Barretto v Parramatta City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Barretto v Parramatta City Council [2023] NSWPIC 581
APPLICANT:	Rosemarie Barretto
RESPONDENT:	Parramatta City Council
MEMBER:	John Isaksen
DATE OF DECISION:	3 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment for hearing loss and the cost of digital hearing aids; dispute as to the deemed date of injury between two insurers of the respondent; reference to Hay v Commonwealth Steel Company P/L and Penrith Rugby League Club v Van Poppel; Held – the deemed date of injury is when the worker is last employed in employment the nature of which the injury is due and not when the worker was last exposed to loud noise when in that employment.
DETERMINATIONS MADE:	The Commission determines: 1. The deemed date for the applicant’s loss of hearing which has been sustained in the course of her employment with the respondent is 3 July 2020. The Commission orders: 1. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 3 July 2020 (deemed) Body Part: Hearing loss Method of Assessment: Whole person impairment 2. The following documents are to be forwarded to the Medical Assessor: (a) the Application to Resolve a Dispute and attached documents; (b) Reply and attached documents filed in the interests of icare; (c) Reply and attached documents filed in the interests of Statecover, and (d) a copy of this decision. 3. The matter is remitted back to a Member following upon the provision of the Medical Assessment Certificate, or any appeal therefrom, if orders are required in regard to the outstanding claim for digital hearing aids.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Rosemarie Barretto, claims that she sustained loss of hearing in the course of her employment with the respondent, Parramatta City Council.
The applicant states that she was employed as a traffic and transport investigation engineer with the respondent from 16 October 2006 to 3 July 2020. She states that she was required to assess development applications for approval by the respondent. She states that this required her to attend development sites where she was exposed to noise from passing traffic and trucks.
The applicant states that the noise from the traffic would be very loud if the development application was situated on a main road and she had to often raise her voice to communicate. She states that she was not provided with hearing protection.
The applicant states that she ceased actual physical work with the respondent on
11 May 2020 due to a medical condition. She states that she was on sick leave from
11 May 2020 to about 5 June 2020, and then took annual leave and long service leave until
3 July 2020 when her employment with the respondent was terminated.
There is an email from Petrina Lobo, Injury Management Consultant for the respondent, dated 24 March 2021 which states that the last day that the applicant performed any work for the respondent was on 7 May 2020.
The applicant states that since about 18 November 2020 she has been employed as a contract traffic engineer with Public Sector People, but this involves working from home and she is not required to attend any sites.
The applicant has made a claim upon the respondent for a lump sum payment of compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 16% whole person impairment for loss of hearing as assessed by Dr Fagan, ear, nose and throat specialist, in a report dated 10 February 2021. The applicant claims that the respondent has been her last noisy employer.
The applicant also claims that the respondent meets the cost of digital hearing aids as recommended by Dr Fagan.
Those claims by the applicant were made by her lawyers upon Statecover Mutual Limited and EML Workers Compensation and icare by letters dated 5 March 2021.
Icare was the insurer on risk for the respondent until 30 June 2020 and Statecover Mutual Limited (Statecover) came on risk for the respondent as of 1 July 2020.
The applicant contends that the deemed date of injury for her loss of hearing sustained in the course of her employment with the respondent is 3 July 2020, being the last day that she was employed in an employment to the nature of which the injury was due before she gave her notice of injury.
Statecover contends that the deemed date of injury should be 7 or 10 May 2020 because the applicant has not physically worked for the respondent in employment of a nature that could cause industrial deafness since those dates.
Statecover also disputes that the applicant has whole person impairment from her loss of hearing which is in excess of 10%.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the deemed date of injury for the loss of hearing sustained by the applicant in the course of her employment with the respondent (s 17 of the 1987 Act), and
(b) the assessment of whole person impairment for the applicant’s loss of hearing
(s 66 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The parties attended a conference on 19 September 2023, and it was agreed that the dispute would proceed to a determination by way of written submissions. The following timetable was set:
(a) Statecover to file and serve written submissions by 10 October 2023, and
(b) the applicant and icare to file and serve written submissions by 31 October 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents filed in the interests of icare;
(c)    Reply and attached documents filed in the interests of Statecover;
(d)    written submissions filed on behalf of Statecover on 10 October 2023;
(e)    written submissions filed by the applicant on 23 October 2023, and
(f)    written submissions filed by EML Workers Compensation on 31 October 2023.

