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

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)).
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.
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 injury of boilermaker’s deafness is due.)
BP did not dispute that Mr Greene’s employment with it was noisy, but argued that it was not the last noisy employer. It based this argument on evidence from Mr Greene’s ear, nose and throat specialist, Dr Scoppa. Dr Scoppa gave evidence that, at Oilcheck, Mr Greene had to raise his voice to communicate with a person about a metre away and that indicated an ambient noise level of 85 dB, which, over an eight-hour working day, is sufficient to cause industrial deafness. As the evidence was that Mr Greene’s employment with Valvoline was “somewhat noisier”, it followed, so it was argued, that Valvoline, not BP, was the last noisy employer.
However, after accepting evidence in a 2006 noise survey that Mr Greene’s employment with Oilcheck was in fact not noisy, Dr Scoppa changed his evidence and concluded, for reasons given, that Oilcheck and Valvoline were not noisy and that BP was the last noisy employer.
If BP was found to be the last noisy employer, it argued that it was not liable for the lump sum compensation claimed because Mr Greene’s claim was under the 10 per cent whole person impairment threshold for such compensation introduced by amendments to s 66 of the 1987 Act in Sch 2 of the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), which applies to claims made on or after 19 June 2012.
BP disputed liability for the cost of Mr Greene’s hearing aids because the cost was not incurred in accordance with the Workers Compensation Hearing Aid Fees Order 2012.
After the arbitration on 5 August 2013, the Arbitrator delivered an oral decision on 7 August 2013. He noted Dr Scoppa’s evidence, about the noise at Oilcheck and Valvoline, and said that his evidence was “flawed”, but not “completely undermined”. The Arbitrator accepted Dr Scoppa’s final opinion and therefore found that BP was the last noisy employer and that Mr Greene’s injury “notionally occurred in 1994” (not 1995, as pleaded).
In respect of the second issue, the Arbitrator held that, because of the effect of cl 3 of Pt 18C of Sch 6 to the 1987 Act, the amendments introduced by the 2012 amending Act do not apply to Mr Greene. That clause provides that the amendments that introduced a new lump sum compensation scheme, with effect from 1 January 2002, do not apply to injuries received before that date. As Mr Greene received his injury in 1994, and as the 2012 amending Act did not repeal cl 3 of Pt 18C of Sch 6, he remained entitled to have his claim for lump sum compensation assessed under the Table of Disabilities (also referred to as the Table of Maims), which applies to injuries received before 1 January 2002.
Though he expressed some doubt about how a “fees order” made in 2012 could affect Mr Greene’s entitlement to medical expenses incurred in 2005, the Arbitrator did not determine that issue pending the assessment of Mr Greene’s binaural hearing loss by an Approved Medical Specialist.
The Commission issued a Certificate of Determination on 16 August 2013 in the following terms:
“1. That the claim is not subject to the amendments to Part 3, Division 4 Of the Workers Compensation Act 1987 made by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012.
2.     Remit the matter to the Registrar for referral to an approved medical specialist to assess the degree, if any, of binaural hearing loss as a result of industrial deafness which notionally occurred in 1994 as a consequence of the applicant’s employment with the respondent prior to that date.
3.     Approved medical specialist to have access to the Application, the Reply and the Applications to Admit Late Documents and the documents attached to each.
4.     Approved medical specialist is asked to express an opinion as to whether the hearing aids provided to the applicant in 2005 were reasonably necessary as a result of industrial deafness.
5.     Respondent to pay the applicant’s costs as agreed [or] assessed.
6.     Certify the matter as complex and order an uplift of 10% on the costs of both parties.”
BP has appealed. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

ISSUES ON APPEAL

The grounds of appeal are that the Arbitrator erred in:
(a) finding that BP was the last noisy employer within the provisions of s 17 of the 1987 Act, and
(b) finding that the provisions of s 66, as amended by the 2012 amending Act, do not apply to injuries deemed or occurring prior to 1 January 2002.
In response to Mr Greene’s solicitor’s submission that BP had not sought to challenge the Arbitrator’s reasons, BP identified the following issues in submissions filed in response on 17 October 2013:
(a) that the Arbitrator’s decision contains an error of law in not applying cl 3 of Pt 19H of Sch 6 of the 1987 Act to find that the clear intention of the 2012 amendments is that the amendments apply to all injuries, and
(b) that the Arbitrator’s decision contains an error of law in determining that the preservation of the pre-2002 system of assessing impairment means that the amendments to Div 4 of Pt 3 of the 1987 Act (by the 2012 amending Act) do not apply to injuries sustained prior to 1 January 2002.
After dealing with certain preliminary matters, it is convenient to deal with the grounds of appeal under two headings: “last noisy employer” and “statutory interpretation”.

PRELIMINARY MATTERS

Time

Mr Greene’s solicitor, Mr Bechelli, submitted that, as time runs from the date on which the Arbitrator delivered his reasons for decision, namely, 7 August 2013, BP’s appeal, which was lodged on 13 September 2013, is outside the 28-day time limit in s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Though counsel for Mr Greene, Mr Davies, did not press this point at the oral hearing of the appeal, I make the following observations about it.
Mr Bechelli’s submission has ignored the legislation and the Commission’s rules. A party has 28 days to appeal, “after the making of the decision appealed against” (s 352(4)). An Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act” (Pt 16 r 2(2) of the Workers Compensation Commission Rules 2011).
The Commission issued the Certificate of Determination in this matter on 16 August 2013. It follows that, as the date on which the certificate was issued is not counted in calculating time (Dennis v NSW Fire Brigades [2007] NSWWCCPD 165), the appeal is within time.

Interlocutory

As the Arbitrator’s decision was interlocutory, because it has not finally determined the parties’ rights (Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443-444), but merely decided that the matter could be referred to an Approved Medical Specialist, the appellant requires leave to appeal. In view of the issues raised in the appeal, it is necessary for the proper and effective determination of the dispute that the Commission grant leave to appeal and I do so (s 352(3A) of the 1998 Act; DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly [2011] NSWWCCPD 43 at [13]).

LAST NOISY EMPLOYER

Lay evidence

There are two identical statements in evidence from Mr Greene. One unsigned and undated and the other is signed and dated 21 February 2013.
In his statement dated 21 February 2013, Mr Greene said he worked for BP from 1962 until 1994 doing various engineering and chemical operations. His duties required him to test and mix oils, and provide octane ratings for fuel. For about 10 years, he worked for BP as a “CFR”. This job required the operation of a single, four carburettor “knock engine” in a room the size of a normal bedroom. He operated the engine at various speeds, so the engine knock was at its highest. He described the noise, which was in a closed room, as “extremely loud”. He would run the engine for a number of hours and would remain in the room while it was running. He “could not hear anybody speak” to him when the noise of the engine was at its highest.
He also attended the “grease plant” with BP where 1,800 kg grease kettles, which Mr Greene described as “big mixmasters with fairly large engines”, caused a “high and loud grinding engine noise and churning noise from the mix”. He said that it was difficult to hear anyone speaking normally and people had to yell to be heard. When he attended the plant, he would be walking around the kettles all day.
Mr Greene also attended the “lube plant” with BP where oils were blended in big tanks. Large open motors (larger than a car motor), which produced a “high loud noise”, were used for the blending process. He was unable to say how often he worked in the lube plant. When he did work there, he did so for most of the day and often for a number of consecutive days. The noise from the motors was “quite loud” and, when standing “in their vicinity”, as he was required to do while attending there, he said, “you could not be heard talking in a normal voice”.
Mr Greene was also required to attend bearing testing with BP. This was where motors were often “dry run” to test the efficiency of oil. They were loud, noisy machines that he stood next to for hours at a time. When standing next to these motors, it was “impossible to hear people talking”.
In addition, Mr Greene worked in the laboratory where there were “hydraulic hoses, popping and exploding”, with large overhead exhaust fans that operated continuously. The noise in the laboratory, where Mr Greene worked for days at a time, was loud but not as loud as the testing sites described above. When standing under the exhaust fan, where Mr Greene often worked, people would have to raise their voices to be heard.
After leaving BP, Mr Greene worked as a laboratory technician with Valvoline from 1995 to 2003 and then with Oilcheck from 2003 until his retirement in February 2008. Surprisingly, he said nothing in his statements about the nature of his duties with either of these companies and nothing about the level of noise to which he was exposed when working for them.
He said that his personal hobbies did not expose him to noise.
Mr Greene said, at paragraph [10] of his statement dated 21 February 2013:
“I noticed times when I left work with BP Australia Ltd that I had difficulties hearing and ringing in my ears, however, after time spent away from work my hearing would slightly recover.”
Towards the end of his employment with BP, Mr Greene noticed difficulty hearing normal conversations. He was turning up the volume on the television and he had ringing in his ears more often. Due to his hearing difficulties, he purchased hearing aids in October 2005.

