Transfield Services (Australia) Pty Ltd v Gower
[2008] NSWWCCPD 78
•30 July 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Transfield Services (Australia) Pty Ltd v Gower & Anor [2008] NSWWCCPD 78 | ||||
| APPELLANT: | Transfield Services (Australia) Pty Ltd | ||||
| FIRST RESPONDENT: | Noel Gower | ||||
| SECOND RESPONDENT: | BHP Stevedoring Pty Ltd | ||||
| APPELLANT INSURER: | Transfield Services (Australia) Pty Ltd (self insurer) | ||||
| SECOND RESPONDENT INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC5147-07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 31 January 2008 | ||||
| DATE OF APPEAL DECISION: | 30 July 2008 | ||||
| SUBJECT MATTER OF DECISION: | Hearing loss claim; two employers; whether two notional dates of injury should be submitted to an AMS; section 17(3) of the Workers Compensation Act 1987. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers. | ||||
| REPRESENTATION: | Appellant: | Moray & Agnew | |||
| 1st Respondent: | Whitelaw McDonald | ||||
| 2nd Respondent: | John Odisho, Allianz Workers Compensation (NSW) Ltd | ||||
| ORDERS MADE ON APPEAL: | 1. The decisions of the Arbitrator dated 21 September 2007 and 31 January 2008 are revoked. | ||||
| 2. The matter is remitted to the Arbitrator at first instance for redetermination in accordance with these reasons. | |||||
| 3. The Second Respondent, BHP Stevedoring Pty Ltd, is to pay half of the Appellant’s, Transfield Services (Australia) Pty Ltd, costs of the appeal. 4. No other order as to costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 27 February 2008 Transfield Services (Australia) Pty Limited (‘the Appellant/ Transfield’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 31 January 2008.
The First Respondent to the appeal is Mr Noel Gower (‘the First Respondent/ Mr Gower’).
The Second Respondent to the appeal is BHP Stevedoring Pty Limited (‘the Second Respondent/BHP’).
Mr Gower is presently 51 years old. He was last employed by BHP in NSW in 1995. He then transferred to BHP in Victoria for a number of years until about 2001.
It is not clear from the evidence exactly when Mr. Gower commenced employment with BHP. There is however evidence that he brought a claim against BHP’s insurer for hearing loss in about 1993 .He was paid in respect of a 2% binaural hearing loss in September 1993.
On 20 December 2001, Mr Gower underwent a pre-placement medical examination at Transfield by Dr. Burke. Part of that examination included a hearing assessment. Mr Gower was advised that he suffered some hearing loss and it was suggested that he submit an ‘incident report’ to BHP.
On 9 January 2002, Mr Gower completed a “Register of Injury or Incident” report which he then served on BHP, by which he claimed 13% “hearing loss”.
Mr Gower formally commenced employment with Transfield on 28 January 2002. He ceased that employment on 24 August 2005. He then made a claim on Transfield for hearing loss. On 11 July 2007, Mr Gower filed an ‘Application to Resolve a Dispute’ in the Commission seeking lump sum compensation and medical expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’). He nominated both BHP and Transfield as Respondents.
As against BHP, the date of injury was described as “ nature and conditions of …employment – deemed 30 April, 1995”. As against Transfield, the date of injury was described as “nature and conditions of …employment from approx 2001 to 24.08.2005 – deemed approx 24.08.2005”.
At a Teleconference on 15 August 2007, Transfield conceded that it was Mr. Gower’s last “noisy employer” but argued that section 17(3) of the 1987 Act applied such that two dates of injury should be referred to the Approved Medical Specialist (‘AMS’).
The parties attended a conciliation/arbitration hearing on 18 September 2007 apparently for the purpose of determining whether section 17(3) applied in this case.
Following that hearing, a ‘Statement of Reasons –Extempore Orders’ was issued on 21 September 2007. The decision of the Arbitrator was as follows:
“On the basis of the finding that the Second Respondent [Transfield] is the last noisy employer in NSW and that the notional date of injury is 24 August 2005, the matter is remitted to the Registrar for referral to an AMS.”
The AMS provided a Medical Assessment Certificate (‘MAC’) on 20 November 2007.
A further Teleconference took place on 25 January 2008 and on 31 January 2008, a “Certificate of Determination – Consent Orders” was issued.
Transfield has appealed the Arbitrator’s decision that section 17(3) did not apply in the circumstances of this case, and also disputes the wording of the ‘Certificate of Determination’ dated 31 January 2008 noting that the orders were made by the Arbitrator and not with Transfield’s consent.
BHP filed a ‘Notice of Opposition’ to the appeal on 10 April 2008. Briefly, BHP submits that no errors were made by the Arbitrator and that “The onus was on the appellant to prove that s 17(3) had application”. Much of the remainder of the submissions made by BHP were unrelated to the subject of the appeal, and I will refer to those matters later.
