Unilever Australia Limited v Petrevska - [2013] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status:* Appeal to the Court of Appeal dismissed - Unilever Australia Ltd v Petrevska [2013] NSWCA 373
CITATION:		Unilever Australia Limited v Petrevska [2013] NSWWCCPD 3
APPELLANT:		Unilever Australia Limited
RESPONDENT:		Menka Petrevska
INSURER:		Unilever Australia Limited
FILE NUMBER:		A1-1220/11
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:		16 October 2012
DATE OF APPEAL DECISION:		21 January 2013
SUBJECT MATTER OF DECISION:		Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal against an interlocutory decision; s 261 of the Workplace Injury Management and Workers Compensation Act 1998; requirements as to making of claim; determination of date of first awareness of relevant injury.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Astridge & Murray
Respondent:	Koutzoumis Lawyers
ORDERS MADE ON APPEAL:		1. Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to appeal the Arbitrator’s decision made on 16 October 2012. 2. The Arbitrator’s determinations and order made in the Certificate of Determination dated 16 October 2012 are confirmed. 3. The appellant is to pay Mrs Petrevska’s costs of this appeal in any event.

BACKGROUND

Menka Petrevska is a former employee of Unilever Australia (Holdings) Pty Limited (the appellant). It is Mrs Petrevska’s allegation that she is entitled to lump sum compensation in respect of noise related hearing loss and that her employment with the appellant was relevantly noisy. This claim is one of approximately 50 disputed claims (related claims) brought by former employees of the appellant claiming lump sum compensation in respect of noise induced hearing loss.
The Commission has conducted case management of these related claims and it has become apparent that a number of discrete issues in dispute are common to many of the proceedings which have been instituted. In the circumstances, the present matter and a number of the other matters have been the subject of preliminary determinations by Arbitrator Josephine Snell. Determination of these preliminary matters, which concern the appellant’s dispute that its former workers had complied with the statutory requirements concerning notice of injury and making of claim, was made to attempt to resolve such issues with a view to limiting the need to conduct fully contested proceedings in each of the matters. Whilst it is acknowledged by the parties that each matter must be determined on its own facts, the intention was to clarify those matters that were truly in dispute in the hope that the matters will be dealt with by the Commission in a timely and efficient manner.
The present matter came before the Arbitrator for determination of those preliminary issues on 23 April 2012. The Arbitrator reserved her decision and a Certificate of Determination was issued on 16 October 2012. The following findings and order were made by the Arbitrator:
“The Commission determines:

1. The applicant has given her notice of injury in compliance with section 61 of the Workplace Injury Management and Workers Compensation Act 1998.
2. The applicant has made her claim for compensation in compliance with section 261 of the Workplace Injury Management and Workers Compensation Act 1998.
3. The matter is to be listed for teleconference before me.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

The grounds of appeal suggest error on the part of the Arbitrator in the following respects:
(a) in finding that Mrs Petrevska first became aware, within the meaning of s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), that she had received injury on 25 May 2009;
(b) in finding that Mrs Petrevska had proven that she had made a claim for compensation within six months after the injury happened in terms of ss 261(1) and 261(6) of the 1998 Act, and
(c) failing to give adequate reasons for her decision.

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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.

Interlocutory

Whilst the appellant makes no concession concerning the interlocutory nature of the Arbitrator’s decision it submits that, should the Commission determine that leave is required to permit the appeal, such leave should be granted. Mrs Petrevska supports the request that such leave be granted.
It is clear that the decision of the Arbitrator does not “finally dispose of the rights of the parties” as stated by Gibbs J in Licul v Corney [1976] HCA 6; 180 CLR 213. In such circumstances the decision must be taken to be interlocutory in nature. An appeal against such decision may only proceed by way of leave granted by the Commission: s 352(3A).
I am of the view that, having regard to the circumstances noted at [2] above, it is both necessary and desirable for the proper determination of the dispute, in terms of s 352(3A), that such leave be granted and I so order.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded, a transcript (T) has been produced and copies have been made available to the parties. The documentary evidence before the Arbitrator was noted by her at [9] of her Reasons. That material included copies of statements made by each of the applicant workers in the related matters. It is not disputed that portions of Mrs Petrevska’s statement are identical to passages found in evidence tendered in those other matters. Those statements were tendered by the appellant and were relied upon in support of an argument, which is addressed below, concerning the probative value of Mrs Petrevska’s statement and her credit as a witness. Having regard to the volume of those documents the Arbitrator, as noted by her at [10] of Reasons, did not require that they be “physically filed”. I note in passing that the admission of those statements was ordered in each of the remaining related matters.