Relevant legislative provisions

Section 17 of the 1987 Act relevantly provides:
“Loss of hearing – special provisions
(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—
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,
…
(2)     Without limiting the generality of subsection (1), the condition known as "boilermaker's deafness" and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.”

The submissions from Statecover

Statecover submits the context and purpose of s 17 of the 1987 Act, including the surrounding ss 15, 16 and 18, means that the words ‘employed’ and ‘employment’ must be given their ordinary natural meaning in light of the claim being made and the purpose of the legislation to pay compensation arising out of that employment, namely exposure to noise.
Statecover submits that the use of the word ‘so’ in the context of s 17 (1)(a)(ii) is as an adverb to emphasise the word coming after it, namely ‘employed’. The concept of being employed is directly connected to the words that appear in both subsections of s 17 (1)(a), being ‘employment to the nature of which the injury was due’. Statecover submits that these words speak of the actual work that was performed by the applicant as opposed to a mere hypothetical or contractual state of affairs.
Statecover submits that the applicant had abandoned her employment which was connected to the duties she performed which gave rise to the tendencies, incidents and characteristics to cause occupational noise by either 7 or 10 May 2020. The last day that the applicant worked in relevant employment was either 7 or 10 May 2020 and therefore Statecover should not be liable to indemnify the respondent or worker in this application.

The submissions from the applicant

The applicant relies upon the Presidential decisions in Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 32 (Hay) and Penrith Rugby League Club v Van Poppel [2018] NSWWCCPD 55 (Van Poppel), which will be set out in some detail in my determination of this dispute.
The applicant submits that the determination of the deemed date does not depend upon the duties being performed and it is immaterial that her duties did not require her to perform any task from on or about 11 May 2020. The applicant submits that Statecover makes the same mistake which was identified in Hay and Van Poppel, which is to enquire about the specific duties performed rather than to apply the clear words of s 17 of the 1987 Act.
The applicant submits that s 17 (1) (a)(ii) of the 1987 Act does not refer to a date when the worker last worked in employment but fixes the date as the “last date the worker was employed in an employment to the nature of which the injury was due”. There is no dispute that the last date the applicant was employed was 3 July 2020 and the deemed date of injury should be 3 July 2020.

The submissions from EML Workers Compensation (EML)

EML also relies upon the decisions in Hay and Van Poppel. EML submits that Hay and Van Poppel make it clear that s 17 of the 1987 Act does not require a consideration to be given to a worker’s specific duties or the actual work performed by the worker. The deemed date of injury is when the applicant was last employed by the respondent, which was employment the nature of which the injury was due.
EML submits that all that needs to be established is that the applicant’s employment with the respondent had the tendencies, incidents and characteristics of noisy employment, even though the applicant’s duties may have changed over time. EML refers to what was stated by McColl JA in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (Sukkar) at [84]:
“The effect of s 17(1)(a) of the 1987 Act was to operate in the worker’s favour, as Barwick CJ explained in Bain (at 257), a fictional date of injury which could found a compensation claim, even though “the condition is a product of past events”. It also created a fictitious “incident” for the purposes of causation, that being the “one blow” to which Barwick CJ also referred.”
EML submits that Statecover ignores the fact that the injury for present purposes is a product of past events and s 17 has to be applied according to its terms.

