Bluescope Steel (AIS) Pty Ltd v Sekulovski

[2019] NSWCA 136

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bluescope Steel (AIS) Pty Ltd v Sekulovski [2019] NSWCA 136
Hearing dates:	10 May 2019
Date of orders:	10 May 2019
Decision date:	13 June 2019
Before:	Gleeson JA at [1]; White JA at [2]; Emmett AJA at [3]
Decision:	Leave to appeal refused with costs.
Catchwords:	WORKERS’ COMPENSATION – whether the Worker was entitled to be paid the cost of hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (NSW) – whether the Deputy President failed to apply s 60(1)(a) of the 1987 Act correctly WORKERS’ COMPENSATION – assessment and amount of compensation – whether the Deputy President failed to apply ss 122 and 326 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether the Deputy President failed to apply s 122(6) as to the effect of the “conclusive evidence” of a medical panel certificate
Legislation Cited:	Workers Compensation Act 1926 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	Bluescope Steel (AIS) Pty Ltd v Sekulovski [2018] NSWWCCPD 48
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Bluescope Steel (AIS) Pty Ltd (Appellant) Radomir Sekulovski (Respondent)
Representation:	Counsel: M Robinson SC with S Blount (Applicant) B G McManamey with S McMahon (Respondent)   Solicitors: HWL Ebsworth Lawyers (Applicant) Whitelaw McDonald Solicitors (Respondent)
File Number(s):	2018/377145
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Workers Compensation Commission of New South Wales Citation: [2018] NSWWCCPD 48 Date of Decision: 9 November 2018 Before: Deputy President Elizabeth Wood File Number(s): A1-1525/18

Judgment

1. GLEESON JA: My reasons for joining in the orders made on 10 May 2019 accord with those of Emmett AJA.

2. WHITE JA: The reasons of Emmett AJA also reflect my reasons for refusing leave to appeal.

3. EMMETT AJA:

Background

These proceedings are concerned with the question of whether the respondent, Radomir Sekulovski (the Worker), is entitled to be paid by the applicant, Bluescope Steel (AIS) Pty Ltd (Bluescope), the cost of hearing aids, pursuant to s 60 of the Workers Compensation Act 1987 (NSW) (the 1987 Act). The Worker commenced work with Bluescope as a truck driver and machine operator in about 1965 and, in the course of that employment at Bluescope’s Port Kembla steelworks, he was exposed to noise, as a consequence of which he suffered hearing loss. On 9 November 2018, the Workers Compensation Commission (the Commission) decided that hearing aids, the cost of which was $5,657.80, are reasonably necessary as a result of noise-induced hearing loss suffered by the Worker in the course of his employment by Bluescope.

4. By amended summons filed on 18 February 2019, Bluescope seeks leave to appeal from the decision of the Commission. Under s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) an appeal on a point of law may be brought to this Court from a decision of the Commission constituted by a Presidential member. Leave is required because the amount claimed by the Worker is less than $20,000. [1]

   1. Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(4)(c).

5. The thrust of the contentions advanced on behalf of Bluescope in support of the grant of leave to appeal is that Bluescope has received in excess of 25,000 hearing loss claims, most of which arise from workers whose employment had been at the Port Kembla steelworks, where the Worker was employed. Workers employed for a period of up to 20 years in areas that produce a significant noise, such as steelworks, often have binaural hearing loss. Accordingly, Bluescope says, it is important for it and other employers to ensure that the provisions of the 1987 Act and the 1998 Act are properly applied. Bluescope has indicated to the Court that it does not press for orders for costs sought in the application for leave to appeal or in the draft notice of appeal, and has given an undertaking to the Court to pay the Worker’s costs of the appeal, regardless of the outcome of the proceedings.

6. The appeal was heard concurrently with the application for leave to appeal. However, on 10 May 2019, the Court dismissed Bluescope’s summons seeking leave to appeal and ordered Bluescope to pay the Worker’s costs. The Court reserved its reasons. The following are the reasons for dismissing the application for leave to appeal.

