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

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

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.
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 compensation for pain and suffering;
(e)     on 9 February 2011, Dr Niall, specialist qualified by the employer, assessed Mr Devine to have an additional 8 per cent whole person impairment in respect of a 15.76 per cent further binaural loss of hearing, and
(f)      on 28 November 2011, Dr Fernandes, Approved Medical Specialist (AMS) with the Commission, issued a Medical Assessment Certificate (MAC) assessing Mr Devine to have a whole person impairment of 6 per cent in respect of an 11 per cent further binaural loss of hearing.
On 3 April 2012, the Registrar issued a Certificate of Determination ordering the appellant employer to pay Mr Devine the sum of $8,250 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 6 per cent permanent impairment (hearing loss) resulting from injury on 28 July 2010 (notional). By letter dated 5 April 2012, Mr Devine’s solicitors submitted, and OneSteel disputed, that Mr Devine was entitled to compensation for pain and suffering under s 67 and requested that the Certificate of Determination be revoked and a teleconference be held.
The Commission listed the matter for arbitration in Newcastle on 20 June 2012. The issue in dispute was whether all of Mr Devine’s various hearing losses could be combined. If so, the parties agreed that his whole person impairment was 11 per cent and that he met the threshold for compensation for pain and suffering under s 67.
Counsel for OneSteel, Mr Edwards, submitted that Mr Devine was not entitled to combine his various losses to meet the s 67 threshold. He argued that the Presidential decisions in Lauda Enterprises Pty Ltd v Akkanen [2010] NSWWCCPD 91 (Akkanen) and Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (Edmed) were wrongly decided and, in any event, distinguishable from the present matter because, in this case, there were two different employers.
The Arbitrator held that the facts were the same as in Akkanen and, applying the principles discussed in that case, combined Mr Devine’s assessments and determined that Mr Devine was entitled to compensation for pain and suffering in the agreed amount of $10,000. The Commission issued a Certificate of Determination on 22 June 2012 in the following terms:
“1.     By consent, that the orders made in this matter on 3 April 2012 be revoked.
2. That the Respondent pay the Applicant lump sum compensation under section 66 of the Workers Compensation Act 1987 in respect of 6% whole person impairment in the sum of $8250.
3. That the Respondent pay the Applicant lump sum compensation under section 67 of the Workers Compensation Act 1987 in respect of pain and suffering in the sum $10,000.
4.       That the Respondent pay the Applicant costs as agreed or assessed.
5.       That the Application by the Applicant that the matter be declared complex is declined.”
OneSteel has appealed the Arbitrator’s determination.

ISSUES IN DISPUTE

The appellant employer has not identified any grounds of appeal, but has merely attached to the notice of appeal a document headed “Draft Submissions”, which are in the same terms as a document handed up by Mr Edwards at the arbitration, though those submissions had the word “Draft” crossed out. At the oral hearing of the appeal, Mr Edwards handed up his final written submissions.
While it was unsatisfactory that the appeal has been presented in this way, because it does not comply with Practice Direction No 6, the areas of complaint are tolerably clear, and the respondent worker’s counsel has not objected to the tardy presentation of the appeal or pointed to any prejudice he has suffered.
Because the appeal has challenged the correctness of the Presidential decisions in Akkanen and Edmed, the notice of appeal sought to have the appeal listed before the President, Keating DCJ. This was consistent with the Commission’s usual practice that appeals are allocated by the President (not by the Registrar, as the Commission’s letter of 3 July 2012 stated). The President has allocated the matter to me.
The main issues set out in the submissions prepared by Mr Edwards were that the Arbitrator erred in applying Akkanen and Edmed because:
(a) those decision were wrongly decided because they gave no consideration to the meaning of s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) when read with s 323 of that Act (ss 322 and 323);
(b) they had no regard to the plural form of “impairments” in s 322(2) (impairments);
(c)     the interpretation in Akkanen that injury means pathology cannot sit with s 17 of the 1987 Act (s 17);
(d)     section 68B(4) of the 1987 Act had to be construed (s 68B(4));
(e)     even if Edmed was correct, it was wrongly applied in Akkanen because I neglected to comment on the pathological causes of sensorineural hearing loss (pathological causes of sensorineural hearing loss);
(f)      Akkanen was distinguishable because it involved only one employer (one employer), and
(g)     Akkanen was wrong because it allowed accumulation of losses under different statutory schemes (the transitional provisions).
Because neither party had addressed the terms of the transitional provisions in Sch 6 of the 1987 Act, I issued a direction on 31 August 2012 requesting submissions on the relevance of Sch 6 Pt 6 Cl 2 and Sch 6 Pt 18C. Both parties provided further written submissions on the transitional provisions.

THE RELEVANT LEGISLATION

Injury is defined in s 4 of the 1987 Act as follows:

“4 Definition of ‘injury’

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) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

The lump sum provisions in the 1987 Act applicable at the time of Mr Devine’s claim were as follows:

“65 Determination of degree of permanent impairment

(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note: The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.

(3)     If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
“66 Entitlement to compensation for permanent impairment
(1)     A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. …
(3)     The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.”
“67 Compensation for pain and suffering
(1)     A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000….”
(6)     If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6;
(b) is adjusted by an amendment of this section,

the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury.”

The relevant lump sum provisions in the 1998 Act are as follows:
“319 Definitions
In this Act:
…
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a)…
(c) the degree of permanent impairment of the worker as a result of an injury, …”

“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) …”

“323 Deduction for previous injury or pre-existing condition or abnormality

(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) …”

“326 Status of medical assessments

(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.

(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

SUBMISSIONS, DISCUSSION AND FINDINGS

Sections 322 and 323

After stating that Edmed and Akkanen both held that the crucial question was whether the impairment arose from the same injury, meaning same pathological condition, Mr Edwards submitted that there was no consideration (in those cases) of the meaning of s 322 when read with s 323. He said that s 323(1) “cannot be read properly on the interpretation that injury when dealing with permanent impairment, equates to pathological condition. The sub-section refers to more than one injury causing permanent impairment”.
Mr Edwards added in his oral submissions to the Arbitrator that the Edmed approach to s 323 “does not make sense” (T6.18) because, if injury means pathology, “how can you take a pathology from the same pathology?” (T6.20).
I do not accept the above submissions, which Mr Edwards did not seek to supplement at the oral hearing of the appeal.
In Edmed, I set out the definition of injury in s 4 and said, at [26] and [27]:
“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.
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.” (emphasis included in original quotes)
That the word “injury” can have different meanings, depending on its context in the legislation, was confirmed by the NSW Court of Appeal in Holdlen Pty Ltd v Walsh [2000] NSWCA 87 where Giles JA (Heydon and Meagher JJA agreeing) said, at [33]:
“Section 14(3) is not easy to construe. The word ‘injury’, used twice, must be used in two different senses, notwithstanding that it is defined in s 4. On one view, the first injury is a physical condition short of death caused by an injury as defined, and the injury as defined must not be an intentional self-inflicted injury. On this construction s 14(3) says nothing about death by suicide in a case such as the present, because it could apply only if the 14 November 1994 injury was an intentional self-inflicted injury. On another view, the first injury is an injury as defined and the second injury is an act of injuring; this appears to have been the view taken in Bird v Australian Iron & Steel Pty Ltd. On this construction s 14(3) can arguably apply to death by suicide in a case such as the present, because the death of a worker by suicide could be said to be caused by an intentional self-inflicted act of injuring.”
The Victorian Court of Appeal expressed a similar view in Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 where, in a joint judgment, Osborn JA, J Forrest AJA and Beach AJA noted (at [73]) that “as a matter of language, a worker may often be said both to have suffered ‘an injury’ embracing multiple elements or alternatively ‘multiple injuries’. The sense in which the term ‘injury’ is used will depend upon its context”.
In light of the above authorities, it cannot seriously be disputed that “injury” can have different meanings depending on its context. In Edmed, I considered the meaning of “injury” in the context of a claim for lump sum compensation. I also referred (at [40]) to s 323(1) and added that that provision had to be read “subject to” s 322.
In a claim for lump sum compensation, compensation is not paid for the receipt of an injury (and, in this context, whether “injury” is a reference to the injurious event or the pathology resulting from that event, does not matter), but is paid for the impairment or loss that has resulted from the pathology caused by or resulting from the injury.
As observed by Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 at 129, in workers compensation, the cause of the injury (what I have called the injurious event) is “not the important matter” because compensation is “not paid in respect of the injury” (his Honour added that he was referring to “injury” in the sense in which it was defined in the Workers Compensation Act 1926) but is paid “in respect of death or total or partial incapacity resulting from an injury … not in respect of the injury itself”.

The same point was made by Starke J in Williams v Metropolitan Coal Co Ltd [1948] HCA 8; 76 CLR 431 at 444 where his Honour said “[c]ompensation is not payable for the injury but for loss of power to earn caused by the injury, that is, for incapacity for work which results from the injury”.
Section 323(1) requires that, in “assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury” or that is due to “any pre-existing condition or abnormality”. There is no difficulty in giving the term “injury” in s 323(1) the same meaning as in s 323(2). That is because a deduction can be made under s 323 where the impairment has resulted partly from the pathology occasioned by the work incident, and partly from the pathology (or condition or abnormality) pre-existing the work incident.
That makes perfect sense because, as an impairment results from the pathology caused by the injurious event, s 323(1) is referring to a previous pathology that has resulted in an impairment. If a worker suffered a previous injury (injurious event) or condition that did not result in any impairment, clearly there would be no deduction.
It follows that there is nothing in s 323(1) that changes the interpretation of s 322 relied on in Edmed and Akkanen. There is no reason why an impairment cannot result from multiple pathologies and s 323 deductions are regularly made on that basis.

Impairments

Mr Edwards submitted that Edmed and Akkanen had no regard to the following interpretations:
(a) that the word “impairments” is plural and requires that there be more than one permanent impairment, eg brain injury causing impairment to an upper limb and a lower limb, and
(b) that further impairments are simply an increase in the one impairment (singular) and are not additional (plural) impairments. There is in fact only one impairment and it is the degree that changes.
Contrary to the submission by Mr Edwards, in Edmed I referred to “impairments” in s 322(2) and said that the reference to “the same injury” in that sub-section could not be a reference to “the same incident” because that situation is expressly dealt with in s 322(3). I added the comments set out at [27] in Edmed, which are reproduced at [20] above. Mr Edwards has not addressed the reasoning in that paragraph.
Moreover, the plural “impairments” includes the singular (s 8 of the Interpretation Act 1987) and s 322(2) applies whenever there is an impairment or multiple impairments resulting from the same pathology. In such cases, the conditions or impairments that have resulted from the same injury (in the sense of pathology) are assessed together.
The example given by Mr McManamey is appropriate to illustrate the point, but there are many others. He referred to a worker who has suffered an injury to the lumbar spine and undergone surgery for the pathology caused by that injury. Such a worker will have an impairment from having had surgery to the spine and an impairment of the skin due to surgical scarring.
The same situation would occur with a person whose employment caused a haemorrhagic stroke that caused paralysis. Such pathology (the rupture of the blood vessel) could cause multiple impairments because of multiple restrictions, such as loss of use of the legs and/or impaired speech. Such cases are common in the Commission and, when they arise, the conditions (impairments) that have resulted from the pathology concerned are always assessed together.

Section 17

Section 17 provides:
“17 Loss of hearing-special provisions
(cf former s 7 (4B), (4BB))
(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,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(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,
(d)an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e)in paragraph (d), the ‘relevant period’ means:
(i) where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing) - in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii) where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury - in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii) where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury - in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,

(f)where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g)where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.

(2) Without limiting the generality of subsection (1), the condition known as “boilermaker’s deafness” and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”

Mr Edwards submitted that, if sense is to be made of s 322, on the basis that injury means pathology, that cannot sit with s 17(1), which, properly interpreted, means that the injury is the loss that happened at either of the two relevant statutory dates conferred by s 17(1)(a)(i) or s 17(1)(a)(ii). The section also determines that a further loss is a separate injury.
Mr Edwards referred to the following passages from the judgment of Basten JA in SAS Trustee Corporation v Pearce [2009] NSWCA 302 (Pearce):
“80 As a theoretical matter, there is some awkwardness in suggesting that the degree of impairment resulting from one injury incorporates a degree of impairment resulting from another previous injury, so that the latter is to be deducted from the former. If there were a separate assessment of each, no reduction would be required. However, the WorkCover Guidelines, pursuant to which assessments of degree of permanent impairment are to be made (s 322(1)) stated, under the heading ‘pre-existing impairment’:
‘To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of [whole person impairment] due to a pre-existing condition. ... The injured worker’s current level of impairment is then assessed, and the pre-existing impairment level (%) is then subtracted from their current level to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage pre-existing impairment cannot be assessed, 10% of the estimated level of the condition now being assessed is to be deducted.’
81 It is not necessary for present purposes to consider whether the exercise required by the WorkCover Guidelines is consistent with that required by s 323(1).”
The relevance of Pearce was not explained in the submissions, either on appeal or before the Arbitrator, and I do not consider that it advances the appellant employer’s position. For the reasons explained in Akkanen at [43] to [48], the decision of Basten JA in Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 is directly relevant to whether a loss can result from more than one injury and, subject to the transitional provisions discussed below, applicable in determining if losses can be aggregated.
As explained earlier in this decision, the meaning of the word “injury” must be determined in the context in which it is used in the legislation. Section 17 has its own unique context. It proceeds on a series of fictions, as explained by Sheller JA in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690; 8 NSWCCR 515 (Rico):
“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) 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)).”
His Honour added that it is on the basis of these assumptions or fictions that a worker’s entitlement to a lump sum is calculated in accordance with s 66 or an amount for pain and suffering calculated in accordance with s 67 is determined.
It follows that 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, as Mr Edwards submitted (at T3.16) at the arbitration, the loss, or further loss, of hearing is deemed an “injury”.
One then has to consider s 17(2), which states that the condition known as “boilermaker’s deafness and any deafness of a similar origin” shall, for the purposes of s 17(1), be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process. The reference to the “condition” of boilermaker’s deafness and any deafness of a similar origin is a clear reference to the pathology that has caused the loss, or further loss, of hearing and is consistent with “injury” meaning pathology in s 322, as explained in Edmed.
It follows that there is no conflict between s 17 and s 322(2). As discussed in Edmed, the whole point of s 322(2) is that it allows for the aggregation of impairments resulting from incidents that have occurred at different times, provided they are the same pathology. Section 17 does no more than give a date when the pathology (the hearing loss) is deemed to have occurred. If the pathology is the same, the losses resulting from it can be aggregated.
Mr Edwards submitted that the appellant employer in the present case was being asked to pay Mr Devine compensation under s 67 when the injury within the meaning of s 17, being a further loss of hearing in the appellant’s employment, does not, when added with the losses in the same employment, pass the threshold for the purposes of s 67, whether or not the separate losses can be added together.
Mr Edwards added that the statutory scheme requires an employer to pay compensation for those injuries suffered by the worker in its employment and that it is implicit in the scheme that the compensation to which a worker is entitled under s 66, and by reason of s 323, is the permanent impairment that results from the “injury” in the employ of the particular employer.
The point of this submission, and how it demonstrates that Edmed and Akkanen were wrongly decided, is unclear. As observed by Sheller AJ in Rico, the legislative scheme for award of compensation for boilermaker’s deafness proceeds on “assumptions or fictions”. It is not designed to determine liability on the basis of true causation (Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 at [64]).
The comments by Kirby P (as his Honour then was) in Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 (Grate Lace), when talking about the disease provisions in ss 15 and 16, are equally applicable to s 17. His Honour explained (at 368) that the objects of the disease provisions are:
“•    to avoid unnecessary litigation;
•      to simplify the assignment of liability;
•      to remove the highly disputatious debate about ‘true’ causation; and
•      to fix the last relevant employer with the primary liability (subject to the limited contribution right provided in section 15(2)).”
There are many cases where the employer who made only a minimal contribution to the actual hearing loss suffered pays all or most of the compensation awarded. However, there will be many other situations where the same employer will pay no compensation for the hearing loss caused by its employment. That is the nature of a scheme based on assumptions and fictions. It is therefore incorrect to submit that the statutory scheme requires an employer to pay compensation only for those injuries or losses suffered by the worker in that employer’s employment.
Mr Edwards also relied on s 17(3) to support his submission that an employer is only required to compensate a worker for that injury caused in his employment (T4.6). I do not accept that submission. As the explanatory note to the Workers Compensation Legislation Amendment Act 1995, which introduced sub-s (3) to s 17, makes clear, the sub-section was introduced to put it beyond doubt that once a worker has given notice of injury, the employer liable at that time remains liable for the compensation, even if the worker obtains new employment in a noisy industry before the claim has been finalised and paid. It has no application to the present case and does not alter the general effect of the deeming provisions discussed above.

Section 68B(4)

Section 68B(4) provides:
“(4) When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), section 323 of the 1998 Act applies to that compensation subject to the following:
(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a), ‘previous relevant employment’ is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).”

Mr Edwards submitted that s 68B(4) provides a formula to determine compensation payable by an employer for, in this case, “further loss of hearing”. He did not expand on this submission at the oral hearing of the appeal.
I have found this submission unhelpful. Section 68B(4) does not advance the matter. The sub-section is concerned with the calculation of the s 323 deduction and merely provides that there is no deduction for any proportion of the impairment resulting from previous relevant employment, except for any such proportion for which compensation under this Division (as in force at any time) or s 16 of the former Act has been paid or is payable. The significance of this exception is noted at [101] below in the context of the transitional provisions.
Mr Edwards submitted that there is no suggestion in the Act that an employer is required to pay a proportion of a s 67 entitlement where the permanent impairment that results from the injury in the employ of the employer does not exceed 10 per cent.
This submission ignores the critical issue determined in Edmed, namely, that where the injuries (meaning pathology) are the same, the losses from those injuries can be aggregated.

Pathological causes of sensorineural hearing loss

Mr Edwards submitted that, even if one accepted that Edmed is correct, I incorrectly applied it to the facts in Akkanen.
He referred to the meaning of “pathology” in the Oxford Concise Medical Dictionary, 6^th ed, as “[t]he study of disease processes with the aim of understanding their nature and causes”. He submitted that, in applying the meaning of pathology to the workers compensation legislation, I neglected to comment on the pathological causes of sensorineural hearing loss and that, in not commenting on the cause of sensorineural hearing loss, I failed to take into account that, at a higher hearing loss, the extent of cell death and damage is greater due to exposure to noise.

Mr Edwards relied on the evidence from Dr Niall, consultant occupational physician and audiological physician. He said that Dr Niall described the damage to the hearing receptors as being initially at 3-6 khz which causes a notched configuration. Mr Edwards submitted the doctor reported that “there is a difference between a lower loss of hearing from industrial deafness compared to a higher loss from industrial deafness with the greater loss appearing at [sic, as] a different pathological identity that is to say the hair cell level as opposed to the lower level of loss”. The doctor added that, secondly, there would be “place effects. That is, noise induced cell death will spread along the length of the cochlea”.
Mr Edwards submitted that the weight of the medical opinion confirmed that there is increased cell damage and death to the hearing receptors in the ear at higher hearing losses, and that the cell death spreads further along the length of the cochlea. Therefore, so it was argued, this represents a change in the pathology as compared to lower frequency losses, as the pathological process has changed. And, as the pathological conditions are not identical between the losses, it is inappropriate to aggregate, according to Edmed, which held that the pathology must be the same (meaning identical) before impairments can be aggregated.
I do not accept these submissions.
Dr Niall acknowledged that “the general nature of the pathology caused by industrial deafness is the same” though a greater loss will mean greater cell death. It follows that Dr Niall’s evidence is essentially that, in noise induced hearing loss, the primary pathology is largely due to outer hair cell loss due to direct trauma to stereocilia and/or intracellular metabolic free radical damage followed by apoptosis (programmed cell death). That is a description of a single pathology. With increasing exposure to noise, the damage becomes more widespread. He did not say that the pathologies are different.
The evidence from Dr Finlay-Jones and Dr Williams, ear, nose and throat surgeons, supports this conclusion. In commenting on Dr Niall’s opinions, Dr Finlay-Jones stated in his report of 12 October 2011 that the “result of the excessive noise exposure is total cell death which is the pathology affecting all frequencies” (emphasis in original), but is usually less severe in the lower frequencies.
Dr Williams was even more emphatic. In his report of 2 December 2011, he said, when asked to comment of Dr Niall’s opinions:
“The extent of occupational noise induced hearing loss of gradual process depends on the nature and duration of the occupational noise exposure and individual susceptibility.
The pathological process of occupational noise induced hearing loss of gradual process is the same for the first deemed date of injury and for the further losses.”
The evidence clearly establishes that the pathology of sensorineural hearing loss Mr Devine experienced in 1983 is the same pathology as in the sensorineural hearing loss he experienced in his later years that led to his subsequent claims.

One employer

Mr Edwards submitted that Akkanen and the other cases that applied Edmed were all distinguishable because they involved a single employment. He referred to Glebe Rowing Club Pty Ltd v Pride (unreported Court of Appeal, 6 December 1995, BC9501895) (Pride), a case involving two employers, and submitted, “the Court of Appeal basically upheld that there were separate losses and each loss on its own didn’t require or didn’t pass the threshold” for s 67.
At first instance in Pride, Burke CCJ found a 22 per cent impairment of the worker’s back resulting from two injuries with two employers, and ordered each employer to contribute equally to that award. His Honour also awarded compensation under section 67, which was also apportioned equally between the two employers.
On appeal, Meagher JA held (at 3) that the apportionment provisions had no application because the trial judge found “two distinct injuries, each with a quantified amount of damage resulting”. The other Justice forming the majority was Rolfe AJA who held that Burke CCJ found two losses resulting from two injuries. Rolfe AJA quoted from Burke CCJ’s decision and then noted at 5:
“Those findings, in my opinion, meant the two injuries gave rise to two losses, each of which was, in the view his Honour took, compensable under s 66. However, he held the extent to which each was compensable, in financial terms, was at a figure which did not meet the threshold for compensation under s 67(1) required by s 67(2). That flows from his finding that the amount payable under s 66 was $13,000 of which one half was attributable to each injury.”
Rolfe AJA summarised the appellant’s submission (at 11):
“The submissions on behalf of the appellant were that his Honour erred, having found that Miss Pride suffered two injuries that equally contributed to her impairment and having found that the total impairment was between 1:5 and 1:4, in that there was no loss from a single injury that was not less than ten percent of the maximum amount referred to in s 66(1). His Honour, having found that $13,000 was payable pursuant to s 66, found, so it was submitted, that only $6,500 was payable ‘in respect of the loss resulting from each of the injuries’ and it was not in issue, if that be the correct view as to what his Honour did, that the amount of the award under s 66 was insufficient to attract the provisions of s 67, so that Miss Pride was not entitled to an award thereunder.”
At 13, Rolfe AJA added:
“The problem, at this stage, is whether there was one loss resulting from two injuries, or whether there were two losses resulting from two injuries within the meaning of s 66. For the appellant to succeed it must show the latter. It cannot be disputed that after the second incident Miss Pride was suffering from a loss different from that from which she was suffering after the first incident. But the proper inference from his Honour’s findings is that each injury gave rise to a loss compensable equally under s 66. That is made clear by his Honour’s findings at AB71, which I have quoted. Thus as a matter of fact his Honour found two injuries giving rise to two losses each of which was compensable in the sum of $6,500, which sum was insufficient to justify an award of compensation under s 67.”
His Honour continued, at 14:
“The problem I have with the submission is that it overlooks the existence of two injuries each of which gave rise to a compensable loss under s 66, and it is clear from his Honour’s findings that had he been considering each such loss separately he would have found that the amount of compensation payable for each was $6,500. This, as was not in issue, was below the threshold. The aggregation of the two losses into one loss was not, in my opinion, a permissible exercise. The situation may have been different if the factual findings had been that the first incident did not give rise to a compensable loss.” (emphasis added)
The result was that the appeal was allowed and the award under s 67 was set aside.
Several judges of the former Compensation Court of NSW have considered Pride. In Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 Neilson CCJ noted (at 127) that the strict ratio decidendi in Pride was the interpretation of the first instance factual findings by Burke CCJ. Bishop CCJ expressed a similar view in Scanlon v Powercoal Pty Ltd (2001) 22 NSWCCR 82 and by Armitage CCJ in Pickles v Staples Waste Removals Pty Ltd (2000) 20 NSWCCR 729 at 747.
More importantly, Pride was decided before the introduction of s 322 and it was this section, and the new legislative regime introduced by the Workers Compensation Legislation Amendment Act 2001 and the Workers Compensation Legislation Further Amendment Act 2001 (the 2001 amending Acts, which took effect on 1 January 2002), that was critical to the outcome in Edmed and Akkanen. For these reasons, and the reasons given in Central West Group Apprentices Ltd v Barrett [2008] NSWWCCPD 137, Pride does not apply and it makes no difference that Mr Devine received injuries with more than one employer.

The transitional provisions

Schedule 6 Pt 18C

Schedule 6 Pt 18C of the Savings, Transitional and Other Provisions of the 1987 Act (the transitional provisions) provides, so far as is relevant:

“Part 18C - Provisions consequent on enactment of 2001 amending Acts

Definitions

1. In this Part:
existing claim and new claim have the same meaning as in Chapter 7 of the 1998 Act.
lump sum compensation amendments means the amendments made by Schedule 3 to the Workers Compensation Legislation Amendment Act 2001 and Schedule 2 to the Workers Compensation Legislation Further Amendment Act 2001.

Operation of amendments generally

2. (1) The Workers Compensation Acts apply to and in respect of an existing claim as if the Workers Compensation Legislation Amendment Act 2001 and the Workers Compensation Legislation Further Amendment Act 2001 had not been enacted.
(2) This clause is subject to this Part and to any regulations under this Schedule.

Amendments to lump sum compensation provisions

3. (1) The lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except as follows:
(a) the amendments to section 66A apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) and so apply:
(i) subject to such modifications to that section as may be prescribed by the regulations, and
(ii) as if an agreement registered before that commencement by the Authority were registered by the Commission,

(b) the repeal of section 72 applies in respect of an injury received before the commencement of the amendments, but only to the extent that the injury is the subject of a new claim.”

Mr Edwards submitted that I erred in Akkanen because I took a pre-2002 assessment under the old Table of Maims in the 1987 Act for the loss of a thing and added it to a post-2002 assessment of a whole person impairment. He said that that was not possible because they were two different regimes for assessing the effects of an injury. He agreed that he had not taken the Arbitrator to the transitional provisions, but argued that the same principle applies, namely, that you cannot aggregate “unlike” compensation. He argued that it was not logical to add different lump sum assessments together to create an artificial figure because the two systems, that is, the systems before and after 1 January 2002, are different.
Mr Edwards argued that, to meet the threshold to be entitled to compensation for pain and suffering prior to the introduction of the 2001 amending Acts, a worker had to establish an entitlement to 10 per cent of the maximum amount from time to time referred to in s 66. He said that cl 3 of Pt 18C of Sch 6 provides that, whether “injury” means pathology or injurious event, the amending Acts do not apply to injuries before 1 January 2002. This is so, it was submitted, because cl 3 delineates between the two and you cannot add them together.
I do not accept these submissions as they ignore the effect of s 322, which, as part of Ch 7 of the 1998 Act, applies to “new claims”. As Mr Devine’s current claim was made on 29 November 2010, it is a “new claim” and it follows that s 322 applies to it.
While cl 223 of the Workers Compensation Regulation 2003 had modified Ch 7 of the 1998 Act, as that Part applied to a new claim in respect of an injury received before 1 January 2002, by omitting ss 322 and 323, neither that clause, nor any similar clause, has been reproduced in the Workers Compensation Regulation 2010, which repealed the 2003 Regulation. It follows that, whether or not s 322 applied in Akkanen (and it was not argued in that case that it did not), it applies to Mr Devine’s claim and must be construed according to its terms.
As the effects of injurious events occurring between 30 June 1987 and 1 January 2002 and after 1 January 2002 are subject to s 322, those events can be aggregated where they result in the one pathology. As explained above, I believe that the pathology of sensorineural hearing loss Mr Devine experienced in each of his claims is the same and, subject to Sch 6 Pt 6 cl 2 and its application to injuries received before 30 June 1987, can be added together.

Schedule 6 Pt 6 cl 2

Before looking at the terms of Sch 6 Pt 6 cl 2 it is appropriate to consider the background to its introduction and the issue it addressed.
In Wilkes v State Rail Authority of New South Wales (1995) 11 NSWCCR 13 (Wilkes), the worker injured his right knee on three separate occasions: first, on 1 November 1982, second, on 27 June 1984 and third, on 4 March 1988. He did not claim until after his last injury.
The trial judge found that the worker had a 20 per cent disability in his injured leg, to which the first and second injuries had contributed 75 per cent, and the third 25 per cent. His Honour declined to award compensation for pain and suffering because the 5 per cent loss that resulted from the third incident was below the threshold in s 67.
Cole JA (Kirby P, as his Honour then was, agreeing) held that Sch 6 of Pt 6 cl 6 made clear that where a worker has sustained both pre-1987 and post-1987 Act injuries, the loss suffered from both categories of injury was to be treated as having been suffered after the commencement of the 1987 Act. As a result, there was an entitlement to compensation for pain and suffering under s 67 if the loss arising from pre-1987 and post-1987 Act injuries exceeded 10 per cent. As Mr Wilkes’ loss was 20 per cent, he was entitled to compensation under s 67.
After this decision, parliament introduced Sch 6 Pt 6 cl 2. It provides:
“Pain and suffering-does not apply to existing injuries
2 (1) Clause 1 does not apply to section 67 of this Act (Compensation for pain and suffering) and that section applies only to pain and suffering in respect of injuries received after the commencement of Division 4 of Part 3 of this Act.
(2) To avoid doubt, section 67 of this Act applies to pain and suffering resulting from injuries to which section 15, 16 or 17 of this Act applies to the extent only to which any such injury is deemed under those provisions to have happened after the commencement of Division 4 of Part 3 of this Act. However, this subclause does not affect any court proceedings which have been determined or commenced before the date of assent to the Workers Compensation Legislation (Miscellaneous Amendments) Act 1994 .
(3) To avoid doubt, if a loss mentioned in the Table to Division 4 of Part 3 of this Act results both from an injury received before the commencement of that Division and an injury received after that commencement, the part of the loss resulting from the injury received before that commencement is not to be taken into account for the purposes of determining under section 67 (2) of this Act whether section 67 applies to the loss (whether or not compensation has been paid or is payable under section 16 of the former Act for that part of the loss).”
Mr Edwards submitted that the above provisions are explicit and a worker cannot take a pre-1987 injury and add it to a post-1987 injury to qualify for s 67. He argued that the Act “corrals” each entitlement for its own period. The result is that, without the loss from the 1983 injury being added to the other losses, Mr Devine does not meet the s 67 threshold.
Mr McManamey pointed out that Sch 6 Pt 6 cl 2 had not been raised before the Arbitrator and the Arbitrator had not made an error in respect of the application of that provision. He said that if there had been no decision on a point then, by analogy with appeals restricted to where a party is aggrieved in point of law, the appellant could not be aggrieved on that point.
I do not accept this submission. Though it is true that Mr Edwards did not refer the Arbitrator to Pt 6 of Sch 6 cl 2, that provision is part of the relevant legislation and the Arbitrator’s failure to refer to it was an error, albeit not of her making given that neither counsel addressed on it.
Subject to compliance with s 74 of the 1998 Act, which may raise other questions if issues are not properly identified, but which has not been argued before me, the Commission must apply relevant statutory provisions, even if they are not referred to in the arbitration proceedings (Electricity Commission of NSW v Yates (1991) 30 NSWLR 351 applied in Department of Environment, Climate Change & Water v J [2010] NSWWCCPD 56 at [114]).
In the present case, there is no prejudice to Mr Devine if OneSteel is permitted to rely on Sch 6 Pt 6 and, if it were necessary, I would have no hesitation in granting leave under s 289A(4) of the 1998 Act for it to rely on Sch 6 Pt 6 because it is in the interests of justice that the case be determined according to law. Moreover, notwithstanding the terms of s 354, the Commission is not released from the obligation to apply the rules of law in arriving at its decisions (McColl JA (Allsop P agreeing) in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [59]).
Dealing with Wilkes, Mr McManamey said that that case dealt with frank injuries and not with boilermaker’s deafness, which has its own “oddities”. He correctly noted that, while the Workers Compensation Act 1926 (the 1926 Act) provided compensation for total loss of hearing in both ears and for partial loss of hearing in one ear (monaural hearing loss), it made no provision for partial loss of hearing in both ears (binaural hearing loss) (Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246). However, that omission was overcome by the addition of cl 5A in Sch 6 Pt 6 in 1991.
Mr McManamey then submitted that the monaural losses paid to Mr Devine under the 1926 Act were not losses under the 1987 Act and s 17 equates injury with the loss. As Mr Devine did not suffer a binaural hearing loss until he received his payment on 18 November 1999 that is what you look at when aggregating the injuries. Once there are two types of losses (monaural and binaural), you are not dealing with a before 1987 and an after 1987 situation. It is all after 1987 because that is the first time Mr Devine has a binaural hearing loss.
Mr McManamey added that Sch 6 Pt 6 cl 2 deals with deductions for previous losses and they are different things because you cannot deduct a monaural loss assessed in 1983 from a binaural loss in 1999.
I do not accept Mr McManamey’s submissions.
I am not concerned with deductions but with whether it is permissible to combine Mr Devine’s several separate losses to enable him to meet the s 67 threshold. That was the clearly agreed issue before the Arbitrator. Clause 2 is in unambiguous terms and was introduced “[t]o avoid doubt” to prevent losses from pre-1987 injuries being added to post-1987 injuries to meet the s 67 threshold.
If Mr Devine’s losses are aggregated, then his total loss has resulted from pre-1987 and post-1987 injuries. In this situation, sub-cl (3) of cl 2 applies and “the part of the loss resulting from the injury received before that commencement [30 June 1987] is not to be taken into account for the purposes of determining” whether the threshold in s 67 is satisfied. It follows that, without the loss from the 1983 injury, Mr Devine cannot meet the threshold for compensation for pain and suffering. The fact that the 1926 Act made no provision for binaural hearing loss is irrelevant to this determination.
Mr McManamey also presented an additional argument in support of the Arbitrator’s decision. To understand this submission it is necessary to consider the terms of the MAC issued by Dr Fernandes on 28 November 2011, which a Medical Appeal Panel confirmed on 12 March 2012.

Dr Fernandes assessed Mr Devine to have a 23 per cent binaural hearing loss that, after allowing for presbycusis of 2 per cent, reduced to 21 per cent, which equals 11 per cent whole person impairment. He noted Mr Devine’s “past claims” to be 9.34 per cent, which equalled 44.47 per cent of 21, and multiplied 21 by 55.52 per cent to get the rounded figure of 11 per cent compensable binaural hearing loss, which equals 6.1 per cent whole person impairment, which he rounded down to 6 per cent.
Mr McManamey submitted that, as Dr Fernandes assessed an overall binaural hearing loss of 21 per cent (equal to 11 whole person impairment) and as the 1.38 per cent binaural hearing loss in 1999 was “about 7 per cent” of 21, deducting 7 per cent from the 11 per cent whole person impairment left an impairment over the 10 per cent threshold in s 67. In support of his submission, Mr McManamey relied on the decision of Arbitrator Perrignon in McMillan v BHP Engineering [2011] NSWWCC 201(McMillan) where it was held that pre-1987 losses could not be deducted from post-1987 losses.
I do not accept this submission.
The argument sought to be put seeks to go behind a MAC that is conclusively presumed to be correct (s 326). While a MAC that does not comply with s 325 may well be invalid (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50), Mr Devine has not challenged the MAC on that basis. In these circumstances, the only method for challenging the MAC was under s 327, which avenue Mr Devine unsuccessfully pursued. Any further challenge to the MAC can only be by judicial review in the Supreme Court, not by way of an appeal under s 352 (Morris v University of NSW [2008] NSWWCCPD 31). This point alone is sufficient to dispose of this issue. However, the following additional points should be noted.
The approach advocated is inconsistent with the case presented at the arbitration and should not be permitted in a s 352 appeal restricted to the correction of error. Mr McManamey did not suggest that, in not taking this approach, the Arbitrator had overlooked any relevant legislative provision or had erred in the way she dealt with the case presented. It is therefore not open to submit that she erred in not dealing with an issue never argued (Brambles Industries Limited v Bell [2010] NSWCA 162 at [22] and [30]). This is different to the failure to consider the transitional provisions because, unlike that error, it does not involve a failure to deal with applicable legislation.
Dealing with the argument on its merits, I reject it. The deduction of 1.38 per cent does not properly allow for Mr Devine’s “past claims”. The loss or losses from those claims must be deducted because they relate to a “previous injury” or injuries. It does not matter that the 1926 Act did not provide for compensation for binaural hearing loss because s 323(1) provides for a deduction for “any pre-existing condition or abnormality” and s 68B(4)(a) provides for a deduction of any such proportion of the loss for which compensation under the Division (as in force at any time) or s 16 of the former Act (the 1926 Act) that has been paid or is payable. Applying these provisions, Dr Fernandes made the correct deduction.
In other words, the approach pressed by Mr McManamey ignores most of Mr Devine’s previous losses and seeks to re-write the MAC to deduct only the further binaural diminution of hearing of 1.38 per cent assessed in November 1999. That approach is inconsistent with the terms of s 323 and gives a completely false result that disregards Mr Devine’s pre-existing losses due to his previous injuries or his “pre-existing condition and abnormality” for which he has received compensation.
While workers compensation legislation is beneficial and remedial, and such legislation should “be given a ‘fair, large and liberal’ interpretation” (AB v Western Australia [2011] HCA 42 at [24]), that does not entitle the Commission to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164; 66 NSWLR 400; 4 DDCR 42). To suggest that the only deduction to be made in this case is 1.38 per cent for the further binaural hearing loss in 1999 ignores the legislation and invites an interpretation of s 323 that is unreasonable and artificial.

CONCLUSION

I am bound to apply the clear legislative intent expressed in Sch 6 Pt 6 cl 2. That intent is to prevent the addition of pre-1987 losses to post-1987 losses to meet the s 67 threshold. In these circumstances, the Arbitrator erred in combining Mr Devine’s pre-1987 loss with his other losses. Without that loss being added to his other losses, he does not meet the s 67 threshold and has no entitlement to compensation for pain and suffering.

DECISION

Paragraph 3 of the Arbitrator’s determination of 22 June 2012 is revoked, but all other orders are confirmed.

COSTS

Mr Edwards properly conceded that if he succeeded on the basis of the transitional provisions, he would be obliged to pay the respondent worker’s costs of the appeal.
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

Bill Roche

Deputy President
19 September 2012

I, PARNEL McADAM, 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