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…
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- AGLC
- Eraring Energy v Brownlie [2008] NSWWCCPD 42
- Case
- [2008] NSWWCCPD 42
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