Evidence

The evidence of Mrs Petrevska is to be found in three written statements and in her oral testimony as recorded in the transcript. I note that Mrs Petrevska had commenced earlier proceedings in 2010 which were heard by Arbitrator Connelly. Evidence was given by Mrs Petrevska in the course of those proceedings which were ultimately discontinued on 24 June 2010. The appellant has tendered a copy of the transcript of the proceedings before Arbitrator Connelly which includes the record of Mrs Petrevska’s cross-examination.
It is important to note that Mrs Petrevska had been in error when stating that she last worked for the appellant in May 1993. At the hearing before the Arbitrator, it was not disputed that she last worked for the appellant in May 1995. Appropriate amendment to the application was made by consent. No argument was raised by the appellant that notice of injury or making of claim had suffered any formal defect.
The evidence of Mrs Petrevska was summarised by the Arbitrator and may be found between [12] and [19] of her Reasons. That summary concerns only that evidence relevant to the issues raised for determination namely the question as to whether Mrs Petrevska had complied with the statutory requirements concerning notice of injury and making of claim. That evidence, which had reference to the erroneous date, may be summarised as follows:
(a)     Mrs Petrevska arrived in Australia in 1974 from her birthplace Macedonia following which she had worked for a number of employers as a process worker, each of which jobs exposed her to noisy work conditions;
(b)     Mrs Petrevska was employed by the appellant as a packer between 1983 and, as was wrongly stated, 1993 at the Streets ice cream factory at Turella, New South Wales. Her work was seasonal up until 1991. Between 1991 and 1993 Mrs Petrevska was employed on a permanent full time basis working afternoon shifts with regular overtime at night and on Saturdays;
(c)     Mrs Petrevska describes her working conditions in each of the statements as being noisy. She has noticed “hearing problems” since approximately 2000;
(d)     In December 2008, a friend of Mrs Petrevska made reference to her hearing problems and recommended that she consult a firm of solicitors, stating that she “might be entitled to compensation”. Mrs Petrevska consulted her former solicitors, Villari & Company, and arrangements were made by that firm for her to be examined by Dr Kenneth Howison, an ear, nose and throat specialist, whom she consulted on 25 May 2009. A hearing test was conducted at that time following which Dr Howison advised that “the majority of [her] deafness was due to previous noise exposure”. Mrs Petrevska stated that before consulting Dr Howison she did not know the cause of her hearing problems nor had she seen a doctor beforehand concerning her hearing, and
(e)     Mrs Petrevska had concurrent employment as a cleaner with the Public Service Association. That employment continued after her employment with the appellant came to an end in May 1995. Her cleaning duties with the Public Service Association did not involve exposure to substantial noise. Mrs Petrevska states that her “last noisy job was with [the appellant]”.
The evidence of Mrs Petrevska given in the course of cross-examination at the hearing before Arbitrator Snell is summarised between [14] and [19] of her Reasons. It is convenient to set out that summary which, I note, also includes, to some extent, the Arbitrator’s impressions gained from her observation in the course of that questioning. That summary is as follows:
“14. In cross examination before me Mrs Petrevska said she had noticed problems with her hearing since “1996, 97” (T9.18), (T10.29) and (T11.08). This involved having to turn the radio and television up, people speaking more loudly to her and other people needing to speak in raised voices for her to hear them and others telling her she speaks loudly. (T9.21-10.16). She agreed that when she went home after finishing a shift of work at Unilever she had problems with her hearing and buzzing in her ears. (T15-16.04).
15.    She also agreed she thought to herself that this buzzing and problems hearing were due to the noise happening at the Unilever factory (T16.06-16.16). She agreed that she thought the machines she worked on at Unilever were noisy (T13.30-14.04) and those close to her were also noisy (T14.05-.15). She said she had to shout to be heard when working on the machines and others raised their voices or shout to her. (T14.16-14.35).
