BP Australia Ltd v Greene

[2013] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	BP Australia Ltd v Greene [2013] NSWWCCPD 60
APPELLANT:	BP Australia Ltd
RESPONDENT:	James Edward Greene
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-12134/12
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	16 August 2013
DATE OF APPEAL HEARING:	6 November 2013
DATE OF APPEAL DECISION:	11 November 2013
SUBJECT MATTER OF DECISION:	Boilermaker’s deafness; determination of last noisy employer; assessment of expert evidence; injury deemed to have occurred in 1994; whether, in respect of an injury received before 1 January 2002, a claim made on or after 19 June 2012 is governed by amendments introduced by the Workers Compensation Legislation Amendment Act 2012; implied repeal of legislation; Sch 6 Pt 18C cl 3 and Sch 6 Pt 19H cls 3, 15 and 23 of the Savings, Transitional and Other Provisions in the Workers Compensation Act 1987; Sch 8 cls 13, 18 and 19 of the Workers Compensation Regulation 2010
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr G Beauchamp, instructed by Sparke Helmore Lawyers
Respondent:	Mr P Davies, instructed by Whitelaw McDonald
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s determination of 16 August 2013 is confirmed. 2.     The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

1. This appeal concerns a claim for compensation for an injury that is a loss of hearing of such a nature as to be caused by a gradual process, that is, boilermaker’s deafness or deafness of a similar origin (also referred to as industrial deafness). Where a worker was not employed in employment to the nature of which the injury was due at the time when he or she gave notice of injury, the injury is deemed to have happened on the last day on which the worker was employed in that employment (s 17(1)(a)(ii) of the Workers Compensation Act 1987 (the 1987 Act)).

2. Between 1962 and 4 February 2008, the respondent worker, James Greene, worked as a laboratory technician with three different companies: he worked for the appellant employer, BP Australia Ltd (BP), between 1963 and 1994, Valvoline Australia Pty Ltd (Valvoline) between 1995 and 2003 and, part-time, for Oilcheck Pty Ltd (Oilcheck) between 2003 and 4 February 2008 when he retired.

3. On 19 June 2012, Mr Greene claimed from BP lump sum compensation, and compensation for the cost of hearing aids, as a result of a 15.7 per cent binaural loss of hearing (equal to eight per cent whole person impairment). He alleged that BP was the last employer for whom he had worked in employment to the nature of which his injury was due and that the deemed date of injury was “approximately 1995”. That is, he alleged that BP was the last noisy employer for whom he had worked. (For convenience, all references in this decision to noisy employment are to employment to the nature of which the…