The Zinc Corporation Pty Ltd v Shirdell

[2005] NSWWCCPD 134

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:The Zinc Corporation Pty Ltd v Shirdell [2005] NSWWCCPD 134

APPELLANT:  The Zinc Corporation Pty Ltd, formerly known as the Zinc Corporation Ltd

RESPONDENT:  Kie Shirdell

INSURER:The Zinc Corporation Pty Ltd

FILE NUMBER:  WCC 2461-04

DATE OF ARBITRATOR’S DECISION:          25 August 2004

DATE OF APPEAL DECISION:  17 November 2005

SUBJECT MATTER OF DECISION: Binaural hearing loss, effect of Medical Panel Certificate, section 66 and clause 3, Part 6, Schedule 6 of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Cutler Hughes & Harris, Business Lawyers

Respondent: Paul J Keady & Associates Pty Ltd, Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

The Appellant, the Zinc Corporation Pty Ltd, is to pay Mr Shirdell’s costs in this appeal as agreed or assessed.

BACKGROUND TO THE APPEAL

1. On 21 September 2004, the Zinc Corporation Pty Ltd sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 25 August 2004.

1. The Respondent to the Appeal is Kie Shirdell. Mr Shirdell was born on 1 January 1924 and is aged 81. He was employed as a miner for approximately 35 years by the Zinc Corporation and its predecessor in Broken Hill until he retired on 24 August 1985.

1. The parties agree that on 28 June 1984, Mr Shirdell was compensated for a 13% loss of hearing in the left ear and a 9% loss of hearing in the right ear, for which he received $1,163.50 and $805.50 respectively pursuant to section 16 of the Workers Compensation Act 1926. On 10 May 1990, he was compensated for a further 3% loss of hearing in the left ear and a further 6% loss of hearing in the right ear, for which he received $268.50 and $537.00 respectively. This is equivalent to a 15.2% binaural hearing loss.

1. The 1984 and 1990 compensation payments were made on the basis of assessments made by Dr John Rice, Surgeon, to whom Mr Shirdell appears to have been referred by his employer. Dr Rice’s reports dated 18 June 1984 and 1 May 1990, respectively, were addressed to Mr Shirdell’s employer and, in his statement dated 11 December 2003, Mr Shirdell said he had never been provided with copies of those reports.

1. Following examination and assessment of Mr Shirdell by an audiometrist on 5 October 2000, his solicitors notified the Zinc Corporation of a further claim for compensation in respect of his hearing loss. The Zinc Corporation denied liability. On 27 April 2001, in the Compensation Court of NSW, Mr Shirdell’s solicitors filed an application for referral of a medical dispute to a Medical Panel. Mr Shirdell was examined by a Medical Panel on 16 September 2002 and, on 24 September 2002, the Panel issued a Certificate certifying a binaural hearing loss of 20.9%. Mr Shirdell claimed compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in accordance with the Certificate.

1. On 6 February 2004, Mr Shirdell’s ‘Application to Resolve a Dispute’ was registered by the Commission. The Zinc Corporation’s ‘Reply’ was lodged on 19 February 2004. The Arbitrator held teleconferences with the parties on 19 May 2004 and 29 July 2004. On 29 July 2004, the Arbitrator directed that the parties file submissions within 21 days and that the matter would then be decided ‘on the papers’. On 25 August 2004, the Arbitrator issued the determination set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 25 August 2004, records the Arbitrator’s orders as follows:

“1. That the Respondent pay to the Applicant the sum of $8,093.50 pursuant to section 66 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. In his ‘Statement of Reasons for Decision’, the Arbitrator said Mr Shirdell:

“is entitled to bring a claim on the basis that he has not been paid the proper amount and therefore there is a dispute between the Applicant and the Respondent which the Commission clearly has jurisdiction to determine.”