16.    She agreed that she had not undertaken any noisy hobbies (T16.34-17.05) and she said she did not have any other job in “such a noise, noisy atmosphere.” (T17.16). She agreed that in her mind in 1996/97 she knew it was the noise at Unilever that was causing her loss of hearing and buzzing in her ears. (T17.19-17.29 and T22.18- 22.27).
17.    She described hearing on the radio on a local Macedonian news program that she said she was “entitled to check my hearing and if I have impairment I have the right to lodge a claim for workers compensation.” (T46.32-47.32). She agreed that at that time she knew she had had problems with her hearing for many years. (T48.13-48.21). She also agreed she knew in her mind these problems were caused by her work for Unilever. (T48.30). She could not remember when she heard this news broadcast on the radio, she guessed about 2008/2009. (T49.07-49.25).
18.    She was cross examined about her statement dated 11 July 2011. She said she attended her current firm of solicitors with her son who interpreted what she had to say to the lawyer. Her son also read the written statement to her and she then signed it (T51-54.31). She was asked if much of that statement was prepared by the solicitor not her (T53.25) and she disagreed. She was asked what the phrase “natural justice” meant and it was apparent to me she did not know and these were not her own words. (T52 to 54.20).
19.    She was questioned as to whether she heard about the possibility of making a compensation claim first through the radio or from her friend. Her answers from T55 to 58 were such that I have concluded that she was not sure about the sequence of events. However she seemed more definite that there was a short time span between the two, she suggested a month. She was asked to identify the name of her friend with whom she had had the conversation about potential claims. She said she had known her for 20 years and that her name was “Luba” and that she had told Mrs Petrevska “you can’t hear well and it’s better for you to go and check.” (T61.10). She dated this conversation as occurring in the “last couple of years, two, three years.” (T62.25) and she says she then “lodged this” and meanwhile she heard the radio broadcast (T63.01). She was asked in cross examination if she recalled that in the earlier proceedings she had given evidence that three years ago she heard it on the radio but after that she heard through friends. She agreed this was her evidence (T65.20). However she did not seem to appreciate that there was any difference in her answers.”
Mrs Petrevska relied on the expert evidence of Dr Kenneth Howison as found in four reports prepared by him. Audiometry was conducted by Dr Howison in May 2009 following physical examination of Mrs Petrevska. Dr Howison expressed his opinion that Mrs Petrevska had as a result of noise exposure suffered binaural high tone sensorineural induced deafness of 10.8 per cent which, in his opinion, represented a whole person impairment of six per cent. Additional binaural hearing loss, being “non-occupational”, was calculated as being 9.1 per cent which represented five per cent whole person impairment. Having regard to the history recorded, Dr Howison considered that Mrs Petrevska’s work as a cleaner for the Public Service Association would not be “responsible for the causation of industrial deafness” and he also concluded that Mrs Petrevska’s last noisy employer was the appellant. Dr Howison adhered to those views after perusal of Mrs Petrevska’s written statements which are in evidence.
The appellant relied upon the opinion of Dr Paul D Niall who had examined Mrs Petrevska on 9 October 2009. Audiometry was conducted which demonstrated, in Dr Niall’s opinion, bilateral hearing loss. He concluded that Mrs Petrevska had suffered a noise induced binaural hearing loss of three per cent.
Mrs Petrevska’s medical file, which had been compiled by the appellant during her employment, was in evidence. That file included charts relating to three audiograms which had been conducted concerning Mrs Petrevska’s hearing in 1988, 1991 and 1994. Those records indicate that Mrs Petrevska’s hearing was, when tested, normal for her age.
Mrs Petrevska had made a claim in respect of lump sum compensation on 20 August 2009, as was acknowledged in the appellant’s s 74 notice dated 15 October 2009 which had been tendered in evidence. The balance of the documentary evidence before the Arbitrator had no relevance to the matters raised for consideration by the Arbitrator at the hearing and need not be summarised.