Expert evidence

The expert evidence in the case consists of three reports from Dr Scoppa and a report from Stephen Gauld, senior acoustical engineer with Day Design Pty Ltd (Day Design), dated 14 June 2006.
In Dr Scoppa’s first report, dated 16 February 2006, he took a history of Mr Greene having increasing difficulty with his hearing over many years. He had gradually lost his hearing over the years, but over the last 10 years, the hearing loss had become more noticeable.
Dr Scoppa recorded that Mr Greene had been exposed to acoustic trauma about 30 years ago when an explosion occurred in a lab where he was working and he sustained burns, but was not sure if it resulted in any loss of hearing. He had no family history of deafness or ear disease. He had not been exposed to firearms, ototoxic drugs, or recreational noise.
Dr Scoppa took a history that Mr Greene had worked at Oilcheck for the previous three years for eight hours per day, two days per week, in an oil laboratory without ear protection. This work exposed him to noise from exhaust fans, air blowers and centrifuges.
With respect to Mr Greene’s duties with Valvoline, Dr Scoppa said that Mr Greene did similar laboratory work (to the work he did at Oilcheck) “with similar noisy surroundings”, but full-time for five days per week. Before that he worked with BP for 33 years in a “similar laboratory with very similar noisy surroundings”.
Dr Scoppa found Mr Greene to have a total binaural hearing loss of 52.4 per cent and, after adjustments, a binaural hearing due to industrial deafness of 19.4 per cent. He concluded:
“In view of the history of exposure to industrial noise and the pattern of hearing loss as seen on the enclosed audiogram, it is my opinion that Mr Green’s [sic] hearing loss at 2000, 3000 and 4000 Hz has occurred as a result of occupational noise exposure…
From the description of Mr Green’s [sic] employment history it is probable that his last noisy employer was Oil Check [sic] Pty Ltd. In my opinion Mr Green’s [sic] employment with Oil Check [sic] Pty Ltd was of a type that on the balance of probabilities it has been a substantial contributing factor to his having developed the injury of industrial deafness.”
In 2006, Allianz Australia Workers Compensation (NSW) Pty Ltd (Allianz) commissioned Day Design to measure and assess the occupational noise to which Mr Greene was exposed while working as a laboratory technician for Oilcheck. Mr Gauld conducted that assessment at Oilcheck’s premises on 23 May 2006. He took a detailed history (from Mr Greene and others) of Mr Greene’s duties and recorded that the major noise source to which Mr Greene was exposed during his working day at Oilcheck was an exhaust fan, which generally operated all day. However, all of the equipment used by Mr Greene was available for testing, and was tested, on the day of the noise survey.
Mr Gauld’s survey gave a normalised daily noise exposure level of not more than 71 dBA, with Lpeak impact noise levels typically not more than 104 dBC. These readings were based on the assumption that Mr Greene carried out the activities continuously at the noise levels tested, which yielded a “conservatively high figure since further noise breaks are probable besides those listed”. Breaks would include testing interruptions, equipment breakdown, waiting for supplies, receiving instructions from management, social interaction, etc. Since Mr Greene only worked two days per week, his weekly-adjusted daily noise exposure level was not more than 67dBA.
Based on data in the Australia Standard AS/NZS 1269.4:2005, Mr Gauld said that, for 95 per cent of the population, noise of 71 dBA over a three year period would result in no hearing impairment. He added, “[n]oise exposure levels of 80 dBA or less are considered ‘safe’ and this is the normal basis for hearing protector selection”. He said that impact noise levels of 100 to 104 are below the safe legislated limit of 140 dBC and hearing impairment would not normally occur, noting that a loud handclap will generate an impulse noise reading of 120 dBC at one metre and is not considered hazardous to hearing.
Mr Gauld concluded that Oilcheck was not a noisy employer and that, while working for that company, Mr Greene was not subject to noise of a type that could have caused any hearing impairment. Therefore, Mr Greene’s work with Olicheck was “not of a nature that could cause an injury of the type suffered by him, even without the use of hearing protection” (emphasis included in original).
After reviewing Mr Greene on 1 August 2011, to “obtain a more comprehensive occupational history”, Dr Scoppa prepared a second report on 2 August 2011. He again noted Mr Greene’s part-time employment with Oilcheck, but added that he worked in a large area with about twenty other employees in about ten to fifteen open bays. Mr Greene worked in his own bay, on his own for most of the time. He said that the noise from the other bays was not significant and that the only noise exposure was that generated in his own bay where he operated two adjoining machines to test oils and greases.
The main machines (at Oilcheck) were a distillation machine and a flash point machine, which he operated concurrently. He was exposed to noise from these machines and from an exhaust fan that was located above his workspace. The noise in his work bay was such that he had to raise his voice to communicate with a person standing about a metre away. On rare occasions, he would visit other bays but only for a few minutes each day.
At Valvoline, Mr Greene tested mostly lube oils in one room. The noise level to which he was exposed at Valvoline was “somewhat noisier” (than Oilcheck). There were “about two bays in his area and about two other employees who were also testing oils”. Mr Greene “mostly used a viscosity machine” which was “about as loud as the machines at Oilcheck”. In addition, an exhaust fan operated for about two hours a day.
In addition, Mr Greene’s work at Valvoline required him to “walk through the factory floor” after he completed every test. This would expose him to noise from filling machines, air compressors, trucks being loaded, electric motors and blenders for about ten minutes for each hour “so that he was exposed to factory noise for about two hours maximum each day in addition to his noise exposure in the testing bay”.