1. The Arbitrator found that, pursuant to section 17(1)(a)(ii) of the 1987 Act, on 24 August 1985, being the last day of his employment, Mr Shirdell was deemed to have received an injury causing industrial deafness arising out of or in the course of his employment as a miner with the Zinc Corporation. The Arbitrator said the effect of clause 227 of the Workers Compensation Regulation 2003 is that the degree of Mr Shirdell’s hearing loss is treated as being conclusively determined by the Medical Panel Certificate dated 24 September 2002, which certified a 20.9% binaural hearing loss.

1. The Arbitrator followed the reasoning of Neilson CCJ in BHP Steel (AIS) Pty Ltd v Biratasic (1995) 12 NSWCCR 476 and found Mr Shirdell had been paid for a 15.2% binaural hearing loss only. Mr Shirdell was not precluded by clause 3, Part 6 of Schedule 6, of the transitional provisions of the 1987 Act from recovering the full amount of compensation in respect of his loss, because he had not previously received the full amount due to him, having only been compensated for a 15.2% binaural hearing loss. Since Mr Shirdell was entitled to total compensation of $10,868.00 [there was a mistake at paragraph 27 of the Statement of Reasons where the figure stated is $10,568.00] in respect of a 20.9% binaural hearing loss and had already received $2,774.50 in respect of that loss, he was entitled to be paid a further $8,093.50 pursuant to section 66 of the 1987 Act.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are, first, whether the Arbitrator erred in deciding that he was bound to give effect to the Certificate issued by the Medical Panel and, second, whether the Arbitrator erred in deciding that clause 3, Part 6 of Schedule 6 of the 1987 Act did not bar the worker from receiving compensation under section 66 of the 1987 Act.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(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.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties. The Zinc Corporation submits that the matter can be determined ‘on the papers’ and Mr Shirdell’s solicitors do “not object”. Having considered this material, 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.

1. Neither party sought to adduce fresh evidence.

LEAVE

1. 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. With regard to section 352(2), the amount of compensation at issue is $8,093.50, which comprises 100% of the amount awarded in the decision appealed against. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.

EVIDENCE AND SUBMISSIONS

1. The facts of the case are not in dispute. The parties’ submissions to the Arbitrator and in respect of this appeal focused on the application of the relevant law.

1. The Zinc Corporation cite the NSW Court of Appeal decision in John Lysaght (Australia) Ltd v Cox (1990) 6 NSWCCR 311 in support of their contention that Mr Shirdell is barred from pursuing his claim by the transitional provisions in Schedule 6 of the 1987 Act. In that decision, Clark JA, with whom Meagher and Handley JJA agreed, said, at 317:

“There is no problem in concluding that he is disbarred from claiming under either Act [the Workers Compensation Act 1926 or the 1987 Act] if he has been the recipient of an award under the earlier Act … Likewise, it is not difficult to understand that if a worker has received compensation for his loss calculated in accordance with the legislation then in force he should be disentitled from maintaining a claim in respect of the same loss under the 1987 Act.”

1. The Zinc Corporation submit that the Commission has no jurisdiction where an applicant has already been paid and does not contend that there has been a deterioration of his condition:

“Because hearing loss increases with age, it will usually be the case that a Medical Panel assessment conducted some years later will show an increase in deafness. Part of the effect of fixing a deemed date of injury is that the parties can be sure that their arrangements are finalised. This is the intention of the transitional provisions. If the applicant is successful on this application, there would be no impediment to a further claim in the future if an Approved Medical Specialist was to assess a greater loss. It is not the intention of the legislation to allow further claims when there has been no further exposure to noise.”

1. Mr Shirdell’s solicitors submit that the Medical Panel Certificate is binding. The only relevance of payments made in the past is that the employer is entitled to credit in respect of payments made. Mr Shirdell’s solicitors submit that Mr Shirdell is entitled to an award in respect of his 20.9% binaural hearing loss in accordance with the approach adopted by Neilson J in Callaby v State Transit Authority (NSW) & Anor (2001) 21 NSWCCR 216 (‘Callaby’). They submit:

“The earlier payment to the Applicant worker was simply a payment in respect of which the Respondent is to receive a credit. Shortly stated the loss in respect of which past payment has been made is not one and the same loss in respect of which the present claim is made.”

