JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 AUGUST 2002
DATE OF JUDGMENT:	8 OCTOBER 2002
CASE MAY BE CITED AS:	DEL BORGO v NISELLE & ORS
MEDIUM NEUTRAL CITATION:	[2002] VSC 368

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WORKERS COMPENSATION – Review of Medical Panel decision – Industrial deafness – Further loss of hearing – Where worker previously compensated for 26% hearing loss – Whether previously compensated hearing loss should be excluded from calculation of impairment under s.91 Accident Compensation Act 1985 – Accident Compensation Act 1985, ss.82, 88, 89, 90, 91, 98, 98C, 104B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K. Hanscombe with Mr A.P. Dickenson	Maurice Blackburn Cashman
For the Third Defendant	Mr R.P. Gorton QC with Mr M.F. Fleming and Mr. P.H. Solomon	Herbert Geer & Rundle

HIS HONOUR:

Mr. Luigi Del Borgo has been an assembly worker employed by a motor car manufacturer since 1954. During the course of his employment he has been exposed to noise which has resulted in hearing loss. In 1988 he made a claim for workers' compensation and received the sum of $10,214. Despite the date of the claim and award, the documents tendered to me demonstrate on their face that the award was made pursuant to Division 2A of the Workers Compensation Act 1958. The amount paid to the plaintiff reflected an assessment that he had suffered a 26% permanent partial binaural loss of hearing.

Since 1988 the plaintiff has suffered a further loss of hearing and on 1 May 2001 he made a further claim for compensation.

The agent for the third defendant the Victorian Workcare Authority ("the Authority") arranged a medical examination with Mr Francis Nagle, who in due course reported on 14 July 2001 and expressed the following opinion:

"Mr. Del Borgo has a binaural PHL of 31.2% which equates to 16% Whole Person Impairment. His hearing loss is consistent with acoustic trauma in his occupation.
Please note he has a previous hearing loss claim for 26%."

Subsequently Mr. Nagle provided a revised opinion by way of letter dated 6 September 2001 in which he advised the Authority's agent that:

"In answer to your query, Mr Del Borgo PHL is 31.2%. His previous hearing loss claim was 26% some 15 years ago.
Opinion:
He has an increase of 5.2% on his previous hearing loss claim, but as this is less than 10% his Whole Person Impairment is 0%."

It can be seen that the difference between Mr Nagle's first opinion and his second opinion is dramatic. The first opinion indicated that the plaintiff had suffered a 16% whole person impairment whereas the second opinion was that he had a 0% whole person impairment.

This dichotomy of opinion reflects the underlying division of the parties in this case. In essence the plaintiff contends that the assessment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Del Borgo v Nisselle

Details

AGLC: Del Borgo v Nisselle [2002] VSC 368
Case: [2002] VSC 368
Decision Date: 8 October 2002

CaseChat Overview and Summary

In the case of Del Borgo v Nisselle, the issue before the court was whether the compensation payable to a worker for a further loss of hearing should exclude a previous hearing loss already compensated for. The worker, Del Borgo, had been previously compensated for a 26% hearing loss and later suffered a further loss. The matter was before the court to determine if the previous loss should be excluded from the calculation of impairment under section 91 of the Accident Compensation Act 1985. The court had to consider the statutory provisions, including sections 82, 88, 89, 90, 91, 98, 98C, and 104B of the Act.

The primary legal issue was the interpretation and application of section 91 of the Accident Compensation Act 1985, specifically whether the previous compensated hearing loss should be excluded from the impairment calculation for the subsequent loss. The court had to balance the statutory language with the principle of avoiding double compensation, while also considering the overall impact on the worker's hearing ability. The court's decision hinged on whether the statutory scheme allowed for the exclusion of previously compensated hearing loss and, if so, the extent of such exclusion.

The court concluded that the statutory provisions did not explicitly require the exclusion of previously compensated hearing loss from the impairment calculation. The court reasoned that the Act's purpose was to compensate for the total impairment resulting from the subsequent injury, without excluding the previous loss. The court emphasised the importance of considering the worker's overall hearing ability and the impact of the new loss in light of the existing condition. Consequently, the court determined that the previous hearing loss should not be excluded from the impairment calculation.

The final orders of the court were that the compensation payable to Del Borgo should include the full impairment resulting from the subsequent loss of hearing, without excluding the previously compensated hearing loss. The court's decision provided clarity on the interpretation of the statutory provisions and ensured that workers receive appropriate compensation for their total impairment.

Orders