Dr Scoppa recorded that Mr Greene worked for BP from 1963 to 1995 for about eight to ten hours a day. He alternated between working in the testing laboratory and being “in the factory floor”. He spent approximately half of each day in each location, but on some days he spent almost all day on the factory floor and sometimes all day in the lab. The “factory floor was extremely noisy and he was exposed to noise from two large kettles, grinders, filling machines, lube plant machinery, and air compressors”. He had to raise his voice to communicate with a person standing about a metre away.
Before working at BP, Mr Greene worked in a magnesite mine for about five years where he was exposed to noise from mining equipment, trucks and tractors.
After recording the above history, Dr Scoppa expressed the following opinion:
“After consideration of this more comprehensive occupational history and the results of the Noise Survey of Day Design I would revise my opinion as to the identity of his last noisy employer from Oil Check [sic] Pty Ltd to BP Australia Pty Ltd [sic], for the following reasons:
(i)The Day Design Noise Survey appears to have measured all sources of noise in his work environment at Oil Check [sic], and even allowing for the increased number of tests performed as claimed by Mr Greene in his Statement it is unlikely that his daily noise dose (DND) would have exceeded 85 dB during his period of employment at Oil Check [sic] based upon the noise levels measured by the Day Design survey.
(ii)His previous employer was Valvoline. Mr Greene stated that his occupational noise exposure was about the same as at Oil Check [sic] in the laboratory, but that in addition he was exposed to noise on the factory floor for about 2 hours a day. The noise level in the factory floor as described was in my opinion probably at 85 dB or greater, but as he was exposed to this noise for only 2 hours a day it is improbable in my opinion that his DND whilst employed by Valvoline would have exceeded 85 dB, and in my opinion therefore it is improbable that the noise levels to which he was exposed to at Valvoline would have been capable of causing industrial deafness.
From the description of Mr Greene’s employment history it is probable in my opinion that his last noisy employer was BP Australia Pty Ltd [sic].
After a consideration of the history of occupational noise exposure, including the nature of the noise and the number of years of exposure, it is my opinion that the tendencies, incidents, and/or characteristics of Mr Greene’s employment with BP Australia Pty Ltd [sic] would, on the balance of probabilities, give rise to a real risk of boilermakers’ deafness, or deafness of a similar origin.
In my opinion Mr Greene’s description of his occupational noise exposure with BP Australia Pty Ltd [sic] was of a type that on the balance of probabilities it has been a substantial contributing factor to his having developed the injury of industrial deafness.
I note that when he was employed by BP Australia Pty Ltd [sic] he sometimes worked on the factory floor all day, and that he also worked overtime from time to time. It is generally accepted in the medical literature that if a worker has to raise his or her voice in order to communicate with a person standing about a metre away then this is indicative of the ambient noise in the workplace being at a level of 85 dB or greater. I note that Mr Greene gave this history with respect to the noise levels present on the factory floor at BP AUSTRALIA PTY LTD [sic].”
On the basis that BP was the last noisy employer, which meant that the deemed date of injury was before 1 January 2002, Dr Scoppa revised his calculations and assessed Mr Greene to have a binaural hearing loss (after correction for presbycusis) of 15.7 per cent.
In his last report, dated 3 March 2013, Dr Scoppa commented on Mr Greene’s unsigned statement. He repeated that it is generally accepted in the medical literature that a worker will probably only develop industrial deafness if he or she is exposed to a noise level above 85 dBA over an eight hour working day, or its equivalent. Dr Scoppa added that this generally accepted “safe level” (emphasis included in original) of occupational noise exposure is also mentioned in the WorkCover Noise (Health and Safety) Regulation 2001. He said that Mr Greene’s description in his statement of the noise levels to which he was exposed at BP was “consistent with the noise levels within his workplace being over 85 dBA”.
The doctor added:
“It is well established that if a worker has to raise his or her voice to be heard by someone standing about one metre away, there is a prima facie case of a noise level that is potentially hazardous to hearing. My understanding is that such a description is consistent with a sound level of above 85 dBA probably being present at the time, and therefore capable of causing industrial deafness over an 8 hour period, or its equivalent.”
Dr Scoppa quoted from a 2011 WorkCover publication titled “Managing Noise and Preventing Hearing Loss, Code of Practice”, which stated:
“As a guide, if you need to raise your voice to communicate with someone about one metre away, the noise is likely to be hazardous to hearing.”
He concluded:
“Based upon a consideration of this evidence it is my opinion that the incidents of the work described [at BP] are of the type or nature to cause industrial deafness.”

The Arbitrator’s decision

For convenience, and unless otherwise stated, all references to the transcript in this decision are to the transcript of the Arbitrator’s decision delivered on 7 August 2013, which has been wrongly quoted as 8 August 2013. The Arbitrator said that counsel for BP, Mr Beauchamp, did not challenge Dr Scoppa’s conclusion that Mr Greene’s employment with BP was noisy. He then summarised Mr Greene’s evidence about the noise to which he had been exposed at BP.
Though neither counsel submitted on it, the Arbitrator accepted that the “relevant enquiry” was that set out in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52, namely, whether the “tendencies, incidents and characteristics of the employment were of a nature that could give rise to industrial deafness” (T15.28). Neither side has challenged the Arbitrator’s reliance on this statement.
Mr Beauchamp argued before the Arbitrator that a logical analysis of Dr Scoppa’s reports led to the conclusion that the work Mr Greene did immediately after he left BP was noisy employment. This was based on Dr Scoppa’s initial opinion that Oilcheck was a noisy employer, because Mr Greene had to raise his voice to communicate with a person standing about one metre from him, and Dr Scoppa’s history in 2011 that work at Valvoline was “somewhat noisier”.
While acknowledging that there was some force in Mr Beauchamp’s submission, and that Dr Scoppa’s reports and opinions were “somewhat flawed” (T17.23), the Arbitrator said, at T17.28:
“In reaching the opinion that [BP] was the last noisy employer [Dr Scoppa] relied on more than the history that he was given by the worker. Accordingly while the opinion of the doctor is flawed, I take the view that it has not been completely undermined. Thus the evidence of causation consists of the un-contradicted opinion of Dr Scoppa.”
He then noted that litigation in the Commission is based on an adversarial system and that it was the role of the parties to collect and adduce evidence (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421), and that:
“In an adversarial system the weight to be given to a particular piece of evidence will depend upon a consideration of all of the evidence in the case, evidence which otherwise might be of little or no weight may carry today [sic, the day], if it is entirely un-contradicted, or the factual basis of the opinion has not been challenged by other evidence.” (T18.6)
The Arbitrator also acknowledged (at T18.15) that, in some cases, the foundation of an expert opinion will be so inadequate as to lead to a conclusion that it should be given no weight at all. Such a case will be rare and the present matter was not such a case. Despite the flaw in Dr Scoppa’s reasoning, the Arbitrator said that Dr Scoppa had not been cross-examined, no evidence was adduced to contradict him, and no evidence was called by BP from a medical specialist.

Submissions

Mr Beauchamp has essentially repeated on appeal the argument he presented to the Arbitrator. That is, that Dr Scoppa said in his first report that Mr Greene’s employment with Oilcheck was of a type that, on the balance of probabilities, was a substantial contributing factor to his having the injury of industrial deafness. The history Dr Scoppa obtained was that Mr Greene worked for Oilcheck for two days per week over the preceding three years and was exposed to exhaust fans, air blowers and centrifuges. He had a history of similar exposure on a five-day per week basis with Valvoline.
In his second report, Dr Scoppa recorded that the noise was such with Oilcheck that Mr Greene had to raise his voice to communicate with a person standing about a metre away and that, at Valvoline, the noise level “was somewhat noisier”, and included visits to the factory floor where Mr Greene was exposed to filling machines, air compressors, trucks being loaded, electric motors and blenders for about two hours per day.
Dr Scoppa said that it was generally accepted in the medical literature that if a worker has to raise his or her voice to communicate with a person standing about a metre away, that is indicative of the ambient noise being at 85 dB or greater. This was exactly the situation at Valvoline. For six hours a day, it was necessary for Mr Greene to raise his voice to be heard a metre away, while for the remaining two hours the level was even greater.
Logically, the reasoning for considering BP was a noisy employer applies equally to the Valvoline employment, albeit that BP might have been “somewhat noisier”.
The Arbitrator’s opinion that Dr Scoppa’s opinion was flawed, but not completely undermined, omitted to consider that Dr Scoppa did not apply his mind to the conditions at Valvoline at all in his final report.
The report from Mr Gauld only dealt with the conditions encountered at Oilcheck on 23 May 2006, halfway through Mr Greene’s employment with that firm. Mr Greene nominated that employment as being less noisy, and of a shorter weekly exposure duration, than the work at Valvoline.
The Arbitrator’s reasoning at T18.15 dismissed the very point of the weakness in Dr Scoppa’s reports. If one approaches Dr Scoppa’s “analysis of the ingredients entailing sufficient noise exposure to be of a type capable of producing boilermaker’s deafness on a proper basis[,] the work done by [Mr Greene] at Valvoline satisfies his criteria and is therefore the last noisy employer”.
There was no need to cross-examine Dr Scoppa when a proper reading of his reports results in a finding that BP was not the last noisy employer.
Mr Beauchamp submitted at the oral hearing of the appeal that his complaint about Dr Scoppa’s evidence was really a Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) point because the doctor gave no reasoning for his change of opinion as to the identity of the last noisy employer. He did not explain why what he said was the norm (with regard to a worker having to raise his or her voice to be heard at one metre) did not pertain any more.
Mr Bechelli, a solicitor, prepared the written submissions filed on behalf of Mr Greene. As a preliminary point, he noted that noisy employment was not, prior to the arbitration, put in issue.
He submitted that:
(a)     Dr Scoppa stated in his third report that BP was the last relevant employer;
(b)     the Arbitrator accepted that opinion and, given the civil standard of proof, there was nothing unusual about what the Arbitrator did;
(c)     BP adduced no expert evidence to contradict Dr Scoppa, and, in the circumstances,
(d)     the Arbitrator was correct in concluding that BP was the last noisy employer.
Mr Bechelli added that, in terms of the onus of proof in relation to noisy employment, it was sufficient for Mr Greene to prove that BP was a noisy employer and he did not have to prove that the subsequent employers were not noisy: BP bore the onus of proof in relation to these matters which it failed to do.
In written submissions in response, Mr Beauchamp said that the issue of noisy employment was not raised in correspondence from Allianz because, as s 66(1) operated, Mr Greene was barred from proceeding with the lump sum claim. He noted that “the issue of noisy employment was raised in the Reply filed in the WCC on 31 October 2012” and at no stage of the proceedings did Mr Greene “raise objection to the issue of noisy employment being dealt with in the proceedings”.
Regarding Mr Bechelli’s submission that BP adduced no expert evidence to contradict Dr Scoppa, Mr Beauchamp’s submissions seem to suggest that no expert evidence was obtained because, at the time Allianz denied the claim, it did so because the issue was whether s 66(1) barred Mr Greene’s claim. Further, a medical report contradicting Dr Scoppa’s opinion was not necessary to establish the evidentiary issues identified by BP in relation to Dr Scoppa’s report.
In relation to the onus of proof issue, Mr Beauchamp submitted that it is not sufficient for Mr Greene to merely prove that BP was “a noisy employer”. He must prove that it was the last noisy employer, particularly in circumstances where there is evidence confirmatory of noisy employment after that with BP.

Discussion

Except on the onus of proof point, I do not accept Mr Beauchamp’s submissions, which have ignored Mr Gauld’s evidence of the noise survey at Oilcheck and most of the evidence in Dr Scoppa’s second report.
That Mr Gauld conducted a noise survey at Oilcheck halfway through Mr Greene’s employment with that company was irrelevant to the issues in dispute. There is no evidence that the noise levels to which Mr Greene was exposed at Oilcheck changed after May 2006, or that Mr Gauld’s survey was in some way deficient. It follows that it does not matter when Mr Gauld conducted the survey.
The noise survey evidence is significant. It conclusively established that Mr Greene’s employment with Oilcheck was not employment to the nature of which boilermaker’s deafness is due. That is, it was not noisy employment. Therefore, Mr Greene’s evidence (as recorded in Dr Scoppa’s second report) that, at Oilcheck and Valvoline, he had to raise his voice to communicate with a person standing about a metre away was, in the circumstances of this case, of no persuasive value.
Based on Mr Gauld’s evidence, Dr Scoppa changed his opinion about the level of noise at Oilcheck and, correctly, conceded that, even allowing for the increased number of tests claimed by Mr Greene, it was unlikely that his daily noise dose would have exceeded 85 dB. (Dr Scoppa’s statement about the “increased number of tests” claimed by Mr Greene was irrelevant and inaccurate. Mr Gauld’s evidence made it clear that he measured the noise generated by all of the duties and “tests” Mr Greene performed at Oilcheck.)
Dr Scoppa then dealt with the noise at Valvoline. He explained that the noise was “about the same as at [Oilcheck] in the laboratory”. However, in addition to work in the laboratory, at Valvoline, Mr Greene was exposed to noise on the factory floor for about two hours a day. This evidence was not inconsistent with Mr Greene’s evidence (as recorded by Dr Scoppa) that Valvoline was “somewhat nosier” than Oilcheck.
Though Dr Scoppa felt that the noise on the factory floor at Valvoline was “probably at 85 dB or greater”, the doctor explained that, as Mr Greene was only exposed to that noise for two hours a day, it was improbable that his daily noise exposure at Valvoline would have exceeded 85 dB. It was therefore improbable that the noise levels to which Mr Greene was exposed at Valvoline would have been capable of causing industrial deafness.
Dr Scoppa therefore concluded that, even though Mr Greene said the work at Valvoline was “somewhat noisier” than the work at Oilcheck, it was probable that Mr Greene’s last noisy employer was BP. On the evidence presented, and bearing in mind that BP called no evidence on this issue, and did not dispute that its employment was noisy, that conclusion was open.
What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [85]; 8 DDCR 399). Dr Scoppa’s reports easily complied with this test and, as Mr Davies submitted, provided a detailed explanation for his conclusion that BP was the last noisy employer. The submission that Dr Scoppa’s evidence did not comply with Makita was without substance.
Dr Scoppa’s evidence that if a person has to raise his or her voice to communicate with a person standing about one metre away then that is indicative of an ambient noise level of 85 dB or greater may be a useful, but less than ideal, rule of thumb where no better evidence is available. But, when that evidence is rebutted by evidence of a properly conducted noise survey, as it was in this case with regard to the noise at Oilcheck, it is of little probative value because it depends on the worker’s subjective assessment of the noise and fails to take into account the period of exposure to the noise, the type of noise, the frequency characteristics of the noise, or the intensity or sound level of the noise.
It is not open, however, to BP to use this argument against the finding that it was a noisy employer. It never disputed that its employment was noisy and, in any event, Mr Greene’s employment with it exposed him to noise from a number of sources that were not present at Oilcheck or Valvoline. Those sources were the “knock engine”, which Mr Greene described as “extremely loud”, grease kettles, which were described as “big mixmasters with fairly large engines” that caused a “high and loud grinding engine noise and churning noise”, and noise from the lube plant where oils were blended by large open motors that produced “high loud noise”.
The submission that “the issue of noisy employment was raised in the Reply” was correct. However, it was raised in these terms:
“[BP] disputes that it was [Mr Greene’s] last noisy employer.” (emphasis added)
The Reply did not dispute that BP was a noisy employer. It merely disputed whether it was Mr Greene’s last noisy employer. This was confirmed at the arbitration where, after the Arbitrator asked Mr Beauchamp “to put on the record what the issues are” (T1.29, 5 August 2013), Mr Beauchamp said, at T2.19:
“Mr Beauchamp: The next - -
Arbitrator: Yes
Mr Beauchamp: - - area is that the named Respondent [BP] was not the last noisy employer.” (emphasis added)
Consistent with this statement, the Arbitrator said, at T14.32 of his decision:
“Mr Beauchamp’s submissions did not challenge the conclusion reached by Dr Scoppa that [Mr Greene’s] employment at BP was noisy employment.”
Mr Beauchamp has not disputed the accuracy of this statement by the Arbitrator. Moreover, the failure to challenge (either in submissions or in evidence) Dr Scoppa’s opinion that BP was noisy was consistent with the fact that that was not an issue at the arbitration. The issue was whether BP was the last noisy employer. The disputes the Commission may determine, and the circumstances in which they may be referred to it, are strictly controlled (see ss 289 and 289A of the 1998 Act). To dispute that BP was noisy, Mr Beauchamp would have had to seek leave under s 289A(4). He did not do so.
The submission that Dr Scoppa, in his last report, did not apply his mind to the conditions at Valvoline does not advance BP’s position. Dr Scoppa comprehensively dealt with the conditions at Valvoline in his second report and concluded, for reasons stated, that it was not noisy. His last report dealt with Mr Greene’s statement, which did not mention Valvoline. Therefore, there was no reason for Dr Scoppa to revise his clear view that Valvoline was not a noisy employer.

The submission that the Arbitrator dismissed the very point of weakness in Dr Scoppa’s reports is based on the incorrect assumption that evidence of having to raise one’s voice to communicate with a person one metre away and evidence that work at Valvoline was “somewhat noisier” required a finding that Valvoline was a noisy employer. That approach ignores the evidence in the noise survey, which established that Oilcheck was not noisy, and ignores the evidence in Dr Scoppa’s second report, which comprehensively explained why Valvoline was not noisy. In circumstances where that explanation was not contradicted by any contrary view, the fact that Valvoline was “somewhat noisier” then Oilcheck was of no probative value and it was open to the Arbitrator to accept Dr Scoppa’s evidence.
As no Jones v Dunkel [1959] HCA 8; 101 CLR 298 point was argued or relied on, the explanation as to why BP did not obtain any expert evidence is irrelevant to the issue the Arbitrator had to determine. The fact is that BP did not tender any expert evidence and the Arbitrator was entitled to determine the case on the evidence presented. The Arbitrator dealt with the evidentiary issues identified by BP in relation to Dr Scoppa’s reports. For the reasons explained in this decision, his approach discloses no error.
Mr Bechelli’s submission that it was sufficient for Mr Greene to prove that BP was a noisy employer and that BP bore the onus of proof in relation to whether subsequent employers were noisy was incorrect. In a claim for compensation for boilermaker’s deafness, the onus of proof is on the applicant worker to prove the elements required in the 1987 Act. In the present case, having regard to the issue identified in the Reply, which I infer from the conduct of the arbitration the Arbitrator gave BP leave to argue, Mr Greene had to prove that the nominated respondent, BP, was the last noisy employer. He did that.
It follows that the Arbitrator made no error in accepting Dr Scoppa’s evidence and made no error in finding that BP was the last noisy employer. The first ground of appeal must fail.

STATUTORY INTERPRETATION

The legislative history

For the purposes of this appeal, the relevant legislative history relating to lump sum compensation can be broken into three periods: the pre-2002 scheme; the 2002 scheme, and the 2012 scheme. I will not deal with the pre-1987 period or any of the extensive amendments between 1987 and the amendments that commenced on 1 January 2002.
Immediately before the amendments that took effect on 1 January 2002, s 66 provided:
“(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker’s employer by way of compensation for the loss in addition to any other compensation under this Act, the amount equal to the percentage of $100,000.00 set out opposite in that Table.
(2) A worker who has suffered more than one of the losses mentioned in the Table to this Division as a result of the same injury is not entitled to receive as compensation under this section more than $121,000.00 in respect of those losses.
(3) If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6; or
(b) is adjusted by the amendments of this section,
the compensation payable under this section is to be calculated by reference to the requisite percentage of the amount in force at the date of injury.”
By amendments to the 1987 Act introduced by Sch 3 of the Workers Compensation Legislation Amendment Act 2001 and Sch 2 of the Workers Compensation Legislation Further Amendment Act 2001 (the 2001 amendments), which both commenced on 1 January 2002, s 66 was repealed and replaced with a new s 66 in the following terms:
“(1) A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
(2) The amount of permanent impairment compensation is to be calculated as follows:
(a) …”
(The section then sets out in subsections (a) to (e) various formulae for calculating compensation payable by reference to the degree of permanent impairment.)
The 2001 amendments also amended s 65 to provide that the degree of permanent impairment that results from an injury be assessed as provided by that section and by Pt 7 of Ch 7 of the 1998 Act. Chapter 7 is headed New Claims Procedure. Part 7 of Ch 7 is headed Medical Assessment and provides a detailed regime for the assessment of medical disputes by Approved Medical Specialists. The assessment of the degree of permanent impairment of an injured worker is to be made in accordance with the WorkCover Guidelines issued by the WorkCover Authority of NSW (s 322(1); s 376). The WorkCover Guides for the Evaluation of Permanent Impairment (now in its third edition) state that the evaluation of permanent impairment is based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5^th ed, (AMA5).
As can be seen from the above summary, the 2001 amendments introduced a completely different scheme for the assessment and compensation of injuries that resulted in a permanent loss or impairment. Prior to 1 January 2002 (but after 1987), compensation for such claims were assessed under the Table entitled “Compensation for permanent injuries”, commonly referred to as the Table of Disabilities or Table of Maims. Under that scheme, workers were compensated for the loss, or partial loss, of a “thing” mentioned in the Table, as assessed by a judge or commissioner of the former Compensation Court of NSW based on the medical and other evidence tendered, and by reference to the percentages in the Table.
Under the 2002 scheme, workers were (and still are) compensated for the degree of whole person impairment that resulted from the injury, as assessed by an Approved Medical Specialist applying the WorkCover Guidelines and AMA5. Both regimes required adjustments for pre-existing abnormalities or conditions to ensure that compensation was paid only for so much of the disability or impairment that resulted from the work injury.
Significantly, the transitional and savings provisions introduced with the 2001 amendments included cl 3 of Pt 18C of Sch 6 to the 1987 Act. That clause provides:
“3(1) The lump sum compensation amendments [the 2001 amendments] do not apply in respect of an injury received before the commencement of the amendments (even if the injury is subject of a claim made after the commencement of the amendments) except as follows.”
(As it has not been argued that any of the exceptions listed in cl 3 apply to the present matter, I will not list them.)
The amendments in the 2012 amending Act did not repeal s 66, but amended it as follows:
(a)     omitted s 66(1) and inserted new subsections (1) and (1A);
(b)     omitted s 66(2)(a), and
(c)     in s 66(2A), omitted “example 1” and inserted a new “example 1”.
The new subsections (1) and (1A) of s 66, introduced by the 2012 amending Act, now provide:
“(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
The 2012 amending Act did not repeal cl 3 of Pt 18C. Thus, for injuries received before 1 January 2002, s 66 applies in the form set out at [93] above.
However, the 2012 amending Act also introduced the following relevant savings and transitional provisions in Pt 19H of Sch 6 to the 1987 Act.
Clause 3(1) of Pt 19H of Sch 6 provides:
“3(1) Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a)an injury received before the commencement of the amendment, and
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2) An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
Clause 15 of Pt 19H of Sch 6 provides:
“15 An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim before that date.”

Submissions at the arbitration

Counsel for Mr Greene, Mr Edwards, submitted that, because of cl 3 of Pt 18C, the amendments to s 66 made by the 2012 amending Act do not apply to injuries received before 1 January 2002.
Mr Beauchamp’s submission at the arbitration, as summarised by the Arbitrator, was that the amendments introduced by the 2012 amending Act were intended to cover all injuries, whenever occurring, save where the transitional provisions specifically provided otherwise. He added that, on a literal reading of the savings and transitional provisions consequent upon the 2012 amending Act, there could be no exceptions for injuries that occurred prior to 1 January 2002.

The Arbitrator’s reasons

The Arbitrator acknowledged that Mr Beauchamp did not specifically submit that the transitional provisions impliedly repealed cl 3 of Pt 18C, but his argument was “tantamount to such a submission” (T4.20).
After setting out the legislative history, the Arbitrator said (at T9.29) it was clear that the legislature, in amending s 66, did nothing to remove cl 3 of Pt 18C of Sch 6. The question arose as to whether, reading the 2012 amending Act and the transitional provisions as a whole, it could be said the latest amendments impliedly repealed cl 3 of Pt 18C.
Two matters influenced the Arbitrator to conclude that cl 3 Pt 18C had not been impliedly repealed. They were the amendments to Sch 8 to the Workers Compensation Regulation 2010 (the Regulation) introduced by the Workers Compensation Amendment (Further Transitional) Regulation 2012 on 21 December 2012.
Clause 18 (referred to by the Arbitrator as regulation 18) of Sch 8 provides:
“Section 69A of the 1987 Act (as enforced before its repeal by the 2012 Amending Act) continues to apply, despite its repeal, to a claim for compensation made on or after 19 June 2012 for loss of hearing resulting from an injury received before 1 January 2002.”
Section 69A precluded a worker from obtaining compensation for loss of hearing for boilermaker’s deafness unless the level of binaural hearing loss from that condition was at least six per cent. The Arbitrator said that the introduction of cl 18 on 21 December 2012 made it clear the legislature understood that there would be claims made in respect of injuries that occurred before 1 January 2002 that would be compensable for less than 10 per cent whole person impairment and that was not consistent with any implied repeal of the pre-31 December 2001 provisions.
The other matter was cl 19 of Sch 8, also introduced on 21 December 2012, which provides:
“19(1) In the application of section 66(1A) of the 1987 Act to a claim resulting from an injury received before 1 January 2002:
(a) reference in that subsection to permanent impairment compensation is taken to be a reference to lump sum compensation payable under Division 4 Part 3 of the 1987 Act (as in force immediately before 1 January 2002), and
(b) a reference in that subsection to permanent impairment is taken to be a reference to an injury of a kind to which any lump sum compensation applies.
(2) Section 66(1A) of the 1987 Act is deemed to be amended to the extent necessary to give effect to this clause.”
The Arbitrator said that this clause assumed that s 66(1A) of the 1987 Act, which was introduced by the 2012 amending Act, did not apply to injuries received before 1 January 2002 and it “attempts to repair that situation in respect of section 66(1A)” (T14.12), but says nothing about s 66(1). That was supportive of a legislative intention that s 66(1) should continue to exist in two distinct forms and that cl 3 of Pt 18C still has work to do.
He concluded that, looking at the words of the amended s 66, cl 3 of Pt 18C, and the amendments to the Regulation, against the background of two systems of compensation for impairment that have continued to function until 2012, the legislative intention was that the pre-2002 system should continue (for pre-2002 injuries) and that Mr Greene could have his claim assessed under that system.

Submissions on appeal

On appeal, Mr Beauchamp essentially made the same submissions as he did at the arbitration. He referred to cl 3 of Pt 19H (see [102] above) and said that it was common ground that Mr Greene had not claimed before 19 June 2012. The significance of that fact was that the only further matter relating to lump sum compensation in Pt 19H was cl 15, which expressly brings a claim such as that made by Mr Greene under the 2012 amendments.
Mr Beauchamp said that insofar as cls 18 and 19 of Sch 8 of the Regulation “evidence an intent to preserve two separate types of benefits and thresholds they do so only to the extent that such injuries are to be monetarily assessed as injuries under the Table of Maims”.
Mr Bechelli submitted that BP has not sought in any way to challenge the Arbitrator’s reasons, but had only made general comments that did not address the specific reasons given by the Arbitrator.
In his submissions in response, Mr Beauchamp said:
“8. The Appellant submits that the correct determination on this issue is that, in light of the 2012 amendments, the preservation of the Table of Disabilities ‘system’ extends only to the extent of the monetary entitlement of a worker and not whether the new provisions in division 4 of part 3 of the 1987 Act apply, for example to impose a threshold that must be satisfied to be entitled to lump sum compensation (i.e. section 66(1)).”

Discussion

I agree that Mr Beauchamp’s written submissions did not address any part of the Arbitrator’s reasons. In an appeal restricted to the identification and correction of error that was surprising and unsatisfactory. While the submissions in response at least articulated alleged errors, they still did not deal with the Arbitrator’s reasoning.
Mr Beauchamp made the following points at the oral hearing of the appeal:
(a)     the prohibition in the new s 66 is intended to bind all claims;
(b) clauses 18 and 19 of Sch 8 only apply to monetary amounts, but are subject to the overriding intention, namely, that a worker must now have a whole person impairment of at least 10 per cent before he or she is entitled to lump sum compensation under s 66;
(c)     clause 18 purports to restore s 69A, but the question is whether that can be achieved in that fashion or whether you look to the overall intent of the Act in Pt 19H, which intends to “catch all”;
(d)     you cannot, by regulation, change the intent of the Act;
(e)     there is an implied repeal of cl 3 of Pt 18C;
(f)      Royal Society of Welfare for Mothers and Babies v Bowers [2000] NSWCA 212 (Bowers) is an example of an implied repeal;
(g)     if there is a radical departure from the expressed intention, it needs to be indicated in the legislation and a regulation cannot change the intent of the Act, and
(h) clauses 3 and 15 of Pt 19H are clear and cover the field. Then cl 18 of Sch 8 purports to restore what has been taken away.
The critical issue is the effect of cls 3 and 15 of Pt 19H, in circumstances where those clauses are in apparent conflict with cl 3 of Pt 18C. The answer to this question depends on whether cl 3 of Pt 18C has been impliedly repealed by the 2012 amending Act. The Arbitrator concluded that it has not and that the clause “must be given some work to do” (T11.7). For the reasons explained below, I agree.
It is appropriate to consider the Arbitrator’s reasoning in more detail.
After setting out the legislative history, the Arbitrator quoted the following passage from the judgment of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue NT [2009] HCA 41; 239 CLR 27, at [47]:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
He said that, against that background, it would be wrong to conclude that the legislature intended to repeal cl 3 of Pt 18C. It had the clear opportunity to do so when it drafted the 2012 amending Act, but did not. This statement has not been challenged on appeal and was clearly correct. It is not, however, determinative of the issue but merely raises one matter that points (albeit strongly) to cl 3 of Pt 18C still applying to pre-2002 injuries. If it has not been impliedly repealed, it applies and certain consequences follow.
The Arbitrator said that the other matter that militated against an implied repeal of cl 3 of Pt 18C was that there has existed in New South Wales for a decade two distinct systems of compensation in respect of lump sum compensation (one for injuries received before 1 January 2002 and one for injuries after that date) and it was “entirely conceivable that the legislature intended that the two systems should continue to co-exist following the amendment to the Act it made in 2012” (T11.14). Accepting, as a general proposition, that this statement is correct, it takes the matter no further.
The Arbitrator said that it was quite clear that the words of the latest version of s 66 could not be “readily superimposed upon the section as it relates to claims made for injuries prior to the 31 December 2001” (T11.21) and that when one attempted to do so it resulted in a nonsense because the amended section “simply does not fit with the [T]able of [D]isabilities and the method of assessing permanent impairment as set out in the amended section 66 is entirely different to that envisaged by the pre-31 December 2001 section” (T11.25). (The reference to the “amended section 66” was a reference to the amendments to s 66 introduced by the 2001 amendments.)
In other words, because the 2012 amendments did not repeal s 66, but only amended it, those amendments can only apply to pre-2002 injuries if they are read with s 66 in its form saved by cl 3 of Pt 18C. When one attempts to do that, the provision does not work. This can best be illustrated by looking at how those amendments would apply to s 66, as it was before 1 January 2002. In the following, subsections (1) and (1A) are the 2012 amendments to s 66 and subsection (2) (in italics) is from s 66 as it was before the 2001 amendments:
“(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
(2) A worker who has suffered more than one of the losses mentioned in the Table to this Division as a result of the same injury is not entitled to receive as compensation under this section more than $121,000.00 in respect of those losses.” (emphasis added)

As the Arbitrator noted, the combined provisions are a nonsense and do not fit. That is because subsection (1) refers to the degree of permanent impairment whereas subsection (2) refers to the totally different concept of “losses mentioned in the Table”. In addition, the combined section provides no mechanism for calculating lump sum compensation for pre-2002 injuries. This strongly suggests that the legislature intended to preserve the pre-2002 scheme for pre-2002 injuries, regardless of when the worker claims for such injuries.
The Arbitrator added, at T11.31:
“In those circumstances not only is there no real hint in the legislation or the transitional provisions that Clause 3 of 18C of Schedule 6 was to be impliedly repealed but if one analyses the wording of the new regime under Section 66 it simply cannot be transposed upon the old regime. I suppose it is possible that one might argue that somewhere in the legislation there was an intention to entirely abolish the old regime, but again that is not clear.”
I agree that there is no clear statement of intention in the legislation to entirely abolish the pre-2002 scheme. Indeed, cl 18 of Sch 8 (which reintroduces s 69A) and cl 19 of Sch 8 (which applies s 66(1A) to pre-2002 injuries, but not s 66(1)) suggest the opposite.
I do not accept Mr Beauchamp’s submission that cls 18 and 19 of Sch 8 preserve two separate types of benefits and thresholds to the extent that such injuries are to be monetarily assessed as injuries under the Table of Maims. As illustrated at [125] and [126] above, that cannot be so because the combined effect of the 2012 amendments with the pre-2002 s 66 simply does not work. Clauses 18 and 19 unequivocally indicate an intention to preserve the pre-2002 scheme of lump sum compensation for pre-2002 injuries. Either those injuries are assessed and compensated under the Table of Disabilities, or they are assessed and compensated under the 2012 scheme. They can only be assessed under the 2012 scheme if cl 3 of Pt 18C has been impliedly repealed.
Moreover, there is no purpose in preserving the two separate types of benefits and thresholds “only to the extent that such injuries are to be monetarily assessed as injuries under the Table of Maims”. They are either preserved for all purposes or not. The 2012 amendments provide that lump sum compensation is only payable where a worker has received an injury that results in a degree of permanent impairment greater than 10 per cent whole person impairment. If the threshold introduced by the 2012 amendments applies to pre-2002 injuries, there would be no need to preserve, for those injuries only, the repealed s 69A. That is because the threshold in s 69A was in completely different terms to the new threshold.
Section 69A provided that, in assessing, for the purpose of the determination of permanent impairment compensation, the degree of permanent impairment resulting from loss of hearing due to boilermaker’s deafness “regard must not be had to any hearing loss due to boilermaker’s deafness unless the worker’s total hearing loss due to boilermaker’s deafness is at least 6%”. The reference to six per cent was a reference to the percentage of loss of hearing due to boilermaker’s deafness determined as a proportionate loss of hearing in both ears (s 69A(5)). Compensation was calculated by reference to the Table of Disabilities.
Therefore, nothing is achieved by preserving the pre-2002 benefits “only to the extent that such injuries are to be monetarily assessed under the Table of Maims”. If they are “monetarily assessed” under the Table of Disabilities then surely, as a matter of logic, they would also be compensated under that Table and they would not then be subject to a second threshold before compensation is payable.
In other words, if the 2012 amending Act eliminated rights for all claims of less than 10 per cent whole person impairment, regardless of when the injury occurred, why would the legislature reintroduce s 69A, which has a threshold of six per cent binaural hearing loss, assessed under the Table of Disabilities, unless it intended that claims that meet that much lower threshold should be compensated. There can only be one answer: consistent with having not repealed cl 3 of Pt 18C, the intention is that pre-2002 hearing loss injuries continue to be assessed under the pre-2002 scheme. If cl 3 of Pt 18C had been impliedly repealed, it would not have been necessary to preserve s 69A for injuries before 1 January 2002. I therefore agree with the Arbitrator that cl 18 of Sch 8 is a clear and unequivocal indication that cl 3 of Pt 18C has not been impliedly repealed and takes effect according to its terms.
Though Mr Beauchamp’s submission dealt with cls 18 and 19 of Sch 8 together, those clauses deal with different issues. Clause 19 is directed to s 66(1A), which states that only one claim can be made for permanent impairment compensation in respect of permanent impairment that results from an injury. Clause 19 makes it clear that the one claim restriction applies to injuries received before 1 January 2002.
However, as the Arbitrator noted, cl 19 does not deal with s 66(1), which introduced the 10 per cent whole person impairment threshold. This strongly supports the Arbitrator’s conclusion that the pre-2002 scheme continues to apply for injuries received before 1 January 2002, but subject to cl 19 of Sch 8 (assuming, without deciding, that that clause was validly made).
Contrary to Mr Beauchamp’s submission, this interpretation does not involve a radical departure from the “expressed” intention in cl 3 of Pt 19H. As observed by Mr Davies, cl 3 of Pt 19H is expressly stated to apply “[e]xcept as provided by this Part or the regulations” (emphasis added). Therefore, the clause is subject to the regulations.
Where a statutory provision permits exceptions to be made to it by regulations it is permissible to refer to the regulations as an aid to the interpretation of the provision (Ward v Commissioner of Police (1998) 80 FCR 427 at 437-8). In addition, where the section is stated to be subject to regulations, and the regulations are within the scope of the section, the regulation is to some extent to prevail (O’Connell v Nixon (2007) 16 VR 440 at 447).
This conclusion is reinforced by cl 1(2) of Sch 8, which states that the provisions of Pt 19H are “deemed to be amended to the extent necessary to give effect to this Part”. It follows that, at the minimum, the reference in cl 3 of Pt 19H to the 2012 amendments applying to “an injury received” before the commencement of the amendment must be read in light of the provisions in Sch 8.
There are other provisions that suggest that cl 3 of Pt 18C has not been impliedly repealed. Clause 13 of Sch 8 states that the fact that a worker’s injury was received before 1 January 2002 does not prevent the degree of permanent impairment from being assessed for the purpose of determining whether the worker is a seriously injured worker under Div 2 of Pt 3 of the 1987 Act. If cl 3 Pt 18C has been impliedly repealed, and all pre-2002 injuries come under the 2012 scheme, it would not have been necessary to introduce cl 13. The Arbitrator referred (at T4.41, 5 August 2013) to the substance of this clause during the arbitration but not in his reasons.
Similarly, cl 23 of Pt 19H would have no function, and would have been unnecessary, if all claims made on and from 19 June 2012 are assessed under the 2012 scheme, regardless of when the injury occurred. It provides that, for the purpose of determining the degree of permanent impairment of an injured worker whose injury happened before 1 January 2002, the worker or insurer may refer the matter for assessment under Pt 7 of Ch 7 of the 1998 Act. Mr Edwards referred to the substance of this clause (at T4.32, 5 August 2013), though the Arbitrator did not rely on it in his decision.
There are additional reasons why the Arbitrator’s conclusion is correct.
There is a strong presumption that the legislature does not intend to contradict itself but intends (potentially contradictory) provisions to operate within their given spheres (Statutory Interpretation in Australia, D C Pearce and R S Geddies, 7^th ed, LexisNexis Butterworths, at 7.11, (Pearce and Geddes), citing Fullagar J in Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276). His Honour added (at 275) that an implied repeal was a “comparatively rare phenomenon”.
In a similar vein, Gaudron J said in Saraswati v R (1991) 172 CLR 1 at 17:
“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.”
In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566, Gummow and Hayne JJ said, at 585, that the doctrine (of implied repeal) “requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands”.
In the present matter, the 2012 scheme is capable of sensible operation by applying it to injuries received on and after 1 January 2002 (where the claim was made on or after 19 June 2012) and applying the pre-2002 scheme, as saved by cl 3 of Pt 18C, and subject to cl 19 of Sch 8 (assuming that that clause was validly made), to injuries received before that date. Indeed, that result is not only sensible, it is consistent with the intention of the legislation, as gleaned from the words used in the various provisions referred to above.
Bowers is not on all fours with the case before me and turned on the construction of completely different provisions. It concerned the introduction of s 52A to the 1987 Act in 1996 and the repeal and replacement of that section with a new s 52A in 1998. Section 52A concerned the termination of weekly compensation after the first 104 weeks of incapacity if certain conditions applied. It was repealed in the 2012 amending Act.
The question in Bowers concerned whether the introduction of cl 15 in the savings and transitional provisions with the 1998 amendments were inconsistent with cl 14, which had been introduced with the 1996 amendment. Clarke AJA (Priestley and Stein JJA agreeing) held (at [32]) that there was “a clear manifestation of an intention that the [1998] amendment should apply, unqualified by cl 14, to all cases no matter when the injury occurred”. That was because, among other reasons, “s 52A as it was when inserted in 1996 was subject to the restrictions in cl 14 and once that section was omitted and replaced by a new s 52A the restrictions no longer applied”. However, cl 14 still applied where notices were given under the 1996 version of s 52A.
Unlike the situation in Bowers, rather than there being a clear manifestation of an intention that the 2012 amending Act should apply to injuries before 2002, there are clear statements in cl 18 and 19 of Sch 8 to the contrary. In Bowers, Clarke AJA expressly noted that no regulations applied. Moreover, his Honour did not hold that cl 14 had been impliedly repealed in total, but that it still applied where notices were given under the 1996 version of s 52A.
Last, the right to permanent impairment compensation under s 66 is a significant statutory entitlement (Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 per McColl JA at [77]) and the repealing or limiting of such a right requires clear and unambiguous language (Buck v Comcare [1996] FCA 1485; 66 FCR 359). With regard to the right to lump sum compensation for hearing loss injuries received before 1 January 2002, the legislature has not used clear and unambiguous language that points to a repealing of those rights. Rather, by not repealing cl 3 of Pt 18C, and by introducing cls 18 and 19 to Sch 8, and the other transitional provisions referred to above, it has indicated an intention that those injuries should continue to be assessed and compensated under the Table of Disabilities, subject to the one claim restriction.
It follows that, for hearing loss injuries received before 1 January 2002, cls 3 and 15 of Pt 19H must be read subject to cl 3 of Pt 18C.

