Tape v Nambucca River Jockey Club Pty Ltd
[2023] NSWPIC 562
•24 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Tape v Nambucca River Jockey Club Pty Ltd [2023] NSWPIC 562 |
| APPLICANT: | Roy Tape |
| RESPONDENT: | Nambucca River Jockey Club Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 24 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; this was a claim for industrial deafness opposed on the basis of late notice and late lodgement of the claim; pursuant to section 254 and section 261; the respondent also opposed any finding of loss; Held – applicant’s failure to give notice as required by section 254 was occasioned by his ignorance of the notice requirement; time for lodgement of the applicant’s claim will be extended to the date of actual lodgement. |
| DETERMINATIONS MADE: | The Commission determines: 1. Mr Tape (the applicant) suffers from industrial deafness. 2. The respondent was the applicant’s last noisy employer. 3. The applicant did not give notice of his claim in the time required by s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act). 4. The Commission is satisfied and finds that the applicant’s failure to give notice as required by s 254 of the WIM Act was occasioned by his ignorance of the notice requirement. On the basis of that special circumstance, the Commission finds that the failure of the applicant to give notice of his claim within the time limit required by the WIM Act is not a bar to the proceedings before the Commission. 5. The applicant did not lodge his claim in the time required by s 261 of the WIM Act. 6. The Commission is satisfied and finds that the applicant’s failure to lodge his claim in the time required by s 254 of the WIM Act was occasioned by his ignorance of the time requirement. On the basis of that finding, the Commission finds that the failure of the applicant to lodge his claim within the time limit required by the WIM Act is not a bar to the proceedings before the Commission. The time for lodgement of the applicant’s claim will be extended to the date of actual lodgement. The Commission orders: 7. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the WIM Act for assessment of whole person impairment as follows: (a) Date of injury: 1 January 2004 (deemed) – Disease. (b) Body systems / parts: Hearing. 8. The Medical Assessor is also requested to provide a non-binding opinion as to whether the applicant’s work-related hearing loss is such that the provision of hearing aids is reasonably necessary as a result of the injury sustained on 1 January 2004 (deemed) 9. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents, and b. Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
The applicant has lodged a claim for industrial deafness. The respondent denies liability for the claim based on the failure of the applicant to give notice of the claim or to lodge the claim within the time limits required by the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) and also contests the degree of hearing loss.
MATTERS IN DISPUTE
The respondent concedes that it was the applicant’s last noisy employer and it does not dispute that the applicant suffers from industrial deafness.
The respondent contests the degree of hearing loss claimed by the applicant but does not put any alternate assessment before the Personal Injury Commission (Commission).
The issues for determination before the Commission are whether the time should be extended for notice and lodgment of the applicant’s claim based on the special circumstances identified by the applicant and whether the Commission should refer the application to the President directly.
The respondent claims prejudice arising from the late notice and late lodgment of the applicant’s claim.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The respondent gave the applicant notice of a request to cross examine the applicant the day before the hearing. The applicant requested details of the matters on which the respondent wished to cross-examine at 1:13pm the same day. The respondent did not respond to the request of the applicant. When questioned by the Commission at the hearing there was no reasonable explanation for the failure to provide the necessary information. The application was opposed. The request for cross-examination was refused.
EVIDENCE
There was no oral evidence.
The following documents were in evidence before the Commission and considered by me in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to Application for Resolution of Dispute (Reply) and attached documents.
RELEVANT LEGISLATIVE PROVISIONS
The WIM Act;
“Section 254
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(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--
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(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,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine--the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011 .
(my emphasis)
Section 261
(1) 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.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(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.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6) 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.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.” (my emphasis)
The applicant’s submissions
The applicant has suffered from deafness for a considerable period. He last worked in 2004.
The applicant has been obtaining free hearing aids to date as a result of his pension entitlements.
In October 2018 one of the audiologists he consulted asked him about his work in sawmills and undertook to refer him to a solicitor. When this did not occur the applicant assumed it was because he was not entitled to claim anything.
In March 2020 the applicant attended a solicitor he had identified after seeing an advertisement concerning industrial deafness. He consulted this solicitor who gave him advice regarding his entitlements. He instructed the solicitor to make a claim on his behalf if he was entitled to do so.
He was referred to Dr Fagan who he consulted on 3 November 2020. Dr Fagan gave him a hearing test and asked him about his work history. The doctor undertook to prepare a report and provide it to his solicitors.
The applicant then instructed his solicitors to make a claim on his behalf.
The applicant’s evidence was that, prior to speaking to his present lawyers, he was ignorant of his rights with respect to any entitlement to make a workers compensation claim for industrial deafness. He did not know until he consulted Dr Fagan that what had caused his deafness was industrial noise. He was unaware of any time limit for making claims for his condition.
Counsel for the applicant relied on the history provided by the applicant to establish that the applicant did not have the necessary awareness, certainly not to the high level of assurance required, of his having a work-related injury until he consulted his present solicitors.
His awareness of having a hearing loss prior to making this claim is insufficient to persuade the Commission to make a finding that there were no special circumstances or to refuse to extend the time for lodgement of his claim.
The respondent’s submissions
The respondent drew the Commission’s attention to various claim forms contained in the ARD.[1] He submitted that the applicant had knowledge of his sensory-neural hearing loss and should therefore have been able to give notice of his claim and lodge it.
[1] ARD page 102 onwards.
The documents relied on by counsel for the respondent are unhelpful. They are difficult to read and do not establish any awareness in the applicant as to his legal entitlement to take action to recover benefits in relation to his deafness.
The respondent suggests that difficulties arising from the late lodgement of this claim demonstrates a prejudice to the respondent by affecting its capacity to investigate the claim.
The respondent did not provide any competing assessment as to the quantification of the applicant’s industrial deafness. In response to an enquiry by the Commission as to whether the respondent had an assessment, counsel for the respondent indicated that he did not intend to put an assessment before the Commission.
CONSIDERATION
Conclusion
I accept the evidence provided by the applicant regarding his limited knowledge concerning the causation of his deafness and any entitlement he might have to make a claim for the disability he suffers arising from its exposure to noisy employment.
I reject the inference argued for by counsel for the respondent arising from the documentation referred to in his submissions. it is not sustainable. Establishing that the applicant was aware of a hearing loss does not establish that the applicant was aware of its causation or his entitlements.
I am satisfied that the applicant was ignorant of his entitlement to claim compensation for his industrial deafness.
A high level of assurance is required to establish awareness sufficient to set aside the special circumstance of ignorance.
The applicant was aware of his sensori-neural hearing loss. His level of loss must have been a considerable inconvenience to him for a number of years, and he was actively seeking assistance with government funded hearing aids.
The applicant did not have any high level awareness of his entitlements. In fact, I am satisfied that he had no awareness at all until he received advice from his present solicitors.
I have considered the possibility of prejudice to the respondent if the applicant’s application is to proceed. I have considered the following decision by Deputy President Byron in considering prejudice by reason of delay:
“… I do not agree that lengthy delay alone must always give rise to prejudice and injustice. Actual injustice must be demonstrated, not merely potential injustice.”[2]
[2] Camden Council v Hancock [2005] NSWCCPD 6.
Whilst the delay in this application was considerable. I am not satisfied there is any actual prejudice to the respondent. The respondent conceded it was the last noisy employer.
However, I am satisfied and find that, even if there had been any actual prejudice to the respondent, balanced against the applicant’s special circumstance, and the prejudice to the applicant if his application was refused, it would be insufficient to justify a refusal of the applicant’s application for an extension of time for lodgement.
I have considered whether this application should be referred to a further Independent Medical Assessor (IME) as requested by the respondent. The respondent does not concede the assessment provided by Dr Fagan but puts no assessment before the Commission. In the circumstances I am persuaded that it would be inappropriate to delay this claim further. The respondent came to this hearing disputing proper notice and lodgement of the claim. It has had an opportunity to arrange an IME. Given the applicant’s age and circumstances I consider it appropriate to exercise the inherent powers of the Commission and refer this matter to the President for referral to a Medical Assessor as soon as possible.
SUMMARY
For the reasons set out above the Commission will make findings and orders as set out on page 1 of the Certificate of Determination.
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