Cant v Trabor Pty Ltd ATF Trabour Unit Trust t/as JTS Automotive Repairs Summary

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cant v Trabor Pty Ltd ATF Trabour Unit Trust t/as JTS Automotive Repairs [2025] NSWPIC 502
APPLICANT:	Christopher Cant
RESPONDENT:	Trabor Pty Ltd ATF Trabour Unit Trust t/as JTS Automotive Repairs
MEMBER:	Karen Garner
DATE OF DECISION:	15 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment lump sum compensation pursuant to section 66; whether the applicant was a “worker” of the respondent pursuant to section 4; whether the applicant’s employment with the respondent ceased on or about 30 June 2007; whether the respondent was the last employer with whom the applicant was employed and to which the nature of the applicant’s hearing loss was due pursuant to section 17(c)(ii); whether the applicant sustained injury, being bilateral hearing loss pursuant to section 4(b)(i); Held – the applicant was a “worker” of the respondent pursuant to section 4; the applicant’s employment with the respondent ceased on or about 30 June 2007; the respondent was the last employer with whom the applicant was employed and to which the nature of the applicant’s hearing loss was due pursuant to section 17(c)(ii); the applicant sustained injury, being bilateral hearing loss pursuant to section 4(b)(i); matter remitted to the President to be referred to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The applicant was a “worker” of the respondent pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant’s employment with the respondent ceased on or about 30 June 2007. 3. The respondent was the last employer with whom the applicant was employed and to which the nature of the applicant’s hearing loss was due pursuant to s 17(c)(ii) of the 1987 Act. 4. The applicant did sustain injury, being bilateral hearing loss, with a date of injury of 30 June 2007 (deemed), by way of a gradual process in the course of his employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss pursuant to s 4(b)(i) of the 1987 Act. The Commission orders: 1. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 30 June 2007 (deemed). Body parts: ear, nose and throat related structures. Method: whole person impairment. 2. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and all attachments, (b) the Reply and all attachments, and (c) the letter of instruction to Dr Scoppa contained in the Application to Lodge Additional Documents lodged by the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Christopher Cant (the applicant) seeks permanent impairment compensation pursuant to
s 66 of the Workers Compensation Act 1987 (the 1987 Act) from Trabor Pty Ltd as trustee for the Trabour Unit Trust trading as JTS Automotive Repairs (the respondent) in the amount of $17,050 in respect of 12% whole person impairment (WPI) for bilateral hearing loss, with a deemed date of injury of 30 June 2007.
By letter dated 12 April 2024, the applicant initiated a claim for permanent impairment compensation in respect of bilateral hearing loss pursuant to s 66 of the 1987 Act and a claim for medical expenses for the fitting and provision of hearing aids pursuant to s 60 of the 1987 Act. The applicant provided further and better particulars of the claim by letters respectively dated 6 May 2024, 17 May 2024 and 28 November 2024.
By notice dated 1 May 2025, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer (the insurer) declined the claims on grounds set out in that notice.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initiated the present proceedings in relation to claims for permanent impairment compensation and medical expenses by an Application to Resolve a Dispute (ARD), lodged in the Personal Injury Commission (Commission) on 30 June 2025. The respondent lodged a Reply to ARD on 24 July 2025.
At a preliminary conference held on 5 August 2025, the applicant was granted leave to amend the ARD to delete the claim for medical expenses.
At a conciliation/arbitration hearing conducted by MS Teams on 1 September 2025, Mr Bruce McManamey, counsel, appeared on behalf of the applicant, instructed by Peninsula Law Lawyers. Mr Paul Stockley, counsel, appeared on behalf of the respondent, instructed by Bartier Perry Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant was a “worker” of the respondent pursuant to s 4 of the 1987 Act;
(b) whether the applicant’s employment with the respondent was of “the nature of which the injury was due” pursuant to s 17 of the 1987 Act;
(c) whether the respondent was the last employer with whom the applicant was employed and to which the nature of the applicant’s hearing loss was due pursuant to s 17(c)(ii) of the 1987 Act;
(d) whether the applicant sustained injury, being bilateral hearing loss, with a date of injury of 30 June 2007 (deemed), by way of a gradual process in the course of his employment with the respondent and, further, the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss pursuant to s 4(b)(i) of the 1987 Act, and
(e) the extent and quantification of the applicant’s entitlement to compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply to ARD and attached documents, and
(c)    Application to Lodge Additional Documents containing letter of instruction to
Dr Scoppa dated 5 November 2023.

