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

1. 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.

2. 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.

3. 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

1. The applicant submitted that the prior claims for hearing loss are entitled to be aggregated and the applicant can make the current claim.

2. 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.

3. 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.

4. 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 applicant made his claim on 1 April 2014, it was caught by the 2012 Amendments.

5. The respondent drew the Personal Injury Commission’s (the Commission) attention to the Court of Appeal decision in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (Sukkar). In that matter, the Court was specifically asked whether the 2012 Amendments apply to claims for permanent impairment compensation for hearing loss made on or after 19 June 2012 in circumstances where the worker has made a previous claim for permanent impairment compensation prior to that date. The Court held that claims made after 19 June 2012 for hearing loss were the subject of the 2012 Amendments.

6. This being so, the respondent submitted that notwithstanding the deemed date of injury, as the claim was made after that date and accordingly a claim for hearing loss involving the same pathology arising from multiple injurious events could not be aggravated, however, a claim for a further loss of hearing could be made as a further injury.

7. The respondent submitted that given the decision in Sukkar, in order for the applicant to be able to bring a claim for permanent impairment compensation in relation to the alleged injury on 7 June 2012, the loss arising from that injury would need to be greater than the 10% binaural hearing loss.

8. The respondent took the Commission to the report of Dr Lucchese found at page 171 of the Application to Resolve a Dispute. In that report, Dr Lucchese noted there was a previous payment of compensation of 12% whole person impairment, and that he assessed in any event the applicant’s current binaural hearing loss also at 12%.

9. The respondent therefore submitted that even if the Commission was not persuaded this matter fell within the parameters set out in Sukkar, in any event the applicant’s own IME had stated he had not suffered any further whole person impairment as a result of the injury complained of in this claim and therefore there should be an award for the respondent in the event.

CONSIDERATION

1. In my view, the respondent is correct. Sukkar remains good law and it is apparent on the face of that decision that the 2012 Amendments apply to claims for permanent impairment for hearing loss which were made on or after 19 June 2012. This is such a claim, and the facts of this matter in my opinion fall squarely within those in Sukkar.

2. Applying the decision of the Court of Appeal in Sukkar to the facts of this case, in my view, the applicant is precluded from bringing this claim.

3. It is not, in the circumstances, necessary to therefore determine whether the applicant would in any event fail in his claim because of the lack of additional whole person impairment brought about by the injury at issue. However, had I been required to make such a finding, I would have been persuaded by the respondent’s submissions that in fact on the applicant’s own case Dr Lucchese’s report indicates there was no evidence of any further hearing loss suffered as a result of the injury at issue.

SUMMARY

1. For the above reasons, the Commission would make the findings and orders set out on page 1 of the Certificate of Determination.