Curran v Linfox Armaguard Pty Ltd
[2021] NSWPICMP 76
•24 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Curran v Linfox Armaguard Pty Ltd [2021] NSWPICMP 76 |
| APPELLANT: | William Curran |
| RESPONDENT: | Linfox Armaguard Pty Ltd |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Henley Harrison Dr Joseph Scoppa |
| DATE OF DECISION: | 24 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for hearing loss with a deemed date of injury on 2 April 2006; AMS erred in making a deduction under section 323 of the 1998 Act for hearing loss that occurred in respect of the period of employment after 2 April 2006; question of whether there should be any deduction for hearing loss in subsequent employment; Smith v Mann, Tame v Commonwealth Collieries, Williams v Metropolitan Coal Co Ltd, Commonwealth v Bourne, Commonwealth v Thompson, Bain v Commissioner for Railways, Connair Pty Ltd Frederiksen, Russo v World Services and Constructions Pty Ltd, Rico Pty Ltd v Road Traffic Authority, Crisp v Chapman, Blayney Shire Council v Lobley & Anor, A & G Engineering Pty Ltd v Civitarese, Lennon v TNT Australia Pty Ltd and Schofield v Abigroup Limited considered; Held- no deduction should be made in respect of any loss in the respondent’s employment after 2 April 2006; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 November 2020 William Curran (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Kenneth Howison, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 27 October 2020.
The respondent to the Appeal is Linfox Armaguard Pty Ltd (the respondent), which was insured by Employers Mutual NSW Limited as agent for NSW Self Insurance Corporation at the relevant times.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In these proceedings, the appellant is claiming lump sum compensation in respect of hearing loss as a result of the injury deemed to have occurred on 2 April 2006 that occurred in the course of his employment as a dispatch driver/escort guard with the respondent.
The Application to Resolve a Dispute states that the claim for compensation was made on 19 December 2018. A Notice of Claim by the appellant is dated 19 December 2018. The respondent does not dispute these dates, which appear to be common ground. The matter has proceeded on what also appears to be common ground on the basis that the respondent employer became licensed under the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth Act) on 2 April 2006.
The matter was referred to the AMS, Dr Kenneth Howison, in a Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 28 July 2020 for assessment of whole person impairment (WPI) of binaural hearing loss as a result of the injury on 2 April 2006 (deemed). The referral under “Previous awards or settlements” noted: “16.7% binaural hearing loss under the Table of Disabilities resulting from a deemed date of injury of 29 May 1995”.
The AMS examined the appellant on 16 October 2020. He assessed current binaural hearing loss (BHL) of 38.3% or 19% WPI. The AMS made a deduction of 10% pursuant to s 323 of the 1998 Act in respect of employment outside New South Wales from 3 April 2006 to 2017. Therefore, the AMS concluded that the appellant had a BHL of 34.5% or 17% WPI. The AMS then noted that the hearing impairment for which compensation was paid previously was 16.7%, which was 48.4% of the current hearing impairment of 34.5% and the remaining percentage of 51.6% was the percentage of WPI to be compensated. The AMS calculated 51.6% of the WPI of 17.8% as equalling 9.0% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because there was sufficient evidence by way of medical reports and clinical investigations on which to make a determination.
The Appeal Panel issued a direction dated 17 March 2021 seeking further submissions from the parties on the decisions of Schofield v Abigroup Limited [2016] NSWCA 954 and Cuskelly v New England Milk Industries Pty Ltd [2020] NSWWCCMA2, on whether the principles of causation described in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 31 are to be applied in the present case, and if so, with what consequence. The Appeal Panel directed the appellant to file submissions by 1 April 2021 and the respondent to file submissions in reply by 16 April 2021.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions lodged with Application to Appeal Against the Decision of Approved Medical Specialist and dated 23 November 2020 (later described as the primary submissions) included the following:
(a) The AMS made a demonstrable error pursuant to s 327(3)(d) of the 1998 Act by making a deduction pursuant to s 323 of the 1998 Act in respect of the period of employment after 2 April 2006.
(b) The referral to the AMS was for the assessment of whole person impairment due to hearing loss with a deemed date of injury of 2 April 2006.
(c) The appellant had been employed by the respondent since 1983 and remained with the respondent until 13 June 2015. The deemed date was the last date in which the respondent was employed in employment that was the subject of the NSW legislation. Thereafter the employer had joined the Commonwealth workers compensation scheme and was no longer the subject of the NSW legislation. This conclusion is consistent with the decision in Lennon v TNT Australia Pty Ltd [2013] NSWCA 77.
(d) Section 323 only applies in the event of an injury, abnormality or condition that predates the subject work injury. It has no application in respect of subsequent injuries. By applying s 323 to the effects of the subsequent employment the AMS was in error. In any event there is no basis for making a deduction for the effects of the subsequent employment.
(e) Claims for industrial deafness are governed by section 17 of the Workers Compensation Act 1987 (the 1987 Act). The effect of section 17 (and its precursor section 16(1A) of the 1926 Act) was explained in Bain v Commissioner for Railways (1963) 81 WN (Pt 1) (NSW) 322. Walsh J in the Full Supreme Court said:
“In terms of section 16, it was this loss of hearing which was “the injury” for which he was to be compensated on the footing that it was deemed to have happened at the date of the claim. Therefore it mattered not when some deafness had first manifested itself or what had in fact been the history of its progressive stages. In particular it mattered not if, as the appellant contends, the evidence did not permit a finding that any significant part of it had in fact occurred after 1st December 1960.”
(f) The case went on appeal to the High Court (1965) 112 CLR 246. All members of the Court either accepted or did not dissent from the views expressed by Walsh J.
(g) Section 17 has also been explained in A & G Engineering Pty Ltd v Civitarese (1996) 14 NSWCCR 158 (Civitarese) and Russo v World Services and Construction [1979] 1 NSWLR 330 (Russo).
(h) The effect is that there is no need to prove causation and the injury being the loss of hearing is treated as happening in one blow on the date deemed by the section. Thus the appellant is not required to prove that employment is the main contributing factor or a substantial factor to the injury (see Fairfield City Council v Deguara (2019) NSWWCCPD 1)
(i) The section does not distinguish between hearing loss that has in fact occurred prior to or after the deemed date. As explained in Bain and Civitarese actual causation is irrelevant to the operation of the section.
(j) Any attempt to apportion the loss between losses occurring before the deemed date and losses occurring after that date involves an irrelevant enquiry into when the loss was actually caused.
(k) Thus in this case the section operates to deem all of the loss of hearing assessed by the AMS as having occurred on 2 April 2006.
(l) There is no hearing loss of gradual onset occurring after the deemed date of injury as a simple matter of law as applied to the facts of this case where all of the hearing loss is a hearing loss of gradual onset.
(m) In Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 (Rico) Sheller JA explained (at 690) “Section 17 deems the injury here suffered to have happened at a particular time for the purposes of the Act. The time the injury actually happened is irrelevant”.
(n) In Civitarese Beazley JA, with whom Handley and Sheller JJA agreed, said at [43]:
“Section 17, as the appellant's case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 at 440; Russo at 332. As Sheller JA said in Rico at 689-690, s 17 proceeds on a series of fictions or assumptions, upon which a worker's entitlement to recover an award under s 66 is based.”
(o) The Court rejected a submission that the worker had to prove through the combined operation of ss 4, 9 and 66 the extent of the loss caused by the employment in New South Wales.
(p) Lennon v TNT Australia Pty Ltd [2013] NSWCA 77 (Lennon) involved similar facts to this case. The Court of Appeal concluded that the worker’s hearing loss was deemed to have occurred on the last day when the worker was employed in employment to which the state legislation applied. The worker was held to be entitled to compensation for the loss and no question arose as to whether any loss that in fact occurred after the deemed date should be excluded from compensation.
(q) In Lennon Basten JA said at [44]:
“Under s 17(1) of the Workers Compensation Act 1987 (NSW), the applicant's binaural hearing loss was deemed to have happened on the last day before the employer's licence under the Safety, Rehabilitation and Compensation Act 1988 (Cth) came into force, namely 30 June 2008.”
(r) The idea that there should be an adjustment for the loss suffered in employment with the Commonwealth is a misunderstanding of the law. In Russo the Court of Appeal considered, consistent with Mynott v Barnard (1939) 62 CLR 68 (Mynott), that the NSW legislature could not pass legislation that imposes an obligation upon an employer subject to the Commonwealth Safety Rehabilitation and Compensation Act (the Commonwealth Act). That view was confirmed by the High Court in Telstra v Worthing (1999) HCA 12.
(s) It should be recognised that the restriction on the NSW legislation was that it could not impose an obligation on the employer who was not within the jurisdiction of the NSW legislature. As was said in Mynott the state parliament can impose an obligation on a NSW employer in respect of an injury that occurred outside the jurisdiction (see Latham CJ at 75). Thus there are many cases where a NSW employer is liable for injuries that occur in other jurisdictions. Section 9AAA expressly applies the Act to injuries occurring outside the State.
(t) In Russo Hope JA recognised that the proper construction of the equivalent section of the 1926 Act could result in double compensation (at 335 C). Section 17 imposes an obligation to pay compensation upon a NSW employer regardless of where the hearing loss occurred. There is no warrant for excluding the loss that occurred whilst working for a Commonwealth employer from the operation of the Act.
(u) Even if the hearing loss in the employ of the Commonwealth is not the subject of s 17 it does not mean that there is any basis for a deduction from the full hearing loss assessed.
(v) The entitlement to compensation in s 66 is in respect of the impairment that results from the injury. The impairment results from the injury so long as the injury materially contributes to the impairment (see Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 and the cases referred to therein). Absent s 323 there is no basis to make a deduction in respect of subsequent aggravations of a condition. The hearing loss measured by the AMS results from noise exposure over the appellant’s lifetime. It follows that the noise exposure up to 2 April 2006 has materially contributed to the current loss of hearing. As such the entirety of the loss and the impairment that results from it is compensable.
(w) The total binaural hearing loss is 38.3%. This equates to 19% WPI. There has been a prior payment for 16.7% binaural hearing loss. This equates to 43.6% of the impairment. The compensable component is 56.4% or 10.7% WPI which rounds to 11%.
(x) The MAC dated 27 October 2020 should be revoked and a new certificate issued that certifies an 11% WPI.
The appellant’s further submissions dated 31 March 2021 included the following:
(a) In Schofield v Abigroup Limited 2016 NSWSC 954 (Schofield) the worker had been employed in noisy employment in NSW for 24 years between 1957 and 1981. Thereafter he was employed in noisy employment in Queensland, Northern Territory and Western Australia. The AMS had made a deduction pursuant to
s 323 finding that there was a total loss of hearing due to noise exposure of 15.9% of which 4.8% loss of hearing was due to the employment outside the jurisdiction.(b) When the matter came before Fullerton J it was pointed out that the noise exposure outside NSW was after the deemed date of injury and could not therefore be the basis for a s 323 deduction. The matter then proceeded with the defendant submitting that the conclusion of the AMS was nonetheless available to him.
(c) The worker approached the case arguing in reliance upon the cases referred to in the primary submissions in this case that the AMS had erred by making a deduction in respect of the later noise exposure as s 17 had deemed all of the hearing loss to have occurred on the deemed date.
(d) Her Honour concluded that none of the authorities referred to addressed the question of apportionment of compensation. Her Honour then held that the first defendant was liable for the injury to the plaintiff’s hearing that occurred in one blow as at the deemed date of injury by a gradual process predating that date. Her Honour did not refer to any precedent that supported her conclusion and did not explain how such a conclusion was consistent with the authorities such as Russo and Civitevese which had expressly stated that s 17 was not concerned with actual causation but deemed the loss to have occurred at a single time and determined which employer was liable to pay that compensation. It is significant that Her Honour made no reference to the decision of the Court of Appeal in Rico where Sheller JA explained that the time an injury actually happened was irrelevant. It is formally submitted that Schofield was wrongly decided, it is inconsistent with authority of the Court of Appeal and the High Court and should not be followed.
(e) In Schofield the parties did not argue whether employment outside NSW could be the basis for a reduction in the degree of the compensable hearing loss. The matter had proceeded solely on the basis of an argument about whether s17 allowed a deduction at all. Accordingly there was no consideration about whether the NSW legislation could extend to make a NSW employer liable to pay compensation for a hearing loss that occurred outside the jurisdiction. For the reasons set out in the primary submissions the NSW legislation does extend to such a loss of hearing with the result that the noise exposure with the Commonwealth does not form the basis for a deduction in any event.
(f) In Schofield there was no consideration about whether the AMS was correct to make a deduction for the effects of the subsequent employment in circumstances where the AMS did not actually identify a specific loss due to that employment but made an apportionment of a single loss of hearing based upon periods of exposure. The issue was not addressed by either party and was not considered by Fullerton J. It is that matter which is in issue in these proceedings.
(g) In the primary submissions the appellant has referred to and relied upon the decision in Murphy v Allity Management Services Pty Ltd and the cases referred to therein.
(h) The question of causation and the meaning of the term “results from” was considered recently by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson (2019) NSWCA 321 (Johnson No 2).
(i) In that case the worker had suffered a psychological injury in the employ of the Appellant and another psychological injury whilst in the employ of Aboriginal Hostels Limited. The Court was considering whether the entirety of the workers impairment resulted from the first injury. As with this case the second injury was subject to the Commonwealth legislation.
(j) The Court held that there is no difference between the legal view of causation in tort and in the field of workers compensation, subject to the qualification that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. Those are the principles that are set out and discussed in Murphy.
(k) The Court considered that there are three possible categories where an earlier injury is followed by a later injury. Those categories are:
i.Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
ii.Where an earlier injury is exacerbated by a subsequent injury. There will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
iii.Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
(l) In this case the facts fall within category two. Hearing loss is the result of cumulative noise exposure so that the total hearing loss is the result of the total of the noise exposure over a lifetime. The total hearing loss consists of injury during the period of employment with the Respondent which has been aggravated by the subsequent noise exposure. This was recognised by Roche DP in OneSteel Ltd v Devine [2012] NSWWCCPD 52 where he held that injuries that consisted of noise induced hearing loss were the same pathology and could be aggregated pursuant to s 322 of the 1998 Act.
(m) It can also be demonstrated by the way in which the AMS calculated the deduction. He did not make a calculation of a hearing loss due to the subject injury and a separate calculation of the hearing loss due to a subsequent injury. Rather he calculated a single loss of hearing that was due to the totality of his noise exposure. By approaching the matter in that way he recognised that there was a single injury resulting from all of his noise exposure. In other words all of the noise exposure contributed to one hearing loss. The hearing loss prior to 2 April 2006 contributed to all of the loss as did the noise exposure after that date. The AMS then engaged in an impermissible exercise of trying to apportion the loss. He did that by mistakenly applying s 323 (2) to make a deduction of 10%. A s 323 deduction only occurs when there has been a previous injury or pre-existing condition or abnormality that contributes to the impairment such that there is a greater impairment than would otherwise have been the case. The approach adopted by the AMS did not involve an assessment of hearing loss solely due to noise exposure with the Commonwealth. This was because it was not possible to make such a calculation. In those circumstances, the subsequent noise exposure can only fall with category 2 such that the entirety of the hearing loss results from and is the subject injury which was deemed to have occurred on 2 April 2006.
The respondent’s submissions attached to the Notice of Opposition Against the Decision of Approved Medical Specialist dated 15 December 2020 include the following:
(a) The respondent agrees that the MAC contains a demonstrable error in that the deduction made for subsequent noisy employment outside of the jurisdiction of the 1987 Act should not have been made under s 323 of the 1998 Act but rather as resulting from a subsequent injury.
(b) Despite the said error, the assessment of the AMS of 9% WPI for hearing loss resulting from the deemed date of injury with the respondent remains valid.
(c) Section 9AA(1) of the 1987 Act relevantly provides that: “Compensation under this Act is payable in respect of employment that is connected with this State”.
(d) The respondent relies on the decision of Fullerton J in Schofield v Abigroup Limited [2016] NSWSC954 (Schofield), in which after reviewing many of the authorities referred to in the submissions of the appellant in this appeal, Her Honour concluded:
“I regard the construction of s 319(c) of the 1998 Act as it applies in the context of the operation of s 17 of the 1987 Act for which the first defendant contends as the correct construction. That is, that as the plaintiff’s last employer in New South Wales at the date of the Notice of Injury, the first defendant was liable under s 17(1)(c)(ii) for the injury to the plaintiff’s hearing that had occurred ‘in one blow’ as at the deemed date of injury by a gradual process predating that date. Accordingly, in assessing the degree of permanent impairment as a result of that injury, the Approved Medical Specialist was required to make an appropriate adjustment for injury that was the result of the plaintiff’s employment after the deemed date in the course of employment outside the jurisdiction.”
(e) The authority of Schofield was applied by the Medical Appeal Panel in Cuskelly v New England Milk Industries Pty Ltd [2020] NSWWCCMA2.
(f) In accordance with the above authorities, the respondent employer is not liable for any occupational hearing loss suffered by the appellant after the deemed date of injury of 2 April 2006. If further occupational hearing loss was suffered by the appellant after 2 April 2006, it must be deducted from the assessment of total occupational hearing loss.
(g) The only error on the part of the AMS was to deduct the one-tenth under s 323, instead of deducting it as being attributable to a subsequent non-compensable injury outside of the NSW jurisdiction.
(h) The deduction made by the AMS of one-tenth for the subsequent noisy employment outside of NSW over the period from 3 April 2006 to 13 June 2015 is a most reasonable one in the circumstances of this case. It is based on just over nine years of subsequent noisy employment outside of the jurisdiction, out of a total period of noisy employment within and outside the NSW jurisdiction of some 20 years since the previously compensated injury deemed to have been received by the Appellant on 29 May 1995. That is to say, on a temporal basis, the deduction could arguably have been 45%, or at the very least 28% based on the total period of noisy employment inside and outside of NSW. The appellant’s evidence does not disclose any material change in the nature of his employment in the period 3 April 2006 to 13 June 2015.
(i) Subject to the MAC being amended to correctly describe the reason for the deduction, the AMS assessment of 9% WPI for hearing loss resulting from the deemed date of injury should be confirmed.
The respondent’s further submissions dated 16 April 2021 included the following:
(a) The Court of Appeal decision in Johnson No 2 confirms the correctness of the decisions in Schofield and Cuskelly that a deduction must be made for the effects of a further injury, in this case resulting from subsequent noisy employment to which the NSW Workers Compensation Acts do not apply.
(b) As per Emmett AJA in Johnson No 2:
“[54] Two causation tests are involved in a medical assessment of permanent impairment under Pt 7 of Ch 7 of the Management Act. The first test arises from the provisions of ss 9 and 9A of Compensation Act. That is to say, it must be shown that the injury that gave rise to the impairment in question arose out of or in the course of employment that and that the employment was a substantial contributing factor to the injury. The second test arises from the provisions of ss 319(c) and 326(1)(a) of the Management Act. That is to say, it must be shown that the permanent impairment is as a result of the injury.
[55] The phrase “the degree of permanent impairment of the person as a result of an injury” appears in both ss 319(c) and s 326(1)(a) of the Management Act. That composite phrase requires an enquiry as to the causal connection between the degree, or percentage, of assessed permanent impairment of a worker, on the one hand, and the compensable injury, on the other. That is to say, it was necessary for the AMS and the Appeal Panel to assess the degree, or percentage, of whole person impairment of the Worker that was caused by or is attributable to the First Injury. In doing so, common law principles of causation in tort are to be applied.
[62] The fact that a subsequent injury fortuitously intervened between the compensable injury and the assessment would not obviate the need for a medical assessment certificate to assess the degree of whole person impairment that resulted from the injury.
[70] The question for determination by the Appeal Panel was the degree of permanent impairment now suffered by the worker as a result of the First Injury.”
(c) With respect to the three possible categories where an earlier injury is followed by a later injury as per Oakley, it is submitted that in this case the facts fall within the third category of:
Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by the reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.
(d) There is a lack of causal connection between the original injury and the further hearing loss occasioned by the subsequent employment (after 2 April 2006) on the basis that such further hearing loss would have been occasioned even if the original injury had not occurred.
(e) In the Medical Assessment Certificate dated 27 October 2020 the AMS made a finding that in the appellant’s employment from 3 April 2006 to 13 June 2015 he was exposed to sufficient levels of noise “as to be responsible for the causation of industrial deafness”. The AMS clearly found that the appellant suffered further hearing loss in his employment after 2 April 2006, outside of the jurisdiction of the NSW WC Acts and therefore not compensable, in respect of which a deduction had to be made.
(f) The AMS was obliged as required by s 319(c) to assess the extent of permanent impairment that is attributable to the deemed injury on 2 April 2006.
(g) Section 17 of the 1987 Act itself recognises that a further loss of hearing is a new and distinct injury and this was confirmed by the Court of Appeal in Sukkar v Adonis Electrics Pty Limited.
(h) The Court of Appeal in Johnson has confirmed that AMSs and AP’s in the Personal Injury Commission must assess all of the evidence in order to determine the extent of permanent impairment attributable /resulting from the “First Injury” as opposed to any subsequent injury.
(i) In every MAC issued by the Personal Injury Commission containing an assessment of permanent impairment, the AMS is required to answer the question of “whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment, this should not be included with the assessment of impairment due to the subject work injury”.
(j) In this case, the AMS should have responded to this question rather than state “Not applicable”, but he clearly does answer that question in Part 10 of the MAC, albeit incorrectly making the deduction under s 323 of the 1998 Act. The AMS therefore addressed the issues raised in Johnson No 2. This confirms the obligation of the AMS (and APs) under s 319(c) and s 326(1)(a) to exclude any impairment resulting from a subsequent injury.
LEGISLATION
Section 17 of the 1987 Act provides:
“17 Loss of hearing-special provisions
(cf former s 7 (4B), (4BB))
(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 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.”
23.Section 9AA(1) of the 1987 Act provides:
“9AA Liability for compensation
(1) Compensation under this Act is only payable in respect of employment that is connected with this State.
(2) The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(3) A worker's employment is connected with--
(a) the State in which the worker usually works in that employment, or
(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or
(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.
…”
Section 319 of the 1998 Act provides:
“319 Definitions
In this Act--
"medical dispute" means a dispute between a Claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury ,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the delegate has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In this matter, the delegate has determined that he is satisfied that a ground of appeal under s 327(3)(c) and s 327(3) (d) is capable of being made out.
The Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above. The Appeal Panel was satisfied that the AMS carried out a comprehensive and careful examination of the appellant, obtained a reliable audiogram and an accurate and detailed history of his employment dating back many years, as well as a detailed and accurate history of the injury and onset of symptoms and subsequent related events and treatment.
Assessment of the hearing loss
Under “reasons for assessment” the AMS noted:
“In summary, Mr Curran has a further binaural high tone sensori-neural noise induced hearing loss of 17.8%, which represents a whole person impairment of 9.0%. This hearing loss is permanent and has reached maximum medical improvement (i.e. when the hearing loss is well stabilised and is unlikely to change substantially in the next year with or without medical treatment).
…ASSESSMENT OF WPI (Whole Person Impairment)
I have assessed Mr Curran’s WPI, attributed to his noise induced hearing loss, using the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition, 01 April 2016.
I have calculated Mr Curran’s permanent hearing impairment due to industrial deafness, using the recommended Workers Compensation Guidelines.Assessment of Total Binaural Hearing Impairment
Binaural hearing impairment (section 9.9) = 44.1%
Less presbyacusis correction (section 9.10) = 6.8%
Add loading for severe tinnitus (section 9.11) = 1.0%
Total binaural hearing impairment = 38.3%
WPI (Whole Person Impairment) Table 9.1 = 19.0%Mr Curran’s last noisy employer was Linfox Australia Pty Limited from 1995-2017. This employment came under the Commonwealth jurisdiction. His employment after 2006 is therefore considered to be outside the state of NSW and in accordance with Section 323 of the NSW Compensation Act, Mr Curran was employed outside of NSW from 03 April 2006 to 2017, therefore a deduction of 10% under Section 323 is indicated.
Therefore, Mr Curran has a binaural high tone sensori-neural noise induced hearing
loss of 34.5%, which represents a whole person impairment 17.0%.As a previous successful claim for industrial deafness was made in 1995 of 16.7% binaural hearing loss the following calculations are indicated.
ASSESSMENT OF HEARING IMPAIRMENT WHEN COMPENSATION HAS BEEN
PREVIOUSLY AWARDED and THE WORKER HAS SUFFERED ADDITIONAL HEARING LOSS.• The current hearing loss is 34.5%
• % of Whole Person Impairment is 17.0%
• The hearing impairment for which compensation was paid previously is 16.7%, which is 48.4% of the current hearing impairment of 34.5%.
• The remaining percentage of 51.6% is the percentage of Whole Person Impairment to be compensated.• 51.6% of the Whole Person Impairment of 17.0% equals 9.0%.
In summary, Mr Curran has sustained a further binaural hearing loss of 17.8% since
his last claim in 1995 and this represents a further Whole Person Impairment of 9.0%.”
Section 323 deduction
The appellant submitted that the AMS made a demonstrable error pursuant to s 327(3)(d) of the 1998 Act in making a deduction pursuant to s 323 of the1998 Act in respect of the period of employment after 2 April 2006.
In Johnson v NSW Workers Compensation Commission [2019] NSWSC 347 (Johnson No 1) Garling J considered that the first Panel was in error by making a deduction from the WPI because of a subsequent psychiatric injury with a different employer.
Garling J said at [63]:
“As set out in [25] above, the AMS concluded that the plaintiff’s chronic condition caused by her NSW Education injury was exacerbated by the later Hostel injury. Although the Panel found error in the AMS Certificate, that error arose because of the incorrect use by the AMS of the mechanism provided for in s 323 of the 1998 Act. Instead of applying s 323 according to its terms (which relate to a pre-existing condition) the AMS had applied those provisions to the subsequent Hostels injury. At no time did the Panel in its reasons depart from the diagnosis of the plaintiff’s condition, or the extent of the assessed whole person impairment”.
Section 323 only applies in the event of an injury, abnormality or condition that predates the subject work injury and s 323 has no application in respect of subsequent injuries. The Appeal Panel agreed with the appellant that by applying s 323 to the effects of the subsequent employment the AMS was in error.
The Appeal Panel noted that the respondent properly conceded that the MAC contained a demonstrable error in that the deduction made for subsequent noisy employment outside of the jurisdiction of the 1987 Act should not have been made under s 323 of the 1998 Act.
The Appeal Panel having determined that the MAC contained a demonstrable error proceeded to review the matter. The Appeal Panel firstly need to consider whether a deduction for hearing loss in subsequent employment outside the jurisdiction of the 1987 Act can be made, and if it can be made, what if any deduction should be applied.
THE QUESTION OF WHETHER THERE SHOULD BE ANY DEDUCTION FOR HEARING LOSS IN SUBSEQUENT EMPLOYMENT SHOULD BE MADE BY THE APPEAL PANEL
Section 323 of the 1998 Act supports only a deduction for a pre-existing condition but does not provide for any deduction for a subsequent injury. There are no statutory provisions in the 1998 Act or 1987 Act to avoid double compensation in such a case as this. This is because the respondent, as a Commonwealth entity after 2006, is not an employer for apportionment purposes under s 22 of the 1987 Act. There is no legal basis for apportioning or reducing the WPI or the lump sum payable in respect of such WPI, as no legislation permits or requires this to be done.
Relevant leading decisions applicable to boilermaker’s deafness cases
In Smith v Mann [1932] HCA 30; (1931) 47 CLR 426 the High Court considered the meaning of the expression “employed in the employment to the nature of which the injury was due” which appeared in s 7(1) and s 7(4) of the Workers Compensation Act 1926. Subsection 4 of s 7 provided:
“Where the injury is a disease which is of such a nature as to be contracted by a gradual process compensation shall be payable by the employer in whose employment the worker is or who last employed the worker. Any employers who, during the 12 months preceding the worker’s incapacity, employed him in any employment to the nature of which the disease was due, shall be liable to make to the employer by whom compensation is payable such contribution as, in default of agreement, may be determined by the Commission.”
Rich J said:
“...In my opinion the provision was not intended to restrict the rights of the workers, but to enlarge them. Its object was to fix upon the ultimate employer of the worker a direct liability to him, leaving that employer to recover from previous employers subject to the limitation of time expressed in this section. No doubt in the case of the ultimate as in that of the other employers the employment must be one to the nature of which the disease of the worker was due, but it is not necessary that the worker should establish that the disease from which he is suffering was actually brought about or contributed to by the employment of the last employer.” (at 439-440)
Starke J said:
“Under the Workmens Compensation Act 1906 of England, it was formerly held that the disease must be contracted or accelerated during employment by the worker’s last employer if he were to succeed against him, but the House of Lords dissented from this view and held that it was enough if his work with his last employer was of the same nature and character as the work to which the disease was due, and that it was not necessary to prove that it was the employment with his last employer that caused the ‘disablement’ (Dean v Rubian Art Pottery Ltd; Blatchford v Staddon and Founds; Ellerbeck Collieries Limited v Cornhill Insurance Co). The Workmens Compensation Act of 1916 of New South Wales followed the actual terms of the English Act. And, while the Act of 1926-1927 of New South Wales has changed the language, its scheme and intention are the same, and the reasoning on which Blatchford v Staddon and Founds is founded applies as well to it as the English Act. Both Acts should, therefore, receive the same interpretation.” (at 441- 442)
Starke J later added:
“It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise ‘out of the particular service of the particular employer sued’: It is enough if the disease is ‘incidental to that class of employment so that it can be attributed to service therein.” (at 443)
Dixon J said:
“Sub-sec. 4 of sec. 7 deals with the special cases of diseases contracted by gradual process, and this also operates by way of extension. The nature of a disease contracted by a gradual process is such as to make it difficult, and sometimes impossible, to say how far a particular period of employment contributed. The purpose of the subsection is to pitch upon the latest employer for the purpose of immediate liability to the worker, leaving him to recover over from others by of contribution. The description of the disease implied in the expression in the second paragraph ‘employment to the nature of which the disease was due’ may properly be carried back into the first paragraph for the purpose of understanding its meaning. In other words, the diseases dealt with are those which are contracted by a gradual process and are due to the nature of an employment. The expression in the first paragraph ‘in whose employment the worker is or who last employed the worker’ implies a reference to a point of time or event, and it is apparent that the occurrence of incapacity is the event or time intended. The employer at the time of, or last before, the incapacity is made primarily liable. It seems proper to understand the provision in the first paragraph as confined to employers who do employ or have employed the worker in an employment to the nature of which the disease is due, but any further restriction upon the class of employment or any further requirement as to causation seems unwarranted.” (at 449)
The expression “employment to the nature of which the disease was due” was considered by the NSW Full Court in Tame v Commonwealth Collieries Pty Lt; (1947) 47 SR (NSW) 269 (Tame), where Jordan CJ said with respect to s 7(4):
“It has been held that the first sentence is controlled by the second, and that the responsibility of a last employer is restricted to the last employer who employed the worker in an employment to the nature of which the incapacitating disease (being of such a nature to be contracted by gradual process) was due: Smith v Mann. The meaning of the phrase ‘employment to the nature of which the disease was due’ is explained in Blatchford v Staddon (supra) ‘This part of the section is not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment, in which the workman has served several employers’. It is not necessary that the presence, or some aggravation, of the disease should be in some degree due to the service with the last employer. I think that ‘employment to the nature of which the disease was due’ means an employment of such a kind as to involve a risk to the employee of contracting a gradual process disease which is disabling him. In the present case, what is complained of is a disease contracted by a gradual process of the inhalation of silica dust. For the worker to succeed, it was necessary for him to satisfy the Commission that his employment with his last employer was of such a kind as to expose him to the risk of inhaling silica dust...I agree that if it had been established that, although his last employment was such as ordinarily involved a risk of inhaling silica dust, nevertheless work with his last employer was carried on under special conditions which made inhalation of silica dust impossible, the worker would have failed.”(at 272)
In Williams v Metropolitan Coal Co Ltd [1948] HCA 8; (1948) 76 CLR 431 (Williams), Dixon J (with whose reasons McTiernan J agreed), said:
“An interpretation has been placed by this Court, in Smith v. Mann [1932] HCA 30; (1931) 47 CLR 426, upon s. 7 (4) of the Workers' Compensation Act 1926-1946 (N.S.W.) in its application to s. 7 (1) and the definition of "injury" in s. 6 (1). The effect is that, if a disease amounting to personal injury is contracted by a gradual process in an occupation, a worker so contracting it is entitled to receive from the employer in whose employ he is pursuing the occupation at the time of his incapacity, or from the last employer who before his incapacity employed him in such an occupation, compensation in accordance with the Act. For the purposes of sub-s. (4) the injury is to be deemed to have happened at the time of the worker's incapacity (s. 7 (5)). One paragraph of sub-s. (4) prescribes a period of time calculated from that injury for a notice by the employer to earlier employers if he wishes them to contribute. It may be for this reason that the time of the incapacity was made the time of the injury, but the direction in s. 7 (5) is quite general and must operate for all the purposes of sub-s. (4). (at 448)
…. in the second place, the difficulties of fitting cases of disease due to a gradual process into a scheme designed to compensate for physical injuries sustained at work does not operate to modify or exclude the application of s. 7 (4) as construed in Smith v. Mann. (at 449)
I agree that much difficulty exists in applying the compensation provisions to s. 7 (4) combined with s. 7 (1) and the definition of "injury" in s. 6. But it was settled very early in the history of workers' compensation legislation that the liability provisions were to be treated as paramount to the compensation provisions where any conflict is found between them: Lysons v. Andrew Knowles & Sons Ltd [1900] UKLawRpAC 59; (1901) AC 79; King v. Port of London Authority (1920) AC, at p 11; McCann v. Scottish Co-operative Laundry Association Ltd (1936) 1 All ER 475, at p 478 . Here the difficulty arises from the inappropriateness of the conceptions involved in s. 7 (4) to compensation provisions based on the supposition that a man would sustain injury while at work, injury doubtless thought of instinctively as traumatic. In Collins v. Australian Iron & Steel Ltd (1947) 48 SR (NSW), at p 62 , Owen J. began his judgment by saying: "The problems to which the case gives rise are due to the fact that the legislature has sought to incorporate into a code of law, designed to provide compensation for reduced earning capacity occasioned by 'industrial accident,' provision for compensation for reduced earning capacity caused by 'industrial disease,' an 'injury' which in most, if not all, cases is of slow growth, progressive in its incapacitating effect and of which it is seldom, if ever, possible - except by the use of a fiction - to point with certainty to the date of the 'accident' or the commencement of the incapacity resulting therefrom. (at 450)
Smith v. Mann has construed s. 7 (4) as imposing a liability on an employer however long the interval may be between the last time he employed the incapacitated worker and development of his incapacity. Section 7(4) controls the provisions for ascertaining compensation, they do not control s. 7(4).” (at 451)
In Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32 (Bourne) the High Court considered s10(1) of the Commonwealth Employees’ Compensation Act 1930-1946 which provided:
“Where:
(a) ...
(b) the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of and in the course of employment.”In Bourne it was held that the expression “due to the nature of the employment in which the employee was engaged” referred to results incidental to the class of employment by virtue of its tendencies, incidents or characteristics, and was not concerned directly with something arising out of the particular service of the particular employee. Dixon CJ said:
“The phrase ‘nature of the employment’ is, of course, no novelty in this context in the law of employers’ liability: cf. s43(1) of the Workmens Compensation Act 1925 of the United Kingdom. In the provisions to which the use of the expression is to be traced the purpose of using the words ‘due to the nature of the employment’ and not ‘due to the employment’ was to provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development; that employer could then claim over against a previous employer employing the claimant in work of a like nature and so on down the line. It was accordingly necessary to make the nature of the work the test and not the actual work done or the employment as it actually affected the man... In Blatchford v Staddon and Founds Lord Sumner said of the phrase: ‘In construing the Act effect must be given to the words ‘to the nature of’. Their meaning cannot be the same as if the section had simply said ‘is due to’ any employment. I think they are inserted because this part of the section is not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment, in which the workman has served several employers. So in Eaton v George Wimpey and Co Mackinnon LJ of the Court of Appeal said:
‘It is essential to observe that the words are ‘due to the nature of the employment’ and that they are not ‘caused by the employment’ or ‘contracted during the employment’. The word ‘nature’ is a wide as well as vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connexion between the ‘disease’ in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics.’” (at 38-39)
Menzies J also said “the words ‘the nature of the employment” are significant and indicate that the appropriate enquiry is concerned with the nature of the employment and its relationship with the disease which brought about death rather than with how the disease was, in the particular case, contracted or accelerated: Blatchford v Staddon and Founds (1927) AC 461. (at 44)
In Commonwealth v Thompson [1960] HCA 28; (1960) 104 CLR 48 Windeyer J stated:
“For a disease to be due to the nature of the employment in which the employee was engaged, the employment must be such that it ordinarily tends to cause that disease. That is to say, it must be a property of that form of employment to produce the disease, so that contracting the disease can be said to be a natural result of being engaged in that employment.” (at 56)
In Bain v Commissioner for Railways (1963) 81WN (Pt 1) (NSW) 322 (Bain) in a judgement with which other members of the full Supreme Court agreed discussed s 16 of the 1926 Act, a precursor in philosophy, if not form, of s 17(1) (a) of the 1987 Act. The appellant had proved his condition of deafness, the percentage loss of normal hearing and that this was related to the course of his employment with the respondent employer. The appellant’s claim was for the amount of the loss of hearing from which he was suffering. Walsh J said:
“In terms of s 16, it was this loss of hearing which was ‘the injury’ for which he was to be compensated on the footing that it was deemed to have happened at the date of the claim. Therefore it mattered not when some deafness had first manifested itself or what had in fact been the history of its progressive stages. In particular, it mattered not if, as the appellant contends, the evidence did not permit a finding that any significant part of it had in fact occurred after 1st December 1960. For, whether the loss of hearing in fact occurred before or after that date, this could not alter the statutory the requirement that it was deemed to have happened in February 1961”.
