Pasminco Metals EZ v Katinis

[1992] TASSC 73

Serial No 19/1992
List “A”

CITATION: Pasminco Metals – EZ v Katinis [1992] TASSC 73; A19/1992

PARTIES:  PASMINCO METALS - EZ
  v
  KATINIS, Martin

COURT:  SUPREME COURT OF TASMANIA
FILE NO/S:  LCA 123/1991
DELIVERED ON:  15 April 1992
JUDGMENT OF:  Zeeman J

Judgment Number:  A19/1992
Number of paragraphs:  10

Serial No 19/1992

List "A"

File No LCA 123/1991

PASMINCO METALS – EZ v MARTIN KAITINIS

REASONS FOR JUDGMENT  ZEEMAN J

15 April 1992

Workers' compensation – Injury – Hearing loss – Essential findings of fact to determine liability to pay compensation and the quantum of compensation.

1. On 27 April 1990 the respondent made a claim for compensation pursuant to the provisions of the Workers Compensation Act 1988 ("the Act"). It appears that that claim was directed to "Electrolytic Zinc Co. of Australasia Limited" although all subsequent steps proceeded upon the basis that the appellant was the employer. It may be that the named company carried on business under the name of Pasminco Metals – EZ Having regard to the agreed facts put before the Workers' Compensation Commissioner nothing turns on the discrepancy. The claim identified the type of injury or disease as being "hearing loss". On 1 May 1990 the appellant lodged an application to the Workers' Compensation Commissioner asserting that it denied liability under the Act to pay compensation to the respondent "on the basis that the hearing loss to Mr Kaitinis occurred prior to the commencement of that Act". The application purported to be made pursuant to the provisions of the Act, s42. The application was mentioned before the Workers' Compensation Commissioner on a number of occasions and came on for hearing on 2 September 1991. On that occasion the learned Commissioner was told that the parties had agreed on a number of facts which were contained in an agreed statement of facts. Although that statement of facts does not appear to be with the documents transmitted to the court, it is common ground that that statement is accurately reproduced in the learned Commissioner's reasons for judgment. The agreed facts were as follows:

"1That [the respondent] is and was at all material times a worker within the meaning of the Workers Compensation Act, 1988.

2That [the respondent] is and was at all material times employed by [the appellant].

3         That [the respondent] has satisfied the requirements of Part IV of the Act.

4That tests of [the respondent's] bilateral hearing conducted on 20th April, 1990 showed a hearing loss of 30.5%

5That tests of [the respondent's] bilateral hearing conducted on 18th June, 1991 showed a hearing loss of 45.4%

6That the diminution of hearing between 4 and 5 hereof arose out of and in the course of [the respondent's] employment with [the appellant] and that employment contributed to that diminution to a substantial degree.

7That [the respondent] has not been either partially or totally incapacitated for work by reason of the diminution of hearing."

1. No other evidentiary material was placed before the learned Commissioner. He was asked to determine the application upon the basis of the agreed statement of facts and nothing else. Although the papers lodged by the appellant included as "evidence" an audiometric data card and reports of Dr HV Jones, there is no suggestion that any of that material was in evidence before the learned Commissioner and counsel accept that it was not in evidence. On a date which does not appear from the form of order, the learned Commissioner ordered as follows:

"1.The applicant pay to the respondent the sum of $7538.40 within thirty days of the date of this order.

2.Liberty be reserved to the parties to apply generally and as to the form of this order.

3.        Any question as to costs be reserved.

4.        This Order be deemed to have come into effect on the 25th November 1991."

1. The appellant has appealed against the first of those orders asserting that the learned Commissioner erred in a number of respects, the alleged errors being described in the notice of appeal in the following terms:

"(a)Awarding the Respondent compensation as aforesaid under Section 71 of the Workers' Compensation Act 1988 when the Respondent was not nor had been incapacitated for work as a result of the disease of industrial deafness.

(b)Finding that the Respondent was entitled to Workers' Compensation pursuant to Section 71 of the Workers' Compensation Act 1988 based upon a binaural hearing loss of 21.43%."