Submissions before the Arbitrator

Counsel for the appellant identified ss 61 and 261 of the 1998 Act as being those provisions relevant to the issues raised for determination, being whether Mrs Petrevska had met the requirements concerning notice of injury and making of claim. It was put that the evidence established that Mrs Petrevska was aware, in terms of s 261(6), of relevant injury “during the course of her employment” and that the evidence as found in the written statements was inconsistent with matters stated by her in the course of cross-examination.
It was suggested in argument that the first time Mrs Petrevska became “aware of her entitlement” was in December 2008 being the time she stated she was spoken to by a friend who recommended that she consult a solicitor.
It was also argued that the evidence of Mrs Petrevska concerning her relevant awareness was “inconsistent and confusing”.
Counsel proceeded to address the question of prejudice given the effluxion of time. The relevance of such prejudice, having regard to the manner in which Mrs Petrevska had conducted her case, was not made clear.
Counsel for Mrs Petrevska argued that the evidence supported a conclusion that she did not know “she [had] a claim until she [had] expert medical evidence that she does in fact suffer a hearing loss, and that the hearing loss is due to noise exposure”.
It was made clear by counsel that reliance was placed only upon the provisions of s 261(6) which concerns first awareness of injury.

The Arbitrator’s decision

The Arbitrator referred to the error made by Mrs Petrevska concerning the date on which she ceased work with the appellant. A formal finding was made that “her last date of employment was about May 1995”.
Following a narration of the relevant provisions of the legislation the Arbitrator found that Mrs Petrevska had given notice of injury in compliance with s 61 of the 1998 Act, as that section is read with s 17(1)(b) of the Workers Compensation Act 1987.
The Arbitrator proceeded to consider the question as to when, on the evidence, Mrs Petrevska had become first aware of relevant injury. Reliance was placed by the Arbitrator upon dicta to be found in the decision of Roche DP in Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Inghams). The observations made by the Commission in the matter of Inghams were summarised by the Arbitrator at [39] and [40] of Reasons as follows:
“39. In Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Inghams Enterprises) Deputy President Roche made some general observations about the issue of when a worker first becomes aware that he or she has received an injury for the purposes of section 261 of the 1998 Act. These can be summarised as follows:
(a)‘Because hearing loss of a gradual process can have many different causes, it is not sufficient that a worker is merely aware of loss of hearing and that he worked in a noisy place.’ [86];
(b)‘In the context of s261... “aware” means knowledge or knowing.’ [88];
(c)‘The test is an objective one, but is based on the individual worker’s knowledge, not the knowledge of some hypothetical person.’ [89];
(d)‘The worker must actually be aware, not constructively aware.’ [89];
(e)‘It is necessary to have regard to the worker’s state of knowledge at the relevant time.’ [89];
(f)‘A worker cannot be said to be aware he has received a work injury if he is unaware of the nature of the condition said to constitute the injury or is unaware that it has been caused by work.’ [89];
(g)This ‘will usually require specialised knowledge that will normally come from an appropriate expert in the field.’ [89], and
(h)Awareness of injury for the purposes of section 261(6) does not involve knowledge of the claims procedure, time limits and need for expert evidence. [92].
40. Deputy President Roche concluded that the requisite awareness necessitates two things:
(a)Awareness that he has sensorineural hearing loss, and
(b)His hearing loss has been contributed to by his employment.”

