Lauda Enterprises Pty Ltd v Akkanen

[2010] NSWWCCPD 91

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Lauda Enterprises Pty Ltd v Akkanen [2010] NSWWCCPD 91
APPELLANT:		Lauda Enterprises Pty Ltd
RESPONDENT:		Laurie Akkanen
INSURER:		GIO General Ltd
FILE NUMBER:		A1-1758/10
ARBITRATOR:	Mr G Charlton
DATE OF ARBITRATOR’S DECISION:		12 May 2010
DATE OF APPEAL DECISION:		24 August 2010
SUBJECT MATTER OF DECISION:		Boilermaker’s deafness; whether impairments from separate claims can be aggregated to meet the threshold for compensation for pain and suffering in section 67 of the Workers Compensation Act 1987; section 322 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Moray & Agnew
Respondent:	Frisina Lawyers
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 12 May 2010 is confirmed save that paragraph 1 is amended to delete Allianz Australia Workers Compensation (NSW) Limited and insert GIO General Ltd. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

1. This appeal raises the question of whether a worker can combine impairments from sensorineural hearing losses that have resulted from separate periods of noise exposure to reach the threshold to recover compensation for pain and suffering in section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

BACKGROUND

1. The respondent worker, Mr Akkanen, worked as a builder for the appellant employer, Lauda Enterprises Pty Ltd, from 1979 until he retired in February 2006. In the course of his employment, he was exposed to loud noise generated by plant and equipment.

2. In 1995, he claimed compensation for noise-induced hearing loss as a result of his employment. The appellant employer’s insurer settled that claim on 11 April 1996 in the sum of $10,535.40 for an agreed 12 per cent binaural hearing loss. Applying Table 9.1 of the WorkCover Guides to the Evaluation of Permanent Impairment (‘the WorkCover Guides’) that loss equals a six per cent whole person impairment.

3. On 30 October 2009, Mr Akkanen made a claim for further noise-induced hearing loss. He relied on a report from Dr Scoppa, ear, nose and throat physician, dated 17 September 2009. Dr Scoppa assessed the worker to have a total binaural hearing impairment of 28.4 per cent. After adjustment for hearing loss not due to industrial deafness, and for presbycusis, Dr Scoppa assessed Mr Akkanen to have a total binaural hearing impairment due to industrial deafness of 22 per cent (an 11 per cent whole person impairment under Table 9.1).

4. After noting the terms of settlement from 11 April 1996, and after applying the WorkCover Guides, Dr Scoppa calculated that Mr Akkanen had “sustained a further loss of 5% [whole person impairment] since his last claim due to industrial deafness”. The insurer has paid the section 66 compensation due for that five per cent impairment.

5. The dispute is whether Mr Akkanen is entitled to compensation for pain and suffering under section 67.