Lauda Enterprises Pty Ltd v Akkanen
[2010] NSWWCCPD 91
•24 August 2010
| 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
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
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.
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.
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).
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.
The dispute is whether Mr Akkanen is entitled to compensation for pain and suffering under section 67.
He will only have such an entitlement if he has received “an injury that results in a degree of permanent impairment of 10 per cent or more” (section 67(1)). He will only have a 10 per cent impairment if the six per cent impairment from his 1996 settlement can be combined with the five per cent impairment from his 2006 settlement. The appellant employer’s insurer has asserted that Mr Akkanen is not entitled to “combine previous section 66 sums to exceed the section 67 threshold”.
The Commission listed the matter for conciliation and arbitration on 30 April 2010. The matter proceeded with oral submissions, but the Arbitrator heard no oral evidence.
In a reserved decision delivered on 12 May 2010, the Arbitrator determined that Mr Akkanen had received one injury, namely, boilermaker’s deafness, which resulted in a whole person impairment of 11 per cent. As that impairment exceeded the threshold in section 67, he was entitled to recover compensation for pain and suffering under that section.
The Commission issued a Certificate of Determination on 12 May 2010 in the following terms:
“The Commission determines:
1. That the Respondent entered into a contract of insurance with Allianz Australia Workers Compensation (NSW) Limited for the Respondent’s liability to the Applicant under the Workers Compensation Act 1987, and that the Respondent is a corporation that has ceased to exist but has not commenced to be wound up within the meaning of s162(1)(b) of that Act.
2. That, as the Parties have agreed on the extent of further hearing loss, the Respondent pay to the Applicant $6,250.00 as lump sum compensation under section 66 of the Workers Compensation Act 1987, in respect of a further 5% permanent impairment assessed as a percentage of whole person, attributable to the injury of 15 February 2006 (deemed date).
3. That the Respondent pay to the Applicant $8,750.00 as lump sum compensation in respect of pain and suffering under section 67 of the Workers Compensation Act 1987.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.
5. That the matter is certified as complex, with the Applicant entitled to an increase of 10%, and the Respondent an increase of 10%, in respect of item F of Table 1.”
In an appeal filed on 9 June 2010, the appellant employer seeks leave to challenge the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appellant employer lodged the appeal within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) 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 without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, 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.
ISSUE IN DISPUTE
The issue in dispute is whether the Arbitrator erred in determining that Mr Akkanen had satisfied the 10 per cent threshold in section 67 of the 1987 Act.
THE ARBITRATOR’S REASONS
After summarising the parties’ submissions, the Arbitrator concluded that:
(a)section 17 of the 1987 Act is procedural in nature “rather than substantive in determining injury to the worker” (Reasons at [18]);
(b)the term “injury” in section 4 of the 1987 Act means “both the [injurious] event and the pathology arising from it” (Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (‘Lyons’);
(c)though Mr Akkanen had a “loss of hearing and a further loss of hearing”, he only suffered “from one injury, namely boilermaker’s deafness” (Reasons at [19]);
(d)though the concept of Mr Akkanen suffering separate losses by reason of the operation of section 17 still remained, the 2001 amendments rendered such concept of little, if any, effect;
(e)Mr Akkanen suffered “one pathology and so one injury, namely boilermaker’s deafness” (Reasons at [21]). Dr Scoppa “reached an assessment based on s 322(2) and found a whole person impairment of 11%” (Reasons at [21]). After taking into account the previous award, the insurer agreed that Mr Akkanen suffered a further whole person impairment of five per cent, and
(f)having received an injury which resulted in a degree of permanent impairment of 10 per cent or more within the meaning of section 67, Mr Akkanen was entitled to an award for pain and suffering. There was no “aggregation of the previous award and the ‘further loss’, as applied until 31 December 2001” (Reasons at [22]). The 2001 amendments rendered decisions relied upon by the appellant employer of “historical interest”.
SUBMISSIONS, DISCUSSION AND FINDINGS
The appellant employer relied upon the decisions of Neilson CCJ in Carroll v Forgacs Floating Dockyard Pty Ltd (2000) 19 NSWCCR 577; [2000] NSWCC 1 (‘Carroll’), and by Armitage CCJ in Marangoni v Grocon Pty Ltd (2000) 19 NSWCCR 577 and Pickles v Staples Waste Removals Pty Ltd & another (2000) 20 NSWCCR 729 (‘Pickles’). Those cases considered the effect of the repeal of section 71 of the 1987 Act.
