Pasminco Ltd v Walters - [2005] NSWWCCPD 30

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Pasminco Ltd v Walters [2005] NSWWCCPD 30
Case: [2005] NSWWCCPD 30
Decision Date: 4 May 2005

CaseChat Overview and Summary

Pasminco Ltd appealed against a decision of the Workers Compensation Commission in relation to a claim made by Leslie Walters for compensation for industrial deafness. The appeal was heard by Acting Deputy President Michael J McGrowdie. The key issues for determination were whether the Medical Panel Certificate issued in 1993 was conclusive evidence of the nature and extent of the Respondent Worker's binaural hearing loss, whether the Respondent Worker had suffered binaural hearing loss prior to his employment with the Appellant Employer, the status of the Medical Assessment Certificate issued in 2003, the entitlement to compensation for pain and suffering, and whether interest was payable on the award. The Acting Deputy President found that the 1993 Medical Panel Certificate was conclusive evidence of the Respondent Worker's hearing loss, and that the Respondent Worker was entitled to compensation for pain and suffering. However, the determination that interest was payable was revoked as there was no claim for interest made before the Arbitrator. The decision of the Arbitrator was confirmed, except for the determination regarding interest, which was revoked. Each party was ordered to bear their own costs of the appeal.

Orders