Moussa v Jeld-Wen Australia - [2024] NSWPIC 486

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moussa v Jeld-Wen Australia & Anor [2024] NSWPIC 486
APPLICANT:	Elias Moussa
RESPONDENT:	Jeld-Wen Australia, Ventora Group Pty Limited
MEMBER:	Diana Benk
DATE OF DECISION:	2 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for whole person impairment relating to industrial deafness; self-insurer seeking apportionment with reference to sections 22 and 22A claiming there are two dates of injury relative to the industrial deafness claim (section 17); Held – section 22 does not apply to industrial deafness claims and there cannot be two injurious events for such claims and so apportionment cannot be enlivened; authorities of Edmed, Turton and Kolak have no application to the present case.
DETERMINATIONS MADE:	The Commission determines: Findings 1. The applicant suffers industrial deafness as a result of exposure to noisy employment. 2. The deemed date of injury is 17 June 2020 and the self insurer is liable for any compensation payable. Orders 3. The medical dispute is remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment as a result of injury as follows: Body parts: binaural hearing loss Method of assessment: whole person impairment. Date of injury: 17 June 2020. Documents: Application to Resolve a Dispute and attachments, and Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

This matter has a long and unnecessarily complicated history.
In short, Mr Moussa (the applicant) was employed as a labourer for JELD-WEN Australia Pty Ltd (the respondent) as a window assembler between 1989 and 2020. Three insurers were on risk during this period, relevantly QBE,[1] GIO,[2] and then the respondent was self insured.[3]
[1] On risk between 1 January 2012 to 31 December 2012.
[2] On risk between 1 January 2013 to 31 December 2013.
[3] On risk between 1 January 2020 to 31 December 2020.
I understand that QBE/GIO paid for hearing aids following a claim made by the applicant where the deemed date of injury was 27 July 2012. No claim for lump sum compensation was made at that time.
On 8 December 2021, the applicant claimed lump sum compensation with respect to 11% whole person impairment (hearing loss) with the deemed date of injury recorded as
17 June 2020 (his last day of employment). The applicant underwent independent assessment by the respondent’s qualified specialist on behalf of the self insurer who considered the applicant has sustained a degree of hearing loss arising from noisy employment, however as the loss was assessed below threshold, no offers were made in response to the claim.
The applicant had commenced proceedings in the Personal Injury Commission (Commission) (differently constituted) which I understand were discontinued as the self insurer indicated a need to join previous insurers to the proceedings to which the applicant acquiesced.
Proceedings were recommenced with all insurers joined. In the ordinary course of events, given that there is no dispute about liability, the matter would have bypassed conferencing and promptly diverted to the medical assessment stream in…

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: [2024] NSWPIC 486
Decision Date: 2 September 2024

CaseChat Overview and Summary

The case of Moussa v Jeld-Wen Australia involved the claimant, Moussa, who brought a claim for compensation related to industrial deafness against Jeld-Wen Australia, a self-insurer. The dispute centred around whether the Workers Compensation Act 1987 permitted apportionment of liability for the claim of whole person impairment due to industrial deafness, considering two separate dates of injury. The matter was heard in the Queensland Industrial Relations Commission. The self-insurer argued that section 22 of the Act should apply, allowing for apportionment of liability based on the two distinct injurious events.

The primary legal issue was whether section 22 of the Workers Compensation Act applied to claims of industrial deafness and if it was permissible to consider multiple dates of injury for such claims. Moussa contended that the legislation did not support apportionment for industrial deafness, while Jeld-Wen Australia sought to rely on the provisions of sections 22 and 22A. The court had to determine whether the legislative framework allowed for apportionment and if the cases of Edmed, Turton, and Kolak, which dealt with apportionment in different contexts, were applicable.

The Commission found that section 22 of the Workers Compensation Act did not apply to industrial deafness claims. It held that such claims could not be apportioned based on multiple dates of injury. The court ruled that the statutory provisions did not permit two injurious events for industrial deafness claims, and thus, apportionment could not be enlivened. The cases of Edmed, Turton, and Kolak were deemed inapplicable as they did not address the specific nature of industrial deafness claims under the Workers Compensation Act.

The final orders of the Commission were that the claim for whole person impairment due to industrial deafness could not be apportioned between two dates of injury. The self-insurer, Jeld-Wen Australia, was not entitled to apportionment of liability for the claim in question.

Orders