Mr Gower filed a ‘Notice of Opposition’ 3 March 2008. In short, Mr Gower submits that the appeal “…is in real terms an argument between respondents.” Mr Gower then goes on to make submissions in relation to the Section 60 award, and makes reference to “fresh evidence” on this issue. None of this material is relevant to the appeal before me, and the balance of Mr Gower’s submissions do not appear to bear any relevance to the rather limited issue raised by Transfield on appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination – Consent Orders’, dated 31 January 2008 records the Arbitrator’s orders as follows:
“1.That the Second Respondent [Transfield] pay the Applicant lump sum compensation under section 66 of the Workers Compensation Act 1987 in respect of 7% whole person impairment in the sum of $8750.
2.That the Second Respondent pay the Applicant’s section 60 expenses up to the value of $4400 in respect of the provision of hearing aids on production of accounts and/or receipts.
3.That Respondent pay the Applicant’s costs as agreed or assessed.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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. I do not accept the submission by Mr Gower that the appeal in effect relates to the Arbitrator’s decision of 21 September 2007. That ‘decision’ was an interlocutory one. Deputy President Roche has held that a decision as to a deemed date of injury is interlocutory (see Sydney Institute of Technology NSW TAFE Commission v Fleming [2007] NSWWCCPD 97). The appeal against the decision of 31 January 2008 was filed in time.
Leave to appeal is granted.
THE GROUNDS OF APPEAL
Transfield has identified four grounds of appeal as follows:
“(1)That the Arbitrator was in error in law and in fact in failing to determine that section 17(3) of the …1987 Act …applied to the circumstances of the Applicant’s claim.
(2)That the Arbitrator was in error in not determining that there was an additional notional date of injury prior to the Applicant commencing employment with Transfield.
(3)That the Arbitrator was in error in failing to refer two dates of injury to the [AMS].
(4) That the Arbitrator provided a ‘Certificate of Determination – Consent Orders’ dated 31 January 2008 when there was no consent of the Appellant.”
Transfield seeks orders that the decision of the Arbitrator be revoked and that a new determination be made that an additional notional / deemed date of injury of 9 January 2002 be confirmed such as to ground a finding that BHP be liable in respect of Mr Gower’s hearing loss as at that date.
THE LEGISLATION
Section 17 of the 1987 Act provides:
“Loss of hearing—special provisions
17(1)If an injury is a loss, or further loss, of hearing, which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a)for the purposes of this Act, the injury shall be deemed to have happened:
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice;
…
(c)compensation is payable by -
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury – that employer; or
(ii)where the worker was not so employed – the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice;
…
(3)Compensation is payable by an employer as referred to in subsection (1)(c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
THE ARBITRATOR’S FINDINGS
The Arbitrators reasons were given orally at the hearing on18 September 2007, and are recorded in the Transcript of that date as follows:
“The dispute before me is one of narrow compass. The second respondent, Transfield, concedes that it's a noisy employer and concedes that there should be a deemed date of injury in the course of its employment for hearing loss of 24 August 2005. However, they say that there should be also another deemed date of injury of 9 January 2002 in respect of the employer BHP. Notice of injury was given on that day, and they say that two dates of injury ‑ 24 August 2005 and 9 January 2002 ‑ should be sent off to an AMS for assessment of the degree of permanent impairment, if any, resulting in hearing loss as a result of those two injuries. For that they rely on the provisions of section 17 subsection (3):
‘Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.’
With respect to the argument of the second respondent I cannot concur that that's the proper construction of section 17 in its entirety. It clearly operates to make the employer who was the last noisy employer in New South Wales the employer primarily responsible for paying compensation. It is an arbitrary provision, as the disease provisions are. It fixes a date of injury, which is agreed under section 17(1)(a)(ii) to be 24 August 2005: where the worker was not so employed at the time when he or she gave notice of the injury-‑on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice.
It fixes that as the deemed or notional date of injury and it then provides a scheme to cover any sort of sense of arbitrariness of contribution set out in subsections (d) and (e). There would be no need to set out that contribution section if the construction argued by the second respondent was the one that should be accepted. I mean, the scheme is clear to fix the date of injury as a deemed date with the last noisy employer to cover any sense of unfairness by that five‑year contribution in the prior employment, and that's how it operates. The submission otherwise is to misconstrue the whole purpose, in my view, of that section 17, and, accordingly, the finding is that the applicant suffered injury with a notional date of injury of 24 August 2005…”
DISCUSSION AND FINDINGS
At first glance, the Arbitrator’s findings and reasons seem persuasive: the purpose of the scheme, as she pointed out, was to fix a notional date of injury with the last employer and allow a contribution scheme so as to prevent cumbersome proceedings involving multiple employers. But clearly, section 17(3) has a purpose, and I have been guided in my deliberations on this rather unusual situation by the notes to this subsection when it was inserted into the 1987 Act by the Workers Compensation Legislation Amendment Act 1995 effective 1 September 1995. They read as follows:
“Amendments relating to apportionment of liability and contribution orders.