Determination

I am guided in the determination of this dispute by the litigation before the Commission which concluded with the decision in Van Poppel.
Ms Van Poppel worked as a bar attendant with Penrith Rugby League Club Ltd from 1977 to 1982 and was exposed to loud disco music. Ms Van Poppel remained employed with Penrith Rugby League Club Ltd after 1982 but worked in the accounts department and was no longer exposed to loud noise.
Ms Van Poppel made a claim on 9 December 2016 while she was still employed with Penrith Rugby League Club Ltd and still undertaking administration work for a lump sum payment for 13.7% binaural hearing loss and the payment of digital hearing aids. The issue before the Commission was whether the deemed date of injury was in 1982 when Ms Van Poppel was last exposed to actual loud noise or in December 2016 when she made her claim and she remained in the same employment where she had last been exposed to loud noise.
The issue of the deemed date of injury was of particular significance to Ms Van Poppel because if the deemed date of injury was in 1982 then Ms Van Poppel would at least have the possibility of receiving a lump sum payment pursuant to s 66 of the 1987 Act. However, that would not be available to her if the deemed date of injury was in December 2016 because of the amendments to the workers compensation legislation in this State which were made in 2012.
I made a determination in Van Poppel that the deemed date for the claim was
1 January 1982 when Ms Van Poppel was last exposed to noise in the actual work being undertaken by her in her employment with the respondent. I relied upon some of what was said by Kirby A-CJ in Blayney Shire Council v Lobley [1995] 12 NSWCCR 52 (Lobley), as well as CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169 (CIC) and an arbitral decision of McLean v Qantas Airways Limited [2014] NSWWCC 421 (McLean).
That decision was revoked by DP Snell in Van Poppel and the deemed date of injury for the claim was found to be 9 December 2016. Deputy President Snell referred to what was stated by Kirby A-CJ in Lobley at [55C]:
“The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz, when the notice injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due’.”
Deputy President Snell then said at [70]:
“In the current matter, it is common ground that the Club employed the worker in ‘noisy’ employment, to the nature of which the injury was due. No party argues to the contrary. No party submits that the worker’s claim should have failed. It follows that the proviso identified by Kirby ACJ in Lobley was satisfied. The Club was “that employer”, as the term was used by Kirby ACJ. In the terms employed in the passage of Smith v Mann quoted at [68] above, the Club, to which she gave notice of injury on 9 December 2016 whilst she remained in its employ, was an employer who employed or had employed the worker in ‘noisy’ employment. This was sufficient to engage the application of s 17(1)(a)(i). It follows that the deemed date of injury was the date when notice of injury was given, 9 December 2016. The clear words of s 17(1)(a)(i) are satisfied.”
Deputy President Snell said that his decision was consistent with the approach taken by DP Wood in Hay some five months earlier, where DP Wood said at [90]:
“…In line with the above authorities and for the purposes of s 17, it is not necessary or correct to identify a precise time when the injury occurred or to isolate certain duties performed during the whole period of employment with a noisy employer.”
Deputy Snell then said at [73]:
“Support for the approach I have taken may be drawn from the observations of Kirby ACJ in Lobley and Great Lace (see [41] and [47] above). The matters identified by his Honour represent part of the context of s 17(1), the “mischief or object to which the statute was directed” (see [65] above). It is common, for workers involved in ‘noisy’ employment, who give notice to their current employer, to have been in such employment over a period, during which the duties (and noise levels) will have changed from time to time. The construction which I have reached has the advantage of simplicity. Notice is given to the employer, and this identifies the deemed date of injury, which also identifies the insurer. If the alternative construction were adopted, it would be necessary to have regard to when it could be established the employment was last ‘noisy’. This would be of practical interest to insurance interests. It tends to move the dispute more to one about true causation, contrary to the observations by Kirby P in Grate Lace, as adopted by Roche DP in Cameron No 1. It has the capacity to encourage litigation and to increase legal costs.”
Van Poppel involved the application of s 17 (1)(a)(i) because Ms Van Poppel was still employed with the employer in whose employment the nature of the injury was due when she made her claim. This dispute involves the application of s 17 (1)(a)(ii) because the applicant was no longer employed with the employer in whose employment the nature of the injury was due when she made her claim. However, both sub-clauses (a)(i) and (ii) use the same wording to fix the deemed date of injury: “employed in an employment to the nature of which the injury was due”.
Furthermore, although Van Poppel involved the application of s 17 (1)(a)(i), the decision of Hay, which was followed by DP Snell in Van Poppel, involved the application of s 17 (1)(a)(ii), and DP Wood to concluded: “… it is not necessary or correct to identify a precise time when the injury occurred would isolate certain duties performed during the whole period of employment with a noisy employer”.
Therefore, the reasoning set out in Hay and Van Poppel should be followed in fixing the deemed date of injury in this dispute and that should be 3 July 2020, being the last date that the applicant was employed in an employment to which the nature of the injury of hearing loss was due.
Statecover submits that “there is no occasion to deal with authorities such as Van Poppel or other authorities dealing with s 17 (1)(a)(i) or the authorities dealing with the last noisy employer”, but it does not provide any reasons for such a submission, particularly when the crucial wording in both sub-clauses (a)(i) and (ii) is the same.
The deemed date of injury in Van Poppel was crucial to the entitlements that Ms Van Poppel might receive. However, that is not the situation in this dispute. In this dispute it is, as observed by DP Snell in Van Poppel at [73] “of practical interest to insurance interests”.
The deemed date of injury for this claim is 3 July 2020 being the last date that the applicant was employed in an employment to which the nature of the injury of hearing loss was due.

[2023] NSWPIC 581

3 November 2023