Oral evidence

The applicant provided oral evidence and was subject to cross-examination. The applicant’s evidence in that regard was recorded.

Applicant’s evidence

In a statement dated 24 June 2025, the applicant stated:
(a)    from the late 1960s until his retirement on 30 June 2007, he was employed in the panel beating industry with various employers and, in the course of that employment, was constantly exposed to the loud noise of power tools on metal such as grinders, sanders and welders, and hammering of hand tools on metal;
(b)    he was never provided with any form of hearing protection;
(c)    the respondent was the last noisy employer where he worked full-time in the position of manager from approximately January 2002 to 30 June 2007;
(d)    in his employment with the respondent, the applicant spent 70% of his time assisting other employees carry out panel beating work which was associated with using power tools and hand tools on metal. The applicant also walked around the workshop assigning tasks and handing out various parts to other employees;
(e)    in his employment with the respondent, the noise was extremely loud, to the extent that it was difficult to hear another worker yelling to communicate in the panel beating workshop environment and they would have to walk outside that environment to communicate;
(f)    details of various individual people who were business owners and employees associated with the respondent’s business at the time of the applicant’s employment with the respondent;
(g)    he ended his employment with the respondent to become a full-time carer for his partner and he commenced receiving carer benefits from Centrelink about two or three weeks after he ceased working for the respondent;
(h)    subsequent to pursuing the claim for workers compensation, the applicant has made enquiries with Centrelink and the Australian Taxation Office which have revealed that the applicant last lodged a Tax Return in 2007 and that he commenced receiving Centrelink benefits in mid-July 2007. On that basis, the applicant has deduced that the last date he was employed was on or about
30 June 2007;
(i)    prior to obtaining that information from Centrelink and the Australian Taxation Office, the applicant initially told his solicitors and Dr Scoppa that he worked with the respondent from approximately 1 July 2008 to 1 January 2014;
(j)    following receipt of the information from Centrelink and the Australian Taxation Office, the applicant is now aware that those dates are incorrect and that the dates that he actually worked for the respondent was from approximately January 2002 to 30 June 2007;
(k)    the applicant’s employment with Beaurepairs definitely predated his employment with the respondent;
(l)    he understands that because of Dr Scoppa’s retirement, the applicant’s solicitors were unable to obtain a supplementary report from Dr Scoppa confirming the correct deemed date of injury should be on or about 30 June 2007, which was the last day that he worked for the respondent, and
(m)     as a result of his exposure to noisy work environments over a long period of time without ear protection, the applicant now experiences significant hearing issues.
In oral evidence including cross-examination, the applicant stated in summary that:
(a)    when he initially attended his solicitor on 4 July 2023 regarding the workers compensation claim, he recounted his history of employment from memory;
(b)    after subsequently receiving records from the Australian Taxation Office, he became aware that he had not submitted a Tax Return since 2007;
(c)    also after subsequently receiving records from Centrelink, he became aware of when he commenced to receive a carers pension;
(d)    on that basis, he later became aware that his memory of his memory of his history of employment was not correct;
(e)    after he received information from the Australian Taxation Office, he became aware that the employment history set out in the Industrial Deafness – Notice of Injury Form is erroneous;
(f)    he now recalls that he moved to Port Macquarie where he worked for Beaurepairs in Easter 2000 because of the Olympics;
(g)    he is now aware that he last worked in 2007;
(h)    the Australian Taxation Office did not provide any information which confirmed the identity of his employers, and
(i)    the applicant could not now recall detail of his conversation with Dr Scoppa.

Other evidence

Industrial deafness notice of injury form

An Industrial Deafness – Notice of Injury Form, signed by the applicant and dated
20 August 2023:
(a)    set out the applicant’s work history in noisy environments;
(b)    stated that the applicant was employed by Beaurepairs at Port Macquarie from approximately 1 January 2007 to 1 July 2008;
(c)    stated that the applicant was employed by the respondent from approximately
1 July 2008 to 1 January 2014, and
(d)    stated that the applicant’s last day of employment with the respondent was on approximately 1 January 2014.

Emails between the applicant’s solicitor and the insurer regarding the applicant’s employment history

A series of emails between the applicant’s solicitor and the insurer dated in March and April 2025 discussed the applicant’s history of employment:
(a)    the insurer noted the absence of documents which definitively recorded the applicant’s employment history;
(b)    the applicant’s solicitor stated that the last day that the applicant worked was on or about 30 June 2007, which should be the deemed date of injury;
(c)    the insurer noted an inconsistency in the applicant’s reported employment history and stated that, given that the date of loss was amended to 30 June 2007, that put Beaurepairs employment after that of the respondent, which put into question whether the respondent was the last noisy employer, and
(d)    the applicant’s solicitor stated that the applicant advised that his last employment prior to obtaining Centrelink care benefits was with the respondent.

Australian Business Register search

ABN search details dated 19 April 2024 showed that the respondent traded as
JTS Automotive Repairs in April and May 2000 and from 10 May 2001.

Applicant’s tax returns

The evidence the applicant’s various tax returns and notices of assessment in respect of the financial years ending 30 June 2005, 30 June 2006 and 30 June 2000.

Carers Pension Pay Records 2007 - 2008

The applicant’s carers pension pay records issued by Centrelink indicate that the applicant received carers pension from 5 July 2007.

Quotation

A quotation dated 23 April 2024 issued by IHEAR quoted the amount of $6,172.40 in respect of bilateral hearing aids.

Medical evidence

Lyndon Williams, audiologist with INEAR Audiology

In a report dated 30 May 2023, Mr Williams of INEAR Audiology:
(a) reported the results of an audiogram assessment of the applicant’s hearing conducted on 30 May 2023, being: 36.6% age-corrected hearing loss of the right ear; 35.0% age-corrected hearing loss (presbycusis) of the left ear; and 33.3% age-corrected total binaural hearing loss.

Dr Joseph Scoppa, ear, nose and throat physician and medico-legal consultant, independent medical expert qualified by the applicant

A letter from the applicant’s solicitors to Dr Joseph Scoppa dated 15 November 2023 (the qualifying letter to Dr Scoppa) recounted the applicant’s employment history and exposure to noise as follows:
(a)    from approximately 1 July 1969 to 1 July 1970, the applicant was employed by Stuart Armstrong Autobody as a panel beater and in that employment was exposed to constant loud noise of power tools on metal, such as grinders, sanders, welders and also constant hammering of hand tools on metal (panel beater noise);
(b)    from approximately 1 July 1970 to 1 January 1973, the applicant was employed by Grandview Garage Automotive as a panel beater and in that employment was exposed to constant loud panel beater noise;
(c)    from approximately 1 January 1973 to 1 January 1976, the applicant was employed by Greenwich Motors as a panel beater and in that employment was exposed to constant loud panel beater noise;
(d)    from approximately 1 July 1976 to 1 January 1980, the applicant was employed by Stuart Armstrong Body as a panel beater and in that employment was exposed to constant loud panel beater noise;
(e)    from approximately 1 January 1980 to 1 July 1982, the applicant was employed by an employer in Western Australia, whose name he now cannot recall, as a farmhand and in that employment was exposed to tractor noise;
(f)    from approximately 1 July 1982 to 1 January 1983, the applicant was employed by Col’s Bodyshop at West Ryde as a panel beater and in that employment was exposed to constant loud panel beater noise;
(g)    from approximately 1 January 1983 to 1 January 1987, the applicant was employed by Mansfield Smash Repairs as a panel beater and in that employment was exposed to constant loud panel beater noise;
(h)    from approximately 1 January 1987 to 1 January 2004, the applicant was employed by Ken Morrow Smash Repairs as a panel beater and in that employment was exposed to constant loud panel beater noise;
(i)    from approximately 1 January 2004 to 1 January 2006, the applicant was employed by Gladesville Auto as a panel beater and in that employment was exposed to constant loud panel beater noise;
(j)    from approximately 1 January 2007 to 1 July 2008, the applicant was employed by Beaurepairs as a panel beater and in that employment was exposed to constant loud panel beater noise;
(k)    from approximately 1 July 2008 to 1 January 2014, the applicant was employed by the respondent as a panel beater and in that employment was exposed to constant loud panel beater noise;
(l)    in that noisy environment the applicant had to yell to communicate to fellow work colleagues, even if they were standing next to each other, or if he needed to speak at length he was required to speak outside the panel beating workshop environment;
(m)     the applicant was never provided with any form of ear protection, and
(n)    the applicant now experiences significant hearing issues following being employed in those noisy work environments over a long period of time.
In a report dated 25 January 2024, Dr Scoppa:
(a)    recorded a history that the applicant reported progressive hearing loss and tinnitus for many years;
(b)    recorded a history of employment with various noisy employers, which included that the applicant worked as manager of the respondent’s automotive workshop from about 1 July 2008 to 1 January 2014, which exposed him to multiple sources of loud noise including noise from rattle guns, compressors, hammering, grinding, power tools, engine testing and general workshop noise;
(c)    recorded the applicant had the following employment history:
(i)from about 1 July 1969 to about 1 July 1970, employed by Stuart Armstrong Autobody as an apprentice panelbeater, in a noisy environment;
(ii)from about 1 July 1970 to about 1 January 1973, employed by Grandview Garage Automotive as a panelbeater, in a noisy environment;
(iii)from about 1 January 1973 to about 1 January 1976, employed by Greenwich Motors as a panelbeater, in a noisy environment;
(iv)from about 1 January 1976 to about 1 January 1980, employed by Stuart Armstrong Autobody as a panelbeater, in a noisy environment;
(v)from about 1 January 1980 to about 1 July 1982, employed as a farmhand, in an environment of tractor motor noise;
(vi)from about 1 July 1982 to about 1 January 1983, employed by Col’s Bodyshop as a panelbeater, in a noisy environment;
(vii)from about 1 January 1983 to about 1 January 1987, employed by Mansfield Smash Repairs as a panelbeater, in a noisy environment;
(viii)from about 1 January 1987 to about 1 January 2004, employed by Ken Morrow Smash Repairs as a panelbeater, in a noisy environment;
(ix)from about 1 January 2004 to about 1 January 2006, employed by Gladesville Auto as a panelbeater, in a noisy environment;
(x)from about 1 January 2007 to about 1 July 2008, employed by Beaurepairs in an automotive workshop, in a noisy environment;
(xi)from about 1 July 2008 to about 1 January 2014, employed by the respondent as manager of an automotive workshop, in a noisy environment, and
(xii)retired on 1 January 2014;
(d)    recorded no history relevant to other potential causes of hearing loss;
(e)    relied on the audiogram carried out by Mr Williams of INEAR Audiology on
30 May 2023;
(f)    determined the following occupational hearing loss: left ear before correction for presbyacusis, 32.1%; left ear after correction for presbyacusis, 27.2%; right ear before correction for presbyacusis, 33.6%; right ear after correction for presbyacusis, 28.7%; binaural loss before correction for presbyacusis, 31.3%; binaural loss after correction for presbyacusis, 26.4%;
(g)    stated that maximum medical improvement had been reached;
(h)    assessed total 12% WPI in respect of binaural hearing loss and tinnitus, after applying a deduction pursuant to s 323 of the 1998 Act;
(i)    expressed the opinion that, from the description of the applicant’s employment history, the last noisy employer was the applicant;
(j)    expressed the opinion that reported history of occupational noise exposure was such that the applicant’s employment with the respondent would give a real risk of boilermakers’ deafness, or deafness of a similar origin, and further, that it was of a type that it has been a substantial contributing factor to the applicant having developed the injury of industrial deafness, and
(k)    expressed the opinion that treatment of the applicant’s binaural hearing loss with bilateral digital hearing aids is indicated and reasonably necessary for the rehabilitation of the noise induced hearing loss injury, and further, that the industrial deafness materially contributes to the requirement of the hearing aids.

Dr Sylvester Valentine Fernandes, ear, nose, throat and facial plastic surgeon, independent medical expert qualified by the insurer

In a report dated 7 March 2025, Dr Fernandes:
(a)    recorded a history that the applicant complained of a gradual and progressive hearing loss, that he attributed to his exposure to loud noise including hammering, grinding, sanding and welding over a period of time in the workplace with various employers, including 34 years in the panel beating trade and 5.5 years with the respondent, with no noise protection provided, and no history relevant to other potential causes of hearing loss;
(b)    recorded that the applicant’s last noisy employer was the respondent;
(c)    recorded that the applicant’s present symptoms were gradual, progressive and bilateral hearing impairment and tinnitus for approximately 25 years;
(d)    on examination, recorded that: visible tympanic membranes were intact and of normal appearance; the Rinne test was positive on both sides; the Weber test was not lateralised; otherwise there was no significant findings on otorhinolaryngological examination relevant to the hearing loss;
(e)    considered the results of an audiogram conducted by Dr Fernandes on
5 March 2025;
(f)    diagnosed: noise induced hearing loss in the upper middle and treble frequences; an excess loss of uncertain origin (non-occupational) in the bass and lower middle frequencies; and, age-related hearing loss;
(g)    stated that maximum medical improvement had been reached;
(h)    assessed total 10% whole person impairment in respect of binaural hearing loss and tinnitus, and
(i)    stated that hearing aids are reasonably necessary as a result of the employment-related bilateral hearing loss.
In a report dated 24 April 2025, Dr Fernandes:
(a) noted that, having undertaken a review of employment information received on the claim, the date of loss was changed to 30 June 2007, and
(b) stated that the “last noisy employer hence is Beau Repairs where he worked from 01/01/2007 to 01/07/2008, also exposed to noise which on balance of probabilities had the necessary ‘incidents, tendencies and characteristics’ so as to give rise to a real risk of a person suffering noise induced hearing loss there from”.

SUBMISSION

Counsel made oral submissions which were recorded.
In summary, on behalf of the respondent, Mr Stockley submitted:
(a)    there is no documentary evidence at all which connects the applicant’s work activities with the respondent;
(b)    the applicant could not now recall detail of his conversation with Dr Scoppa;
(c)    the Industrial Deafness – Notice of Injury Form has a detailed chronology of the applicant’s work history from 1969;
(d)    it appears that when the applicant initially provided information about his work history, he did not then appreciate the significance and relevance of the year of the Olympics in 2000 in relation to his move to Port Macquarie;
(e)    the applicant’s evidence is unreliable;
(f)    there are various typographical errors and inaccuracies in written evidence;
(g)    the difficult is that the Commission does not know when the applicant was correct and when he was in error in information that he provided;
(h)    it should be a simple thing for the applicant to produce some evidence of when he was employed by the respondent;
(i)    however, the applicant has provided no independent evidence of whether the respondent was his last noisy employer, and
(j)    accordingly, the applicant has not discharged his onus of proof required to establish the claim for compensation.
In summary, on behalf of the applicant, Mr McEnaney submitted:
(a)    the Commission is required to determine, firstly, whether the applicant was employed by the respondent and, secondly, whether the respondent was the applicant’s last noisy employer;
(b)    in his statement, the applicant provided considerable detail regarding his employment with the respondent, including the names of various people with whom he worked;
(c)    that evidence is consistent with the respondent being the applicant’s last employer;
(d)    it is clear that the applicant no longer holds any documentary evidence regarding his employment some 18 years ago;
(e)    the respondent may have such evidence, but it has not provided it;
(f)    the respondent has given no evidence whatsoever in relation to whether the applicant was employed by the respondent and, further, it has not demonstrated nor explained that it has attempted to obtain any such evidence;
(g)    the applicant is clear that he has no documents from his employment eighteen years ago and that he does not keep the documents;
(h)    the respondent may have relevant evidence however it has not called any evidence;
(i)    the applicant consistently said that he worked for the respondent and that is consistent with his oral evidence;
(j)    the Commission should accept that the applicant is doing his best to recall his employment history, and there is no reason not to accept the applicant’s evidence;
(k)    in relation to the issue of the date of the applicant’s employment with the respondent, in the absence of any documentary evidence, the applicant gave the dates the best that he could, however the sequence of employers always remained the same and the respondent was always listed as the applicant’s last noisy employer;
(l)    the applicant stated that he was sure that the sequence of employers was correct and that the respondent was his last noisy employer;
(m)     the dates have been explained by the Australian Taxation Office records which show that the applicant has not failed a tax return since 2007, which is when the applicant says he left employment with the respondent to take up the carers pension to care for his partner;
(n)    applicant’s carers pension pay records issued by Centrelink indicate that the applicant received carers pension from 5 July 2007, which demonstrates that the date that the applicant stated that he was employed by Beaurepairs cannot be correct because he was on a carers pension at that time;
(o)    there is no disadvantage to the applicant to tell the truth regarding his employment with the respondent, except that if he had been employed by Beaurepairs in 2018 he would likely be entitled to greater compensation;
(p)    the applicant is clear that the respondent was the applicant’s last employer and the applicant has always said that he never worked for anyone after the respondent;
(q)    the applicant was not working in 2008 for anyone;
(r)    there is no issue in relation to the nature of the applicant’s employment with the respondent;
(s)    medical evidence is consistent;
(t)    the applicant explained that he made enquiries to find relevant documents however was unable to do so;
(u)    in the circumstances, it is not appropriate to draw an adverse inference in relation to the applicant’s failure to produce such documents, and
(v)    the respondent has provided no evidence and no explanation for same.
Mr Stockley made no submissions in reply.

The law

Section 9 of the 1987 Act states that:
“9   Liability of employers for injuries received by workers—general
(1)    A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2)    Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
Section 4 of the 1987 Act states:
“4 Definition of ‘injury’
In this Act–
injury–
(a)means personal injury arising out of or in the course of employment,
(b)includes a disease injury, which means–
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 17 of the 1987 Act states:
“17    Loss of hearing – special provisions
(1)     If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect–
(a)for the purposes of this Act, the injury shall be deemed to have happened–
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due – at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury – on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c)compensation is payable by–
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury – that employer, or
(ii)where the worker was not so employed – the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(d)an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e)in paragraph (d), the relevant period means–
(i)where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing) – in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii)where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury – in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii)where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury – in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,
(f)where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g)where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.
(2)     Without limiting the generality of subsection (1), the condition known as ‘boilermaker’s deafness’ and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3)     Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
Section 66(1) of the 1987 Act states:
“66 Entitlement to compensation for permanent impairment
(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.”

FINDINGS AND REASONS

The applicant gave evidence that he sustained hearing loss as a result of his employment with the respondent which ended on or about 30 June 2007 (and employment in previous noisy work environments).
Having regard to the evidence as a whole and for the reasons set out below, I accept the applicant’s evidence given in his statement and orally before the Commission as being a credible and truthful account of the applicant’s experiences:
(a)    the applicant has consistently stated that he was employed by the respondent in a noisy work environment and that the respondent was his last employer in such an environment;
(b)    the applicant gave detailed evidence in his written statement about the nature of the business of the respondent, including the names of various individuals associated with the business and with whom he worked during the time that he states that he worked there;
(c)    the applicant gave detailed evidence in his written statement about the nature and conditions of that employment to the extent that it was a noisy work environment and that he was not provided with any hearing protection;
(d)    the applicant has not provided any documentary nor other evidence to corroborate his evidence in that regard. However, he has given evidence which explains his efforts to obtain such other evidence and the reason for his failure to produce it. Given that the applicant’s employment with the respondent was alleged to have ceased in or about 30 June 2007, it is understandable that the applicant may not have retained documentary evidence of that employment to the present time;
(e)    ABN search details dated 19 April 2024 showed that the respondent traded as JTS Automotive Repairs in April and May 2000 and from 10 May 2001;
(f)    although the applicant has given inconsistent evidence regarding the dates of his various employments in a noisy environment (initially, on the Industrial Deafness – Notice of Injury Form, to his lawyer and to Dr Scoppa), he has explained that he made an error in his recall of the dates of employment and he has explained how he came to his current understanding of the date on which he was last employed by the respondent;
(g)    the applicant has produced evidence that he obtained from the Australian Taxation Office and Centrelink which is consistent with the date that he now asserts is the date on which he was last employed by the respondent. In particular, it appears clear from that evidence that the applicant did not lodge a tax return after he commenced to receive a Carers Pension from about
5 July 2007;
(h)    during cross-examination by Mr Stockley on behalf of the respondent, the applicant maintained his evidence that the respondent was his last noisy employer. The applicant also maintained his evidence that he ceased employment with the respondent in or about 30 June 2007 notwithstanding
Mr Stockley’s valid point that the applicant’s error regarding dates of employment was substantial. The applicant also explained that he is now aware of the relevance of the Olympics in explaining the correct date for his move to Port Macquarie and commencing employment with a former employer Beaurepairs;
(i)    overall, I was favourably impressed by the applicant’s evidence during cross-examination. I am of the view that the applicant presented in an honest and forthright fashion during cross-examination. Further, the applicant presented as giving credible evidence which maintained his position that the respondent was his last noisy employer, he accepted his previous error in relation to dates of employment and he explained the basis for his present understanding in relation to dates of employment and also the lack of documentary evidence;
(j)    whilst the applicant’s evidence was not perfect, taking into account the evidence overall, the applicant presented as doing his best to provide an honest and accurate account of the relevant circumstances, and
(k)    despite having opportunity to do so, the respondent has not called any evidence whatsoever in relation to the issues of whether the applicant was employed by the respondent and whether the respondent’s work environment was of such a nature that it could cause hearing loss as alleged by the applicant. In particular, the respondent has called no evidence which is inconsistent with the applicant’s evidence.
Having regard to the medical evidence as a whole, I accept that the applicant sustained binaural noise-induced hearing loss by way of a gradual process as a result of his employment with the respondent and previous employers:
(a)    the audiogram assessment which was reported by Mr Williams of INEAR Audiology on 30 May 2023 records significant binaural hearing loss;
(b)    Dr Joseph Scoppa gave evidence that the applicant now experiences significant binaural hearing loss following progressive hearing loss and tinnitus for many years after exposure to various noisy work environments. Dr Scoppa did not identify any alternative cause or explanation for the applicant’s hearing loss. Further, Dr Scoppa expressed the opinion that the reported history of occupational noise exposure was such that the applicant’s employment with the respondent would give a real risk of boilermakers’ deafness, or deafness of a similar origin, and further, that it was of a type that it has been a substantial contributing factor to the applicant having developed the injury of industrial deafness;
(c)    Dr Sylvester Valentine Fernandes gave evidence that the applicant now experiences binaural hearing loss following his reported history of exposure to noisy work environments. Dr Fernandes stated that the applicant’s “last noisy employer hence is Beau Repairs where he worked from 01/01/2007 to 01/07/2008, also exposed to noise which on balance of probabilities had the necessary ‘incidents, tendencies and characteristics’ so as to give rise to a real risk of a person suffering noise induced hearing loss there from”;
(d)    the error in the identity of the applicant’s last noisy employer and the date on which such employment ended has been explained by the applicant’s evidence as noted above;
(e)    there is no evidence of any other causative factors for the applicant’s binaural hearing loss;
(f)    having regard to the evidence as a whole, I consider that the applicant’s evidence, together with the medical evidence, provides a logical and likely explanation for the applicant’s identified binaural hearing loss, and
(g)    further, I feel an actual persuasion that the applicant did sustain binaural noise-induced hearing loss by way of a gradual process as a result of his employment with the respondent who was his last employer with whom the applicant was employed and to which the nature of the applicant’s hearing loss was due.

For the above reasons, I find as follows:
(a) the applicant was a “worker” of the respondent pursuant to s 4 of the 1987 Act;
(b) the applicant’s employment with the respondent ceased on or about
30 June 2007;
(c) the respondent was the last employer with whom the applicant was employed and to which the nature of the applicant’s hearing loss was due pursuant to s 17(c)(ii) of the 1987 Act, and
(d) the applicant did sustain injury, being bilateral hearing loss, with a date of injury of 30 June 2007 (deemed), by way of a gradual process in the course of his employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss pursuant to s 4(b)(i) of the 1987 Act.
In the circumstances, it is appropriate to remit the matter to the President for referral to a Medical Assessor for assessment of the degree of WPI. It is appropriate to include all the evidence presently before the Commission in the referral.

SUMMARY

For the reasons set out above, I find:
(a) the applicant was a “worker” of the respondent pursuant to s 4 of the 1987 Act;
(b) the applicant’s employment with the respondent ceased on or about
30 June 2007;
(c) the respondent was the last employer with whom the applicant was employed and to which the nature of the applicant’s hearing loss was due pursuant to s 17(c)(ii) of the 1987 Act, and
(d) the applicant did sustain injury, being bilateral hearing loss, with a date of injury of 30 June 2007 (deemed), by way of a gradual process in the course of his employment with the respondent and the applicant’s employment with the respondent was the main contributing factor to the applicant’s bilateral hearing loss pursuant to s 4(b)(i) of the 1987 Act.
Accordingly, I order as follows:
(a)    the matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows:
Date of injury:           30 June 2007 (deemed).
Body parts:               ear, nose and throat related structures.
Method:  WPI.
(b)    the materials to be referred to the Medical Assessor are to include:
(i)the ARD and all attachments;
(ii)the Reply and all attachments, and
(iii)the letter of instruction to Dr Scoppa contained in the Application to Lodge Additional Documents lodged by the respondent.

Cant v Trabor Pty Ltd ATF Trabour Unit Trust t/as JTS Automotive Repairs

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established