Symbion Health Limited (Formerly Mayne Health Limited) v Hanshaw
[2009] NSWWCCPD 93
•7 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Symbion Health Limited (Formerly Mayne Health Limited) v Hanshaw [2009] NSWWCCPD 93 | |||||
| APPELLANT: | Symbion Health Limited (Formerly Mayne Health Limited) | |||||
| RESPONDENT: | Robert Hanshaw | |||||
| INSURER: | Symbion Health Ltd | |||||
| FILE NUMBER: | A1-010156/08 | |||||
| ARBITRATOR: | Ms J Scott | |||||
| DATE OF ARBITRATOR’S DECISION: | 15 April 2009 | |||||
| DATE OF APPEAL DECISION: | 7 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Notice of Injury and Notice of Claim; adjournment of proceedings; “Noisy” employment. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | ||||
| Respondent: | Peter Erman Solicitor | |||||
| ORDERS MADE ON APPEAL: | 1. Paragraph one of the Arbitrator’s determination dated 15 April 2009 is revoked and the following order is made in its place: “1. The applicant has received injury being loss of hearing within the meaning of section 17 of the Workers Compensation Act 1987, the deemed date of injury being 24 January 2003.” | |||||
| 2. Paragraph two is amended to delete ‘12 December 2007’ and substitute ‘24 January 2003’. | ||||||
| 3. Paragraphs three and four are confirmed. | ||||||
| 4. The appellant is to pay the worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
Robert Hanshaw (‘the worker’) was employed by Symbion Health Ltd (formerly Mayne Health Ltd) (‘the appellant’) between 21 November 1989 and 24 January 2003. During the first nine years of his employment the worker was engaged as a truck driver following which his duties were changed to that of a forklift driver. His position was made redundant in January 2003.
On 21 December 2007 the worker, through his solicitor, gave the appellant notice of injury and notice of claim in respect of alleged industrial deafness, the date of injury specified in the notice being 24 January 2003. The worker in the relevant notice claimed an entitlement to a lump sum in respect of hearing loss as well as expenses in respect of the provision of hearing aids.
The appellant disputed liability in respect of the worker’s claim and by letter dated 16 June 2008, addressed to the worker’s solicitor, particulars concerning that dispute were provided in accordance with the provision of section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The detail of that notice is addressed hereunder however it is to be noted that the correspondence enclosed by way of service a number of documents including a medical report of Dr John Seymour, ear, nose and throat medico-legal consultant, dated 26 May 2008.
Application to Resolve a Dispute (‘Application’) was filed on behalf of the worker in the Commission on 17 December 2008. The worker’s claim against the appellant was particularised as being in respect of an 8 per cent Whole Person Impairment (‘WPI’), the amount claimed being $10,000.00. There was also particularised the sum of $6,150.00 stated to be “treatment, care or related expenses incurred or needed – Binaural Hearing Aids.”
A reply to the worker’s Application was filed on behalf of the appellant on 12 January 2009. The matter came before an Arbitrator for arbitration/conciliation on 24 March 2009. At that hearing the appellant sought an adjournment of the proceedings, the grounds of which are addressed below, which application was refused. The matter proceeded to hearing and a reserved determination was delivered on 15 April 2009.
On 7 May 2009 the appellant sought leave to bring an ‘Appeal Against the Decision of Arbitrator’ against that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 April 2009 records the Arbitrator’s orders as follows:
“1. On the deemed date 12 December 2007 the Applicant suffered industrial deafness in the course of his employment with the Respondent, the last noisy employer.
2. That this matter be remitted back to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of industrial deafness as a result of the injury on 12 December 2007, in accordance with the WorkCover Guides for Evaluation of Permanent Impairment. The documents to be sent to the AMS are those accepted in the proceedings, being the Application and Reply and all attached documents, together with the clinic notes of Dr Hor and the further statement of the Applicant.
3. That the claim for medical expenses be struck out.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
A brief statement was attached to the 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 afford procedural fairness and natural justice to the appellant in the conduct of the proceedings;
(b) in her application of Section 254 and Section 261 of the 1998 Act;
(c) in her determination of the deemed date of the worker’s alleged injury;
(d) in finding that the worker had discharged the onus of proof that the appellant was a ‘noisy employer’, and
(e) in determining that the appellant was, relevantly, the last noisy employer of the worker.
The appellant makes a general submission that the task of review by a Presidential member of the Commission does not necessarily concern the identification of error on the part of the Arbitrator but that the review process concerns a determination as to what the true and correct decision of the Arbitrator should be having regard to the evidence. (Reference is made to the decision of Sapina v Coles Myer Ltd [2009] NSWCA 71(‘Sapina’).
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 in written submissions filed in support of the appeal argues that this matter should not be determined ‘on the papers’. It is put that an oral hearing is appropriate given that the matter ‘involves complex issues’. Those submissions note that at the time of the filing of the appeal a transcript of proceedings was not available. It is argued that once such transcript became available it would be ‘best addressed’ at an oral hearing. The appellant further argues that, having regard to the decision in Sapina, the nature of the review is such that a hearing is ‘required’.
The complexity of the issues raised both at the hearing and on this appeal have been fully addressed by the parties. A transcript of the proceedings before the Arbitrator (‘transcript’) is available to the Commission. That transcript records the arguments raised on behalf of each party at that time. The issues raised on this appeal have been the subject of detailed written submissions by both parties. The non-availability of a transcript has no relevance to a determination concerning the need or otherwise for an oral hearing. That is because the procedure of the Commission is such that each party to an appeal is afforded an opportunity to supplement any submissions once a transcript has become available. The appellant’s argument concerning the nature of the review process and the observations of the Court of Appeal in Sapina do not, in my view, constitute a basis to support the conduct of an oral hearing of this appeal.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, 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.
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.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is such that the threshold as specified in section 352 (2) (a) and (b) have been met.
The requirements as to time and monetary thresholds specified by the 1998 Act have been satisfied. Having regard to the arguments raised I grant leave to appeal.
EVIDENCE
The documentary evidence what was before the Commission is noted in detail at [5] of the Arbitrator’s Statement of Reasons (‘Reasons’).
The Arbitrator notes at [6] of Reasons that the worker was asked one question at the hearing which concerned his participation in an occupational health and safety induction course in 1995. It is recorded that the worker confirmed that he had undertaken that course at that time.
There were two written statements made by the worker in evidence before the Arbitrator. The first statement dated 17 October 2008 includes a description of the worker’s duties with the Appellant. During the first nine years of his employment he was driving rigid trucks which involved deliveries, mainly of steel products, from companies such as Smorgons and ARC to building sites and engineering workshops. It is stated that during the course of loading the worker would be positioned at a loading dock a matter of meters from steel producing machinery. In that position he was exposed to the noise of the machinery and to noise generated by the loading of the steel onto a metal tray of his vehicle. There was also exposure of the worker to noise of forklift trucks moving about the dock area. It is stated that workers at the steel factories wore hearing protection but that no such protection was provided to the worker. To communicate in such conditions required shouting.
The last five years of the worker’s employment involved the worker in operation of a gas powered forklift. Loads were transported up a steel ramp which required maximum power. The noise generated in that operation was described by the worker as being “intense” and it is stated that it was not possible to conduct a conversation while the forklift was “running”. To communicate required stopping and turning off the forklift motor. It is stated that the worker was given no hearing protection.
The worker in that statement describes work performed by him following his redundancy and departure from the employ of the appellant as that of a “traffic controller.” It is stated that in that work he has been exposed to “normal noise of traffic, much as that to which pedestrians are exposed.” Work is performed at various sites usually construction sites and it is stated that the worker is required to stand at least sixty metres and, more usually, one hundred metres to one hundred and fifty metres away from the construction activity. On many occasions the worker has been required to position himself up to three hundred metres from the worksite. It is said that in the course of that work he is not required to wear hearing protection because “my work is not noisy enough to warrant it.” The worker states that he experiences difficulty hearing generally and has difficulty following conversation where there is background noise.
The second statement made by the worker dated 10 February 2009 was tendered in evidence at the hearing over the objection of the appellant. The worker states that, in 2003, he completed a course in traffic control and in 2004 commenced employment as a traffic controller with Australian Traffic Service. He remained with that organisation for approximately twelve months and his duties involved traffic management at jobs in the city of Sydney, the suburbs and country areas. When performing those duties the worker would be positioned from between five hundred metres and three hundred metres distant from the construction or road making activity.
The worker, in November 2007 was required to undergo a hearing test arranged by a prospective employer. It was on that occasion that he was told that he “had a problem” with his hearing and he was advised to consult a doctor. It is stated that that was the first hearing test he had undergone. The worker consulted his general practitioner Dr Hor and that practitioner referred him to Dr S. C. Stylis, ear, nose and throat surgeon. Dr Stylis conducted an examination and tested his hearing following which he informed the worker that he “had a hearing loss due to noisy employment”. It is said - “that was the first time that I knew that I had a permanent injury arising from my work. Before that, although I had been aware of a deterioration in my hearing, I had thought it was just the ageing process.”
