Grixti and Linfox Australian Limited

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 566

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0617

GENERAL ADMINISTRATIVE DIVISION		)
Re		LOUIS GRIXTI

Applicant

And LINFOX AUSTRALIA LIMITED

Respondent

DECISION

Tribunal Justice Buchanan (Presidential Member)
Dr I Alexander (Member)

Date31 July 2009

PlaceSydney

Decision

 The Tribunal:

(a)  Dismisses the application for review made on 15 February 2008; and

(b)  Affirms the decision made on 6 February 2008 that Mr Grixti not be paid compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Justice R J Buchanan

(Signed)

Presidential Member

8.Guidelines for the medical examiner suggested that it would only be appropriate to certify Mr Grixti as unfit on account of his hearing if he had suffered from profound deafness.  Dr Perla found Mr Grixti to be fit for employment, subject to the “restriction” he identified but it does not appear from the material before the Tribunal that any follow-up examination was carried out, before or after Mr Grixti commenced his new job.

9.From 1993 Mr Grixti worked for the respondent as a truck driver in a number of noisy jobs.  There is no dispute in the present case that his work contributed to further hearing loss in subsequent years.

10.On 11 April 2006 Mr Grixti was examined by Dr Scoppa who assessed him as suffering binaural hearing loss due to industrial deafness of 15.4%.  Based upon Dr Scoppa’s report a claim for worker’s compensation under the Workers Compensation Act 1987 (NSW) was made on 30 June 2006. The claim was rejected on the basis that Linfox had become self-insured on 3 April 2006 under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). A claim directly against Linfox under the SRC Act was sent to Linfox on 29 January 2007. The claim was based on Dr Scoppa’s assessment. The claim was rejected on 24 December 2007 upon the basis that Mr Grixti’s exposure to noise between the time that Linfox became self-insured on 3 April 2006 and Dr Scoppa’s medical examination on 11 April 2006 would not have contributed to Mr Grixti’s “disease” to a significant degree. Reconsideration of the claim by a Reconsiderations Officer employed by CGU Self Insurance Services resulted in a decision on 6 February 2008 to also reject the claim. The Reconsiderations Officer said:

“In considering the evidence available to me, I am not convinced that the claimant’s hearing loss has been contributed to, to a significant degree by his employment with Linfox since becoming self insured under the SRC Act.”

11.The SRC Act permits an application to be made to the Administrative Appeals Tribunal for review of such a decision (s 64). An application for review was made on 15 February 2008.

12.The SRC Act (which applies to employees of the Commonwealth and to employees of Commonwealth authorities and corporations licensed under the SRC Act) established Comcare (see s 68). Comcare has a liability to pay compensation for compensable injuries to Commonwealth employees (s 14).…