Following a summary of relevant evidence and submissions put on behalf of the parties a finding was made (at [49] of Reasons) that “Mrs Petrevska was not in a position to have awareness that, the perception she had of hearing loss, was a sensorineural hearing loss until she was so advised by Dr Howison”. A further finding was made (at [50] of Reasons) that Mrs Petrevska first became aware of her injury on 25 May 2009 when she saw Dr Howison.
The Arbitrator addressed the question of the reliability of Mrs Petrevska’s evidence at [51] of Reasons. It was there noted that the appellant had argued that Mrs Petrevska’s statement dated 11 July 2011 had many paragraphs “in identical terms with other applicants with industrial deafness claims against Unilever” and many of those paragraphs were enumerated by her. Whilst it is apparent that the Arbitrator accepted the suggestion of the similarity among the various statements, the observation was made that the evidence referred to in that statement when determining the dispute were “unique to her” and the Arbitrator expressed her satisfaction that those parts of her statement “can be relied upon to determine the disputes in relation to notice and claim”. I note that the Arbitrator further observed that the “overall reliability” of Mrs Petrevska’s evidence may again be raised when the issue of “noisy employment” is dealt with before the Commission. Having regard to her factual findings the Arbitrator determined that Mrs Petrevska had complied with the requirements concerning making a claim as provided by s 261, and the determinations and order noted at [3] above were made.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The first two challenges to the Arbitrator’s decision concern her findings as to Mrs Petrevska’s compliance with the provisions of s 261 of the 1998 Act which, relevantly, provides as follows:
“(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.
…
(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.”
The Arbitrator addressed the arguments raised by the appellant concerning Mrs Petrevska’s first awareness of injury and made those findings which are the subject of challenge on this appeal between [47] and [49] of her Reasons where it was stated:
“47. Unilever’s counsel made the submission that, as Roche DP in Inghams Enterprises stated that for a worker to be aware of her injury will ‘usually’ require specialist knowledge; this suggests there can be cases where awareness can come before or without such specialist opinion. I accept this submission. In Milosevic it was found she had no awareness until she received confirmation from an appropriate medical practitioner; however this does not necessarily mean it is simply of (sic, a) matter of calculating the date from the first medical report to the date a claim was made. The applicant’s evidence as to her first awareness of injury is crucial.
48. Unilever has submitted the fact that Mrs Petrevska knew she had hearing problems and made the connection in her own mind such problems were due to her work at Unilever, and no other source, this was enough to fall within section 261(6) of the 1998 Act and so she was first aware of her injury within a year or two of leaving Unilever. However I do not accept this submission on the facts in Mrs Petrevska case. She says in her statement dated 19 January 2010 in paragraphs 16 to 18 (and repeated in her statement signed on 5 August 2010) that she saw Dr Howison on 25 May 2009 and he confirmed ‘the majority of my deafness was due to noise exposure. Before seeing Dr Howison I did not know the cause of my hearing problems and I had not seen a doctor beforehand either in relation to my problems.’ I accept this evidence which is consistent with the entirety of the evidence regarding her awareness of her alleged injury.
49. While Mrs Petrevska has said she noticed she had hearing problems and buzzing in her ears, which she thought was due to her employment with Unilever because it was the only noise she had been exposed to; this does not equate in my view to awareness she had the injury of boilermaker’s or industrial deafness. As Deputy President (sic, Roche) discussed in Inghams Enterprises because hearing loss of a gradual process can have many different causes, it is not sufficient that a worker is merely aware of loss of hearing and that she worked in a noisy place. I note Dr Howison in his report dated 14 August 2009 found she also suffered from non occupational hearing impairment. I find that Mrs Petrevska was not in a position to have awareness that, the perception she had of hearing loss, was a sensorineural hearing loss until she was so advised by Dr Howison.”

As earlier noted the Arbitrator found (at [50] of Reasons) that Mrs Petrevska had first become aware of relevant injury on 25 May 2009, the date of her examination by Dr Howison. That date, being within six months of the date on which her claim was made, being 20 August 2009, was thus within the time requirements stipulated by s 261(1) read with s 261(6).
The thrust of the appellant’s argument on appeal appears to be the contention found at [2] of submissions where it is put that “the totality of the evidence did not permit the Arbitrator to arrive this [sic, at this] finding as to when [Mrs Petrevska] first became aware of her injury”.
It may be seen that the first two challenges suggest factual error. To succeed on appeal the appellant must demonstrate that the Arbitrator was wrong. Such error may be established by showing, as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506):
“Material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge was so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The appellant correctly submits that the onus of proving those matters raised for determination by s 261 was upon Mrs Petrevska. The evidence relied upon by the appellant is summarised at [5] of submissions as follows:
“The respondent worker gave evidence in cross examination [Transcript pp13-17] that in 1996-97 she was ‘first aware’ that:-
a.       She had a loss of hearing (and associated symptoms);
b.       Her employment with the appellant was very noisy;
c.       The only explanation in her mind for the cause of her loss of hearing (and associated symptoms) was the noise from the appellant’s factory, and thereafter, she continued to blame the worsening of her hearing loss (and other symptoms) on her noisy employment with the appellant.” (emphasis in original)
Having regard to that evidence it is put that:
“it must follow that [Mrs Petrevska’s] actual state of knowledge from 1996-97 was that she had suffered an injury (within the meaning of [s 4 of the 1987 Act]) by way of hearing loss as a result of her exposure to loud noise whilst employed by the appellant. It is not necessary for [Mrs Petrevska] to have had to know the exact nature of her injury or its precise medical diagnosis, such as ‘sensorineural’ hearing loss, nor the consequences of it” (submissions [6]).
The appellant’s argument is, in substance, a repetition of that advanced before the Arbitrator. The Arbitrator, as noted above, accepted the submission put at the hearing that, having regard to that stated in Inghams, “there can be cases where awareness can come before or without [the receipt of expert opinion]”. The balance of the submissions were rejected by the Arbitrator.
I consider that the Arbitrator’s summary of that which was stated in Inghams (noted at [28] above) is correct. I respectfully agree with the reasoning found in that decision. The Arbitrator has properly relied upon that which was there stated as guidance when construing and applying the provisions of s 261 to facts as found relating to first awareness of injury.
It is important to note that the Arbitrator accepted Mrs Petrevska’s evidence found in written statements that before seeing Dr Howison she did not know the cause of her hearing problems. It is clear that when accepting that evidence the Arbitrator had taken into account Mrs Petrevska’s evidence when cross examined (at [49] of Reasons). That evidence, which I note was generally in response to leading questions and given with the assistance of an interpreter, was found not to “equate to awareness” that Mrs Petrevska had been relevantly injured. That conclusion was open to the Arbitrator on the evidence as a whole and followed correct application of principle. Her factual conclusion demonstrates no relevant error.
It was, in my view, open to the Arbitrator to accept, as she did, that requisite “knowledge or knowing” had not occurred until Mrs Petrevska had been advised by a medical practitioner of her hearing loss and its relationship to noise exposure. It is clear on the evidence of Dr Howison, and by inference from the evidence of Dr Niall, that not all of Mrs Petrevska’s hearing loss was related to noise exposure. Such question is one that only expert opinion may persuasively address. That fact demonstrates the peculiar nature of an injury being noise induced hearing loss and the attendant difficulty faced by a worker in becoming “aware” in terms of the section of such injury. The appellant has failed to establish error on the part of the Arbitrator in concluding as she did on this issue. All relevant facts were considered, correct principles applied and her conclusion was one open to her on the evidence.
The arguments advanced by the appellant addressed above were directed to suggestions that the Arbitrator’s decision was against the evidence and, further, that Mrs Petrevska had not discharged the onus upon her to prove that the date of her requisite awareness was 25 May 2009. The appellant returns to the subject of onus of proof in its submissions commencing at [11] of submissions. Argument outlined thereafter relates not only to onus of proof, but touches upon the subject of Mrs Petrevska’s credit as a witness given the similarity of parts of her statement to those made by other claimants in the related matters.
For the reasons stated earlier, I reject the arguments concerning the suggested failure with respect to onus. In particular, I reject the suggestion that Mrs Petrevska’s evidence was unsatisfactory, contradictory, inconsistent or vague. It is correct, as expressed in submissions, that when cross examined Mrs Petrevska accepted suggestions put to her concerning her state of mind at particular times. That evidence had been considered by the Arbitrator and her view was that any of those matters accepted by Mrs Petrevska would not constitute “awareness” within the meaning of the subsection. That conclusion was reached having regard to a proper consideration of what, in fact, constitutes relevant awareness (Reasons [49]). That conclusion, which I have earlier found to have been open on the evidence, has plainly led the Arbitrator to observe that the evidence relevant to the question of awareness found in the written statements was “consistent with the entirety of the evidence regarding (Mrs Petrevska’s) awareness of her alleged injury” (emphasis added). Those further submissions concerning the onus of proof must be rejected.
At [51] of Reasons the Arbitrator addresses the question of the reliability of Mrs Petrevska’s evidence having regard to the content of the statements noted at [11] above. It is there made clear that those parts of Mrs Petrevska’s statement criticised in submissions had no relevance to the issues before her and that she had placed no reliance upon them in reaching her conclusions. The Arbitrator expressly stated that it remained open to the appellant to raise such argument in the context of determination of the principal issue concerning disputed occupational noise levels. No relevant error is made out.
The appellant argues that the Arbitrator has failed to provide adequate reasons for her determination. I have earlier attempted to outline the reasoning adopted by the Arbitrator. That process of reasoning took into account all the evidence including the cross-examination of Mrs Petrevska; the arguments raised by counsel, and included a statement as to why Mrs Petrevska’s evidence in the written statements was accepted by her. Those reasons, in my view, meet the requirements concerning the adequacy and sufficiency of reasons required by law (see Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 per Meagher JA at 443). The appeal must be dismissed. Appropriate orders appear below.

DECISION

The following orders are made:
1.Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to appeal the Arbitrator’s decision made on 16 October 2012.
2.The Arbitrator’s determinations and order made in the Certificate of Determination dated 16 October 2012 are confirmed.

COSTS

The appellant is to pay Mrs Petrevska’s costs of this appeal in any event.

Kevin O’Grady

Deputy President
21 January 2013

I, KATHRYN CAMP, 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