Bjelosevic v Formtec Formwork Australia Pty Ltd - [2022] NSWPIC 327

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bjelosevic v Formtec Formwork Australia Pty Ltd [2022] NSWPIC 327
APPLICANT:	Borislav Bjelosevic
RESPONDENT:	Formtec Formwork Australia Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	27 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Hearing loss; whether applicant able to proceed with claim for permanent impairment compensation made after June 2012 for an additional 5% whole person impairment despite the 2012 amendments to the Workers Compensation Act 1987; Held – the applicant was precluded from bringing the further claim in the circumstances of this case which are materially identical to those in the Court of Appeal decision in Sukkar v Adonis Electrics Pty Ltd; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Borislav Bjelosevic (the applicant) brings a claim with respect to alleged hearing loss against Formtec Formwork Australia Pty Ltd (the respondent) and seeks payment for permanent impairment compensation for a deemed date of injury of 7 June 2012. He has previously received a number of awards of permanent impairment compensation for hearing loss.
The claim for that injury was made by way of letter from the applicant’s solicitors to the respondent’s insurer dated 1 April 2014.
The issue in this matter is whether the applicant is entitled to aggregate his claim in respect of this loss in circumstances where the claim was made after June 2012 and where he has already received a one set of permanent compensation for his hearing loss.

SUBMISSIONS

The applicant submitted that the prior claims for hearing loss are entitled to be aggregated and the applicant can make the current claim.
The applicant submitted that the amendments to Division 4, Part 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 did not apply to his claim, as the deemed date of injury was the last day on which he worked for the respondent, namely 7 June 2012.
In this supplementary statement, the applicant sets out the basis of his prior awards for whole person impairment relating to hearing loss. He says in that statement on or about 24 June 2005, he was paid permanent impairment compensation with respect to a 9.6% hearing loss and was paid on or about 5 August 2002 the amount of $1,250 for 1% binaural hearing loss claim. He says, contrary Dr Lucchese Independent Medical Examiner’s (IME) report that the amount of the claim sought to be paid in the current proceedings is 5%, and Dr Lucchese made an error in his report. The applicant submitted that having regard to the longstanding hearing injury, he is entitled to an agglomeration of his claims.
The respondent submitted that the applicant had in fact had a number of different payments for industrial deafness, namely in May 2001, September 2001, October 2001 and June 2005. The respondent conceded it was the last employer of noisy employment for the applicant, however, the respondent submitted that because the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 327
Decision Date: 27 June 2022

CaseChat Overview and Summary

The applicant, Bjelosevic, sought compensation for permanent impairment due to hearing loss from their employment with the respondent, Formtec Formwork Australia Pty Ltd. This matter was heard in the Industrial Relations Commission of New South Wales. Bjelosevic argued that they should be able to claim an additional 5% whole person impairment despite legislative changes in 2012 that amended the Workers Compensation Act 1987. The court was required to determine whether Bjelosevic's claim was precluded by the legislative changes and whether the amendments applied retrospectively.

The court considered the statutory framework and the decision in Sukkar v Adonis Electrics Pty Ltd, which established that claims for additional whole person impairment were precluded when the amendments to the Act came into effect. The court found that the legislative changes were intended to alter the legal consequences of prior events, and thus applied retrospectively. As the facts of this case were materially identical to those in Sukkar, the court held that Bjelosevic was precluded from making the claim. Consequently, the court dismissed Bjelosevic's application and ordered that the respondent be awarded its costs.

Orders