There was in evidence before the arbitrator a report of Dr Stylis dated 6 December 2007. Under the heading “present symptoms” Dr Stylis recorded that the worker had, over the last four or five years, noticed that his hearing was deteriorating. The worker was recorded by Dr Stylis as giving a history of noise exposure during truck driving in the employ of the appellant and it was Dr Stylis’s conclusion that the appellant was the worker’s “last noisy employer”. An audiogram was conducted which demonstrated hearing loss. Following adjustment of the audiogram findings as seen to be appropriate by Dr Stylis an assessment of binaural hearing impairment of 20 per cent was made. WPI was expressed by Dr Stylis as being 10 per cent. Further adjustment to the figures as outlined in the report were made and Dr Stylis expressed the opinion that the current WPI due to exposure to industrial noise was 8 per cent WPI. The opinion was expressed that the worker was “in great need of hearing aids”. A quotation concerning provision of appropriate hearing aids was enclosed with that report the cost of which (including batteries) was $6,150.00.
The appellant relied upon a report of Dr John Seymour dated 26 May 2008. That report includes a detailed summary of the worker’s employment history which included detail of his exposure to noise. It appears that Dr Seymour had arranged an audiogram described as a Cortical Evoked Response Audiogram. The results of that study, following appropriate deductions and adjustments deemed appropriate by Dr Seymour, led to a conclusion of “resultant total occupational noise induced BHL of 15.7 per cent = 8 per cent WPI.” Following that calculation Dr Seymour made the following observation:
“from the history given to me today as described by the Applicant, the noise levels sustained whilst working for Mayne Nickless (sic) would be sufficient to give rise to acoustic trauma.”
Attached to the Respondent’s reply were two claim forms dating from the years 1993 and 1994 concerning work injury not concerned with hearing loss. Also attached was a copy of correspondence from the District Court of NSW indicating that proceedings had been instituted by the worker in the former Compensation Court of NSW being matter number 12533 of 2002.
The balance of evidence relied upon by the appellant were those documents admitted into evidence by the Arbitrator at the hearing following argument as to admissibility. Those documents include the following:
i) clinical notes produced by Dr Allan Hor;
ii) OHS work activity training certificate issued to the worker;
iii) worker’s PAYG payment summaries 2006 – 2008;
iv) work assignments issued by Workforce International Pty Ltd concerning
worker’s employment with that company;
v) medical report of Dr MacArthur dated 3 October 2008 together with audiogram re Mr Edward Rudolf Fresen;
vi) application for employment made by worker addressed to Workforce International Pty Ltd;
vii) health and safety rules produced by Workforce International Pty Ltd;
viii) clinical notes of Dr Stylis; and
ix) list of workers compensation claims produced by Workforce International Pty Ltd.
A number of the documents enumerated in the foregoing paragraph have no direct relevance to the issues raised on this appeal however, where relevant, the content of those documents is addressed below.
SUBMISSIONS
The appellant made application before the Arbitrator for an adjournment on the day the matter was listed for conciliation/arbitration. The ground of that application was stated by Mr Macken the appellant’s solicitor, as recorded at page 1 of transcript, to be:
“The Application for the adjournment is so that we can seek and hopefully obtain leave to issue a Direction requiring the production of documents. It would be a direction, I think, for more abundant caution to two insurers Vero Workers Compensation (NSW) Ltd and Allianz Workers Compensation (NSW) Ltd.”
Mr Macken proceeded to state to the Arbitrator that certain records had been produced in response to a direction that had been issued following a granting of leave addressed to Workforce International Pty Ltd. Those documents related to claims made by employees of that company in respect of work injury including alleged industrial deafness. That company had employed the worker following termination of his employment with the appellant. The documents produced indicated that a number of files concerning industrial deafness claims had been lost or were otherwise unable to be located. Documents produced included material concerning a claim by an employee Mr Fresen who, it was submitted, was employed as a traffic controller and who had brought a claim in respect of industrial deafness. That adjournment application was opposed by Counsel appearing for the worker.
The appellant’s application for an adjournment was refused by the Arbitrator and reasons for that refusal are to be found at transcript pages seven and eight. This matter is more fully addressed below.
The appellant proceeded to seek the admission of a number of documents which had been produced by various parties in response to directions which had been served upon them. A number of documents were, following argument, rejected by the Arbitrator and those documents which appear in [20] above were admitted in evidence. It is noted that the appellant objected to the tender of the worker’s supplementary statement which, as above noted, was admitted into evidence by the Arbitrator.
The appellant proceeded to argue before the Arbitrator that the worker had failed to comply with the requirements concerning notice of injury and further that there was, on the facts, no basis upon which he may be excused from compliance with those requirements.
It was further argued on behalf of the appellant that the worker had not satisfied the “onus of proof” upon him to establish “…that he had an injury causally connected to his employment with the Respondent.” This submission is addressed below.
It was further argued on behalf of the appellant before the Arbitrator that the evidence indicates that the appellant was not the worker’s last ‘noisy employer’.
Submissions were put on behalf of the worker that the evidence concerning the worker’s knowledge concerning receipt of injury entitling him to ‘bring a claim’ was such that his application would not be defeated by reason of the notice provisions.
The worker submitted before the Arbitrator that there was sufficient evidence to establish upon the probabilities that the work performed by him when employed by the appellant was employment to the nature of which boilermaker’s deafness was due.
The worker proceeded to argue that there was no evidence sufficient to establish that he was employed by a ‘noisy employer’ subsequent to his employment by the appellant. The thrust of the worker’s argument was that the only evidence concerning work conditions at Workforce International Pty Ltd (Workforce) was that given by the worker as found in his statement. That evidence refuted any suggestion that his work as a traffic controller was ‘noisy’ employment in the relevant sense. It was argued that the material produced concerning the claim made by Mr Fresen did not establish that the employment of that worker was identical to the employment in which the worker was engaged as a traffic controller with that subsequent employer.
On this appeal the appellant argues that the Arbitrator’s failure to grant the adjournment sought at the commencement of the arbitration process constituted error on her part given that, in the circumstances, she had failed to afford the appellant procedural fairness and natural justice. The adjournment, as above noted, had been sought for the purpose of obtaining documents from insurers of Workforce concerning claims against that company in respect of industrial deafness. The existence of a number of such claims had been revealed in documents produced by Workforce a short time before the conduct of the arbitration, and it was argued that in all relevant circumstances the appellant should properly have been afforded an opportunity to obtain such documents from the insurer given that the employer had been unable to locate the relevant files. Such opportunity required the granting of an adjournment as sought. It is implicit in that submission that the appellant’s complaint concerned not only the refusal of the adjournment application but the associated refusal to entertain an application concerning the issue of further directions for production. Reliance was placed by the appellant upon the decision in Tan v National Australia Bank Ltd [2008] NSWCA 198 and Cole Pty Ltd v Morrissey [2008] NSWCA 197.
It was argued that the content of the report of Dr MacArthur dated 3 October 2008 was evidence sufficient to establish that the worker’s employment with Workforce was employment which “…had the necessary tendencies, incidence and characteristics to cause deafness…”. It was that evidence that required the grant of an adjournment and leave to issue the Directions as sought.
The appellant refers to the Arbitrator’s finding that the ‘deemed date of injury’ was 12 December 2007. It is suggested that such finding, had it been made in conjunction with a finding that the worker’s employment with Workforce was ‘noisy employment’, would have led to an award being entered in favour of the appellant. The argument is developed that, there being no finding concerning Workforce being a ‘noisy employer’, the Arbitrator’s finding concerning the deemed date of injury was ‘incorrect’. The appellant proceeds to argue that the Arbitrator has failed to give proper consideration to the operation of section 254 and section 261 of the 1998 Act. Reference is made to the history recorded by Dr Stylis in December 2007 that the worker had been aware of deteriorating hearing “over the last four or five years…”. Reference is also made to the history recorded by Dr Seymour in 2008 that “…the applicant stated that he had noted deafness for five to six years not accompanied by tinnitus.” It is argued that those histories constitute evidence that the worker was “well aware of the condition of his hearing…” and that knowledge precluded an argument that ignorance permitted the worker to be excused from the requirement to give notice of injury in accordance with section 254 of the 1998 Act. A similar argument is advanced concerning the worker’s obligation to make a claim within time as prescribed by section 261 of that Act.
The appellant submits that the Arbitrator erred in finding as a fact that the worker’s employment with the appellant was ‘noisy’ employment. It is put that the evidence was insufficient to discharge the onus upon the worker to prove that fact. It is suggested that the statement made by Dr Stylis that the appellant was the worker’s “last noisy employer” is a mere “ipse dixit”. A similar criticism of the expression of view made by Dr Seymour is advanced.
It appears to be argued on behalf of the appellant, in the alternative to submissions concerning the worker’s failure to discharge the onus, that Dr Seymour’s evidence, if accepted, would “… support a finding that the latter employment with Workforce was also relevantly noisy employment and are [sic] therefore the last employer.”
The appellant proceeds to argue that the Arbitrator was in error “… in failing to determine that the appellant was not relevantly the last noisy employer for whom the worker had carried out work…” That submission appears to be intended to challenge the Arbitrator’s finding that the appellant was, on the evidence, the worker’s last “noisy” employer.
Reliance is placed upon the report of Dr MacArthur as being evidence that employment with Workforce was, in the relevant sense, “noisy”. It is put that the opinion of Dr MacArthur is founded upon the history provided by Mr Fresen who, it is submitted, “… is employed in precisely the same role as that of the applicant with that employer.”
