $11,115 and the $9,384.50 he was paid in 1995”.
It is further submitted by the Appellant Employer that:
“There was no basis for (the Arbitrator) preferring the 1993 Medical Panel Certificate and in any event the recent AMS Certificate represented the presently binding assessment as prescribed under the present workers compensation legislation”.
In relation to compensation pursuant to section 67, the Appellant Employer submitted that such compensation, if any, could only be in respect of the hearing loss of 17.1% certified by the Approved Medical Specialist in September 2003.
In relation to interest, the Appellant Employer submits that there was no claim made by the worker and in any event no power in the Commission to award interest.
The Respondent Worker submits that even if he lodged a claim for hearing loss prior to the claim which gave rise to the 1993 Medical Panel Certificate, there is no evidence that such earlier claim resulted in a payment of compensation to the worker or an agreement by the Respondent Worker to receive compensation in respect of the loss, and accordingly any subsequent claim made by the Appellant Worker would not be for a further loss.
The Respondent Worker also submits that the 1993 Medical Panel Certificate is binding and that the Respondent Worker is entitled to receive the full measure of compensation from the Appellant Employer referable to the 37.1% binaural hearing loss with credit to be given for the moneys previously paid.
The Respondent Worker submits that the 2003 Medical Assessment Certificate is invalid.
Whilst not addressing the question of the existence of the entitlement to compensation pursuant to section 67, the Respondent Worker submits that the proper award was a matter within the discretion of the Arbitrator.
The Respondent Worker submits that he has an entitlement to interest stating that he duly made a claim in 1993 which was not paid (in whole) and that the law applicable is at the date of the Medical Panel Certificate in 1995.
DISCUSSION AND FINDINGS
In support of the submission made to the Arbitrator that the parties were bound by the Medical Panel Certificate of 13 May 1993, the Respondent Employer referred the Arbitrator to the decision of the NSW Court of Appeal in State Rail Authority of NSW v Chalker (1995) 11 NSWCCR 462.
In that case, Sheller JA with whom Handley JA agreed, stated at p467, that:
“I have no doubt that the legislative intention, as it appears from the procedure set out in s72(1) and s131, was to provide a means whereby a medical dispute could be resolved comparatively expeditiously and conclusively by an expert panel”.
Section 72 in Part 3 (Compensation - Benefits) of the 1987 Act was repealed by the Workers Compensation Legislation Amendment Act 2001 (Act No 61 of 2001) with effect from 1 January 2002.
Prior to its repeal, the effect of section 72 was to require the referral of a dispute as to the extent of any hearing loss to a medical panel under section 131 of the 1987 Act up until 1 August 1998 and thereafter, until the repeal of section 72, to a panel under section 122 of the 1998 Act.
Section 131 of the 1987 Act was repealed by the Workers Compensation Legislation Amendment Act 1988 (Act No 85 of 1988) which omitted the whole of Part 4 (Compensation - Claims and Proceedings) from the 1987 Act with effect from 1 August 1998.
Section 122 of the 1998 Act, which replaced the provisions of section 131 of the 1987 Act, essentially was in the same terms as section 131.
Section 122 is contained in Division 7 of Part 2 of Chapter 4 of the 1998 Act and only applies in respect of existing claims.
‘Existing claim’ is defined in Part 1 of Chapter 7 as “a claim for compensation that is made before the commencement of this section ...” which was 1 January 2002. However, by operation of Clause 224(1) of the Workers Compensation Regulation 2003 made under the 1987 Act, any existing claim on and from 1 April 2002, in respect of which there is no pending application for determination in the Compensation Court is to be treated as a new claim.
There was no application in this matter before the Compensation Court as at 1 April 2002 and accordingly the claim for compensation made by the Respondent Worker is a new claim.
The procedures to be followed in respect of a new claim are contained in Chapter 7 of the 1998 Act, which provides for the referral of ‘medical dispute’ for assessment by an Approved Medical Specialist who is to give an assessment certificate.
‘Medical dispute’ is defined in section 319 of the 1998 Act to include “(e) the nature and extent of loss of hearing suffered by a worker”.
Indeed, clause 4(1) of Part 18C of Schedule 6 of the 1987 Act provides that in the case of a new claim in respect of an injury received before 1 January 2001 compensation may not be awarded by the Commission if there is an impairment dispute unless the dispute has been assessed by an Approved Medical Specialist under Part 7 of Chapter 7 of the 1998 Act and an assessment certified in a Medical Assessment Certificate pursuant to the medical assessment of an impairment dispute is conclusively presumed to be correct.
In the present case the matter was referred for assessment by an Approved Medical Specialist before the existence of the section 131 Certificate came to light.
Section 131, so far as is relevant, provided for the referral of a medical dispute as between the worker and the employer to a medical panel to give a certificate providing conclusive evidence of the hearing loss due to boilermaker's deafness or any deafness of like origin. The effect of Clause 2(1) of the Savings and Transitional Provisions to Schedule 6 of the 1987 Act is to preserve a certificate given under section 131 prior to the repeal of that section.