The Worker’s Hearing Impairment

7. During the time of his employment by Bluescope, the Worker received a number of payments from Bluescope by consent in respect of recognised loss of hearing as follows:

• 22 November 1983, for 0.4% loss of hearing the left ear;

• 9 February 1988, for a further 2.7% binaural loss of hearing;

• 11 September 1991, for a further 2.3% binaural loss of hearing; and

• 2 July 1993, for a further 3.3% binaural loss of hearing.

The Worker ceased work with Bluescope on 31 October 2000. On 21 August 2002, a medical panel of the Compensation Court issued a certificate under s 122(5) of the 1998 Act stating that the Worker suffered 1.9% binaural loss of hearing due to boilermaker’s deafness or deafness of a similar origin (the 2002 Certificate).

8. On 22 June 2016, Ms Anne Dunne, an audiologist, recommended that the Worker should have bilateral digital hearing aids, the cost of which was assessed to be $5,657.80. On 31 January 2017, the Worker made a claim under s 60 of the 1987 Act in that sum for the hearing aids. On 10 April 2017, Bluescope issued a notice of dispute under s 74 of the 1998 Act, denying the Worker’s claim. That denial was based partly on the fact that the Worker failed to support his claim with a medical report from an ear, nose and throat specialist.

9. On 6 July 2017, Dr S S Tamhane, an ear, nose and throat surgeon, provided a report to the Worker’s solicitors, in which he concluded that the Worker suffered from 7.10% binaural percentage hearing loss. Dr Tamhane expressed the opinion that “the tendencies, incidents and/or characteristics” of the Worker’s employment with Bluescope gave rise to a real risk of boilermaker’s deafness or deafness of a similar origin. Dr Tamhane observed in the report that the Worker had been exposed to continuous loud noise for 35 years and had not been able to wear ear protection all of the time. He said that, having considered the Worker’s history of exposure to continuous loud noise, he attributed the Worker’s sensorineural hearing loss in specified frequencies to noise-induced hearing loss. Dr Tamhane expressed the opinion that the Worker’s hearing loss was permanent, that the Worker had reached his “optimum hearing levels” and that the hearing loss should not deteriorate any further unless the worker was exposed to more loud noise. Dr Tamhane recommended the use of bilateral digital hearing aids as a means of improving the Worker’s hearing loss. He expressed the opinion that the worker had reached “maximum medical improvement”.

10. On 3 November 2017, Bluescope wrote to the Worker’s solicitors in relation to the Worker’s “claim for compensation in the form of hearing aids due to industrial deafness”, giving notice of a dispute pursuant to s 74 of the 1998 Act. The letter stated that Dr Tamhane’s report was not “valid”, as the 7.10% binaural percentage hearing loss reported by him considerably exceeded the percentage certified in the 2002 Certificate, which indicated a 1.9% binaural loss. Bluescope asserted that the findings of the medical panel were to be accepted over those of Dr Tamhane, alleging that the testing by the medical panel was conducted within one year of the Worker’s leaving Bluescope’s employment on 31 October 2000. That is incorrect, as the medical panel appears to have assessed the Worker on 20 November 2001, more than one year after the Worker ceased employment with Bluescope. Bluescope said that, given the 2002 Certificate, it did not accept the findings of Dr Tamhane and asserted that hearing aids were not reasonably necessary for the Worker’s noise-induced loss of hearing. Bluescope denied liability to pay compensation in the form of hearing aids pursuant to s 60(1) of the 1987 Act.