The appellant challenges the Arbitrator’s finding at [22] that the content of Dr MacArthur’s report does not permit an inference that “… the applicant and Mr Fresen were exposed to the same nature of employment, or even a similar level or duration [sic].” It is put that “… it is not necessary to determine whether the employment engaged in actually caused the injury, but rather whether the “tendency, incidents, or characteristics” of that employment were of a type which could give rise to the injury in fact suffered.” It is argued that the evidence establishes that the employment of a traffic controller with Workforce has those features and hence the Arbitrator “… ought to have determined that the appellant was not relevantly the last noisy employer of the worker.”
The worker in submissions on this appeal seeks to support the Arbitrator’s refusal to grant the adjournment as requested by the appellant. It is asserted in those submissions that the appellant had failed to satisfy the Arbitrator that the documents concerning other “deafness” claims made against Workforce might “… assist her in dealing with the worker’s claim.” It was put that the subject claims appeared to relate to the employment of persons other than the worker during a period prior to the worker’s relevant employment with Workforce. It was put that the Arbitrator’s conclusion that such material was too remote in terms of location and time from the worker’s employment was correct and that the Arbitrator’s refusal to grant the adjournment for the purpose of the issue of further Directions for Production was correct.
The worker submits that the Arbitrator’s findings concerning the circumstances of the worker’s giving of notice of injury and notice of claim to the appellant and her application of section 254 and section 261 of the 1998 Act were correct.
The worker seeks to support the Arbitrator’s finding of fact concerning his employment with the appellant being, in the relevant sense, noisy employment. It is put that the evidence of the worker himself together with that of Dr Stylis and Dr Seymour was sufficient to found the Arbitrator’s conclusions of fact challenged by the appellant.
The worker submits that the Arbitrator’s conclusion of fact that the appellant was his “last noisy employer” was one which was open to her on the evidence and that no error had been committed in so concluding.
DISCUSSION AND FINDINGS
Adjournment
It is the appellant’s complaint that the Arbitrator refused to grant an adjournment to enable steps to be taken to have documents produced by the insurers of the worker’s subsequent employer concerning claims made against the employer in respect of industrial deafness. It is said that such refusal constituted a denial of procedural fairness.
As noted above the employer, Workforce, had produced such a file which related to a claim by a Mr Fresen. The fact that other claims had been made in respect of industrial deafness was inferred from a list that was produced by that employer. I conclude that such inference is reasonable. That list includes annotations of claims in respect of industrial deafness by Shih He Huang, Boris Ivanoski and Richard Calanzaro. There is a notation that the date of injury in the first two claims was 2001 and in the latter 2003. The list does not contain any other information concerning relevant circumstances surrounding those claims.
It is not in dispute that the worker was employed by Workforce as a traffic controller following his acceptance of redundancy with the appellant in 2004. It is clear that the appellant sought to rely on the material provided by Workforce concerning Mr Fesen’s claim as well as any further material that it may obtain, should an adjournment be granted, to establish that Workforce was the worker’s last “noisy” employer.
The question as to whether an adjournment is to be granted is a matter for the lawful exercise of discretion by the Arbitrator such exercise requires consideration of all relevant matters. The general principles relevant to a consideration of an adjournment application were the subject of examination by Burke J in Moombaleen Local ALC v Dailey (1998) 16 NSWCCR 475 (‘Dailey’) where his Honour stated [at 475]:
“24. There are a number of general principles applicable to such applications.
25. Firstly, proceedings before the Court, coming on for hearing by the usual processes, should be heard and determined at the time and place fixed for hearing. (See the litany of cases cited in the comment on Pt34, r4 of the NSW Supreme Court Rules 1970.)
26. Secondly, where there is a proper basis for such an application and refusal would seriously prejudice the party seeking adjournment and not prejudice the other party, then adjournment should ordinarily be granted: Watson v Watson (1968) 70 SR 203; Jordan v Smart [1961] NSWR 735.
27. Thirdly, a party is expected to take reasonable steps to prepare and present his case at the time and place appointed: Ord v Ord [1923] 2 KB 432; Dick v Piller [1943] 1 KB 497; Pennings v TA Field Pty Ltd (1990) 6 NSWCCR 271.
28. Fourthly, where the period of adjournment sought is only very short the Court will usually be much more relaxed - or be corrected on appeal: Carryer v Kelly [1969] 2 NSWR 769.
29. Fifthly, where the matter has proceeded to judgment after wrongful refusal of adjournment, the evidence thereby excluded must be shown to be material to the resolution of disputed issues to warrant further hearing: GIO v Best, NSWCA, No. 40525/91, 2 June 1992, unreported.
30. Sixthly, the proper administration of justice ordinarily requires that the parties should be afforded the opportunity to present their respective cases.
31. Seventhly, an appellate tribunal will be very reluctant to interfere with the exercise of the discretion to grant or refuse adjournment at first instance: Thornberry v R (1995) 69 ALJR 777 - itself a case of such appeal being successful.
32. It is fairly clear that not all these principles are capable of application at the same time. There is clear tension between some of the stated precepts. The Court is always faced with the problem of establishing a balance between competing demands and arriving at a resolution that adequately weighs the impact of these contrary factors in arriving at a resolution in any particular matter.”
It was put on behalf of the appellant by Mr Macken: “This issue needs to be dealt with by an adjournment to enable us to get the records so all of the material is properly before the Court. On that basis my application is for leave to issue the Directions required and then an adjournment of the proceedings.”
Reference had earlier been made to the production of Mr Fresen’s file. It was suggested that those documents were relevant to the issue concerning the identity of the last “noisy” employer.
When dealing with the appellant’s application the Arbitrator noted the dates of the injuries which appeared in the list produced by Workforce. An observation made by the Arbitrator [at transcript page 7] appears to have meant to convey that the dates as recorded in the list pre-dated the worker’s employment with that employer (Workforce). It was further noted by the Arbitrator that there was no information as to the location of the work performed by those named individuals. It appears that the Arbitrator placed particular emphasis upon the dates of the alleged injuries when reaching her conclusion [at transcript page 8] that there was not any basis to conclude that those documents were relevant to the issues raised for determination.
It is my view that the appellant’s application for an adjournment was founded upon conjecture that the three files in question may be relevant to the issue in dispute. That conjecture involved questions as to the classification of those individuals who had earlier made claims, and questions as to the nature of the employment in which they were engaged by Workforce. A matter which does not require conjecture concerns the dates of such claims. That last matter was considered by the Arbitrator to be relevant to the exercise of her discretion in refusing the appellant’s adjournment application.
The appellant was seeking an indulgence hence it was necessary to establish a proper basis for the adjournment. The need to speculate as to the content of the records precludes a certain conclusion that they are relevant to the issues in dispute. The known fact that the relevant claims were made very much earlier than the worker’s period of employment with Workforce tends to suggest that such documents can have little, if any, relevance to the issues in dispute and certainly suggests that such documents would be of little evidentiary weight. It cannot, in my view, be said that the appellant suffered serious prejudice by reason of the unavailability of evidence of that character.
The manner in which proceedings are conducted before the Commission is regulated by the provisions of the relevant Legislation (in particular section 354 of the 1998 Act), the Rules and Practice Directions. Having regard to all the circumstances I reject the appellant’s submission that it had been denied procedural fairness and I conclude that the Arbitrator’s refusal to grant the adjournment was the correct decision.
Notice of Injury and Notice of Claim
The appellant has challenged the Arbitrator’s application of the provisions of section 254 and 261 of the 1998 Act. Those provisions require that notice of claim and notice of injury be given to an employer within the times prescribed. That the relevant time requirements had not been complied with is not in dispute. Each of those sections contains provisions for the excuse of non-compliance. Section 254(2) and (3)(b) provide, relevantly:
“(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
…….
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause. ”
The Arbitrator noted (at [7] of Reasons) that the parties had not specifically addressed the provision of section 254 in the course of argument. She found that the worker’s failure to give notice of injury in accordance with that provision was not a bar to recovery by reason of the existence of special circumstances within the meaning of that section. The Arbitrator accepted that the worker “… was not aware that he had a work related injury until he underwent a hearing test in November 1007 [sic, 2007]…” It was the ignorance of that fact which, in the Arbitrator’s view constituted the special circumstance.
The appellant argues, having regard to the history as recorded by both Dr Stylis and Dr Seymour that the evidence, “… clearly indicates that the respondent worker was well aware of the condition of his hearing and in particular, of the fact that there be hearing loss, such that ignorance could not properly be said to excuse the failure to give notice in accordance with the requirements of the Legislation.”
Knowledge of the worker concerning hearing impairment alone was not sufficient to deprive the worker of the benefit of section 254(3)(b). As was stated by Burke J in Gregson v L & MR Dimasi Pty Ltd (2000) 20 NSWCCR 520 (‘Gregson’) at 61:
“61. The ignorance referred to as ignorance of the right 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…”
The Arbitrator has concluded that the worker was at the relevant time “ignorant that his hearing loss could be a work-related injury”. That conclusion was open to the Arbitrator on the evidence and it is one with which I agree. It is reasonable to infer, and I so find, that the worker was likewise ignorant of his rights against his former employer. In the circumstances I conclude that the Arbitrator’s determination that the worker should be excused from the requirements as to notice of injury was correct.
The worker’s ignorance as found by the Arbitrator, provided the basis for the determination that he was to be excused from compliance with the requirements as to time prescribed by section 261. Subsection (4) provides:
“(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.”