Bain went on appeal to the High Court where all members of the High Court either accepted or did not dissent from the views thus expressed by Walsh J (see Commissioner v Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 at 261-262, 265, and 275).
In Commissioner for Railways v Bain Barwick CJ stated: “Treating the progressive condition of boilermaker’s deafness as a disease of gradual onset within s 7(4) would seem to me to make irrelevant the time of reception of the traumas and make the onset of the deafness the significant fact”. (at 254) Barwick CJ later stated:
“27. The amendment therefore provides, it seems to me, that if you find that a worker has suffered, or is suffering, an injury of the kind listed in the first column of the table which is not incapacitating but which is the result of a disease of gradual onset, then that injury shall be deemed to have happened at the time the worker makes his claim for compensation. To take a simple case by way of illustration, where the complete loss of hearing of both ears is the result of boilermaker's deafness, there will be an injury which is the result of a disease of gradual onset because the final paragraph of the amending section makes boilermaker's deafness a disease and, as I would construe the whole sub-section, a disease of a nature to be contracted by a gradual process for the purposes of s. 16; and because "loss of hearing of both ears" is an injury appearing in the first column of the table. That loss of hearing of both ears will then be treated as having happened, as it were, at one blow, at the time the worker makes his claim for compensation. The injury which thus becomes compensable is the loss of hearing of both ears; and by reason of s. 7 (4) his current or last employer becomes liable if the disease - here boilermaker's deafness - was incidental to the employment of a boilermaker. To my mind, the express words of the statute make that consequence inescapable. (at p257)
28. It was objected by the appellant that such a reading of the amendment gave it a retrospective or retroactive operation because the worker would then be presently compensated for the results of trauma which had occurred and the results of which had manifested themselves long years ago, for which compensation could not have been obtained in any circumstances before 1951 and could only have been obtained thereafter if incapacity resulted and the injury resulting from the trauma arose out of or in the course of some specific employment. In that event compensation only to the extent of the traumatic injury thus arising could have been recovered. (at p257)
30. According to the meaning which, in my opinion, should be given to the words of the amending section, the worker is to be entitled upon an application made after the enactment of the amendment to be compensated for his physical condition at the date of that application by a lump sum payment under s. 16. No doubt his then condition is a product of past events but by the express words of the statute it is to be treated as having occurred at the date of his application, i.e. at a time subsequent to the making of the amendment. This does give him a right to compensation for the present result of the progressive deterioration of his hearing caused during many prior years of boilermaking. Their Lordships in the Sunshine Porcelain Potteries Case (1) seemed to think that the statutory provision there in question did have a retrospective operation in substance to the extent that the injury which it made compensable was the result of the inhalation of dust during periods anterior to the passing of the statutes. But their Lordships in that case found the presumption against retrospective operation overborne by the circumstances with which the legislature was dealing. In this case, both the language of the statute and the circumstances with which it is dealing, in my opinion, make it clear that if the language in its natural meaning involves any retrospective or retroactive operation, which I very much doubt and find no need to decide, the legislature intended it.” (at p258)
Windeyer J stated:
“For over forty years the respondent has been employed by the appellant as a boilermaker. As a result of his work he has boilermaker's deafness, an impairment of hearing brought about gradually by repeated concussions by noise on the nerve endings of the ear… (at 269)
The appellant's main argument in this Court, as in the Supreme Court, was that, because s. 16 (1A) first came into force on 1st December 1960, it only enabled the worker to have compensation for such diminution of his hearing as had occurred after that date; that the deterioration that had occurred up till that time was a different "injury". But the new sub-section was clearly intended to effect an alteration of the law as it was before 1st December 1960 by removing defects and limitations that had been revealed by Coates' Case (1960) 78 WN (NSW) 377 I can see no warrant in its language for confining its effect in the way suggested. The time of the worker's claim for compensation for the consequences of a disease contracted by a gradual process is made the date of his injury for the purposes of s. 16. There is nothing in the Act to suggest that he is not to have compensation according to s. 16 for his loss of hearing as at that date, no matter when or over what period of time that loss occurred or developed.” (at 270)
In Connair Pty Ltd v Frederiksen [1979] HCA 25; (1979) 142 CLR 485 (Frederiksen), Barwick CJ said:
“But whether it be the disease itself, or its aggravation, the worker's condition must be due, not to the particular incidents of a particular employment, but to the nature of the class or classification of employment in which he was engaged: perhaps "occupation" is the appropriate synonym for employment in this connexion. I agree that the statutory requirement of the relationship of the nature of the employment and the diseased state of the worker can be expressed by saying that some special risk of the onset or aggravation of the particular disease is inherent in the class of employment or occupation in which the worker was engaged.” (at 488)
Gibbs J also said:
“The source of the relevant words of s. 9 (1) appears to have been s. 8 of the Workmen's Compensation Act, 1906 (U.K.) although the words that appeared in that section were "the disease is due to the nature of any employment in which the workman was employed". It was held by the House of Lords in Blatchford v. Staddon & Founds (1927) AC 461 that those words are not synonymous with the words "due to the employment", and that under s. 8 a workman was entitled to compensation if the disease was "incidental to that class of employment so that it" (could) "be attributed to service therein" (1927) AC, at p 470. The "employment" referred to in the section meant the work or process in which the workman was engaged, rather than his relationship with a particular employer (1927) AC, at p 482. The purpose of using the words "was to provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition. . .": The Commonwealth v Bourne (1960) 104 CLR, at p 38, per Dixon C.J. In other words, once the workman proved that the employment was "of a nature to cause the particular disease" from which he was suffering, he was not required to prove that the disease in fact resulted from his employment with any particular employer: Hopwood v. Textile Paper Tube Co. Ltd (1946) 1 All ER 618, at p 620. The workman was thus relieved of the necessity of showing that the actual employment with any particular employer caused or aggravated the disease.” (at 495)
In Russo v World Services and ConstructionsPty Ltd (1979) 1NSWLR 330 (Russo) the worker was employed by the respondent company from January 1967 until 2 November 1972 and by the Department of Defence (Navy) (the Navy) from 6 November 1972 until, at least, 2 October 1975. While working for the Navy the worker applied for and was awarded compensation for boilermaker’s deafness pursuant to the Commonwealth Act, limited, however, by reference to the extent of the aggravation of his deafness after the commencement of his employment with the Navy. On 2 October 1975 the worker sought compensation from the company pursuant to the Workers Compensation Act 1926 (NSW) (the State Act). The Workers Compensation Commission (NSW) held that the State Act could not be taken to purport to deal with any matter arising under the Commonwealth Act, and that the respondent company was the worker’s last employer for the purposes of s 7 (4) of the State Act.
The Court of Appeal dismissed the employer’s appeal. Hope JA, with whom Hutley and Mahoney JJA agreed, held that the State Act could have complete effect without being construed so as to include the Commonwealth within its operation; s 14A of the Interpretation Act 1897 (NSW) would require the reading down of the words “the employer” in s 7(4) to exclude the Commonwealth; and that for these reasons the worker had no employer within the meaning of s 7 (4) on the date of his application for compensation under the State Act, and so the respondent company was his last employer within the meaning of s 7(4).
In particular. Hope JA stated:
“If the word ‘employer’, when used in s7(4), does not include the Commonwealth, the worker had no employer within the meaning of the section at the date of the application, and the company was the employer, within the meaning of the section, who last employed the worker. It has been pointed out that this could result in the anomaly that a person in the position of the worker could obtain some duplication of compensation. The award of Judge Wall does not result in that duplication but, even if it did, the view contended for by the company would leave the worker without compensation for the degree of boilermaker’s deafness which he had at the time he ceased to be employed by it.” (at 335)
In Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 (Rico), Sheller JA, with whom Priestly JA agreed, stated:
“The legislative scheme for awards of compensation for boilermaker’s deafness proceeds on the following assumptions or fictions:
1. The condition known as ‘boilermaker’s deafness’ is deemed to be a loss of hearing which is of such a nature as to be caused by a gradual process (s17(2)).
2. A loss of hearing which is of such a nature as to be caused by a gradual process is an injury (s17(1)).
3. In the language of Barwick CJ in Commissioner for Railways v Bain (1965) 112CLR 246 at 256-256, the injury is taken to have happened ‘as it were, at one blow’. If 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, the injury is deemed to have happened at the time when the notice of the injury was given; if the worker was not so employed, when he or she gave notice of the injury, the injury is deemed to have happened on the last day on which the worker was employed in such employment, before he or she gave the notice (s17(1) (a)).
4. Compensation is payable by the worker’s employer at the time when the notice of injury was given, if the worker was then employed in employment to the nature of which the injury was due; if the worker was not so employed at the time of the notice, it is payable by the last employer by whom the worker was so employed (s17(c)).
In this case according to these assumptions or fictions, the injury was received on 17 August 1987 after the commencement of Div 4. The loss of hearing actually must have occurred over a period extending back before the commencement of Div 4.
Section 17 deems the injury here suffered at a particular time for the purposes of the Act, the time the injury actually happened is irrelevant. Clause 2 of Pt 6 limits the application of s67 to injuries received after a particular time. The question for decision is whether cl 2 refers to the point of time at which the injuries were actually received or the deemed or notional point of time prescribed by s17.
To choose the actual point of time is to depart from the result of an historical development in workers compensation legislation in New South Wales designed, in the case of progressive slow growing industrial or occupational diseases or injuries, to relieve the worker from the daunting forensic task of proving when they occurred and, if they were employment related, by which relevant employer compensation therefor is payable. In the case of loss of hearing caused by a gradual process, s17 achieves this design by providing that the loss is an injury which happened at a particular arbitrary point of time, making compensation payable upon demonstration that the worker was employed by an employer in a employment to the nature of which the injury was due and fixing a particular a particular employer with liability, though leaving that employer a right to recover contribution from another or other employers in appropriate circumstances. If cl 2 of Pt 6 does not operate in accordance with this regime the daunting forensic task previously abandoned must be undertaken at least to the point of determining when the injury happened, which may not be possible at all due to the usually gradual onset of industrial deafness.”(at 689-690)
Sheller JA noted that:
“… the legislature has sought to incorporate into a code of law, designed to provide compensation for industrial accident, provision for compensation for injury being a loss resulting from a condition of slow growth, progressive in its incapacitating effect and of which it is seldom, if ever, possible – except by the use of a fiction - to point with certainty to the date of the accident or the commencement of the incapacity resulting therefrom.” (at 692)
In the NSW Court of Appeal decision of Crisp v Chapman (1994) 10 NSW CCR 492 Powell JA, with whom Meagher JA agreed, stated:
“...it has long been established (Smith v Mann ) that, where a worker has contracted a disease which is of such a nature to be contracted by a gradual process, it is not necessary for him, on an application for compensation based upon the former group of sections, to establish the disease was actually brought about, or contributed to, by the employment undertaken for the employer, or employers, during the 12 months preceding his disablement; it is enough if the disease is incidental to that class of employment so that it can be attributed to service therein.” (at 513)
In Blayney Shire Council v Lobley & Anor (1995) 12 NSWCCR 52 (Lobley) the NSW Court of Appeal considered the meaning of the phrase “employment to the nature of which the injury was due” as it appeared in s17(1) of the 1987 Act which dealt with an injury by way of hearing loss caused by a gradual process. The Court applied the decisions of Smith v Mann), Bourne and Tame to determine the meaning of that phrase. As to the purpose of s 17(1) Kirby ACJ said:
“There is an element of artificiality in s17(1) of the Act. The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due.
What are the purposes of introducing such arbitrary elements? They include:
1. To relieve the worker of the burden, which would otherwise ordinarily be assumed, to prove that actual trauma in the employment of a particular employer or employers had caused the loss of hearing;
2. To relieve the worker, and ultimately the Compensation Court, of apportioning the extent of loss attributable to particular trauma in the employment of particular employer(s) which had caused particular proportions of the total hearing loss found;
3. To assign the burden of compensation in a particular case to one employer, acknowledging that the worker may have changed employment many times in his or her working life and, as here, have been in the employment of the last employer for only a short time. Presumably, the certainty of responsibility thus secured was thought, in the long run and over the mass of such cases, to justify the arbitrary assignment upon the basis that, over time, the inequities of the assignment in a particular case would be evened out amongst employers (and the insurers) generally;
4. By assigning liability to the last employment as defined, the costs and delays of litigation, which are so substantial and disproportionate, could be avoided or minimised to the general saving of costs of the provision of workers’ compensation benefits and the reduction of the administrative costs, of which legal expenses are a not inconsiderable part.So understood, the purposes of s17(1)(a) of the Act were to make the task of the worker easier (in both ascertaining the employer to be sued and in proving the claim) and the assignment of a responsible employer clearer.” (at 55-56)
In A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41(A & G Engineering) the respondent worker worked in a noisy environment for the appellant NSW employer between 1976 and 1988, two noisy Northern Territory employers between 1988 and 1990, the last of which was T & G Refrigeration, and for the appellant NSW employer for six weeks in 1990. Beazley JA (with whom Handley and Sheller JJA agreed) stated:
“Counsel for the appellant submitted that upon its true construction, s17(1(c)(ii) should be read as if there were inserted into its provisions the words which are bolded as follows:
compensation is payable by -
(ii) . . .the last employer by whom the worker was employed in an employment to the nature of which the injury was due but only if the last such employment was in New South Wales before he or she gave notice.’
Counsel acknowledged that the affect of this construction was that a worker, who had suffered a hearing loss in New South Wales, but whose last noisy employment was with an employer located outside New South Wales could not use the provisions of s 17 to claim compensation from the New South Wales employer. He submitted that the worker, in that case, would be required to prove, through the combined operation of ss4, 9 and 66, the extent of the loss caused by the employment in New South Wales and that the employer against whom the claim was made, actually caused the loss for which the claim was made.
Section 17, as the appellant's case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary, under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 at 440; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR (1992) 28 NSWLR 679 at 689-690, s 17 proceeds on a series of fictions or assumptions, upon which a worker's entitlement to recover an award under s 66 is based.
In the present case, the last noisy employment was in the Northern Territory. However, the Act does not have extra-territorial operation so as to make T & G Refrigeration liable as the last employer under s 17; see Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68. That being so, s 17 operates so as to make the appellant the last employer. In other words, the appellant is the last employer to whom the legislation applies and is thus liable to pay compensation. This construction of s 17 is confirmed by this Court's decision in Russo v World Services and Constructions Pty Ltd [1979} 1 NSWLR 330. In that case, the Commonwealth was the last noisy employer and the respondent the noisy employer before that. It was held that, as the Commonwealth was not bound by the provisions of the New South Wales legislation, the respondent was the last noisy employer for the purposes of s17 and thereby liable to pay compensation.
Given the fictional basis upon which s17 proceeds, the construction for which the appellant contends involves the implication of language for which there is not only no warrant, but which runs counter to the very purpose of the section. If follows that the appeal should be dismissed with costs.”
In Lennon v TNT Australia Pty Ltd (2013) 84 NSWLR 161 (Lennon) the applicant employee claimed lump sum compensation against the respondent employer for binaural hearing loss suffered in the course of employment. He made the claim against the respondent employer in 2011 under the 1987 Act. On 25 June 2008 the respondent had received a licence under the Commonwealth Act. The applicant made the claim on 24 March 2011 under the NSW 1987 Act. The respondent resisted the claim on the basis that in 2011 when the clam was made his employment was covered by the Commonwealth Act, and that the NSW 1987 Act did not apply.
The Court of Appeal (Basten JA, with whom Macfarlan and Barrett JJA agreed) held that the respondent was liable as the “employer” under s17(1) of the 1987 Act, not as the applicant’s employer at the time of giving notice but as the last employer by whom the applicant had been employed in relevant employment before he gave notice, and the injury was deemed, under s17(1)(a)(ii) of that Act to have occurred on 30 June 2008. The Court of Appeal also held that under the Commonwealth Act the applicant’s hearing loss was taken to have occurred after the company’s licence under that Act came into force, that Act applied to the applicant’s injury, but any liability or obligation of the company under the 1987 Act in respect of that injury occurring before the licence came into force on 30 June 2008 was unaffected.
Basten JA referred in particular to ss 108A (1) and 108A (7) of the Commonwealth Act which read:
“108A The consequences of a licensee's authorisation to accept liability
(1) If:
(a) a licensee is authorised to accept liability to pay compensation and other amounts under this Act in respect of particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees; and
(b) such injury, loss, damage or death occurs;
then:
injury, loss, damage or death; and
(d) Comcare is not liable to pay compensation or other amounts under this Act in respect of that injury, loss, damage or death.
...
(7) If a licensee who is a corporation is authorised to accept liability to pay compensation and other amounts under this Act in respect of a particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees after the licence comes into force then:
(a) no law of a State or Territory relating to workers compensation applies to a licensee in respect of such injury, loss, damage or death; and
(b) any liability or obligation of the corporation under a law of a State or Territory in respect of such injury, loss or damage suffered, or death occurring, before the licence came into force is unaffected.”Basten JA stated:
“24. The applicant argued before the Commission that his "employment" changed when TNT obtained a licence under the Commonwealth Act. Accordingly, he submitted, the hearing loss was deemed to have occurred under sub-paragraph (ii) on the last day on which he was employed by TNT before it obtained its licence under the Commonwealth Act, namely 30 June 2008.
25. The President rejected the applicant's submissions. He concluded that the term "employment" did not depend on whether the employment was covered by the 1987 State Act, but on the physical nature of the employment: Reasons [116].
26. The applicant's submissions proceeded by analogy with, or extension from, two decisions of this Court….”…………
32. The argument for the applicant was that, although there was no change of employer in the present case, TNT changed from being an employer which was covered by the State Act, to one which was not. Accordingly, the reasoning in Russo and A & G Engineering should apply on the basis that the applicant had no "employer" for the purposes of the 1987 State Act after 30 June 2008 and hence at the time he gave notice of his claim.
33. Section 17(1)(a), set out at [23] above, does not focus on the "employer" but on "an employment", to be characterised according to the injury; the purpose of par (a) is to identify the time of the injury. However, s 17(1) read as a whole has three purposes in relation to an injury caused by a gradual process, namely:(a) to identify the time at which the injury is taken to have occurred;
(b) to identify the person responsible for paying compensation, and
(c) to make provision for contribution by other employers.34. The third purpose can be put to one side as not relevant to the construction of the section or the issue in the present case. The second purpose is revealed in s 17(1)(c):
………..
36. The effect of Russo and A & G Engineering is that the term "employer" does not extend to the Crown in right of the Commonwealth or employers in other law areas within or outside Australia. Because TNT was, from 1 July 2008, no longer an employer to which the obligations of the Act attached, the applicant thereafter did not have an employer for the purposes of the Act. Accordingly, applying the reasoning in those authorities, TNT was liable, not as the worker's employer at the time of giving notice, but as the last employer by whom the worker was employed in relevant employment, before he or she gave notice: s 17(1)(c)(ii). If that is the correct construction of s 17(1)(c), consistency requires that a similar reading be given to paragraph (a), so that the injury was deemed to have happened on the last day on which the worker was employed in a relevant employment before he or she gave notice, which was 30 June 2008.”
Basten JA concluded as follows:
“43. In this Court, the respondent did not contend that either Russo or A & G Engineering was wrongly decided. The reasoning in Russo was accepted in Telstra v Worthing; A & G Engineering was not discussed. Because Telstra v Worthing was not directed to the problem raised for the first time in this case, it is appropriate for this Court to follow its own unchallenged earlier authorities. That entails the conclusion that the applicant acquired an entitlement under the 1987 State Act as at 30 June 2008. Even if under the Commonwealth Act his injury is taken to have occurred after the licence took effect, his entitlement under State law is preserved by s108A(7)(b).”
Barrett JA in his concurring judgment stated:
“46. I agree with Basten JA's analysis of the issues in this case and with his Honour's conclusions and reasons. The question identified in the proceedings before the President of the Workers Compensation Commission could, in terms, be answered simply by saying that applicant's binaural hearing loss is deemed to by s17(1)(a)(i) of the Workers Compensation Act 1987 to have occurred on 30 June 2008 when the employer ceased to be insured under the New South Wales Workers Compensation Acts. It is desirable, however, that the more informative answer proposed by Basten JA be given.”
The Court of Appeal made orders, including answering the question identified in the proceedings before the President of the Commission as follows:
“(a) Under s17(1) of the Workers Compensation Act 1987 Workers Compensation Act(NSW), the applicant's binaural hearing loss was deemed to have happened on the last day before the employer's licence under the Commonwealth Act, came into force, namely 30 June 2008.
(b) If, under the Commonwealth Act, the applicant's binaural hearing loss was taken to have occurred after the employer's licence under that Act came into force, that Act applied to the applicant's injury, but any liability or obligation of the respondent under the Workers Compensation Act in respect of the injury occurring before the licence came into force was, by virtue of s 108A(7) of the former Act, unaffected.”In Pereira v Siemens Ltd [2015] NSWSC 1133 (Pereira) Garling J made the following remarks about s 17 of the 1987 Act:
“71. It is convenient to commence with remarks about s 17 of the 1987 Act. It has been set out above at [54]. The 1987 Act is intended to provide compensation for workers who receive injuries whilst at work.
72.The prime operative provision is s 9 which provides that a worker who has received an injury shall receive compensation from the worker’s employer in respect of employment which is connected with NSW. It does not matter whether the worker was injured in NSW so long as the employment is connected with the State.
73. Section 9A provides that no compensation is payable in respect of an injury, leaving aside a disease, unless the relevant employment was a substantial contributing factor to the injury. These provisions are contained within Part 2 of the Act, as is s 17.
74. Section 15 deals with diseases of gradual process. Section 16 deals with an aggravation of a disease. Section 17 deals with loss of hearing and, as is to be observed, is described as a “Special Provision”.
75. As Kirby P said in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 at 55, there is an element of artificiality in the section. The injury is deemed to have happened at an arbitrary time, namely when the notice of injury is given. The injury is assigned to the employer at the time. But that is only effective if that employer employed the worker in employment “... the nature of which ...” the injury was due. His Honour noted the beneficial purposes of such arbitrary elements.
76. It is not immediately obvious that, although the injury is deemed to have happened on a particular day, the injury of which deafness is both the symptom and the resultant impairment was caused by anything other than a gradual process. It is not a particular injury which can be fixed by date, time and place.
77. On the contrary, the purpose of s 17, and its effect, is to relieve a worker of any obligation to identify and prove with precision when the injury occurred, where it occurred, or how it occurred. Rather, for the purposes of compensation for employees in NSW, the legislation deems an injury to have happened at an identified time.”
The decision of Fullerton J in Schofield in Abigroup Limited [2016] NSWSC 954 (Schofield)
The respondent’s submissions dated 15 December 2020 included arguments that by reason of the decision of Fullerton J in Schofield the respondent employer was not liable for any occupational hearing loss suffered by the appellant after the deemed date of injury of 2 April 2006, this being the date at which the respondent employer ceased to be covered by the 1987 Act and began to be covered by the Commonwealth Act. The relevant submissions were:
“4. The Respondent relies on the decision of Fullerton J in Schofield v Abigroup Limited [2016] NSWSC954, in which after reviewing many of the authorities referred to in the submissions of the Appellant in this appeal by Mr Curran, Her Honour concluded:
“I regard the construction of s 319(c) of the 1998 Act as it applies in the context of the operation of s 17 of the 1987 Act for which the first defendant contends as the correct construction. That is, that as the plaintiff’s last employer in New South Wales at the date of the Notice of Injury, the first defendant was liable under s 17(1)(c)(ii) for the injury to the plaintiff’s hearing that had occurred ‘in one blow’ as at the deemed date of injury by a gradual process predating that date. Accordingly, in assessing the degree of permanent impairment as a result of that injury, the Approved Medical Specialist was required to make an appropriate adjustment for injury that was the result of the plaintiff’s employment after the deemed date in the course of employment outside the jurisdiction.”5.The authority of Schofield was applied by the Medical Appeal Panel in Cuskelly v New England Milk Industries Pty Ltd [2020] NSWWCCMA2.
6. In accordance with the above authorities, the Respondent employer in this matter is not liable for any occupational hearing loss suffered by the Appellant after the deemed date of injury of 02/04/2006. If further occupational hearing loss was suffered by the Appellant after 02/04/2006, it must be deducted from the assessment of total occupational hearing loss.”
The appellant’s further submissions dated 31 March 2021 were that the decision of Fullerton J in Schofield was inconsistent with Court of Appeal and High Court authority and should not be followed. These submissions were:
“Her Honour concluded that none of the authorities referred to addressed the question of apportionment of compensation. Her Honour then held that the first defendant was liable for the injury to the Plaintiff’s hearing that occurred in one blow as at the deemed date of injury by a gradual process predating that date. Her Honour did not refer to any precedent that supported her conclusion and did not explain how such a conclusion was consistent with the authorities such as Russo and Civitevese which had expressly stated that section 17 was not concerned with actual causation but deemed the loss to have occurred at a single time and determined which employer was liable to pay that compensation. It is significant that her honour made no reference with the decision of the Court of Appeal in Rico Pty Ltd v Road Traffic Authority where Sheller JA explained that the time an injury actually happened was irrelevant. It is formally submitted that Schofield was wrongly decided, it is inconsistent with authority of the Court of Appeal and the High Court and should not be followed.
Otherwise in Schofield the parties did not argue whether employment outside NSW could be the basis for a reduction in the degree of the compensable hearing loss. The matter had proceeded solely on the basis of an argument about whether section 17 allowed a deduction at all. Accordingly there was no consideration about whether the NSW legislation could extend to make a NSW employer liable to pay compensation for a hearing loss that occurred outside the jurisdiction. For the reasons set out in the primary submissions the NSW legislation does extend to such a loss of hearing with the result that the noise exposure with the Commonwealth does not form the basis for a deduction in any event.
In Schofield there was no consideration about whether the AMS was correct to make a deduction for the effects of the subsequent employment in circumstances where he did not actually identify a specific loss due to that employment but made an apportionment of a single loss of hearing based upon periods of exposure. The issue was not addressed by either party and was not considered by Her Honour. It is that matter which is in issue in these proceedings.”
FURTHER CONSIDERATION
The commencing words of s 17(1) are “If an injury is a loss or further loss of hearing …”. This wording is, if anything, stronger than the commencing words of s 7(4) of the NSW 1926 Act, the commencing words of which were “Where the injury is a disease…”.
Fullerton J did not refer to the Court of Appeal decision in Rico, and treated Lennon as not providing “any guidance”.
The Court of Appeal decisions in Russo, Rico, Lobley, A & G Engineering and Lennon require the conclusion that the relevant injury occurred on 2 April 2006 when the respondent employer ceased to be the relevant employer under NSW law as the result of the employer becoming licenced under the Commonwealth Act.
From 2 April 2006 the appellant’s entitlement to compensation under the 1987 Act for boilermakers deafness has, on the basis of Basten JA’s reasoning in Lennon, been fully protected by s 108A(7) of the Commonwealth Act which provides:
“7) If a licensee who is a corporation is authorised to accept liability to pay compensation and other amounts under this Act in respect of a particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees after the licence comes into force then:
(a) no law of a State or Territory relating to workers compensation applies to a licensee in respect of such injury, loss, damage or death; and
(b) any liability or obligation of the corporation under a law of a State or Territory in respect of such injury, loss or damage suffered, or death occurring, before the licence came into force is unaffected.”
Fullerton J failed to give effect to the “philosophy” for dealing with boilermaker’s
deafness claims under the 1987 Act as explained in these five Court of Appeal decisions, and as previously explained in earlier High Court and other decisions set out in detail above.
Fullerton J relied on s 319 (c) of the 1998 Act. However, this section is merely a definition provision regarding “medical dispute”. It does not override the compensation entitlement provisions of the 1987 Act or provide a basis for distinguishing the large body of appellate case law set out in detail above. Similarly s 326(1), which the respondent relied on, is merely concerned with the status of medical assessments but does not qualify or affect the operation of these entitlement provisions or the case law set out above.
In Schofield, Fullerton J at [30] accepted the respondent’s argument that the construction for which the appellant contended in A & G Engineering would have had the result of leaving the worker without compensation and it was that result that the Court of Appeal was concerned to avoid so that the statement of principle as to the operation of s 17 to the issue with which the Court of Appeal was concerned is not authority for the proposition relied on by the plaintiff in Schofield. Fullerton J then noted that that the question that she was concerned with was not the identity of the employer liable to pay compensation to the plaintiff under s17 (1)(c) (ii) of the 1987 Act. Her Honour noted that in Schofield the respondent had acknowledged its liability to compensate the plaintiff on the basis it was the last employer in NSW, and thus the question in issue was the extent of the liability where there was unchallenged evidence of apportioning the degree of permanent impairment resulting from that admitted injury.
This passage in Schofield at [30] appears to suggest as long as the respondent employer admits that the worker will not be left without some compensation in a boilermaker’s deafness case, deductions can be made for any later noise exposure with a subsequent employer after the deemed date of injury. There is no statutory or appellate support for any conclusion that this is what the law provides or permits. Moreover, such an approach is contrary to the principle that the worker need not prove actual causal contribution by the last NSW employer to the hearing impairment or the amount thereof.
The respondent in the present case relies on the fact that in Schofield, Fullerton J on the basis of the above reasons concluded at [33]:
“I regard the construction of s 319(c) of the 1998 Act as it applies in the context of the operation of s 17 of the 1987 Act for which the first defendant contends as the correct construction. That is, that as the plaintiff’s last employer in New South Wales at the date of the Notice of Injury, the first defendant was liable under s 17(1)(c)(ii) for the injury to the plaintiff’s hearing that had occurred “in one blow” as at the deemed date of injury by a gradual process predating that date. Accordingly, in assessing the degree of permanent impairment as a result of that injury, the Approved Medical Specialist was required to make an appropriate adjustment for injury that was the result of the plaintiff’s employment after the deemed date in the course of employment outside the jurisdiction.”
The respondent then argued that in accordance with Fullerton J’s reasoning and conclusions in Schofield, the respondent employer in the present case is not liable for any of the occupational hearing loss suffered by the appellant after the date of injury of 2 April 2006.
In Schofield there had been an apportionment made by the AMS based on comparing noise exposure and hearing loss in Queensland, the Northern Territory and Western Australia with noise exposure and hearing loss in NSW with a different employer in NSW. There has been no similar type of apportionment in the present case where the employer is the same entity before and after the deemed date of injury. Also the Court of Appeal decision in Lennon, which Fullerton J at [31] read as not offering any guidance in resolving the particular question at issue in Schofield, decided the relevant principles which leave no room for apportioning hearing loss because a NSW employment has ended and a Commonwealth employment as started with the same entity.
The respondent in the present case contends that the Court of Appeal Decision in Johnson No 2 confirms the decision in Schofield that “a deduction must be made for the effects of a further injury, in this case resulting from the subsequent noisy employment to which the NSW Workers Compensation Acts do not apply.”
However, the reasoning in Johnson No 2 is inapplicable in the present case. Johnson No 2 was concerned with a succession of psychiatric injuries where the worker’s claim arose out of a simple assault, ie, a frank injury. There was no claim or finding of a disease of gradual onset as the relevant injury.
Moreover in boilermaker’s deafness cases, such as the present case, there is no need for a worker to establish a causal connection between his noise induced hearing loss and his employment. The entitlement and liability in boilermaker’s deafness cases is resolved by the special regime which proceeds on a basis of a series of fictions or assumptions (Civitarese per Beazley JA, Handley and Sheller JJA agreeing at 160G).
Section 17 is a separate provision to s 15 and s 16 and is an exception to the requirement to establish a causal connection. Section 15 (4A) of the 1987 Act qualifies the phrase “employment to the nature of which an injury was due” by stating that such a reference includes “a reference to employment the nature of which was a contribution factor”. The qualification applies only for the purpose of s15. There is no equivalent provision in s17. Accordingly, the Court of Appeal case in Johnson No 2 has no relevant role in the determination of the issues in the present case.
To adopt the respondent’s submissions would require the appellant to prove the extent of the loss caused by employment with the employer in NSW and that the employer against whom the claim was made actually caused the loss for which the claim was made. This would be contrary to reasons stated by Kirby ACJ in relation to the purposes for the introduction of the arbitrary elements in s 17(1) in Lobley.
The Appeal Panel considers that by the operation of s 17 the entire noise induced hearing loss is deemed to have happened all at once on the deemed date of injury regardless of when it actually occurred. The purpose of s 17 is that it avoids all questions of causation and simply deems an injury to be caused in a single blow at a date to be determined by the section. This operates to avoid any questions of actual causation of the hearing loss. The loss is all deemed to have occurred in accordance with the section regardless of whether the employer concerned has in fact caused all or any hearing loss.
Moreover as noted above there are no statutory provisions in the 1998 Act or 1987 Act which provide for any deduction for a subsequent injury in such a case as this. There is no legal basis for apportioning or reducing the WPI or the lump sum payable in respect of such WPI, as no legislation permits or requires this to be done.
Making a deduction of compensation measured by the percentage amount of hearing impairment which was caused by a later employment outside NSW would involve, in effect, incorrectly reading additional language into the 1987 Act. To do so on the basis that such additional language would provide the result which the legislature omitted to consider would infringe the principles laid down by the majority joint judgment of the High Court in Taylor v The Owners – Strata Plan No 11564 (2014) HCA 9.
In conclusion, the Appeal Panel found that here has been a demonstrable error in the AMS’ assessment. The Appeal Panel has concluded that no deduction should be made in respect of any loss in the respondent’s employment after 2 April 2006.
Therefore, the total binaural hearing loss is 38.3% which equates to 19% WPI. There has been a prior payment for 16.7% binaural hearing loss. This equates to 43.6% of the impairment. The compensable component is 56.4% or 10.7% WPI which rounds to 11%.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 November 2019 should be revoked and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Kenneth Howison and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
Table - calculation of whole person impairment (WPI) for industrial deafness as set out in the Table immediately below in accordance with Chapter 9 of the Guidelines for the Evaluation of Permanent Impairment and 1988 NAL Tables:-
| Notional date of injury | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI |
| 02/04/2006 | 500 | 20 | 20 | 0.6 | 0.6 |
| 1000 | 35 | 35 | 5.7 | 5.7 | |
| 1500 | 45 | 45 | 8.1 | 8.1 | |
| 2000 | 65 | 70 | 10.7 | 10.7 | |
| 3000 | 85 | 80 | 9.2 | 9.2 | |
| 4000 | 90 | 90 | 9.8 | 9.8 | |
| TOTAL % BHI: 44.1 | |||||
| Less Pre-existing non-related loss: 0.0 | |||||
| Less Presbyacusis correction: 6.8 | |||||
| Add % of severe tinnitus: 1.0 | |||||
| Adjusted total % BHI: 38.3 | |||||
| Resultant total BHI of 38.3% = 19 % whole person impairment (Table 9.1) | |||||
AFTER DEDUCTION OF THE PREVIOUS
CLAIM OF 16.7%, MR CURRAN HAS A BINAURAL HIGH TONE SENSORI-NEURAL NOISE INDUCED
HEARING LOSS OF 10.7.8%, WHICH REPRESENTS A WHOLE PERSON IMPAIRMENT OF 11.0%.
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Carolyn Rimmer
Member
Dr Henley Harrison
Medical Assessor
Dr Joseph Scoppa
Medical Assessor
24 May 2021
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