That section provided:
“(1) If:
(a) compensation has been paid or becomes payable under this Division (or section 16 of the former Act) for a loss, being:
(i) the loss of a proportion (but not all) of a thing; and
(ii) an occupational disease; and
(b) the worker suffers a further loss of that thing,
compensation is payable under this Division for the further loss, but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable.
(2) Any such further losses may be taken into account for the purpose of determining whether compensation is payable for pain and suffering because of the operation of section 67(2).
(3) In this section:
‘occupational disease’ means:
(a) loss of hearing due to boilermaker’s deafness or any deafness of a similar origin;
(b) total or partial loss of sight which is of gradual onset; or
(c) any disease which is of such a nature as to be contracted by a gradual process.”
In Carroll, Neilson CCJ stated (at [8]):
“The repeal of s 71(2) and the failure of Parliament to enact any similar provision, prima facie, indicate an intention that a worker cannot agglomerate two or more losses to cross the s 67 threshold.”
His Honour continued (at [14]):
“Industrial deafness can therefore be seen as a series of minor traumata, deemed to be a disease of gradual onset, which is deemed to occur at a specific time. Industrial deafness is not ‘continuous’. Additional deafness will only occur if a worker is exposed to noise of a sufficient loudness to induce the condition. In the present matter, if the applicant had not worked in a ‘noisy employment’ after 18 November 1988 he would not have increased the level of his deafness from 13.1% to 17.2%. The applicant did not suffer a 17.2% loss of binaural hearing for which the respondent is liable, but rather only a 4.1% further loss of binaural hearing.”
His Honour then distinguished Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 on the ground that, in that case, he made a factual finding that the worker had one impairment and one loss resulting from two injuries. In Carroll, he determined that the worker had two losses—an original 13.1 per cent loss of binaural hearing, and a 4.1 per cent further loss of binaural hearing.
The appellant employer submitted that, consistent with Carroll, Mr Akkanen’s subsequent exposure to noise gave rise to a “separate and distinct injury” which has not been addressed by the amendments to the 1998 Act. As the 1987 Act deems there to be two injuries, they are to be treated “separately and distinctly” in the absence of an enabling provision such as the repealed section 71 of the 1987 Act.
In Pickles, Armitage CCJ held that, by operation of section 17 of the 1987 Act, where a worker was compensated under the Act for boilermaker’s deafness, as a result of claims made at different times, different losses as well as different injuries were deemed to have occurred at those times by the operation of section 17(1) of the 1987 Act. It was submitted that his Honour drew a clear distinction between the “injury/pathology” discussed in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’).
It was further submitted that, given the operation of section 17, there is a clear definition of “injury” and when “injury” occurs. For these reasons, the decision of Edmed has limited application.
Finally, the appellant employer submitted that, in the absence of any clear statutory provisions in the terms of the former section 71, a worker is not entitled to aggregate hearing losses arising from separately assessed dates of injury.
Whilst I accept that Mr Akkanen’s hearing loss has resulted from two separate and distinct periods of exposure to noise, one up to 1996 and one up to February 2006, and, in that sense, has experienced two injurious events, I do not accept that his impairments cannot be assessed together for the purposes of determining if he meets the threshold in section 67.
The appellant employer’s submissions have overlooked the fact that the amendments that introduced Chapter 7 to the 1998 Act in January 2002 introduced an entirely new regime for the assessment of claims for lump sum compensation. Instead of being compensation for “the loss of a thing”, workers who receive “an injury that results in permanent impairment” (section 66(1)) are entitled to receive compensation for that permanent impairment. A worker who has received “an injury that results in a degree of permanent impairment of 10% or more is entitled to receive” compensation for pain and suffering (section 67(1)).
The appellant employer’s argument is that the only relevant injury Mr Akkanen received was the injury deemed to have happened in 2006 and for which he was assessed to have a five per cent whole person impairment. That argument has ignored the effect of section 322 of the 1998 Act, introduced in the 2001 amendments.
Section 322 provides:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
I considered that section in Edmed. In particular, I considered the definition of “injury” in section 4 of the 1987 Act. That definition provides:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) ...”
I said (at [26] and [27]) of Edmed:
“26. This definition is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident...’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
27. The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”
The Commission has applied the above principles in Kolak v Hunani Pty Ltd and anor [2008] NSWWCCPD 60, NSW Fire Brigades v Turton [2008] NSWWCCPD 66, Central West Group Apprentices Ltd v Barrett [2008] NSWWCCPD 137, Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35 and Cemco (Australia) Pty Ltd t/as Carrall’s Engineering & Mining v Carrall [2009] NSWWCCPD 76. I intend to apply them in the present matter.
Courts must interpret words in the context of the legislation in which they appear (OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155). The Commission must read section 322 in the context of the legislation as a whole having regard to the purpose of all the provisions in the statute (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198). The purpose of the legislation is to provide compensation to workers injured in certain defined circumstances.
Workers compensation legislation is beneficial legislation. Entitlements under that legislation should not depend on “distinctions which are too nice” (per Mahony JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765). At the same time, however, the principle that beneficial legislation should be given a liberal construction does not entitle the Commission to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer & ors [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J).
For the purposes of section 322(2), the question is whether the impairments concerned have resulted from the “same injury”. Mr Akkanen’s injury was described in Part 4 of the Application as “boilermaker’s deafness”. Dr Scoppa described the injury/condition as industrial hearing loss, bilateral sensorineural hearing loss, and/or industrial deafness. The WorkCover Guides refer to the condition as “total binaural hearing impairment due to industrial deafness”.
For the reasons explained in Edmed, in the context of the legislation, “same injury” in section 322 means the same pathology or same pathological condition. The pathological condition in the present case is sensorineural hearing loss due to industrial noise. Whatever term is used to describe it, it is clear that Mr Akkanen received the “same injury” in 2006 as he did in 1996, that is, sensorineural hearing loss due to exposure to noise in the course of his employment.
That pathological condition was unarguably the same in 2006 as in 1996, even though it resulted from an additional injurious event, namely, exposure to additional noise. It follows that the impairments from the “same injury” (sensorineural hearing loss) are to be assessed together. That is, the six per cent impairment from 1996 is to be “assessed together” with the five per cent impairment from 2006 giving an 11 per cent impairment that has resulted from the “same injury”. In other words, as a result of the injury of sensorineural hearing loss, Mr Akkanen has an 11 per cent impairment.
The same reasoning applies to section 67(1) of the 1987 Act. Mr Akkanen received “an injury”, namely, sensorineural hearing loss caused by exposure to noise over many years. That his injury resulted from two separate periods of noise exposure and was the subject of two separate claims with two deemed dates of injury under section 17 of the 1987 Act does not detract from the fact that he only suffered one injury or pathological condition. It is trite law that a loss can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]).
This interpretation is logical and consistent with the clear intention of the legislation, namely, that impairments from the “same injury” (same pathological condition) (section 322(2)), or from the “same incident” (injurious event) (section 322(3)), are to be “assessed together” to assess the worker’s degree of permanent impairment.
It is also consistent with the decision of Basten JA (Gyles AJA and Hoeben J agreeing) in Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 (‘Serna’). In that case, the question was whether the worker had satisfied the 15 per cent threshold to recover work injury damages in section 151H of the 1987 Act. The worker received a psychological injury as a result of two robberies in the course of her employment: one on 29 May 1999 and the other on 2 July 1999. An Approved Medical Specialist (‘AMS’) assessed the worker to have a 15 per cent whole person impairment as a result of “this injury”. The AMS made no apportionment between the two assaults. The employer argued that the assessment was either invalid or demonstrated on its face that there were two injuries, neither of which, assessed separately, could have reached 15 per cent of permanent impairment, since they only reached that figure in combination (Basten JA at [17]).
Basten JA referred to Woolage v State of New South Wales [2001] NSWCA 256 and Leppinton Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 (‘Juweinat’). In Juweinat, the worker had been injured as a result of three separate lifting incidents. The employer argued that, if there were three incidents, there were three causes of action and damages had to be assessed separately in respect of each one. In rejecting that submission, Davies JA (Stein JA and Forster AJA agreeing) said (at [23]) that the worker “was entitled to claim as the injury for which he sought compensation the condition which resulted from the three incidents in the appellant’s employment” (emphasis added).
The employer in Serna challenged the approach in Juweinat on grounds virtually identical to those argued by the appellant employer in the present matter. It argued that, under the 1987 Act, an injury was to be identified by reference to a particular incident and that, at least for the purposes of section 151H of the 1987 Act, an employee could not “accumulate the consequences of separate incidents so as to satisfy the [15 per cent threshold], below which a claim must fail” (Basten JA at [21]). His Honour acknowledged that, if that analysis was to operate, it must do so in some circumstances but not others. His Honour observed (at [22]) that there would “undoubtedly be injuries, falling within the definition of ‘injury’ in s 4 of the [1987] Workers Compensation Act, which do not arise from a specific incident or event”, but may result from exposure to work conditions over time.
His Honour added (at [24]) that the threshold requirement that had to be satisfied before a claim for damages could be made was “identified by reference to the degree of permanent impairment of the injured worker”. The impairment results “from an injury”. After setting out section 151H, his Honour said (at [27]) that “impairment” was “also a state or condition that may result from more than one injury or may itself contain multiple forms”. After setting out sections 322 and 323, and noting that “impairment” was not defined in either the 1987 Act or the 1998 Act, his Honour said (at [29]):
“29 This statutory scheme is consistent with both an injury and an impairment having multiple causes and an injury being the result of a course of conduct. Where, either under the general law or pursuant to the statute, it is necessary to apportion liability or responsibility for a particular injury, that will be done, in the absence of contrary statutory prescription, according to general law principles: see, eg, Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 at [35] (Handley JA). There is no principle of general law or statutory provision which would suggest that a certificate identifying an injury resulting from more than one event or incident was, for that reason, invalid. The certificate might be subject to appeal or review because the reasons given by the assessor demonstrate legal error or, possibly, factual error. However, no such claim is supportable in the present circumstances.”
His Honour concluded that the appellant had not made out a basis for rejecting the Approved Medical Specialist’s certificate.
The principles discussed in Serna are applicable in the present matter. Those principles establish that, consistent with the approach in Edmed, an injury and an impairment can have multiple causes. It would be illogical and unacceptable for there to be one approach to the threshold for work injury damages in section 151H and a different approach to the threshold for pain and suffering compensation in section 67.
I do not believe any of the authorities upon which the appellant employer has relied are directly applicable to the present claim. They were all decided before the introduction of the new regime for lump sum compensation in Chapter 7 of the 1998 Act. It is undoubtedly correct, as Neilson CCJ observed in Carroll, that a further hearing loss does not arise unless there is a further exposure to noise. That supports the argument that a further hearing loss results from a separate injurious event, namely the micro traumata that results from repeated exposure to loud noise over time. However, that does not detract from the clear meaning of “same injury” in the context of section 322(2), or the reasoning in Serna. Though section 322 has not used the same wording as the former section 71(2) of the 1987 Act, its effect is the same: impairments from the “same injury” (pathological condition) are to be “assessed together”.
The above conclusion is consistent with the beneficial nature of the legislation and avoids an obvious anomaly that would arise if the appellant employer’s argument were upheld. Consider the situation of two workers whose employment has exposed them to the same consistent noise over the same 20-year period. Assume that both have the same whole person impairments as a result of sensorineural hearing loss due to industrial noise (say 12 per cent) over 20 years. If one brought two separate claims, the first after 10 years of exposure for six per cent impairment and the second after a further 10 years for a further six per cent impairment, then, on the appellant employer’s argument, he or she would have no entitlement to compensation for pain and suffering. If the second worker brought only one claim at the end of his or her working life, then that worker’s impairment would be assessed at 12 per cent and he or she would recover compensation for pain and suffering. There is no reason in logic or principle why that should be so. Both have received the “same injury”, sensorineural hearing loss due to exposure to noise at work. Both are entitled to have their compensation assessed on the same basis. That is exactly what is required by section 322(2) in cases where impairments have resulted from the “same injury”.
CONCLUSION
It follows that Mr Akkanen is entitled to have his impairments of six per cent in 1996 and five per cent in 2006 “assessed together”. Once that is done, it is clear that he received “an injury” (sensorineural hearing loss) that has resulted in a degree of permanent impairment of 11 per cent and that he is entitled to compensation for pain and suffering under section 67. As neither side has challenged the quantum of the Arbitrator’s award under section 67, that award is confirmed.
DECISION
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.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
24 August 2010
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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