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Eraring Energy v Brownlie

Eraring Energy v Brownlie

Case [2008] NSWWCCPD 42 8 April 2008

Workers Compensation Act 1987

Last Noisy Employer

Further Loss of Hearing

Compensation for Hearing Loss

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Eraring Energy v Brownlie [2008] NSWWCCPD 42
APPELLANT:  Eraring Energy
RESPONDENT:  Dennis Warren Brownlie
INSURER:Self-Insured
FILE NUMBER:  WCC5509-07
DATE OF ARBITRATOR’S DECISION:          24 September 2007
DATE OF APPEAL DECISION:  8 April 2008
SUBJECT MATTER OF DECISION: Boilermaker’s deafness; determination of ‘last noisy employer’ in a claim for “further loss of hearing” under section 17 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Goldrick Farrell Mullan
Respondent:   Aubrey Brown Partners

ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 24 September 2007 is revoked and the following order made:
“1.Award for the Respondent Employer.
2.No order as to costs.”

No order as to costs of the appeal.

INTRODUCTION

This appeal concerns the determination of the identity of the last noisy employer in respect of a claim for a “further loss of hearing” under section 17 of the Workers Compensation Act 1987 (‘the 1987 Act’).

BACKGROUND

Dennis Brownlie (‘the Respondent Worker’) is currently 63 years old. He has had several employers throughout his career, but for the purposes of this decision the following are relevant:

a) 1978 – 1988 employed by Eraring Energy (formerly known as the Electricity Commission of New South Wales) (‘the Appellant Employer/Eraring’) as a trade assistant;
b) 1993 – 1994 employed by Sarah Lee in the wash room, as a cleaner;

c) 1994 – 1996 employed at Peate Island Medical Centre as a cleaner, and

d) 1996 – 2005 employed by Arnott’s Biscuits in Queensland as a cream mixer.

In 1991 Mr Brownlie brought a claim for compensation for binaural hearing loss against Eraring in the former Compensation Court of NSW (‘the first claim’). That claim was presumably made on the basis that he had sustained an injury, being a hearing loss, of such a nature as to be caused by a gradual process, that is, boilermaker’s deafness or deafness of a similar origin (section 17(2) of the 1987 Act). The evidence does not suggest Mr Brownlie has any other kind of hearing loss. The parties settled the first claim on 26 February 1991 on the basis of an award for Mr Brownlie in the sum of $3,100.80 in respect of a hearing loss of 5.16% (‘the hearing loss’). Whilst the Terms of Settlement are in evidence, they do not indicate the deemed date of injury, but I assume that the deemed date of injury was the last day on which Mr Brownlie worked for Eraring.

Since the 1991 settlement Mr Brownlie worked for Sarah Lee (found by the Arbitrator not to be noisy), Peate Island Medical Centre (agreed not to be noisy), and Arnott’s Queensland (found by the Arbitrator to be noisy). Over time, Mr Brownlie’s hearing has deteriorated. By letter from his solicitor dated 30 June 2006 he “made a further claim in respect of industrial deafness” (emphasis added) against Eraring in the sum of $8,216.00 in respect of a…

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 Eraring Energy v Brownlie

Details

AGLC: Eraring Energy v Brownlie [2008] NSWWCCPD 42
Case: [2008] NSWWCCPD 42
Decision Date: 8 April 2008

CaseChat Overview and Summary

Eraring Energy appealed against a decision of an arbitrator that it was the last noisy employer in relation to a claim for further loss of hearing by Dennis Brownlie. The arbitrator had found that Eraring Energy was the last noisy employer under section 17 of the Workers Compensation Act 1987 and liable for the hearing loss. The court considered whether the arbitrator had erred in his findings. The court found that the arbitrator had erred in finding that Arnott's was a noisy employer. However, this error was inconsequential as Arnott's was not a New South Wales employer. The court further found that the arbitrator had erred in his application of the case of A & G Engineering Pty Ltd v Civitarese, as the case did not concern the determination of the deemed date of injury in respect of a claim for a further loss of hearing. The court revoked the arbitrator's determination and made an award for the respondent employer, with no order as to costs.

Orders