Proceedings in the Commission

11. By application signed 22 March 2018, registered 28 March 2018, the Worker applied to the Commission for compensation in the sum of $5,657.80. The application was supported by an undated statement by the Worker setting out his exposure to noise while working with Bluescope as a truck driver and machine operator. In the statement, the Worker said that, during his employment with Bluescope, he had noticed that there were times at work when he needed to raise his voice in order to be heard and that he was having difficulty hearing normal conversations. He said that he found he was turning the volume up on the television and had ringing in his ears more often. He also said that he was speaking louder than before. In addition, he said that he noticed that to be able to communicate effectively he had to be spoken to quite loudly and had to be face-to-face with the person with whom he was communicating. On 16 April 2018, Bluescope filed a reply to the Worker’s application confirming the dispute as to the Worker’s entitlement to compensation.

12. On 6 June 2018, a senior arbitrator on behalf of the Commission (the Arbitrator) determined that Bluescope should pay the Worker’s “expenses in respect of the supply and fitting of digital hearing aids recommended by Dr Tamhane”. On 29 June 2018, Bluescope filed submissions in support of an appeal from the Arbitrator’s decision, in which it asserted that an oral hearing was necessary to address a number of misconceptions commonly encountered in claims for hearing aids, which had been replicated in the Arbitrator’s decision. The grounds of appeal relied upon by Bluescope may be restated as follows:

1. The Arbitrator erred in finding that the Worker had discharged his burden of proving that his need for hearing aids was “as a result” of injury, within the meaning of s 60 of the 1987 Act;

2. The Arbitrator erred in so far as she based her determination upon a medico legal assessment of 7.1% binaural hearing loss in the face of the 2002 Certificate, which assessed 1.9% binaural hearing loss due to industrial deafness;

3. The Arbitrator wrongly found that the Worker’s medico legal expert attributed the entirety of his hearing loss to industrial deafness;

4. The Arbitrator failed to address the meaning of the phrase “as a result of injury” as contained in s 60 of 1987 Act; and

5. The Arbitrator failed to exercise jurisdiction by failing to address Bluescope’s submissions.

13. On 9 November 2018, the Commission, constituted by a Deputy President, made a decision in which it confirmed the Arbitrator’s certificate of determination of 6 June 2018. In the reasons for decision, the Deputy President observed that Bluescope conceded that the Worker required hearing aids and that the only dispute was whether the need for the hearing aid resulted from “the noise induced hearing loss”, apparently meaning “work noise”. The Deputy President considered that, while the 2002 Certificate was binding as to the extent of the loss, it did not deal with the question of whether the need for hearing aids resulted from the injury suffered while employed by Bluescope.

14. The Deputy President referred to Bluescope’s contention that the Worker had not discharged his onus of proof that his hearing loss was relevantly the result of an injury in the course of his employment by Bluescope, and that it was not necessary for it to adduce evidence on causation to prove that the Worker’s hearing loss resulted from non-work related causes. The Deputy President considered that the difficulty with Bluescope’s contention was that there was evidence from Dr Tamhane and Ms Dunne that the Worker’s hearing loss was noise-induced and that the hearing aids were recommended to improve the worker’s hearing. Implicit in that finding is that the noise was work related.

15. In response to Bluescope’s submission that Dr Tamhane’s opinion was dependent on his assessment of the hearing loss, the Deputy President observed that there was nothing in Dr Tamhane’s report that indicated that his opinion as to the need for hearing aids was dependent upon the extent of the assessed percentage hearing loss. The Deputy President referred to the examination by Dr Tamhane that revealed that the Worker had difficulty with “speech discrimination” and the fact that, on the basis of his examination, Dr Tamhane recommended hearing aids as a means of improving the Worker’s difficulties with speech discrimination. The Deputy President referred to Dr Tamhane’s view that hearing aids were necessary to address the Worker’s hearing loss and his view that the Worker’s employment was noisy, and that the hearing loss resulted from exposure to noise.

16. The Deputy President concluded that there was no medical evidence to displace Dr Tamhane’s evidence as to the matters requiring determination and that his view was supported by the evidence of Ms Dunne and the Worker’s unchallenged statement that he experienced difficulties with speech discrimination when he worked for Bluescope. The Deputy President noted that there was no dispute that the Worker’s hearing difficulties, while employed with Bluescope, were noise-induced.