OTHER MATTERS

Mr Beauchamp submitted that some of the issues touched upon in Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59 (Sukkar), a case argued before the President on 15 October 2013 and decided on 8 November 2013, are relevant to Mr Greene’s appeal.
In that case, the worker suffered two injuries and made two claims for lump sum compensation for hearing loss. The first was in 1996, when he was paid $11,093.35 for a 12.9 per cent binaural hearing loss, and the second was on 19 June 2012 when, because of a further loss of hearing due to exposure to noise since 1996, he claimed nine per cent whole person impairment.
On referral from a Commission Arbitrator under s 351 of the 1998 Act, the President considered the following questions of law:
“Do the amendments to Div 4 Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012?
If yes, whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker’s claim exceeds the s 66(1) threshold?” (emphasis added)
His Honour answered “yes” to the first question and “no” to the second.
As his Honour noted (at [68]), the parties in Sukkar did not rely on cl 3 of Pt 18C and he expressed no view about the operation of that clause. The first issue in that case concerned whether the 2012 amendments applied in circumstances where the worker had (in 1996) been paid for his first claim for boilermaker’s deafness and, as a result of a further loss of hearing, made a second claim on 19 June 2012. The further issue in Sukkar was whether, in those circumstances, the losses from the two claims could be aggregated to meet the 10 per cent threshold in s 66, as amended in by the 2012 amending Act.
Neither of the questions considered in Sukkar arises in the matter before me and nothing in the President’s decision is relevant to the issues I have determined. The factual and legal issues in Mr Greene’s case are quite different. Contrary to Mr Sukkar’s situation, Mr Greene suffered only one injury and made only one claim. That injury was deemed to have happened in 1994 and the claim was made on 19 June 2012. This factual scenario required the determination of a different question of statutory interpretation to that considered by the President.

CONCLUSION

It follows that BP has not established that the Arbitrator’s decision is affected by any error and his decision is confirmed. On the issue of the identity of the last noisy employer, Mr Beauchamp’s arguments failed to take into account all the relevant evidence. Dr Scoppa gave a full and proper explanation for the change in his opinion and the Arbitrator was entitled to accept his evidence.
The result of the statutory interpretation issue gives a construction “that produces the greatest harmony and the least inconsistency” (Australian Alliance Assurance Co Ltd v Attorney-General (Qld)and Goodwyn [1916] St R Qd 135 at 161 per Cooper CJ; T v T (2008) 216 FLR 365 at 394) in circumstances where the drafting of the amendments concerned was, on one view, less than ideal. Moreover, the interpretation favoured by this result construes the provisions so they are “consistent with the language and purpose of all the provisions of the statute” (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]).
At a time when the legislature had the opportunity to repeal cl 3 of Pt 18C, it did not do so. The clause clearly has work to do with respect to injuries received before 1 January 2002. Restricting it in that way means that it works in harmony with the 2012 amendments. The result is fair, workable, and consistent with the words used in the legislation.

DECISION

The Arbitrator’s determination of 16 August 2013 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Deputy President

11 November 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE