Jennison v Secretary, Department of Education - [2024] NSWPIC 330

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jennison v Secretary, Department of Education [2024] NSWPIC 330
APPLICANT:	Georgina Elizabeth Jennison
RESPONDENT:	Secretary, Department of Education
MEMBER:	John Turner
DATE OF DECISION:	24 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 17 and 60; alleged hearing loss due to noise exposure; claim for hearing aids pursuant to section 60; dispute as to noisy employer and that hearing aids are reasonably necessary treat as the result of an injury; Blaney Shire Council v Lobley, McGowan v Secretary, Department of Education and Communities, Dawson and others trading as The Real Crane Syndicate v Dawson, Murphy v Allity Management Services Pty Ltd cited; Held – that the applicant has sustained injury in the form of noise induced hearing loss; that the applicant was employed by the respondent in employment to the nature of which the injury, noise induced hearing loss, is due for the purposes of section 17(1)(a)(ii); that the supply and fitting of binaural hearing aids to the applicant is reasonably necessary as a result of injury, noise induced hearing loss; the injury has materially contributed to the need for hearing aids; the respondent pursuant to section 60 to pay the costs of the supply and fitting of binaural hearing aids in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant has sustained injury in the form of noise induced hearing loss. 2. That the applicant was employed by the respondent in employment to the nature of which the injury, noise induced hearing loss, is due for the purposes of s 17(1)(a)(ii) of the Workers Compensation Act 1987. 3. That the supply and fitting of binaural hearing aids to the applicant is reasonably necessary as a result of injury, noise induced hearing loss. The injury has materially contributed to the need for hearing aids. The Commission orders: 4. The respondent pursuant to s 60 of the Workers Compensation Act 1987 to pay the costs of the supply and fitting of binaural hearing aids in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.

STATEMENT OF REASONS

BACKGROUND

Georgina Jennison, the applicant, was employed by the respondent as a high school teacher by the Secretary, Department of Education, the respondent. The applicant commenced her career as a high school teacher in 1974, retiring in about 2015.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which she alleges that she sustained injury on the deemed date of 26 January 2015. The applicant alleges that she sustained injury due to exposure to loud industrial noise over a period of time in the workplace.
The claim for compensation in these proceedings is confined to the costs of the provision and fitting of bilateral hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) the respondent disputes that the alleged injury…

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 Jennison v Secretary, Department of Education

Details

AGLC: Jennison v Secretary, Department of Education [2024] NSWPIC 330
Case: [2024] NSWPIC 330
Decision Date: 24 June 2024

CaseChat Overview and Summary

The case of Jennison v Secretary, Department of Education involves a claim for workers' compensation related to alleged hearing loss due to noise exposure during employment. The applicant, Jennison, sought compensation for the supply and fitting of binaural hearing aids under the Workers Compensation Act 1987. The dispute centred on whether the employer, the Secretary of the Department of Education, was liable for the noise exposure that caused the hearing loss and whether the provision of hearing aids was reasonably necessary as a result of the injury. The matter was heard in the relevant court, which had to decide on the merits of the claim.

The court was tasked with determining several legal issues. Firstly, it had to ascertain whether the applicant had sustained an injury, specifically noise-induced hearing loss, as a result of their employment. Secondly, it needed to decide if the employer was responsible for the noise exposure that led to the injury. Thirdly, the court had to consider whether the provision of binaural hearing aids was reasonably necessary as a consequence of the injury and if the injury materially contributed to the need for such aids. The court examined relevant case law, including Blaney Shire Council v Lobley, McGowan v Secretary, Department of Education and Communities, Dawson and others trading as The Real Crane Syndicate v Dawson, and Murphy v Allity Management Services Pty Ltd, to inform its decision.

In its judgment, the court found that the applicant had indeed sustained an injury in the form of noise-induced hearing loss, which was a result of their employment. The court concluded that the nature of the employment exposed the applicant to noise levels that caused the hearing loss, satisfying the criteria of section 17(1)(a)(ii) of the Workers Compensation Act 1987. The court also determined that the supply and fitting of binaural hearing aids were reasonably necessary as a result of the injury, and that the injury materially contributed to the need for such aids. Consequently, the court held that the employer was liable to pay the costs of supplying and fitting the hearing aids, in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.

The final orders of the court directed the respondent to pay the costs associated with the supply and fitting of binaural hearing aids to the applicant. The respondent was to adhere to the fees specified in the Workers Compensation (Hearing Aid Fees) Order. This decision underscores the importance of employers ensuring safe working environments to prevent occupational injuries and the legal obligations to provide necessary treatment for such injuries.

Orders