The Arbitrator’s reference to the worker’s ignorance is as I have earlier stated, one that was open on the evidence. In the circumstances her conclusion that the worker should be excused from the requirements as to notice of claim was in my view correct. I note that when addressing the provisions of section 261 the Arbitrator made a finding that “… for the purposes on [sic, of] S 261 the date of injury is 6 December 2007.” Such a finding followed a correct application of the provisions of the section however I note that a similar finding was erroneously held to be relevant concerning the deemed date of injury in terms of section 17 of the 1987 Act. This matter is more fully addressed below.
I have concluded that the Arbitrator’s decision that the worker was entitled to be excused from compliance with sections 254 and 261 was correct and the appellant’s assertion of error on her part must be rejected.
Noisy employment
The appellant submits that the Arbitrator has erred in determining that the worker’s employment was “relevantly noisy employment”. It is put that the evidence relied upon by the Arbitrator was “nothing more than an assertion by the worker that his work with the appellant was noisy and allegedly insufficient [sic] to enable him to conduct a conversation whilst working.” It is further argued that the opinions expressed by Dr Stylis and Dr Seymour concerning this issue are founded upon “… the inadequate and unqualified evidence of the worker himself.” It is argued that the appellant has not discharged the onus of proof concerning this issue and that the Arbitrator’s conclusion that the relevant employment was noisy was not open on the evidence.
It is the appellant’s argument that the evidence before the Arbitrator was not sufficient to support the finding of noisy employment. It must be said that the evidence on this issue is scant. The worker has given evidence as to his work conditions as summarised at [20] and [21] above. Dr Stylis records that the worker was required to wait for up to two hours whilst loading operations occurred and that he was subjected to the noise of the steelworks during that waiting period. He further recorded that there was an “enormous din (impact noise) as well as the surrounding noise of the steelworks.” It was also recorded that the trucks were up to 20 ton [sic] and were fairly noisy. The noise in the cabin of such vehicle caused one to raise ones voice to communicate with another. That practitioner concluded that the appellant was the worker’s last noisy employer.
Dr Seymour, who examined the worker on behalf of the appellant, recorded a detailed history of the worker’s work conditions whilst employed with the appellant. Dr Seymour, relying upon that history together with the audiometric findings concluded in his report of 26 May 2008 that “… the noise levels sustained whilst working for Mayne Nickless [sic] could be sufficient to give rise to acoustic trauma.”
The fact that the worker suffers noise induced hearing loss is not in issue between the parties. The authorities establish that the Commission is not concerned with the question as to whether the subject employment actually caused injury. As stated by Cole JA (with whom Kirby A-CJ and Rolfe A-JA agreed) in Bainey Shire Council v Lobley (1995) 12 NSWCCR 52 at 64D:
“… attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics” of that employment were of a type which could give rise to the injury in fact suffered.”
In cases such as the present the availability of evidence from an expert in the field of acoustic science would be of significant assistance to the Commission given the dispute concerning noise levels. Having said that, it is clear that there are often practical difficulties including the effluxion of time and the alteration of workplace configurations and equipment that prevents the presentation of such evidence in admissible form. A helpful discussion of evidentiary requirements in matters such as the present is to be found in the determination of Roche DP in Dawson and others t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (‘Dawson’) at [40] – [44]. I respectfully agree with those matters raised by the Deputy President, the observations made and the conclusions there reached.
There is no expert acoustic evidence in the present matter. This shortcoming is, in my view, overcome by the expressions of opinion by Dr Stylis and Dr Seymour concerning noisy employment. It is clear that each of those practitioners considered the detail concerning work conditions sufficient to form the basis for their ultimate opinion concerning the noisy nature of the work.
The Arbitrator addressed the question concerning proof of noisy work conditions at Reasons [9] to [14]. The relevant finding is as follows - “I find that the applicant over many years whilst employed by the respondent, both as a truck driver and as a forklift driver was exposed to significant and ongoing noise from the engines as well as from the sites that the applicant attended. I therefore find that the respondent was [sic] employment that had ‘tendencies, incidents and characteristics” to cause deafness.”
Having regard to the totality of the evidence I am of the opinion that the Arbitrator’s conclusion concerning employment conditions experienced by the worker whilst employed by the appellant were open to her on the evidence. Whilst, as earlier noted, the evidence concerning that subject was not extensive, I conclude that it was sufficient to enable the Arbitrator to reach her conclusion above quoted. Having regard to the manner in which both Dr Seymour and Dr Stylis reached their conclusions regarding relevant work conditions as expressed in their respective reports, I reject the appellant’s argument that such opinions were without foundation. I reject the appellant’s submissions challenging the conclusion reached by the Arbitrator.
