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…

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.

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Details

Case: [2021] NSWPICPD 46
Decision Date: 13 December 2021

CaseChat Overview and Summary

The case between Holcim (Australia) Pty Ltd and Thomas was heard in the Workers Compensation Commission of New South Wales. The dispute centred on whether Thomas's employment with Holcim materially contributed to his need for further hearing aids, as required by section 17 of the Workers Compensation Act 1987. This section mandates that an employee must provide notice of any further injury to their employer, and in this instance, the issue was whether the need for further hearing aids constituted such an injury.

The court was required to determine if the employment materially contributed to Thomas's need for additional hearing aids. This involved examining the evidence regarding the causation and contribution of his employment to the deterioration of his hearing. The legal precedent of Sukkar v Adonis Electrics Pty Ltd was considered, as well as the case of Blayney Shire Council v Lobley. Additionally, the decision in Bluescope Steel (AIS) Pty Ltd v Sekulovski was discussed and applied to assess the contribution of the employment to the hearing loss.

The court found that the employment did materially contribute to Thomas's need for further hearing aids. The reasoning was based on the evidence presented regarding the noise levels in the workplace and the length of Thomas's exposure to these conditions. The court applied the precedent set in previous cases to conclude that the employment had indeed contributed to the hearing loss, thus fulfilling the requirement under section 17 of the Act. The court ordered Holcim (Australia) Pty Ltd to provide the necessary compensation for the further hearing aids.

Orders