Holcim (Australia) Pty Ltd v Thomas - [2021] NSWPICPD 46

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Holcim (Australia) Pty Ltd v Thomas [2021] NSWPICPD 46
APPELLANT:	Holcim (Australia) Pty Ltd
RESPONDENT:	Stephen Thomas
INSURER:	Self-insured
FILE NUMBER:	A1-W428/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	13 December 2021
ORDERS MADE ON APPEAL:	1. The Senior Member’s Certificate of Determination dated 18 May 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 17 of the Workers Compensation Act 1987 – requirement to give notice of further injury – Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 discussed, Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 discussed and applied – whether the employment materially contributed to the need for provision of further hearing aids – Bluescope Steel (AIS) Pty Ltd v Sekulovski [2018] NSWWCCPD 48 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S Grant, counsel
Hall & Wilcox
Respondent:
Mr M Bechelli, solicitor
Whitelaw McDonald
DECISION UNDER APPEAL
SENIOR MEMBER:	Mr G Capel
DATE OF MEMBER’S DECISION:	18 May 2021

INTRODUCTION AND BACKGROUND

Mr Stephen Thomas (the respondent) was previously employed by Holcim (Australia) Pty Ltd (the appellant) primarily as a plant operator and front end loader driver. The respondent left that employment in 2009 and commenced employment with a subsequent employer for a short period before commencing with an organisation referred to as “ACI Operations.”
On 28 June 1999, the respondent lodged a claim against the appellant for lump sum compensation in respect of 16.8% binaural hearing loss pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). Following negotiations between the appellant and the respondent, the claim was resolved for $9,665.50 on the basis of 14.87% binaural hearing loss. The agreement was registered in a document lodged with the WorkCover Authority of NSW dated 12 November 1999. The date of injury, which was deemed in accordance with s 17 of the 1987 Act, was recorded as 28 June 1999.
In 2010, the respondent made a claim against the appellant for bilateral hearing aids, which the appellant agreed to pay. The respondent made a further claim for hearing aids against the appellant in 2016, which the appellant again accepted. On 23 October 2020, the respondent made another claim on the appellant for hearing aids. The letter of claim referred to the previously accepted claim for lump sum compensation in 1999.
The appellant disputed the claim made on 23 October 2020 by a notice dated 13 November 2020 issued in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). In that notice, the appellant asserted that:
(a) the respondent had not suffered further injury in the form of industrial deafness in accordance with s 17 of the 1987 Act as a result of his employment with the appellant;
(b) the appellant was not the respondent’s “last noisy employer”, and
(c) the claim for hearing aids was not reasonably necessary because the need for hearing aids did not result from the respondent’s injury in 1999.
The appellant asserted that the respondent’s employment with ACI Operations (the subsequent employer) was sufficiently noisy to constitute employment to the nature of which the respondent’s further hearing loss was due and ACI Operations was thus the respondent’s “last noisy employer”.
The respondent commenced proceedings in the Personal Injury Commission (the Commission), claiming the cost of the new hearing aids. The matter proceeded to arbitration before Senior Member Capel, following which the Senior Member issued a Certificate of Determination dated 18 May 2021. The Senior Member determined that the appellant was liable to pay for the hearing aids.
The appellant appeals that decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the basis of the documents lodged with the Commission and their written submissions on appeal.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

Statements

The respondent provided a statement dated 22 December 2020.[1] He gave details of having been employed in very noisy employment as a plant operator for 22 years, as well as in subsequent employment with an earthmoving company for twelve months, followed by further noisy employment as a factory worker with ACI Operations. He stated that he wore earplugs at times, but at other times it was unsafe to do so. He described having to occasionally shout to be heard by co-workers who were about a metre from him. He provided an estimate of the duration of exposure to industrial noise. The respondent referred to the claim made for lump sum compensation against the appellant in 1999, which had resolved by agreement, and advised that he had also received compensation for hearing aids.
[1] Application to Resolve a Dispute (ARD), pp 27–28.
The respondent provided a further statement dated 20 April 2021, which was not attached to an Application to Admit Late Documents (AALD) but was taken into account by the Senior Member. The respondent referred to the claim against the appellant in 1999. He indicated that the Australian Workers Union had organised that earlier assessment of his hearing which disclosed that he suffered from a significant hearing loss. He stated that he then consulted a firm of solicitors, who arranged for him to be assessed by Dr Carroll, subsequent to which he received $9,665.50 in lump sum compensation. The respondent said that he was fitted with hearing aids some years later, which he assumed were paid for by the appellant’s workers compensation insurer. He annexed to his statement a copy of the Registration of Agreement recorded by the WorkCover Authority of NSW and a copy of a letter dated 14 July 1999 from his former legal representatives advising of the appointment with Dr Carroll.
Mr Mario Bechelli, the respondent’s solicitor, provided a short statement dated 21 April 2021 which was also not annexed to an AALD but was taken into account by the Senior Member, attaching two audiological reports discussed below at [22]–[23].

The medical evidence

Dr Joseph Scoppa, Ear, Nose and Throat specialist

Dr Joseph Scoppa was requested by the respondent’s former solicitors to provide an assessment and opinion for the purpose of the respondent’s first claim. He provided a report dated 24 June 1999.[2] He noted a history of the respondent noticing increasing hearing problems over the preceding two years, including difficulty understanding speech over the telephone and on the television, particularly when there was background noise.
[2] AALD dated 4 May 2020, pp 1–3.
Dr Scoppa recorded details of the respondent’s employment as a plant operator, dump truck driver and front end loader, which exposed him to noise of plant machinery, rock crushers and other noisy machinery. Dr Scoppa also took details of the respondent’s prior employment, some of which was also noisy.
Dr Scoppa performed an audiological evaluation, which showed a bilateral high tone sensorineural hearing loss. He was of the view that the hearing loss was consistent with industrial deafness. Dr Scoppa assessed the respondent’s binaural hearing loss as 16.8%.

Dr Raymond Carroll, Ear, Nose and Throat specialist

Dr Raymond Carroll assessed the respondent at the request of the appellant and provided a report dated 20 August 1999.[3] Dr Carroll considered that he could not identify any other cause for the respondent’s sensorineural deafness, other than industrial noise exposure. Dr Carrol briefly referred to the respondent’s work duties. He assessed the respondent’s binaural hearing loss as 12.94% and was of the view that the respondent’s employment was causative of that loss.
[3] AALD dated 4 May 2021, pp 6–7.

Dr Peter Macarthur, Ear, Nose and Throat specialist

The respondent’s legal representative arranged for him to be assessed by Dr Peter Macarthur. Dr Macarthur provided a report dated 10 August 2020.[4] Dr Macarthur took a history of the respondent experiencing slowly increasing deafness over a thirty-year period, more marked on the left hand side, particularly where there was background noise. Tinnitus (ringing in the ears) was also intermittently present and was worse at night. Dr Macarthur reviewed the respondent’s employment history, which included details of the noisy employment with the appellant and the respondent’s further employment with ACI Operations from 2009.
[4] ARD, pp 3–5.
Dr Macarthur performed audiological testing and concluded that the respondent suffered from bilateral mid to high tone sensorineural hearing loss as a result of work in noisy employment. He was of the view that the employment with ACI Operations was the last employment that had the tendencies, incidents and characteristics that gave rise to a material risk of noise induced hearing loss. He assessed the respondent’s binaural hearing loss as 21.8%.
Dr Macarthur provided a further report dated 6 April 2021.[5] Dr Macarthur advised that the binaural hearing loss of 14.8% recorded in the agreement reached in 1999 was more than sufficient to warrant the provision of hearing aids, which he believed to be reasonably necessary.
[5] AALD dated 19 April 2021.

The audiometry assessments

Audiological assessments were performed by an organisation referred to as “Industrial Diagnostics” in 2003 and 2005.[6]
[6] Statement of Mr Bechelli dated 21 April 2021, Annexure “A.”
Bay Audio wrote to the respondent’s legal representatives on 27 August 2019 providing a recommendation in respect of the type of hearing aid that would best assist the respondent and providing a quote for the cost of the device. The cost of those hearing aids for both ears was $5,824.40, which included provision of the hearing devices, fitting, and rehabilitation assistance for twelve months.[7]
[7] ARD, p 7.
A further assessment of the respondent’s hearing loss was conducted on 31 July 2020 by Taree Audiology and Hearing Clinic.[8]
[8] ARD, p 6.

Other relevant documents

Two letters of claim made by the respondent’s legal representatives and directed to the appellant were in evidence. The first of those was dated 14 September 2020 and claimed the sum of $5,824.40 for the costs of the provision of hearing aids in accordance with the quotation from Bay Audio and citing the deemed date of injury as “2008”.[9] The second letter, which was dated 23 October 2020, made the same claim for the cost of the hearing aids recommended by Bay Audio, on this occasion advising that:
“We understand that our client had a claim for hearing loss in 1999 against your company for which he was awarded lump sum compensation.
The claim for hearing aids is therefore based upon that prior hearing loss claim.”[10]
[9] ARD, p 1.
[10] ARD, p 17.
An application to the WorkCover Authority of NSW for registration of an agreement dated 17 September 1999 recording the agreement to settle the respondent’s lump sum claim was in evidence.[11] A letter dated 12 November 1999 from the WorkCover Authority confirmed that the agreement had been registered with that organisation.[12]
[11] AALD dated 4 May 2021, pp 12–13.
[12] AALD dated 4 May 2021, p 17.

THE SENIOR MEMBER’S REASONS

The Senior Member identified the issues which remained for determination were whether the appellant was the “last noisy employer” in accordance with s 17(1)(a)(ii) of the 1987 Act, whether the provision of hearing aids was reasonably necessary, and whether the appellant was liable for the cost of those hearing aids.
The Senior Member summarised the respondent’s statements dated 22 December 2020 and 20 April 2021. The Senior Member remarked that it was unfortunate that the respondent had not addressed the nature of his employment with the appellant and that, as a result, the Commission was dependent upon the histories provided to the Ear, Nose and Throat specialists qualified by the parties. The Senior Member summarised the opinions of Dr Scoppa, Dr Carroll and Dr Macarthur. He pointed to the audiological reports provided by Industrial Diagnostics dated 4 November 2003 and 8 November 2005. He noted that the first of those audiological reports suggested that the respondent suffered from 17.5% binaural hearing loss in November 2003.
The Senior Member provided a detailed summary of the submissions made by both parties. He noted that:
(a) there was no dispute that the respondent sustained an injury in the form of hearing loss in the course of his employment with the appellant with a deemed date of injury of 28 June 1999;
(b) the appellant had voluntarily paid the respondent lump sum compensation pursuant to s 66 of the 1987 Act in respect of 14.87% binaural hearing loss in November 1999;
(c) consequently, the appellant had therefore accepted that the respondent had suffered a compensable hearing loss in his employment with the appellant, and that the provision of hearing aids was reasonably necessary as a result of that injury.
The Senior Member further noted that the evidence established that the respondent’s employment with ACI Operations had the “tendencies, incidents and characteristics,” as discussed in Dawson t/as The Real Cane Syndicate v Dawson[13] and Blayney Shire Council v Lobley,[14] which were sufficient to cause noise induced deafness, and that ACI Operations was the respondent’s last “noisy” employer. The Senior Member observed that the dispute to be determined was whether the respondent’s employment with the appellant was employment “to the nature of which” the respondent’s hearing loss was due in accordance with the provisions of s 17 of the 1987 Act. The Senior Member further observed that the compensation sought by the respondent was for the cost of replacing his hearing aids, which treatment was said to have resulted from his injury deemed to have occurred on 28 June 1999. He noted that the appellant disputed the claim because the respondent had, since 2009, been employed in later noisy employment, Dr Macarthur’s evidence was that the respondent’s hearing had deteriorated, and thus the appellant asserted it was not the “last noisy employer.”
[13] [2008] NSWWCCPD 35.
[14] (1995) 12 NSWCCR 52 (Lobley).
The Senior Member identified the task before him as one requiring the application of principles of statutory construction, referring to Project Blue Sky Inc v Australian Broadcasting Authority,[15] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[16] and Hesami v Hong Australia Corporation Pty Ltd.[17] Applying those principles, the Senior Member remarked that the terminology adopted in s 17 of the 1987 Act was clear and unambiguous and did not require the application of the true test of causation. He observed that it was a deeming provision which enabled the identification of the employer liable for an injury in the nature of noise induced hearing loss.
[15] [1998] HCA 28; 194 CLR 355.
[16] [2009] HCA 41; 239 CLR 27.
[17] [2011] NSWWCCPD 14.
The Senior Member quoted from the judgment of Sheller JA in Rico Pty Ltd v Road TrafficAuthority[18] and Roche DP’s discussion of the principles in OneSteel Limited v Devine.[19] The Senior Member noted that it was not necessary for a worker to establish that his employment contributed to the hearing loss, as discussed by Roche DP in McGowan v Secretary, Department of Education and Communities.[20] The Senior Member also referred to and discussed a number of authorities relied upon by the parties, including Bluescope Steel (AIS) Pty Ltd v Sekulovski[21] and Sukkar v Adonis Electrics Pty Ltd.[22]
[18] (1992) 28 NSWLR 679; 8 NSWCCR 515 (Rico Pty Ltd).
[19] [2012] NSWWCCPD 52 (Devine).
[20] [2014] NSWWCCPD 51 (McGowan).
[21] [2018] NSWWCCPD 48 (Sekulovski).
[22] [2014] NSWCA 459 (Sukkar).
The Senior Member observed that all of the authorities involved claims where a notice of injury had been provided to the employer or insurer. He noted that, in this case, notice of the injury was given on 28 June 1999 when the respondent made his claim for lump sum compensation and it was irrelevant that the respondent had not made a claim for treatment expenses at that time. The Senior Member further noted that the respondent claimed the cost of hearing aids in 2010 and again in 2016, and the appellant paid both of those claims.
The Senior Member referred to a discussion between him and the respondent’s solicitor at the telephone conference on 15 April 2021, in which the respondent’s solicitor confirmed that the respondent had not given notice of injury or made any claim against ACI Operations and that the respondent had instructed his solicitor to proceed against the appellant. The Senior Member pointed out that, while the appellant disputed injury and the onus fell upon the respondent to establish such injury, the appellant had paid the respondent’s lump sum entitlements and the costs of two sets of hearing aids, which indicated that the appellant was satisfied that the respondent had discharged the onus of proof.
The Senior Member noted that Dr Macarthur was of the opinion that the 14.8% binaural hearing loss in 1999 was sufficient to warrant the provision of hearing aids. The Senior Member also noted that Dr Scoppa was of the view that the pure tone audiogram in 1999 showed bilateral sensorineural hearing loss consistent with industrial deafness and was probably caused by the respondent’s employment with the appellant.
The Senior Member observed that a condition can have multiple causes but that the respondent was required to establish that the injury materially contributed to the need for the treatment, consistent with the observations of Roche DP in Murphy v Allity Management Services Pty Ltd.[23]
[23] [2015] NSWWCCPD 49 (Murphy).
The Senior Member concluded that, on the basis of the opinions of Dr Scoppa and Dr Macarthur, there was little doubt that the respondent’s employment with the appellant materially contributed to the need for the provision of hearing aids in 2010 and 2016. The Senior Member referred to s 17(1)(a)(i) and s 17(1)(c)(i) of the 1987 Act. He said that, had the respondent given notice of injury and made a claim for compensation on ACI Operations, then that organisation would have been liable to pay for the hearing aids despite the respondent not meeting the threshold for making a lump sum claim pursuant to s 66(1) of the 1987 Act against that organisation.
The Senior Member noted that s 17 specifically required the giving of notice of the injury rather than the making of a claim for compensation as the means of establishing a deemed date of injury. The Senior Member pointed out that s 17(3) of the 1987 Act provides that compensation is payable by the employer to whom the notice of injury is given, even if the worker is employed by a later noisy employer before the claim is made.
The Senior Member observed that the only notice of injury was in relation to the injury deemed to have occurred on 28 June 1999 and that the later claims for hearing aids were in respect of the same injury and resulted from that injury. He noted that the respondent was seeking replacement hearing aids.

The Senior Member concluded that he was satisfied that the respondent sustained an injury consisting of a sensorineural hearing loss and that the appellant was the last noisy employer who employed the respondent in employment to the nature of which the injury was due, in accordance with s 17(1)(a)(i) of the 1987 Act when the notice of injury was given on 28 June 1999.
The Senior Member turned to the question of whether the proposed treatment was reasonably necessary and whether the appellant was liable to pay the costs of that treatment. The Senior Member set out the provision of s 60 of the 1987 Act and reviewed the relevant authorities of Rose v Health Commission (NSW),[24] Bartolo v Western Sydney Area Health Service,[25] and Diab v NRMA Ltd.[26]
[24] (1986) 2 NSWCCR 32 (Rose).
[25] (1997) 14 NSWCCR 233.
[26] [2014] NSWWCCPD 72 (Diab).
The Senior Member commented that, in accordance with the observations of Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates,[27] whether the need for treatment arises from the injury is a question of causation and is to be determined on the basis of the facts of each case, applying a common-sense evaluation of the chain of causation. The Senior Member indicated that the evidence of both Dr Scoppa and Dr Macarthur supported that the digital hearing aids were reasonably necessary as a result of the accepted injury with a deemed date of 28 June 1999 and there was no evidence to the contrary. The Senior Member added that the provision of hearing aids was an appropriate, accepted and effective form of treatment which had the potential to improve the respondent’s quality of life. He pointed out that the treatment was cost effective and there was no alternate treatment suggested. The Senior Member considered that these factors were consistent with those discussed in Rose and Diab. The Senior Member reasoned that, although the respondent’s evidence was silent as to the benefit of the hearing aids already provided, Dr Macarthur had recorded that, in recent years, the respondent had found them beneficial. The Senior Member considered that the fact that more technically advanced hearing aids had been recommended was irrelevant, as would be the case of injured workers requiring other revisionary procedures, such as for hip or knee replacements.
[27] (1994) 35 NSWLR 452; 10 NSWCCR 796, [463].
The Senior Member concluded that he was satisfied that the provision of bilateral digital hearing aids was reasonably necessary as a result of the injury deemed to have occurred on 28 June 1999, and that the appellant was liable to pay for the costs of fitting and supply of those aids.
The Certificate of Determination issued on 18 May 2021 records:
“The Commission determines:

1.     The [respondent] sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the [appellant] on 28 June 1999 (deemed).
2.     The parties resolved a claim for lump sum compensation in respect of 14.87% binaural hearing loss on 21 October 1999 and a Registration of Agreement was registered on 12 November 1999.
3.     The [appellant] paid for hearing aids when claims were made by the [respondent] in 2010 and 2016.
4. The [appellant] was the last employer who employed the [respondent] in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of section 17(1)(a)(i) of the Workers Compensation Act1987 when he gave notice of injury to the [appellant] on 28 June 1999 (deemed).
5.     The provision of bilateral digital hearing aids is reasonably necessary as a consequence of the [respondent’s] injury.
The Commission orders:
6. The [appellant] is to pay medical expenses in respect of the supply and fitting of bilateral digital hearing aids on production of accounts and/or receipts pursuant to section 60 of the Workers Compensation Act 1987.”

GROUNDS OF APPEAL

The appellant brings the following grounds of appeal:
(a)    Ground One: the Senior Member erred in law by finding that the appellant was the last employer who employed the respondent in employment to the nature of which the sensorineural hearing loss was due when the respondent gave notice of the injury on 28 June 1999;
(b)    Ground Two: the Senior Member erred in law in accepting that the injury can have multiple causes and that the respondent was required to establish that the injury materially contributed the cost of treatment;
(c) Ground Three (wrongly referred to as Ground Four): the Senior Member erred in law by finding that s 17(3) of the 1987 Act applied to this matter, and
(d)    Ground Four (wrongly referred to as Ground Five): the Senior Member erred in law by finding that the supply of replacement hearing aids was akin to seeking revisionary procedures in respect of hip or knee replacements.

LEGISLATION

Section 17 of the 1987 Act relevantly 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 the injury—on the last day on which the worker was employed in an employment to the nature 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,
…
(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.”

SUBMISSIONS

The appellant generally submits that the respondent suffered a further injury in the form of hearing loss in the employ of ACI Operations. The appellant asserts that s 17 identifies ACI Operations as the party against whom the claim should have been made because it was the last noisy employer and, in accordance with s 61 of the 1998 Act, the respondent was required to give notice of his injury to ACI Operations before making his claim for hearing aids. The appellant contends that the notice of injury given in 1999 was applicable to the claim made at that time and has no part to play in these proceedings. The appellant says that the current claim is incompetent.

Ground One

The appellant’s submissions

The appellant submits that the Senior Member was correct when he identified his task was one of statutory construction. The appellant submits that s 17 of the 1987 Act was intended to simplify the task of fixing a date in order to apply the correct law to a determination of the quantum of a worker’s entitlement to compensation, and to determine who was liable to pay that compensation. The appellant says that s 17 also provides the mechanism by which a claim is to be made.
The appellant refers to s 17(1) of the 1987 Act and submits that the ordinary or grammatical sense of the phrase “injury is a loss, or further loss” contemplates that there can be more than one injury, which is an injury caused by a gradual process. The appellant further refers to s 17(1)(d) of the 1987 Act, which it says contemplates that a worker can have more than one injury and allows, in certain circumstances, for a contribution between employers. The appellant indicates that the Senior Member accepted that the respondent could have more that one hearing loss injury and made a finding that the respondent’s employment with ACI Operations was and continued to be noisy employment within the meaning of s 17 of the 1987 Act. The appellant says that the Senior Member also found that the respondent’s hearing loss was greater after he had left the employ of the appellant.
The appellant contends that, in the context of the Senior Member’s findings and the requirement to give the words of the section their ordinary grammatical meaning, the respondent had suffered a further injury in accordance with the section. The appellant asserts that the further injury is a separate injury from the injury claimed on 28 June 1999. The appellant relies upon the authorities of Sukkar and Hay v Commonwealth Steel Company Pty Ltd,[28] and the arbitral decision in Fischer v Endeavour Energy and Transwest Haulage.[29]
[28] [2018] NSWWCCPD 31.
[29] [2020] NSWWCC 341.
The appellant maintains that the injury, in this case the subsequent injury, is deemed to have occurred when the respondent gives notice of the injury while still employed in employment to the nature of which the injury was due, in this case to his current employer, ACI Operations. The appellant submits that the occurrence of the subsequent injury is artificially fixed at the time of giving that notice, which has not happened.
The appellant refers to the Senior Member’s inquiry as to whether a notice of injury had been given to ACI Operations and the assurance to the Senior Member that no such notice had been given. The appellant submits that it is in the hands of the respondent to put in such a claim. The appellant again refers to the provisions of s 17 of the 1987 Act and s 61 of the 1998 Act and points out that a claim for the cost of hearing aids is a claim for compensation pursuant to s 60 of the 1987 Act. The appellant asserts that the giving of notice of an injury in 1999 cannot constitute notice of an injury that may or may not occur at a later time, which in this case is 20 years later.
The appellant also asserts that, if the legislation had intended that a worker need only make one claim for compensation, then there would have a been a provision to that effect. The appellant contends, that up to this time, the respondent’s claim for compensation has been unsustainable because he has yet to give notice of his further injury to his current employer, which would fix the deemed date of the further injury.
The appellant adds that subs 17(a)(i) and subs 17(a)(ii) of the 1987 Act provide that the injury is deemed to have happened when either the notice of injury was given while the worker was still in the employment to the nature of which the injury was due, or the date upon which the worker last worked in such employment before the notice of injury was given. The appellant says that those two alternatives are mutually exclusive. The appellant maintains that, since the respondent left his employment with the appellant in 2009, the second alternative applies, thus not permitting the respondent to rely upon the notice given on 28 June 1999 in order to fix the date of injury. The appellant submits that the previous dates of injury are superseded by the respondent continuing to work in noisy employment and suffering a further injury.
The appellant concludes that ACI Operations is the relevant liable employer and not the appellant, and that the Senior Member’s decision has thus been affected by errors of law.

The respondent’s submissions

The respondent submits that the entitlement to compensation arises on the occurrence of injury and in this case the evidence is that there was only one injury which was deemed to have occurred on 28 June 1999. The respondent says that claims for compensation were made in respect of that injury.
The respondent refers to there being no notice of injury given by the respondent to ACI Operations, and so no injury in that employment is deemed to have occurred. The respondent contends that the appellant’s assertion that the giving of notice of an injury in 1999 cannot constitute notice of an injury that may or may not occur at a later time is contrary to s 9 of the 1987 Act, which predicates the payment of compensation on a worker having received an injury.
The respondent says that the appellant accepted that he had not made a claim against the later employer and the respondent does not contest that it was in his discretion to initiate the making of such a claim. The respondent, however, refers to the submission made by the appellant that the notice of injury given in 1999 could not be said to be a notice of injury that may or may not occur in the future and asserts that the submission misconceives the nature of the respondent’s claim.
The respondent refers to his prior claims, which were, by agreement, met by the appellant. The respondent points out that the present claim is a claim for further hearing aids which are reasonably necessary, and the need for which arose from the injury which was registered by agreement in November 1999. The respondent asserts that it is irrelevant that he was subsequently employed in noisy employment and that his hearing has deteriorated since leaving the appellant. The respondent submits that this is so because he required hearing aids to address the 14.87% binaural hearing loss suffered by him as a result of the injury deemed to have occurred on 28 June 1999. The respondent asserts that the Senior Member correctly stated that position in his reasons.
The respondent submits that, had the appellant contended that the need for the hearing aids was no longer as a result of that deemed injury, then different considerations may have applied. The respondent asserts that the appellant did not raise that argument before the Senior Member and its sole argument was that there was evidence that the respondent suffered a further hearing loss, and the last noisy employer was ACI Operations, which released the appellant of any responsibility. The respondent submits that the application of s 17 does not operate to absolve the appellant’s liability.
The respondent asserts that the appellant conflates the notions of giving notice of injury and making a claim. The respondent says that a notice of injury is required to be given only once, which may be accompanied by a notice of claim and following which further claims for various entitlements may be made, without limit.
The respondent maintains that he gave notice of injury coupled with a claim for compensation in June 1999, and subsequently made three claims for treatment expenses as a result of that injury, one of which is the subject of these proceedings. The respondent reiterates that, even though there is evidence of a deterioration in his hearing loss, which is suggestive of further injury, because no notice of injury has been given to the later employer, no claim for compensation can be made. The respondent says that the appellant’s case assumes that, in those circumstances, there is an obligation on a worker to give notice of injury. The respondent submits that there is no such obligation imposed by the legislation and the appellant’s argument is misconceived.
The respondent submits that there has never been any suggestion that the need for hearing aids is not reasonably necessary as a result of the 1999 injury. The respondent maintains that the requirements of s 9 and s 60 of the 1987 Act are satisfied and there is no basis upon which the appellant can deny the claim. The respondent submits that the special provisions about hearing loss claims contained within s 17 of the 1987 Act do not change that situation.

Ground Two

The appellant’s submissions

The appellant asserts that “causation” does not apply to claims for hearing loss, as defined in s 17 of the 1987 Act, and so questions of “material contribution” are not relevant. The appellant says that it is not necessary in a hearing loss claim to prove that the particular employment actually caused the injury. The appellant submits that all that is necessary is to show that the employment in which the worker was engaged was employment to the nature of which the hearing loss was due. The appellant says that it is an artificial determination of when an injury, or a further injury, has occurred. The appellant submits that the Senior Member misdirected himself by forming the view that the respondent was only required to establish that the injury “materially contributed” to the need for treatment, which was an error of law.

The respondent’s submissions

The respondent points out that the appellant had paid for two earlier sets of hearing aids and submits that the appellant did not argue that the hearing aids were not reasonably necessary as a result of the injury. The respondent adds that the medical evidence, discussed by the Senior Member at [90] of his reasons, supported the respondent’s claim.

Ground Three

The appellant’s submissions

The appellant refers to s 17(3) of the 1987 Act and contends that the Senior Member erred by considering that this section applied. The appellant asserts that the reference to “injury” is a reference to an injury as defined by s 17, which occurs at the time the worker gives notice of the injury. The appellant contends that no reasonable interpretation would allow “the injury” to be one that had not yet occurred.
The appellant adds that the phrase “before claiming or receiving that compensation” refers to an entitlement to compensation that had vested at the time the injury was deemed to have occurred. That is, at the time the employer was given notice of the injury. The appellant submits that a fair reading of the words does not demonstrate an intention that s 17(3) extend to a prospective entitlement to compensation that may or may not arise as a further injury yet to occur with a later employer.
The appellant submits that, alternatively, the respondent made his claim for compensation in 1999 and was paid his entitlement which renders any reliance on s 17(3) of the 1987 Act redundant. The appellant asserts that the phrase “before claiming or receiving compensation” does not extend to permitting an interpretation that the notice of injury given on 28 June 1999 affixed a date of injury on that date in circumstances where the respondent had worked for two subsequent employers in employment to the nature of which his hearing loss was due. The appellant submits that, in doing so, the Senior Member erred in law.

The respondent’s submissions

The respondent contends that the appellant has misconceived the operation of s 17(3), which clearly fixes liability to pay compensation in respect of an injury. The respondent further submits that there is no legal basis to assert that any reliance on s 17(3) of the 1987 Act was made redundant by the fact that the respondent made his claim for compensation in 1999 and was paid his entitlement.

Ground Four

The appellant’s submissions

The appellant submits that, while the Senior Member was correct to observe that the respondent had been prescribed technically advanced hearing aids, he was wrong to consider that the replacement hearing aids were akin to the provision of a prosthetic hip or knee. The appellant says that the Senior Member misdirected himself in respect of what he was required to decide.
The appellant adds that the Senior Member’s reference to the compensation paid for further hearing aids in 2010 and 2016 was irrelevant. The appellant submits that the injury in this case is defined by s 17, in the circumstances specified in that section, and is peculiar to that section. The appellant asserts that the Member’s “finding” may have been relevant had the respondent not been engaged in employment to the nature of which the injury was due subsequent to giving notice of injury on 28 June 1999.
The appellant maintains that the current claim for compensation arises from a further injury and thus it was not necessary to prove that the respondent’s further injury or the need for hearing aids arose from his employment with ACI Operations. The appellant submits that it was sufficient to establish that his employment was employment to the nature of which the hearing loss was due.
The appellant submits that the Senior Member, by referencing the need for hearing aids to that of the need for a prosthesis, misdirected himself and thus committed an error of law.

The respondent’s submissions

The respondent submits that, if his earlier submissions are accepted, then this ground of appeal is irrelevant

THE RELIEF SOUGHT

The appellant seeks to have the appeal upheld and an award entered in its favour. The respondent submits that the appeal should be dismissed.

CONSIDERATION

There was no dispute that the respondent suffered from hearing loss caused by a gradual process such that it constituted a hearing loss injury that fell within the provisions of s 17 of the 1987 Act. There was also no dispute that the respondent’s employment with the appellant was employment to the nature of which the injury was due (a “noisy employer”), in accordance with s 17 of the 1987 Act. The appellant makes certain observations about the application of s 17. The appellant is correct to say that the purpose of s 17 is to fix a date of injury so that the extent of the worker’s entitlements could be determined and is also to identify the employer liable to pay the compensation.
Section 17(1)(a) of the 1987 Act deems the injury to have occurred at the time when the notice is given if the worker is employed at that time by a noisy employer or, if the worker is not so employed, the deemed date of injury is the last day upon which he or she worked in noisy employment. Section 17(1)(c) provides that the employer liable to pay compensation is either the noisy employer who employed the worker at the time he or she gave notice of the injury (s 17(1)(c)(i)) or, if the worker gives notice of the injury when not so employed, the last noisy employer before that notice was given (s 17(1)(c)(ii)).
Thus, the entitlement to and liability for compensation within s 17 is undoubtedly fixed by the giving of notice of the injury. The only notice of injury given by the respondent was the notice of injury given to the appellant on 28 June 1999 which initiated the claim for lump sum benefits pursuant to s 66 and the former s 67 of the 1987 Act. The respondent made claims for hearing aids in 2010 and 2016, again against the appellant. Subsequently, he made further claims for hearing aids, firstly on 14 September 2020, citing the deemed date of injury as “2008”[30] and secondly on 23 October 2020, advising that the claim for hearing aids was based upon the prior hearing loss claim made in 1999.”[31] Both of those claims were directed to the appellant. Nothing was raised in the proceedings below about the effect, if any, of the claim made on 14 September 2020 which referred to a deemed date of injury in 2008, and which in any event was a date upon which the respondent was still in the employ of the appellant.
[30] ARD, p 1.
[31] ARD, p 17.
The appellant is also correct to say that the phrase “injury is a loss, or further loss” in s 17(1) contemplates that there can be more than one injury caused by gradual onset. In Sukkar, the party bringing the appeal argued that although s 17(1)(a) created a deemed date of injury, it did not create a new injury in the sense of a new pathology and, in relation to industrial deafness, each claim is in respect of the same pathology. In considering that submission, McColl JA said:
“It can be accepted that there is only one pathology underlying the appellant's hearing loss. However, the legislative fiction created by s 17 to facilitate a worker progressively claiming for further (i.e. increasingly severe) hearing loss operates, as was explained in Devine (at [41]), to deem the further loss of hearing to be an ‘injury’ for the purposes of the recovery of further permanent impairment compensation for hearing loss.
It was because the appellant's ‘further [hearing] loss’ was treated as an ‘injury’, separate to the ‘injury’ the subject of the 1996 claim, that the appellant was, subject to the amended s 66 of the 1987 Act, entitled to make a ‘claim’ for ‘permanent impairment compensation’.”[32]
[32] Sukkar, [75]–[76].
Sukkar, of course, involved a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of Mr Sukkar’s noise induced hearing loss. This claim involves a question of liability for the payment of treatment expenses. While Sukkar is relevant to a consideration of s 17 of the 1987 Act, the meaning of the phrase “injury is a loss, or further loss” in s 17(1) takes this matter no further. The respondent did not give notice of injury to his later employer and, while it is likely from the evidence that a further injury occurred, he did not claim against that employer for the cost of the hearing aids. The only “injury” pursued in these proceedings was the injury established by the application of s 17 of the 1987 Act and accepted by the appellant, which was the injury deemed to have been incurred on 28 June 1999. The task before the Senior Member was therefore to apply the applicable principles to the question of whether the appellant was liable to pay for the hearing aids.

Grounds One and Three

Grounds One and Three of the appeal both relate to the proper application of s 17 of the 1987 Act. It is convenient therefore to deal with both grounds together.
Ground One asserts error of law on the part of the Senior Member by finding that the appellant was the last employer who employed the respondent in employment to the nature of which the sensorineural hearing loss was due when the respondent gave notice of the injury on 28 June 1999. Ground Three asserts that the Senior Member again erred in law by finding that s 17(3) of the 1987 Act applied to this matter.
The Senior Member identified that one of the issues for determination was whether the appellant was the last noisy employer who employed the respondent in employment to the nature of which the injury was due in accordance with s 17(1)(a)(ii) of the 1987 Act. In his reasons, the Senior Member observed that the respondent’s evidence was that he was exposed to noisy employment with ACI Operations and that Dr Macarthur’s opinion was that employment with that organisation had the requisite “tendencies, incidents and characteristics” referred to in Lobley, and that the respondent’s hearing had deteriorated. The Senior Member considered the provisions of s 17 of the 1987 Act and the principles relevant to the application of the section stated by Sheller JA in Rico Pty Ltd and Roche DP in Devine and McGowan. These reasons disclose that the Senior Member was of the view that the respondent’s employment with ACI Operations would have satisfied the criteria in s 17 of the 1987 Act.
The Senior Member proceeded to note that, in the authorities referred to, a notice of injury had been given and, in this case, the only notice of injury was that given to the appellant on 28 June 1999, for which the appellant accepted liability and paid compensation. The Senior Member observed:
“Had the [respondent] served a notice of injury and made a claim for compensation on ACI Operations, then in accordance with s 17(1)(a)(i) and s 17(1)(c)(i) of the 1987 Act, the injury would be deemed to have happened when the notice was given to ACI Operations, and it would be liable to pay for hearing aids, even if the [respondent] was not entitled to receive lump sum compensation due to the threshold issue caused by s 66(1) of the 1987 Act.
Section 17 of the 1987 Act specifically refers to the giving of a notice of ‘injury’, rather than a ‘claim’ for compensation, and this establishes when the injury is deemed to have happened. Section 17(3) of the 1987 Act also provides that the compensation is payable by an employer as referred to in s 17(1)(c) of the 1987 Act, even if the worker commences employment with another noisy employer before he or she has claimed or received compensation.”[33]
[33] Thomas v Holcim (Australia) Pty Ltd [2021] NSWPIC 124, [91]–[92].
There is no error disclosed in the Senior Member’s observations. The reasoning acknowledges the presence of a later noisy employer, explains the significant difference between giving notice of injury and making a claim, and notes that no notice of injury, which was required in order to initiate the deeming provisions of s 17, had been given to the later employer. Further, the Senior Member specifically dealt with subs 17(3), which clearly articulates that the employer referred to in subs 17(1)(c), in this case the appellant, is liable notwithstanding that the worker has commenced employment with a later noisy employer, because the appellant is the employer to whom the notice of injury was given. On any ordinary reading of the legislation, the appellant in these proceedings is the entity to whom the notice of injury was given and is liable. There is no requirement in the legislation that compels the respondent to give a notice of injury to the later employer and s 17 is not concerned about actual causation of injury. As Kirby ACJ observed in Lobley:
“It would have been easy for Parliament to have assigned responsibility for hearing loss to the last employer whose employment had actually caused some hearing loss. Instead, Parliament chose a different criterion, namely by assigning liability to the employer, at the time of the notice of injury, to the nature of whose employment the injury was due.
There is an element of artificiality in s 17(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.”[34]
[34] Lobley, [56].
The Senior Member quoted from this passage in his reasons. The Senior Member’s ultimate conclusion was that the appellant was the last employer who employed the respondent in employment to the nature of which the sensorineural hearing loss was due when the respondent gave notice of the injury on 28 June 1999. This conclusion is undoubtedly correct. The notice of injury given in 1999 was the only notice of injury given and when it was given, the respondent was in the employ of the appellant. At the time the respondent made his further claim for hearing aids, he had commenced employment with ACI Operations, however, in accordance with s 17(3), the appellant remained liable for compensation in respect of that deemed injury.
The appellant asserts that if the legislation intended that a worker need give only one notice of injury in claims to which s 17 applies, the section would have contained a provision to that effect. I reject that submission. The legislation allows for further notices of injury to be given to later employers but does not oblige the worker to give a notice of injury to every employer. If the respondent was seeking lump sum compensation, he may very well have fallen into difficulties by not having proceeded against the later employer. His claim, however, was for s 60 expenses in the form of further hearing aids to replace those already provided in respect of the injury deemed to have occurred on 28 June 1999. In those circumstances, it was open to him to proceed as he did.
I further reject the appellant’s submission that subss 17(1)(a)(i) and 17(1)(a)(ii), being alternate provisions, support its assertion that the later employer is liable. The respondent was in the employ of the appellant when he gave notice of injury. Subsection 17(1)(a)(ii) does not apply because the respondent did not give notice of injury after he left the employ of the appellant.
I do not accept that the Senior Member erred in making the findings the subject of Grounds One and Three of the appeal, and those grounds fail.

Ground Two

The appellant asserts that the Senior Member misdirected himself by forming the view that the respondent was only required to establish that the injury “materially contributed” to the need for treatment, which was an error of law. The appellant asserts that “causation” does not apply to a hearing loss claim.
The appellant misapprehends the requirements of s 17 and s 60 of the 1987 Act. There is indeed no application of the test of causation of the injury in a hearing loss claim. The respondent’s injury, however, was established by agreement in 1999 in accordance with s 17, as well as his entitlement to compensation pursuant to ss 66 and 67 of the 1987 Act and his earlier s 60 expenses. The appellant denied liability for the third claim for hearing aids, not on the basis that it disputed the respondent suffered a hearing loss injury in 1999, but on the basis that the respondent had suffered a further injury with a later employer. The Senior Member’s findings in respect of those aspects of the dispute are discussed above. The Senior Member identified the further issues for determination, which were whether the provision of hearing aids was reasonably necessary and whether the respondent was liable to pay those treatment expenses in accordance with s 60 of the 1987 Act.
In determining whether the hearing aids were reasonably necessary in accordance with s 60 of the 1987 Act, the normal principles which are applicable to any claim for treatment expenses arising from an injury are relevant. The Senior Member discussed the relevant authorities and applied those principles. One of those authorities to which the Senior Member gave particular reference was my decision in Sekulovski, which involved a consideration of whether hearing aids were reasonably necessary in circumstances where the worker suffered from subsequent deteriorating hearing loss which was not attributable to the worker’s noisy employment. I applied the principles enunciated in Murphy and determined that the worker’s employment materially contributed to the need for the hearing aids. On appeal, the Court of Appeal found that there was no error in that approach.
The appellant’s complaint that the Senior Member erred by taking the same approach is therefore contrary to authority and without foundation. It follows that this ground of appeal fails.

Ground Four

The appellant asserts that the Senior Member erred in law by finding that the supply of replacement hearing aids was akin to seeking revisionary procedures in respect of hip or knee replacements. The appellant contends that the fact that the appellant had met the cost of hearing aids in 2010 and 2016 was irrelevant. The appellant says that it may have been relevant if the respondent had not engaged in noisy employment after ceasing work with the appellant. The appellant asserts that the claim now made by the respondent arises from a further injury in accordance with s 17 of the 1987 Act.
The question of whether the respondent suffered a further injury in accordance with s 17 is discussed above. No further injury is established until the respondent lodges a further notice of injury. Until that occurs, liability for the treatment expenses rests with the appellant if the respondent can establish that the hearing aids are reasonably necessary. The evidence establishes that:
(a)    in 1999, Dr Scoppa assessed the respondent’s binaural hearing loss as 16.8%, which, in his view, was attributable to noisy employment with the appellant. Dr Scoppa noted that the respondent benefitted from hearing aids;
(b)    in 1999, Dr Carroll could not identify any other cause for the respondent’s sensorineural deafness, other than industrial noise exposure, and assessed the respondent’s hearing loss as 12.94%, although he did not consider hearing aids necessary at that stage, and
(c)    in a report dated 6 April 2021, Dr Macarthur advised that the binaural hearing loss of 14.8% recorded in the agreement reached in 1999 was more than sufficient to warrant the provision of hearing aids, which he believed to be reasonably necessary.
The evidence was supportive of the provision of hearing aids in order to address the respondent’s hearing loss in 1999, agreed to be 14.8%. There was, therefore, evidence to support the Senior Member’s conclusion that the deemed injury on 28 June 1999 materially contributed to the need for hearing aids, and the provision of hearing aids was reasonably necessary as a result of the injury deemed to have occurred on 28 June 1999.
The appellant asserts that the Senior Member misdirected himself by likening the need for replacement hearing aids to that of requiring a replacement prosthesis. The appellant puts forward no explanation as to why that is the case and no submission as to where the error lies when the test of “material contribution” applies. In any event, the Senior Member’s comment does not go so far as to have any effect his ultimate conclusion and no error is apparent. The ground of appeal fails.

CONCLUSION

The appellant’s appeal fails and the Senior Member’s Certificate of Determination is confirmed.

DECISION

The Senior Member’s Certificate of Determination dated 18 May 2021 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

13 December 2021