DISCUSSION AND FINDINGS

1. I have been guided by the decisions of Acting Deputy President Sassella in Hammersley Resources Ltd v Chynoweth [2005] NSW WCC PD 37 (‘Chynoweth’) and Hammersley Resources Ltd v Roberts [2005] NSW WCC PD 127 (‘Roberts’). In those decisions, the Acting Deputy President made a detailed analysis of the relevant law that I adopt for the purposes of this decision. I have also had regard to the decision of Acting Deputy President Mc Growdie in Pasminco Ltd v Walters [2005] NSW WCC PD 30.

1. In this case, neither party challenged the validity of the Medical Panel Certificate. I note that referral to a Medical Panel was sought before 1 April 2002 (on 27 April 2001) and, pursuant to clause 227 of the Workers Compensation Regulation 2003, the Certificate, dated 24 September 2002, is therefore operative. At issue, however, is whether the Certificate is binding in this case. In my view, it is, for the reasons given by Deputy President Sassella in Chynoweth and Roberts, noting, in particular, the Deputy President’s reference to the comments of McHugh J, as he then was, in Electricity Commission of NSW v Mifsud (1986) 7 NSWLR 730, and His Honour’s rationalisation of the decision in Australian Iron and Steel Pty Ltd v McAuley (1984) 1 NSWLR 33. Section 122(6) provides that such a certificate “is conclusive evidence as to the matters certified”. None of the stated exceptions apply here. Thus, the Medical Panel Certificate is conclusive in establishing that Mr Shirdell suffered from a 20.9% binaural hearing loss at the date the injury was deemed to have occurred on 24 August 1985 (pursuant to section 17(1)(a)(ii) of the 1987 Act).

1. The second issue is whether the transitional provisions in clause 3, Part 6 of Schedule 6 of the 1987 Act apply so as to bar Mr Shirdell’s claim for further compensation under section 66 of the 1987 Act. In Chynoweth and Roberts, Deputy President Sassella, rightly, in my view, followed the decision of Neilson J in Callaby. His Honour decided that the words “an occupational disesase” appearing in clauses 3, 3A and elsewhere in Part 6 of Schedule 6 of the 1987 Act should be given their ordinary meaning. Because industrial deafness is treated as an occupational disease, the result is that workers with industrial deafness whose deemed date of injury predates the commencement of the 1987 Act, may be compensated pursuant to clause 3A if the conditions of that provision are satisfied. In Chynoweth and Roberts, the Deputy President found that clause 3 of Part 6 did not apply because, technically, the worker was not compensated under the 1926 Act as he should have been: because he received less than the percentage binaural hearing loss stipulated in the Medical Panel Certificate.

1. In the case of Mr Shirdell, despite the fact that he has received two payments of compensation in respect of hearing loss – in 1984 and 1990, because the total hearing loss for which he has been compensated is equivalent to a 15.2% binaural hearing loss, he has, therefore, received less than the 20.9% binaural hearing loss stipulated in the Medical Panel Certificate of 24 September 2002. With regard to clause 3, Part 6 of Schedule 6, that section does not apply because he has not “received or agreed to receive” compensation for the binaural hearing loss of 20.9%.

1. Clause 3A(2) provides for the amount of compensation payable for the loss to be determined as if the relevant maximum amount of compensation under section 66(1) of the 1987 Act were $80,000. The Arbitrator correctly applied the statutory formula in determining that Mr Shirdell was entitled to a further payment of compensation under section 66 of $8,093.50 ($10,868.00 in respect of a 20.9% binaural hearing loss, less $2,774.50 already paid).

1. Thus, I am not persuaded that the Arbitrator made any error in his decision, which must, therefore, be confirmed.

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. The Appellant, the Zinc Corporation Pty Ltd, is to pay Mr Shirdell’s costs in this appeal as agreed or assessed.

Robin Handley

Acting Deputy President  

17 November 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE