Zouroudis v Plastic Surfaces & anor.
[2005] NSWWCCPD 113
•21 September 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Zouroudis v Plastic Surfaces Pty Ltd (deregistered) and JW Parker Furniture Pty Ltd formerly Parker (Furniture) Pty Ltd under external administration [2005] NSW WCC PD 113
APPELLANT: Basilios Zouroudis
FIRST RESPONDENT: Plastic Surfaces Pty Ltd (deregistered)
SECOND RESPONDENT: JW Parker Furniture Pty Ltd formerly Parker (Furniture) Pty Ltd under external administration
INSURERS:Zurich Workers Compensation Limited, for the First Respondent; QBE Insurance Limited and MMI Insurance c/o Allianz Australia Workers Compensation (NSW) Limited, for the Second Respondent.
FILE NUMBER: WCC660-04
DATE OF ARBITRATOR’S DECISION: 3 August 2004
DATE OF APPEAL DECISION: 21 September 2005
SUBJECT MATTER OF DECISION: Whether the ‘interests of justice’ allow the claim out of time; whether the claim was late due to ‘ignorance’.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Voros Lawyers
First Respondent: Vardanega Roberts Solicitors
Second Respondent: Moroney Betts Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order as to costs
BACKGROUND TO THE APPEAL
On 30 August 2004 Basilios Zouroudis sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 3 August 2004.
The First Respondent to the appeal is Plastic Surfaces Pty Ltd (deregistered), who was insured by Zurich Workers Compensation Limited. The Second Respondent is JW Parker Furniture Pty Ltd formerly Parker (Furniture) Pty Ltd under external administration, who was insured by QBE Insurance Limited until 30 June 1972, and MMI Insurance c/o Allianz Australia Workers Compensation (NSW) Limited until 19 June 1980. Zurich and Allianz instructed legal representatives to appear for and on behalf of the First and Second Respondents respectively, in the Commission proceedings.
Mr Zouroudis had worked for the Second Respondent as a chair maker in a factory, using heavy sanding and nail gun machinery from 1970 until 1981. He was then employed by the First Respondent to cut formica and ply board bench surfaces using a small machine, from April 1981 until December 1981. He did not return to any work after his employment with the First Respondent in December 1981, as he sustained an injury to his left hand, for which he later received compensation.
During the course of his employment with the Second Respondent, Mr Zouroudis had noticed his hearing deteriorate. This continued whilst employed by the First Respondent. He noticed increasing hearing loss and tinitus in the years following his last employment, and eventually sought medical attention in May 2000, after which tests showed that he did have hearing loss. Mr Zouroudis claims it was at this time that he first became aware of the causal connection between his hearing loss and his former work.
Mr Zouroudis lodged an application in the Compensation Court of NSW against the First and Second Respondents. The application was in relation to a claim for lump sum compensation for hearing loss. The claim was transferred to the Commission in January 2004 following the closure of the Court.
A teleconference was held on 8 June 2004, following which written submissions were filed. The Arbitrator proceeded to determine the matter without holding a conciliation conference or Arbitration hearing. A ‘Certificate of Determination’ and ‘Statement of Reasons’ were issued on 3 August 2004.
The Certificate of Determination, dated 3 August 2004 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is that the applicant has failed to make out his claim and there is an order in favour of the respondent.”
The basis of the Arbitrator’s decision, as set out in the Statement of Reasons was that it was not in the “interests of justice” that Mr Zouroudis’ claim continue given that it was made out of time.
The Appellant agrees to a determination on the papers, as does the First Respondent. The Second Respondent has made no submissions on the matter. 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 (pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
There is no dispute that the amount of compensation in issue on the appeal is greater than $5000.00. As no award was made, section 352(2)(b) of the 1998 Act has no application.
Both the First and Second Respondents submit that leave to appeal should not be granted as the Application was marked received in the Commission on 7 September 2004, and was therefore out of time. The Application should have been filed by 31 August 2005 i.e. within 28 days of the making of the decision appealed against (section 352(4)). The Respondents also submit that leave to appeal should not be granted because the sealed Application was not served until 23 September 2004, when in accordance with Rule 77(4) of the Workers Compensation Commission Rules 2003 (‘the Rules’), it should have been served within 7 days of receipt in the Commission, being 14 September 2004.
The Application to Appeal was received in the Commission on 30 August 2004, but was deemed incomplete for lack of copies filed and for want of submissions on threshold issues and whether the matter may be determined on the papers. The Commission directed that the defects be remedied by 8 September 2004. Mr Zouroudis remedied these defects and resubmitted the Application on 7 September 2004.
Rule 15 provides that the time for the commencement of proceedings is to be the date of registration and affixing of the Commission seal. This occurred on 7 September 2004, therefore the appeal was filed seven days late. Given that the Commission, by direction, granted Mr Zouroudis until 8 September 2004 to re-file the appeal, it appears to me that the ‘exceptional circumstances’ test in Rule 77(8) is met. Mr Zouroudis complied with this direction, and the delay between first filing and completion of filing was not to the detriment of any party.
Leave to appeal is granted.
ISSUES IN DISPUTE
Mr Zouroudis does not challenge the Arbitrator’s statement of the relevant law applicable to the determination of this matter. The Arbitrator determined that Mr Zouroudis had to meet the test set out in the former section 92 of the 1987 Act, which provides, in part, as follows:
“(2) Compensation may not be recovered under this Act unless the claim for compensation has been made within six months after the injury or accident happened or, in the case of death, within six months of the date of death.
. . .
(4A) The failure to make a claim from the period required by subsection (2) 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 three years after the injury or accident happened. . . or
(b)the claim is not made within three years but it is found that it is in the interests of justice that the claim not be barred.
(4C) 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 ss(2) and (4A) taken to have been received when the worker first became so aware.”
The issues in dispute in the appeal may be summarised as follows:
·Did the Arbitrator err in finding, as a matter of fact, that the failure of Mr Zouroudis to make a claim within time was not occasioned by ignorance, mistake or other reasonable cause?
·Did the Arbitrator err in finding that it was not in the ‘interests of justice’ that his claim be allowed?
CONSIDERATION
Did the Arbitrator err in finding, as a matter of fact, that the failure of Mr Zouroudis to make a claim within time was not occasioned by ignorance, mistake or other reasonable cause?
The Arbitrator found that Mr Zouroudis “was aware he had suffered hearing loss related to his employment whilst in the employ of the second and/or first respondents”, i.e prior to December 1981. His failure to make an earlier claim for hearing loss was not occasioned by ‘ignorance’ and there was no evidence as to any other ‘reasonable cause’ for his failure to make an earlier claim. She made this decision on the basis of the following findings:
·Mr Zouroudis sought treatment for hearing loss in 2000;
·the deemed dates of injury were both in 1981;
·while he was working for the Second Respondent his wife made a number of complaints about his hearing;
·his hearing problems continued throughout his later employment with the First Respondent;
·in his statement he claimed to have “noticed a deficiency in hearing prior to commencing with Parker” and was therefore ‘aware that he had suffered an injury’, and
·he sought legal advice for his 1981 hand injury and was aware of the possibility of bringing a claim for an injury suffered in the course of his employment.
Neither party has raised an alternative claim that Mr Zouroudis’ failure to make a timely claim was due to ‘mistake’ or ‘absence from the jurisdiction’ pursuant to Section 92(4A) of the 1987 Act (as it then was).
Mr Zouroudis submits that the Arbitrator’s decision is “unfair in that the Arbitrator has determined that the date when a claimant/applicant suffers an ‘injury’ is unaffected by the issue of whether or not the claimant understood or appreciated that the hearing loss was work related”. The Arbitrator allegedly erred in finding that Mr Zouroudis’ “acceptance he had a hearing condition in the nature of hearing loss temporally co-exiting with his employment with the respondents, equated to an acceptance by him of there being a causal connection between the condition and the employment. Such a view is contrary to an explicit statement at paragraph 19 of the statement of Basilios Zouroudis dated 25 June 2004”.
The onus is on Mr Zouroudis to prove that his failure to make the claim within the required period was occasioned by ignorance or other reasonable cause; Gregson v L & MR Dimasi Pty Limited (2000) 20 NSW CCR 520 (‘Dimasi’).
Section 92(4A) provides that the claim may not be barred if the failure to make it is attributable to ‘ignorance’. Both parties have referred to the case of Dimasi. Mr Zouroudis submits that Dimasi should not have been applied as it concerns a worker who not only knew he had sustained a physical injury, but who knew the injury was work-related. In the instant case, Mr Zouroudis claims that he was aware only of his hearing problems, but did not know they were work-related.
In Dimasi, Burke J considered the application of section 65(13) of the 1998 Act, which is in identical terms to section 92(4A) of the 1987 Act (as it then was). He refers to section 65(13) and says, relevantly to this matter:
“the burden upon a worker immediately prior to the operation of the WIM Act where the claim was made more than 3 years after injury was to establish that the delay was occasioned by ignorance, mistake, absence from the State or other reasonable cause and, additionally, that it was in the interests of justice that he be permitted to recover compensation…
. . . There is no direct evidence on the mater. The overall evidence permits some inferences.
The ignorance referred to is ignorance of the rights 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” (at paragraphs 58-61).
This involves a familiarity with the relevant law in regard to compensation claims. In Dimasi Burke J found that the worker, who had worked in different states;
“. . having spent the greater part of his working life in Tasmania, the applicant would be expected to be aware of the general requirements of that State in regard to compensation claims. Perhaps even he could be expected to know something of the requirements of Victoria. However his transient acquaintance with New South Wales would not suggest any likely familiarity with the relevant law in this State” (at paragraph 61).
Mr Zouroudis, in his statement dated 25 June 2004 records his experience of working for the Second Respondent in 1970 where he used a loud sanding machine, without having protective ear muffs. Other workers had to raise their voices so that he could hear them. He also used a ‘presser’ that was noisy. His wife used to complain that he was ‘deaf’ during that time. He had not ever had such a complaint before working for the Second Respondent. In 1981 he went to the First Respondent where he again worked with noisy machinery without ear muffs. He states that he “noticed the hearing problems I was experiencing at Parker continued throughout my employment at Plastic”. Despite this he states that it was not until he had an audiogram done in July 2000 that he became aware that he suffered a work related hearing loss.
In my view, consistent with the reasoning in Dimasi, the Arbitrator was entitled to find Mr Zouroudis’ failure to bring his claim for compensation within time was not occasioned by ignorance of his right to make a claim for industrial deafness and the need to do so in a timely way. It is not expected that he be aware of the detailed requirements of workers compensation law, however it is reasonable to expect that he would be aware that a failure to bring a claim for more than twenty years after the injury occurred might preclude him from recovering compensation for that injury. It was open to the Arbitrator to find, as a matter of fact, that Mr Zouroudis was aware that he suffered hearing loss attributable to his employment while working with both Respondents.
It was also open to the Arbitrator to take into account the fact that Mr Zouroudis had an earlier claim determined against the Second Respondent in the Compensation Court. He was legally represented in those proceedings. This claim was made in 1981, when he last worked for the Second Respondent and at the time when he alleges that he was already suffering from hearing loss. The Arbitrator was also entitled to infer from Mr Zouroudis’ previous claim in the Compensation Court, that he was generally aware of his rights and obligations under workers compensation law.
The Arbitrator did not err in finding that the failure of Mr Zouroudis to make a claim within time was not occasioned by ignorance or other reasonable cause.
Did the Arbitrator err in finding that it was not in the ‘interests of justice’ that his claim be allowed?
The Arbitrator found that it was not in the ‘interests of justice’ to allow Mr Zouroudis to make his claim because more then 20 years have passed since Mr Zouroudis was employed by either Respondent. Both Respondents are no longer in business. The Arbitrator found that it would therefore be extremely difficult to obtain evidence going to the issue of whether the workplaces were ‘noisy’.
Mr Zouroudis submits that the decision of the Arbitrator is “unfair” because although he has medical evidence to support his claim for hearing loss, he is precluded from making that claim and pursuing any compensation. He submits that he “was not dilatory and commenced an action promptly after becoming aware he had sustained a hearing loss through his employment. No suggestion that he delayed has been made.”
As Mr Zouroudis’ claim was not made within three years after the injury happened, in 1981, he must demonstrate that it is in the ‘interests of justice’ that his claim not be barred. The application of the ‘interests of justice’ test was discussed in Dimasi (see also Gow v Patrick Stevedores [2002] NSWCC 60 (20 December 2002)). In Dimasi Bourke J said:
“The workers compensation Acts are beneficial Acts…
. . . Prima Facie, it would appear in the interests of justice that a worker receive the benefits which the legislature has beneficently bestowed upon him. Other factors can impinge upon that evaluation. If a worker emerges out of the mists of time some 6 years later to announce for the first time that he had suffered injury way back then and now sought compensation, it could be difficult to say that justice inter partes suggested that he should recover” (at paragraph 70).
The High Court in BHP Billiton Limited v Schultz [2004] HCA 61 considered the meaning of the ‘interests of justice’ in the context of an application to transfer proceedings from the Dust Diseases Tribunal to the Supreme Court of South Australia. While the context is different to this case the comments of Gleeson CJ, McHugh and Heydon JJ are apt. They said, at paragraph 15 of the reasons, that:
“The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s5 is not disembodied, or divorced from practical reality.”
In this matter Mr Zouroudis has “emerged out of the mists” some twenty years after his employment ceased. His interests in terms of his claim for compensation for hearing impairment must be balanced against other factors. The First Respondent has been deregistered and the Second Respondent is under administration. It would be virtually impossible for either Respondent to obtain evidence going to the issue of whether Mr Zouroudis’ employment was noisy. Effectively the delay in bringing the claim has defeated the Respondents’ ability to defend it. While the workers compensation acts are beneficial they are not intended to convey rights on workers without regard to the rights of employers and insurers. The caveats in section 92(4A) reflect this balance.
The Arbitrator took these matters into account and has not erred in finding that it is not in the interests of justice to allow Mr Zouroudis to bring his claim.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
Sections 341 and 345 of the 1998 Act govern the costs of the appeal. The Appellant has been ‘unsuccessful’ on the appeal (section 345 (3)). The appropriate order is ‘no order as to costs’.
Dr Gabriel Fleming
Deputy President
21 September 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE