OneSteel Ltd v Devine

[2012] NSWWCCPD 52

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			OneSteel Ltd v Devine [2012] NSWWCCPD 52
APPELLANT:			OneSteel Ltd
RESPONDENT:			Robert Kenneth Devine
INSURER:			Self-insured
FILE NUMBER:			A1-8903/11
ARBITRATOR:	Ms J Peacock
DATE OF ARBITRATOR’S DECISION:			22 June 2012
DATE OF APPEAL HEARING:		17 September 2012
DATE OF APPEAL DECISION:			19 September 2012
SUBJECT MATTER OF DECISION:			Boilermaker’s deafness; whether pre-1987 and post-1987 losses can be aggregated to meet the threshold for compensation for pain and suffering; Sch 6 Pt 6 cl 2 of the Savings, Transitional and Other Provisions in the Workers Compensation Act 1987; Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 and Lauda Enterprises Pty Ltd v Akkanen [2010] NSWWCCPD 91 discussed; ss 322 and 323 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr T Edwards, instructed by Sparke Helmore Lawyers
Respondent:	Mr B McManamey, instructed by MRM Lawyers
ORDERS MADE ON APPEAL:			Paragraph 3 of the Arbitrator’s determination of 22 June 2012 is revoked, but all other orders are confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

INTRODUCTION

1. This appeal concerns whether pre- and post-1987 hearing loss assessments can be aggregated to meet the 10 per cent threshold for compensation for pain and suffering. As there is now no entitlement to compensation for pain and suffering for claims for lump sum compensation made on or after 19 June 2012 (Workers Compensation Legislation Amendment Act 2012 Sch 2), this case is of relevance to the particular facts presented but has no relevance to future claims of this type.

BACKGROUND

1. The respondent worker, Robert Devine, worked as an ironworker for Broken Hill Pty Co Ltd (BHP) between 1968 and 1983. From 1983 until his retirement in July 2010, he worked as a crane driver and saw operator for Commonwealth Steel Company Ltd and its successors in title, Comsteel and OneSteel Ltd (OneSteel). It is not disputed that his employment from 1968 to July 2010 was noisy. Nor is it disputed that that employment was employment to the nature of which a loss of hearing, as to be caused by a gradual process, was due.

2. The following chronology is agreed:

   (a)     in or about 1983, Mr Devine received compensation for a monaural hearing loss of 6.2 per cent in his left ear and 11.1 per cent in his right ear with a deemed date of injury of 20 October 1983;

   (b)     on 31 August 1989, Mr Devine received compensation for 3.4 per cent further monaural hearing loss in his left ear;

   (c)     on 18 November 1999, Mr Devine received compensation for 1.38 per cent further binaural diminution of hearing;

   (d)     on 29 November 2010, Mr Devine claimed further lump sum compensation for an additional 15 per cent whole person impairment in respect of a 31.06 per cent binaural hearing loss assessed by Dr Finlay-Jones, and…