Accordingly, the section 131 Medical Panel Certificate of 13 May 1993 continued to be conclusive evidence of the Respondent Worker's loss of hearing due to "boilermaker's deafness".
It follows that, in the absence of evidence of the certificate being void, there was no medical dispute as between the parties to these proceedings at the time of the referral to the Approved Medical Specialist, Dr Carroll.
Section 325 of the 1998 Act provides that the Approved Medical Specialist to whom a "medical dispute" is referred, is to give a certificate.
Whilst Dr Carroll did give a Medical Assessment Certificate dated 18 September 2003, it was not given in respect of a "medical dispute" that had been referred to him.
The view I take is that this certificate was of no effect as the necessary pre-requisite of there being a ‘medical dispute’ did not exist.
The Arbitrator was correct in finding that the Medical Panel Certificate of 13 May 1993 was conclusive.
Whilst the Respondent Worker may have made a claim or claims for hearing loss prior to the commencement of his employment with the Applicant Employer, there is no evidence that the Worker had been paid compensation or agreed to receive compensation from any previous employer.
Nor was there evidence of any registered agreement nor of any previously issued Medical Panel Certificate.
Accordingly, the Arbitrator was correct in determining that the Appellant Employer, being the Respondent Worker's last noisy employer, was liable to pay to the Respondent Worker compensation as assessed in accordance with the Medical Panel Certificate of 13 May 1993.
The Arbitrator allowed the Appellant Employer credit for the payment made by it in 1995 and this was entirely appropriate.
By operation of the Savings and Transitional Provisions in Part 18C of the 1987 Act, the lump sum compensation payable in respect of injuries received before 1 January 2002 is to be assessed in accordance with the provisions of Division 4 of Part 3 as in force before 1 January 2002.
Accordingly the Respondent Worker was entitled to compensation pursuant to section 66 as determined by the Arbitrator with credit for the payment made.
The Arbitrator's assessment for compensation payable pursuant to section 67 in respect of pain and suffering is clearly referable to the not insubstantial binaural loss of hearing suffered by the Respondent Worker as a result of the injury deemed to have happened on the last day of his employment with the Appellant Employer, namely 14 February 1992.
Clearly, the Respondent Worker had an entitlement to compensation pursuant to section 67 as the amount of compensation payable under section 66 exceeded the threshold for compensation under section 67 to become payable.
The compensation payable under section 67 is to be assessed by reference to a most extreme case and there is nothing to suggest that the Arbitrator has done otherwise.
After making determinations in respect of sections 66 and 67, the Arbitrator determined that interest was payable on the section 66 sum (after credit was given for the 26 June 1995 payment) and on the whole of the section 67 sum “at the scheduled applicable rates” from 26 June 1995. The Commission has power to award interest on compensation where the claim for that compensation was duly made before 1 January 1996 (section 109 of the 1998 Act and Clause 1 of Part 11 of Schedule 6 of the 1987 Act - see Banna v Email Westinghouse Pty Ltd (2000) 20 NSWCCR 474).
An entitlement to interest does not arise as of right but flows from a determination by the Commission in the exercise of its discretion. In the present case, interest was not claimed in the initial Application to Resolve a Dispute. This would not have prevented the Respondent Worker from claiming interest before the Arbitrator determined the matter (Keefe v Marks (1989) 16 NSWLR 713). However, the question of interest was not raised or dealt with in submissions and was never argued or agreed to.
Accordingly, as there was no claim for interest, there was nothing before the Commission to invoke the exercise of the discretion or any submissions concerning what matters were relevant to the exercise of the discretion.
In the circumstances, it does not seem to me that it was open to the Arbitrator to make an order for the payment of interest and therefore, the determination by the Arbitrator that interest is payable should be set aside.
DECISION
The decision of the Arbitrator is confirmed except for the following determination:
“4. Interest is payable on the amounts in orders 1 and 3 from 26 June 1995 at the scheduled applicable rates”,
which is hereby revoked.
COSTS
The determination made by the Arbitrator for the payment of interest was that interest be paid from 26 June 1995 at the scheduled applicable rates. I am not aware as to what rates the Arbitrator is referring.
Section 109 of the 1998 Act provides that the interest which the Commission may order to be paid be at such rate as the Commission thinks fit.
It might be that what the Arbitrator was referring to, was the rates of interest according to what is known as the ‘Jamberoo Schedule’. Whatever be the case, it is clear that the interest would have exceeded $5,000 and be more than 20% of the amount awarded by the Arbitrator.
Accordingly, the appeal was not ‘unsuccessful’ for the purposes of section 345 of the 1998 Act.
I consider that the appropriate order is that each party bear their own costs of the appeal. The order for costs made by the Arbitrator is confirmed.
Michael J McGrowdie
Acting Deputy President 4 May 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL McGROWDIE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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