17. The Deputy President observed that Bluescope disputed that Dr Tamhane attributed all of the hearing impairment to noise-induced hearing loss. The Deputy President said, in that regard, that Dr Tamhane had concluded that all of the loss in the specified frequencies was attributable to noise exposure over a period of 35 years in employment with Bluescope. The Deputy President considered that, on a reading of Dr Tamhane’s opinion as a whole, it was reasonable to conclude that he attributed all of the loss to noisy employment and that the need for hearing aids resulted from the noise-induced loss. The Deputy President accepted that evidence.

18. The Deputy President concluded that the uncontested evidence was that, during his employment, the Worker experienced difficulty with speech discrimination because of his noise related hearing loss and both Dr Tamhane and the audiologist recommended the use of digital hearing aids to address that difficulty. There was no opinion to the contrary. The Deputy President was therefore satisfied that the hearing aids recommended by Dr Tamhane were reasonably necessary as a result of the worker’s noise-induced hearing loss pursuant to s 60 of the 1987 Act.

Grounds of Appeal

19. The grounds of appeal sought to be relied upon by Bluescope may be restated as follows:

1. The Deputy President failed to apply s 60(1)(a) of the 1987 Act correctly;

2. The Deputy President failed to consider and apply s 122(6) of the 1998 Act as to the “conclusive evidence” of the 2002 Certificate;

3. The Deputy President made crucial findings that were not open on the evidence;

4. The Deputy President made findings to the effect that the Worker’s hearing loss, as assessed by Dr Tamhane, was in fact caused by his employment with Bluescope where the Worker had not worked for Bluescope since 31 October 2000 and the Deputy President was not an expert;

5. The Deputy President erred in finding that the whole of the Worker’s hearing loss as at the time of the examination by Dr Tamhane was work related, in circumstances where the Worker had ceased his employment on 31 October 2000 and there was no medical or other evidence to support such a finding and the Deputy President was not an expert;

6. The Deputy President erred in finding that there were no other factors available, other than work related injury, that could or might explain the deterioration in the Worker’s hearing between 31 October 2000 and the time of his examination by Dr Tamhane; and

7. The Deputy President failed to set out adequate or lawful reasons for its decision.

20. On 10 May 2019, the Court dismissed Bluescope’s summons seeking leave to appeal and ordered Bluescope to pay the Worker’s costs. The Court reserved its reasons. The following are the reasons for dismissing the application for leave.

21. On its face, the 2002 Certificate, certifying the percentage of hearing loss of the Worker, may be capable of being construed as certifying the percentage of increased hearing loss as distinct from the percentage of the total loss. However, it is common ground that it relates to the percentage of the total loss.

22. At the time of the 2002 Certificate, s 122 of the 1998 Act relevantly provided that, in the event of a disagreement between a worker and the employer as to the worker’s condition (a medical dispute), the registrar of the Compensation Court was required, on the application of either the worker or the employer, to refer the medical dispute to a medical panel. Under s 122(5), the medical panel to whom a medical dispute was so referred was required to give a certificate as to the worker’s condition. Under s 122(6), any such certificate of a medical panel is conclusive evidence as to the matters certified.

23. The thrust of Bluescope’s complaint is that neither the Arbitrator nor the Deputy President applied s 122 or s 326 of the 1998 Act. Both s 122 and s 326 are clear in their terms. There has been no suggestion that there is any doubt as to their effect, or that there is any misapprehension on the part of the Commission and its members as to their effect. The complaint is simply that both the Arbitrator and the Deputy President failed to apply s 122.

24. A fair reading of the reasons of the Deputy President, however, makes clear that she did not ignore s 122, as Bluescope contends. In stating the background to the appeal, the Deputy President’s reasons referred to the number of claims made by the Worker for lump sum compensation in respect of his hearing loss, and noted the compensation received by the Worker for losses attributable to noisy employment. The Deputy President noted that the total binaural hearing loss for which the Worker received lump sum entitlements was 8.38%.