Last noisy employer
The appellant argued before the Arbitrator and on this appeal that the report of Dr MacArthur, which addressed the quantification of noise induced hearing loss suffered by Mr Fresen who was employed by Workforce as a traffic controller from 2005, constitutes evidence that the work performed by the worker for Workforce as a traffic controller was, in the relevant sense noisy employment. It was argued that the acceptance of that proposition would relieve the appellant from liability with respect to the present claim given the terms of section 17 of the 1987 Act and the fact that Workforce was a subsequent employer of the worker.
This argument was rejected by the Arbitrator. At [22] of Reasons the Arbitrator made reference to Dr MacArthur’s expressed view that Mr Fresen’s employment with Workforce was employment of the nature to which the disease of boilermaker’s deafness is due. The Arbitrator stated that she was not “able to extrapolate from this report that the applicant and Mr Freson were exposed to the same nature of employment, or even a similar level or duration.” In so finding the Arbitrator rejected the appellant’s submission that it was Workforce who was the last noisy employer and that, having regard to the provisions of section 17, the appellant would have no liability to the worker in respect of the claim.
Both the worker and Mr Fresen were classified as traffic controllers when employed by Workforce. The best evidence concerning the nature of employment of each of them is as described by them to the medical practitioners whose reports are before the Commission and in the case of the worker, as found in his statements. It is plain that the significant point of difference between the worker’s employment and that of Mr Fresen is that in the case of the worker he was not, unlike Mr Freson, exposed to excessive noise levels. Having regard to the contrasting descriptions that were before the Arbitrator I am of the view that her conclusion that the report of Dr MacArthur failed to establish in any relevant sense that the worker’s employment with Workforce was “noisy” was open to her and it is a conclusion with which I respectfully agree.
The term “employment” as it appears in section 17 denotes not a work classification but work of a kind as to involve a risk that the worker would suffer injury being in the nature of boilermaker’s deafness. The evidence suggests that Mr Fresen was exposed to such risk however there is no material before the Commission that would suggest the same in the case of the worker. Whilst the Arbitrator made no reference to other evidence adduced by the appellant concerning the work tasks and activities of the worker I conclude, following consideration of that material including the work assignments produced by Workforce, that there is no evidentiary basis upon which to argue that the worker’s employment with Workforce was in the relevant sense noisy. The appellant’s submissions with respect to this issue must be rejected.
Deemed date of injury
The Arbitrator, when dealing with the question concerning notice of claim within terms of section 261 of the 1998 Act made the following finding ( at [8] of Reasons): “I am satisfied that the applicant was not aware that he had an industrial deafness until Dr Stylis tested him on 6 December 2007 and that therefore, for the purpose in [sic] s 261, the date of injury is 6 December 2007.” The Arbitrator later stated in the course of her Reasons (at [25]), “… that the correct date if [sic] injury is 12 December 2007, the date of notice of injury.”
It is clear that the Arbitrator’s determination of the date of injury, for the purposes of section 261, being 6 December 2007 is in accordance with her findings and is correct. The later finding as quoted above appears to be intended as a finding that the deemed date of injury within the meaning of section 17 of the 1987 Act was 12 December 2007. In that respect the Arbitrator has erred. There can be no dispute that the worker’s last day of employment with the appellant was 24 January 2003. Having regard to the findings of the Arbitrator which have not been disturbed on this review, the deemed date of injury within the meaning of that section is 24 January 2003.
It is to be noted that the Arbitrator at [3] of the certificate of determination ordered that the worker’s claim with respect to medical expenses was to be struck out. Whilst there is no reason expressed for such order it is clear that, in the absence of any evidence of expenditure by the worker in respect of reasonable expenses, such order was appropriate. No argument has been raised with respect to this matter and in the circumstances it is appropriate that the Arbitrator’s order be confirmed.
It may be seen that, with the exception of the Arbitrator’s finding with respect to date of injury, I have concluded following a review of the evidence that the appeal fails and her determination must stand. In the circumstances it is necessary to revoke order one and substitute that order in terms as set forth below. That date of injury as it appears in order two is to be amended to 24 January 2003.
DECISION
Paragraph one of the Arbitrator’s determination dated 15 April 2009 is revoked and the following order is made in its place:
1. The applicant has received injury being loss of hearing within the meaning of section 17 of the Workers Compensation Act 1987, the deemed date of injury being 24 January 2003.
Paragraph two is amended to delete ‘12 December 2007’ and substitute ‘24 January 2003’.
Paragraphs three and four are confirmed.
COSTS
The appellant is to pay the worker’s costs of this appeal.
Kevin O’Grady
Deputy President
7 August 2009
I, MARIE JOHNS, 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
0
4
0