Moussa v Jeld-Wen Australia

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 line with the Commission’s efficient case management Pathways.
The Pathway was subject to a detour when the self insurer requested a determination on apportionment, maintaining that there are two injurious events requiring apportionment with reference to ss 22 and 22A of the Workers Compensation Act 1987 (the 1987 Act).
As a result a preliminary conference was convened. The applicant was represented by
Mr Necovski of counsel instructed by Mr Ton. QBE/GIO were represented by Ms Hose and the self insurer was represented by Mr Murray.
At the preliminary conference, the applicant took a back seat as the epicentre of the dispute was confined to apportionment between the insurers, the subject of much robust and exhaustive discussion ultimately meeting impasse. In the interests of procedural fairness, I timetabled the provision of submissions to ensure all were given a full opportunity to respond to the apportionment argument/debate, following which it was agreed the matter would be remitted to the medical assessment Pathway.
In considering the matter I had regard to the;
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    written submissions filed by both insurers and the applicant.

SUBMISSIONS

In written submissions the self insurer advanced;
(a)    liabilities has been accepted however a medical dispute exists with respect to the level of whole person impairment that will ultimately need to be addressed by a Medical Assessor;
(b) there is one injury resulting (industrial deafness) resulting from two injurious events (as deemed by s 17 of the 1987 Act);
(c) the self insurer is not seeking a contribution as s 17 does not allow this occur, as there is only one employer, hence no ability to obtain a contribution from the earlier ‘noisy’ employers;
(d) the self insurer seeks apportionment with reference to ss 22 and 22A of the 1987 Act as where compensation is payable in respect of more than one injury, I should apportion liability against each ‘injury’, consistent with the decision of Barnes;[4]
(e) there can be no dispute when applying the terms of s 17 of the 1987 Act that the notional date of injury is to be fixed as at 27 July 2012, when the worker gave notice of his injury and when GIO were on risk;
(f)    there can be no dispute that the worker submitted a notification in respect of a further loss of hearing on 17 June 2020, at which time the respondent was self insured;
(g)    there are two relevant dates of injury, being 27 July 2012 and 17 June 2020;
(h) that the worker suffers one injury for the purposes of s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) being hearing loss/industrial deafness;
(i) that the contention by GIO that only one date of injury can be fixed pursuant to s 17 is incorrect as s 17 contemplates a scenario where there is more than one relevant injury and/or date of injury, and
(j) the matter is to be assessed in two stages. The first stage is to determine the dates of injury, which are unarguably 27 July 2012 and 17 June 2020. The second stage is to conclude that the one impairment results from two injuries events, resulting in the one assessment of impairment, referrable to both dates of injury, with any compensation paid capable of apportionment with reference to s 22 of the 1987 Act.
[4] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35.
In written submissions, GIO/QBE submitted;
(a) section 22 of the 1987 Act and s 322 of the 1998 Act cannot apply to claims for industrial deafness as it is specifically legislated by s 17 of the 1987 Act and so findings cannot be apportioned and/or aggregated between separate dates and insurers;
(b) there cannot be two “injurious events” in a claim for industrial deafness and the self insurer has not referred to any authority to discount the existing body of case law and commentary on s 17 of the 1987 Act that each claim for industrial deafness, even further claims, are deemed to be a new injury with one impairment assessment;
(c) the cases of Barnes upon which the self insurer relies is irrelevant as it does not relate to a claim for industrial deafness;
(d) by operation of s 17 of the 1987 Act GIO/QBE should be released from these proceedings with a finding that the self insurer is liable for any impairment arising out of injury on 17 June 2020 (deemed), and
(e) the authority of Sukkar[5] rebuts the contentions of the self-insurer.
[5] Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459.
Both respondents also made submissions in relation to ss 78 and 289A of the 1998 Act, which given my ultimate conclusions were not explored.
The applicant submitted;
(a) The period of employment with the respondent was 31 years. There is no dispute the respondent is a noisy employer;
(b) prior to 17 June 2020, the applicant had not made any claims for lump sum compensation;
(c) an appropriate reading of s 17 of the 1987 Act reveals it is concerned with the issue of whether the injury is a “loss” of hearing. As at 2012, there was no “loss” suffered by the applicant because he did not make a claim pursuant to s 66 of the 1987 Act. The treatment he received does not constitute a “loss” for the purposes of s 17 of the 1987 or these proceeding and so the self insurer’s argument that there are two separate dates of injury does not arise on the present facts as there was no previous claim for compensation. The self insurer has not proven a claim for loss was made in the past;
(d) in terms of the date of injury, the “loss” arises from the making of a claim pursuant to s 66 of the 1987 Act and receiving compensation for that “loss”. It follows that the injury should be deemed to have occurred on the last day on which the applicant was employed before he gave notice of injury – s 17(1)(a)(ii) of the 1987 Act refers, and
(e) section 22 of the 1987 Act has no application in these proceedings as there has only been one injury and as a result there can only be one assessment of impairment without apportionment.

CONSIDERATION AND FINDINGS

Section 17(1) of the 1987 Act provides:
“17 Loss of hearing—special provisions
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a) for the purposes of this Act, the injury shall be deemed to have happened—
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice, …
(c) compensation is payable by—
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii) where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice, …”
The answer to the issue will be determined by the interpretation of the 1987 Act. The fundamental rule of statutory interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. As Spiegelman CJ has said “the courts (tribunals) can no longer approach a statute with scissors in one hand and a dictionary in the other”.[6]
[6] R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272 at [49].
Although it can be difficult to ascertain a positive intention where there has been legislative inadvertence (ambiguous construction), courts and tribunals may use the effect, or outcome to work out what was not intended. Specifically, where there are two meanings or interpretations open, it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.[7]
[7] Public Transport Commissioner of NSW v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 at [350].
Further, statutory interpretation, specifically concerning definitions such as this, require a decision maker to assess the inconvenience of the result, or improbability of result, to assist it in concluding that an alternate construction which is reasonably open is to be preferred to the literal meaning because the alternate interpretation more closely conforms to the legislative intention discernible from other provisions in the statute.[8]
[8] See judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at [320]-[321].
I find that the self insurer’s argument with regards to apportionment must fail. This is because apportionment of liability under s 22 is not appropriate in a claim for compensation for noise induced hearing loss because the provisions of s 17(1)(d) to (g), provide specific provisions in this regard, admittedly it is referred to as a contribution, subject to a formula, not dissimilar from the general principles relating to s 22 of the 1987 Act. Plain statutory interpretation would suggest that if apportionment was to be a factor in such claims, provisions found in s 17(1)(d) to (g) would be redundant and such provisions would have been stipulated expressly, given that it was envisaged that contribution claims could be made in certain circumstances.
The operation and fiction relating to injury dates stipulated in s 17 of the 1987 has been the discussion of much authority. Relevantly Sheller JA in Rico Pty Ltd v Roads and Traffic Authority:[9]
"The legislative scheme for awards of compensation for boilermaker's deafness proceeds on the following assumptions or fictions:
1 The condition known as 'boilermaker's deafness' is deemed to be a loss of hearing which is of such a nature as to be caused by a gradual process (s 17(2)).
2 A loss of hearing which is of such a nature as to be caused by a gradual process is an injury (s 17(1)).
3 In the language of Barwick CJ, in Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 at 256-257, the injury is taken to have happened 'as it were, in one blow'. If the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due, the injury is deemed to have happened at the time when the notice of the injury was given; if the worker was not so employed, when he or she gave notice of the injury, the injury is deemed to have happened on the last day on which the worker was employed in such employment, before he or she gave the notice (s 17(1)(a)).
4 Compensation is payable by the worker's employer at the time when the notice of injury was given, if the worker was then employed in employment to the nature of which the injury was due; if the worker was not so employed at the time of the notice, it is payable by the last employer by whom the worker was so employed (s 17(c))."
[9] (1992) 28 NSWLR 679.
In Blayney Shire Council v Lobley,[10] Kirby ACJ advanced;
“It would have been easy for Parliament to have assigned responsibility for hearing loss to the last employer whose employment had actually caused some hearing loss. Instead, Parliament chose a different criterion, namely by assigning liability to the employer, at the time of the notice of injury, to the nature of whose employment the injury was due. There is an element of artificiality in s17(1) of the Act. The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due.”
[10] (1995) 12NSWCCR 52.
The following observations of Kirby ACJ are relevant;
“What are the purposes of introducing such arbitrary elements? They include:
1. To relieve the worker of the burden, which would otherwise ordinarily be assumed, to prove that actual trauma in the employment of a particular employer or employers had caused the loss of hearing.
2. To relieve the worker, and ultimately the Compensation Court, of apportioning the extent of loss attributable to particular trauma in the employment of particular employer(s) which had caused particular proportions of the total hearing loss found.
3. To assign the burden of compensation in a particular case to one employer, acknowledging that the worker may have changed employment many times in his or her working life and, as here, have been in the employment of the last employer for only a short time. Presumably, the certainty of responsibility thus secured was thought, in the long run and over the mass of such cases, to justify the arbitrary assignment upon the basis that, over time, the inequities of the assignment in a particular case would be evened out amongst employers (and their insurers) generally.
4. By assigning liability to the last employment as defined, the costs and delays of litigation, which are so substantial and disproportionate, could be avoided or minimised to the general saving of costs of the provision of workers' compensation benefits and the reduction of the administrative costs, of which legal expenses are a not inconsiderable part. So understood, the purposes of s17(1)(a) of the Act were to make the task of the worker easier (in both ascertaining the employer to be sued and in proving the claim) and the assignment of the responsible employer clearer.”
I also note the authority of OneSteel Limited v Devine [2012] NSWWCCPD 52 (Devine) where Deputy President Roche held (at [41]), which I found to be consistent with the applicant’s submissions particularly in relation to the concept of “loss”:
"...the purpose of s 17 is to fix a date to determine the law applicable to calculating the quantum of an entitlement to compensation and to determine by whom that compensation is payable. The fictional basis on which the section proceeds is premised upon an injury being 'a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process'. In that sense, ... the loss, or further loss, of hearing is deemed an 'injury'."
I appreciate the above forecasts the fictions relating to multiple employers (which is not a dispute in this factual scenario) however, the discussion is relevant and will be discussed further below.
In the course of submissions, I was referred to the authority of McColl JA in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 where the Court of Appeal considered the interplay of ss 322(1) and 17 of the 1987 and specifically:
“83. The aggregation argument depends upon ‘injury’ in ‘same injury’ in s 322(2) of the 1998 Act referring to the pathology of hearing loss, rather than to the ‘injury’ deemed to have occurred by the operation of s 17(1)(a) of the 1987 Act.
84. In my view that submission cannot be accepted. The effect of s 17(1)(a) of the 1987 Act was to operate in the worker's favour, as Barwick CJ explained in Bain (at 257), to create a fictional date of injury which could found a compensation claim, even though "the condition is a product of past events". It also created a fictitious ‘incident’ for the purposes of causation, that being the ‘one blow’ to which Barwick CJ also referred.
85. That fiction was perpetuated by the inclusion in s 17(1) of the words ‘or further loss’ which enabled the worker to make a further claim for compensation in relation to a further deemed injury arising from a deemed incident, despite hearing loss resulting from the same pathology. Indeed, it is not apparent that the current claim is based on the same pathology as the primary judge recorded (at [54]) that the current claim is for ‘a series of micro traumata between 29 August 1996 and 2012'
86. The injury the worker claiming for hearing loss suffers is that deemed to have occurred on 19 June 2012, the s 17(1)(a) date. That is a different ‘injury’ from the ‘injury’ the subject of the previous claim which was deemed to have occurred on or shortly before 29 August 1996. The two injuries are not accordingly the ‘same injury’ for the purposes of s 322(2) of the 1998 Act.”
Whilst not binding, I note the authority of Smith v Bankstown Council[11] referred to in submissions, which I find addresses the argument before me and is consistent with the authorities discussed above. Relevantly with regards to apportionment Arbitrator Nicholl concluded:
“25. The task for the AMS was to assess one loss, incorporating the earlier loss. That earlier loss, as assessed in the earlier MAC of Dr Harrison and accepted by the parties at the time, is the basis for a deduction from the total loss as now assessed. I therefore do not accept there are two different impairments or losses that result from the ‘same injury’ in the sense discussed in Edmed such as to warrant aggregation under section 322(2) of the 1998 Act as submitted for the Applicant. As in Prisk, the AMS was required to assess only one loss, being the total current hearing loss. That necessarily involved a consideration and assessment of several factors, including the current BHI and other symptoms such as tinnitus. Given there was only one loss to be assessed, there are not two impairments or losses capable of aggregation under section 322(2) and as a consequence cases such as Edmed, Turton and Kolak have no application to the present case.”
[11] WCC7464/08.

Taking into account the authorities above and the general fiction regarding a deemed date of injury, I cannot find that there were two injuries events as claimed by the self insurer. The terms of s 17 of the 1987 Act are clear, that the “loss” is deemed to have occurred on the date of the notice of injury. In this case, the first claim for “loss” was on 17 June 2020, an event arising when the respondent was self insured. I accept the applicant claimed hearing aids in 2012 and these were funded by the GIO/QBE, but this in my view does not fall within the definition of a “loss” as required by s 17 of the 1987 Act and so I cannot find that this was an injurious event. I also find there has been no prior claim for permanent impairment. Further reading of s 17 of the 1987 Act supplemented by the above authorities does not support a contention that industrial deafness can be the result of multiple injurious events. It follows apportionment cannot be enlivened (Barnes).

SUMMARY

The findings and orders are set out in the Certificate of Determination.

[2024] NSWPIC 486

2 September 2024