1. Whilst it does not appear from the form of order, it is clear from the learned Commissioner's reasons for judgment that the amount of $7,538.40 represented the amount which the Commissioner determined was payable to the respondent in accordance with the provisions of the Act, s73. It may be doubted whether the learned Commissioner had any jurisdiction to do more than determine that the respondent had a particular entitlement under the Act. In particular, it may be doubted whether he had jurisdiction to require the applicant to pay any particular amount or to pay it within a particular period of time. I tend to the view that a determination of the Commissioner on a reference under s42(1) may not go beyond being determinative of rights. One of the glaring omissions from the Act is a power on the part of the Commissioner to enter judgment for any amount of compensation found to be due to a worker. Consequently the Act contains no provisions for the enforcement of judgments. It appears that the Commissioner may do no more than determine rights, leaving it to a worker found to have an entitlement to be paid a particular sum of money, but who is not paid that sum, to sue for it in a court of competent jurisdiction.

1. I informed counsel that the question as to whether industrial deafness, properly categorised as being a disease, and contracted since the commencement of the Act, could result in an entitlement calculated by reference to s71 or s73 in the absence of incapacity, appeared to be an important and difficult question which might be more appropriately determined by the Full Court. The learned Commissioner determined that question in favour of the respondent although

(a)there are a number of dicta appearing in the Electrolytic Zinc Company of Australasia Ltd v Maister No 23/1990 which could be construed as being to opposite effect; and

(b)there appear to be difficulties, possibly insuperable, in attributing any amount to the "unit" for the purposes of calculating a worker's entitlement in such circumstances.

1. Counsel agreed that it would be appropriate to refer the matter to the Full Court. However, I indicated that I would not be prepared to take that step unless it appeared that the learned Commissioner had before him sufficient materials enabling him to determine the question which he purported to determine.

1. The table contained in the Act, s71(1), provides, by Item 44, for the amount payable to a worker for the partial loss of the hearing of both ears. The entitlement is expressed in these terms:

"Such percentage of the amount payable under item 23 of this table as is equal to the percentage of the diminution of hearing measured without any hearing aid."

1. Item 23, which deals with total loss of hearing, provides that the amount payable for that is 113 units. Item 44 is not limited to industrial deafness. It deals with a partial loss of the hearing of both ears no matter how caused. Various factual circumstances in which there is a partial loss of hearing unconnected with the condition known as industrial deafness readily come to mind. Such circumstances would include incidents of trauma having as an immediate consequence a partial loss of hearing. It may not be assumed that any partial loss of hearing is the result of a worker suffering from the condition known as industrial deafness nor indeed that it is the result of an injury which is a disease within the meaning of s25(1)(b). A determination of whether a relevant injury is or is not a disease may be required to determine the monetary amount to be attributed to a unit for the purposes of the table. If a partial loss of hearing is as the result of a worker suffering from industrial deafness, but not otherwise, the provisions of s73 apply. There is nothing in the agreed statement of facts indicating how it came about that there was an apparent hearing loss between 20 April 1990 and 18 June 1991 beyond the fact that it arose out of and in the course of the respondent's employment and that his employment contributed to that diminution to a substantial degree. There was nothing in the agreed statement of facts as to whether or not it could be said that the respondent suffered from the condition of industrial deafness. Only by inference could it be said that the agreed statement of facts recorded an agreement between the parties as to the percentage of diminution of hearing. It may be that depending on what were the facts that the provisions of any one or more of ss71(4), (5), (9), (10) and 73 were relevant. Again, it may be that the provisions of the Workers Compensation Regulations 1988, reg 17, had some relevance. I express no view as to the extent to which these provisions may have relevance because it is impossible to express such a view upon the basis of the material before the learned Commissioner.

1. The learned Commissioner proceeded upon the basis that the injury suffered by the respondent was a disease, namely industrial deafness, and his reasoning proceeded accordingly. It might be noted that counsel who argued the matter before him fell into the same trap. It seems to have been assumed that the expression "hearing loss" is to be equated with the expression "industrial deafness". Plainly, that is not so. The learned Commissioner proceeded upon the basis that the date upon which the respondent suffered the relevant injury was to be taken as being 18 June 1991. I express no view as to whether or not that was correct, if, in fact, it was appropriate to categorise the respondent's injury as a disease and his condition as industrial deafness. If the respondent's loss of hearing found its origin in an injury not being a disease, then plainly there was no material upon which the learned Commissioner could find when the injury occurred. On the basis of the material before the learned Commissioner, the injury could have been suffered at any time between 20 April 1990 and 18 June 1991. The monetary value of a unit varied during the course of that period.

1. Accordingly the appeal will be upheld and the following consequential orders made:

1         That the order of the Workers' Compensation Commissioner be set aside.

2That the application be remitted to the Workers' Compensation Commissioner for further consideration and for determination according to law.