Explanatory note
Section 17 contains special provisions about compensation for gradual loss of hearing suffered by workers in noisy industries. In particular, it requires that compensation for such a loss be paid by the employer who is employing the worker at the time the worker gives notice of the injury (if the worker is still employed in “noisy” employment) or the worker’s last “noisy” employer (if the notice is given after the worker has left that employment). Item (6) of the proposed amendments [subsection 3] puts it beyond doubt that once a worker has given notice of injury, the employer liable at that time remains liable for the compensation even if the worker obtains new employment in a noisy industry before the claim has been finalised and paid. Without such an arrangement, other “noisy” employers might be reluctant to employ workers who have already suffered hearing loss because of concerns about their potential compensation liability for existing deafness.”
The factual situation in the present case seems to fall squarely into the situation contemplated by the legislators when subsection 17(3) was inserted.
Mr Gower underwent a medical examination on 9 January 2002, quite possibly at the request of Transfield to ascertain if he did indeed suffer any deafness attributable to an earlier employer. At that stage, he had ceased employment with BHP but had not yet commenced employment with Transfield. He had already been paid by BHP’s insurer in 1993 for 2% hearing loss. Thus BHP was in theory, at that stage, his last “noisy” employer.
On the same day, that is, 9 January 2002, he made a claim on BHP for 13% hearing loss. In principle then, in line with the provisions of section 17(3), BHP must remain liable for any compensation due to Mr Gower even though he subsequently commenced employment with Transfield.
It seems to me that the provisions of section 17(1) would ordinarily apply in circumstances where it is alleged that hearing loss results from more than one employment, but that subsection 17(3) has been inserted to cover the situation where a claim may be made on an employer before a worker commences employment with a subsequent employer so as not to discourage a later employer from offering that worker employment. The later employer is thus safe in the knowledge that if a worker has made a claim for hearing loss on his prior employer, that employer is principally liable for any compensation.
On one view of the legislation, it does seem inconsistent with the other provisions of section 17 which, inter alia, make provision for contribution, but as I said earlier, section 17(3) was inserted to cover a particular circumstance such as this present one, and it should be given effect.
CONCLUSION
It follows that the decision of the Arbitrator dated 31 January 2008 should be revoked. This is indeed unfortunate since the matter has progressed so far, but in any event, I have some concerns as to the validity of the MAC. It may well be just a typographical error, but I note that, notwithstanding the Arbitrator’s order made at the hearing on 17 September 2007, the AMS has noted in his MAC the date of injury as “30 April 1995” although he did go on to record the name of the employer as “Transfield”.
For this reason, and although I have determined that the Arbitrator’s decision of 21 September 2007 is interlocutory, it is appropriate that that determination also be revoked. However, I note that Transfield has conceded that it is Mr Gower’s last “noisy employer” in New South Wales, and that the notional date of injury with Transfield is 24 August 2005.
I should note at this point a number of matters raised by BHP in it’s ‘Notice of Opposition” filed on 10 April 2008.
Most of the complaints cited by BHP relate to substantive matters for determination by the Arbitrator, and not to the issue raised on appeal. For example, BHP disputes whether proper notice has been given by Mr Gower to it in connection with the claim made on 9 January 2002. A jurisdiction issue has also been raised as a result of Mr Gower’s employment in Victoria.
These issues have not been dealt with by the Arbitrator since she ruled at the outset against the argument raised by Transfield, and they will of course require determination in due course.
No blame can be attached to Mr Gower for any delay in the pursuit of his claim against BHP. It quite simply has never been dealt with by the Arbitrator.
In these circumstances, the appropriate order is to remit the matter to the Arbitrator for redetermination in accordance with these reasons. This is not simply a question of re-referring the matter to an AMS with two deemed dates of injury: the matters raised by BHP will also require determination.
What is clear however is that, in line with the provisions of section 17(3) of the 1987 Act, Mr Gower has two claims for hearing loss which require determination; firstly, a claim against BHP with a deemed date of injury to be determined, but on the information before me, it would appear to be 30 April 1995, the last date of employment in New South Wales; and secondly, a claim against Transfield with a deemed date of injury of 24 August 2005.
These claims will require referral to an AMS in due course.
DECISION
The decisions of the Arbitrator dated 21 September 2007 and 31 January 2008 are revoked.
The matter is remitted to the Arbitrator at first instance for re-determination in accordance with these reasons.
COSTS
Mr Gower’s costs of the proceedings to date before the Arbitrator are to be paid by both Respondents equally.
Transfield submits that BHP should pay the costs of the parties to the appeal for the following reasons:
“(a)It was conceded by Transfield… during the Teleconference on 15 August 2007 that Transfield… was the worker’s last “noisy employer” however it was submitted at that time by Transfield… that Section 17(3) …applied and therefore there should be two dates of injury being referred to the [AMS].
(b)As [BHP’s insurer] did not agree with the submissions in respect of Section 17(3), the matter was set down for an Arbitration hearing in respect of this issue alone.”
While this is a persuasive argument, it ignores the fact that Transfield would itself remain involved in the proceedings regardless of BHP’s involvement.
In all the circumstances, I think the appropriate order is for BHP to pay half of Transfield’s costs of the appeal.
I make no other order as to costs of the appeal.
Deborah Moore
Acting Deputy President
30 July 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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