25. The Deputy President then recorded that the Worker had made his further claim pursuant to s 66 in 2001, as a result of which he underwent a medical panel assessment in accordance with s 122 of the 1998 Act. The Deputy President noted that the medical panel issued a certificate assessing the Worker’s binaural hearing loss as 1.9%. Significantly, the Deputy President noted that, pursuant to s 122(6) of the 1998 Act, that certificate was conclusive as to the matters certified.

26. Had the Deputy President then made a finding that the Worker’s binaural hearing loss was something different from 1.9%, either the Worker or Bluescope may have had a basis for a complaint. However, notwithstanding the contentions advanced on behalf of Bluescope, the Deputy President did no such thing.

27. Rather, the Deputy President observed that there was nothing in Dr Tamhane’s report that indicated that his opinion as to the need for hearing aids was dependent upon the extent of the assessed percentage hearing loss. Rather, the Deputy President said, Dr Tamhane’s audiological examination revealed that the Worker had difficulty with speech discrimination and that, on the basis of his examination, Dr Tamhane recommended hearing aids as a means of improving the Worker’s difficulties with speech discrimination. The Deputy President noted that Dr Tamhane had identified the manner in which the type of hearing aids recommended would benefit the Worker, and had expressed the view that hearing aids were necessary to address the Worker’s hearing loss, having already expressed the view that the Worker’s employment was noisy and that the hearing loss resulted from exposure to noise.

28. The Deputy President observed that there was no medical evidence to displace Dr Tamhane’s evidence as to the matters requiring determination. Dr Tamhane’s view was supported by the evidence of the audiologist, Ms Dunne, and the Worker’s unchallenged statement that he experienced difficulties with speech discrimination when he worked for Bluescope, there being no dispute that the Worker’s hearing difficulties, while employed with Bluescope, were noise-induced. The Deputy President noted Bluescope’s contention that Dr Tamhane had made “an impermissible” assessment, with the consequence that the whole of his report should be discarded. The Deputy President also noted that Bluescope’s contention was based on the assessment included in Dr Tamhane’s report that the Worker’s binaural percentage hearing loss was 7.1%, which was inconsistent with the 2002 Certificate. Bluescope’s contention was that the assessment of 7.1% loss assessed by Dr Tamhane indicated that there must have been a significant portion of loss that was non-work related, in so far as it occurred after the date of the assessment by the medical panel.

20. The Deputy President concluded that the uncontested evidence was that, during the Worker’s employment, he experienced difficulty with speech discrimination because of his noise related hearing loss. Both Dr Tamhane and Ms Dunne recommended the use of digital hearing aids to address that difficulty. The Deputy President pointed out that there was no opinion to the contrary. The Deputy President found that, on the available evidence, the whole of the Worker’s hearing loss was work related and, accordingly, that that hearing loss materially contributed to the need for the treatment proposed by Dr Tamhane. The Deputy President was therefore satisfied that the hearing aids recommended by Dr Tamhane were reasonably necessary as a result of the Worker’s noise-induced hearing loss.

21. That reasoning and those findings were not inconsistent with the 2002 Certificate. The Deputy President expressly accepted that that certificate was conclusive evidence as to the matters certified. The point, however, was that the evidence of Dr Tamhane supported the conclusion that, assuming the 2002 Certificate was correct, the need for hearing aids was the result of work related hearing loss.

Refusal of Leave

31. It follows that there was no error on the part of the Deputy President of the nature asserted on behalf of Bluescope. Further, there is no reason to suggest that the Commission or its officers or members will, in the future, ignore the clear terms of s 122 and, if relevant, s 326 of the 1998 Act. No question of law or principle would be raised by the appeal. Accordingly, leave was refused with costs.

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Endnote

Decision last updated: 13 June 2019