Paunovic v RJ Armstrong Pty Ltd
[2025] NSWPIC 124
•4 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Paunovic v RJ Armstrong Pty Ltd [2025] NSWPIC 124 |
| APPLICANT: | Miroslav Paunovic |
| RESPONDENT: | RJ Armstrong Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 4 April 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; industrial deafness; claim for hearing aids; applicant had worked for the respondent up to January 2009; made a claim for industrial deafness against another employer in 2000 and received compensation consistent with a finding of 17% binaural hearing loss; applicant is seeking payment for hearing aids; relied on a medical report which assessed his binaural hearing loss at 13%; IME was unaware of the amount of hearing loss assessed in the previous claim; Held – applicant has discharged his onus of proving injury by virtue of satisfying the provisions of section 17; respondent has not satisfied the evidentiary onus to establish the employment did not cause or contribute to the injury at issue Elias Fadallah v Canterbury City Council applied; hearing aids are reasonably necessary as a result of the injury at issue; respondent is to pay the costs of and incidental to the provision of the hearing aids. |
| DETERMINATIONS MADE: | The Commission determines: 1. Within seven days of the hearing held on 1 April 2025, the respondent’s solicitor is to lodge and serve an Application to Lodge Additional Documents annexing an email from SIRA to the applicant’s solicitors dated 22 October 2021. 2. The applicant suffered an injury in the nature of hearing loss in the course of his employment with the respondent, with a deemed date of injury of 1 January 2009. 3. The applicant’s injury has caused serious and permanent disablement. 4. The hearing aids claimed by the applicant at page 79 of the Application to Resolve a Dispute are reasonably necessary as a result of the injury. 5. The respondent is to pay the costs of and incidental to the provision of the hearing aids, at the appropriate gazetted rates. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Miroslav Paunovic, worked on a casual basis at an orchard owned by RJ Armstrong Pty Ltd (the respondent), located approximately 10km west of Orange. His main role was in the fabrication of apple bins, including cutting metal and using an air compressor with a nail gun to nail planks of wood to the metal frame. The applicant last worked for the respondent on or about 1 January 2009, which is the deemed date of his alleged injury.
The applicant states he was not fitted with hearing protection while carrying out a myriad noisy tasks in the course of his employment with the respondent and claims that as a result of that employment he has suffered binaural hearing loss. He seeks payment from the respondent for the cost of digital hearing aids which he alleges are reasonably necessary as a result of injury suffered in the course of his employment.
There is no issue the applicant had a prior workers compensation claim for industrial deafness with a different employer in or about 2000.
The respondent denies liability on a number of bases. It denies it was the last noisy employer for whom the applicant worked; denies any workplace injury; alleges the requirement for any hearing aids is not brought about as a result of the applicant’s employment with it and also seeks to rely on the time limit provisions set out in s 254 and s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
ISSUES IN DISPUTE
The parties agree that the following issues remain in dispute:
(a) whether the respondent was the last noisy employer of the applicant;
(b) whether the applicant suffered injury in the course of his employment with the respondent;
(c) if the answer to (b) above is in the affirmative, whether any requirement for hearing aids has come about as a result of that injury, and
(d) whether the applicant is precluded from bringing a claim by virtue of the operation of ss 254 and 261 of the 1998 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 1 April 2025. The applicant was represented by Mr Hickey instructed by Mr Tancred, solicitor. The respondent was represented by Mr Stiles instructed by Mr Murray, solicitor.
EVIDENCE
Written evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application);
(b) Reply;
(c) Application to Lodge Additional Documents (ALAD) of the applicant dated 19 February 2025, and
(d) email from SIRA recording claims made by the respondent, dated
22 October 2021.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Noisy employment
The parties agree liability will only vest in the respondent if the applicant’s employment was noisy, and it was relevantly his last noisy employer for whom the applicant worked.
The applicant’s uncontested evidence is the respondent was his last employer. I am comfortably satisfied on the balance of probabilities the evidence discloses he has not worked since ceasing employment with the respondent and certainly has not engaged in any subsequent noisy employment.
In his statement evidence, the applicant set out the duties with the respondent which he described as noisy. I have no difficulty accepting the applicant as a witness of truth, as his evidence is uncontested. Moreover, it is supported by a former co-worker, Paolo Pappalardo, whose evidence is broadly consistent with that of the applicant.
Given this evidence is uncontested, and the respondent does not put forward anything to contradict the applicant’s assertions regarding the nature and conditions of his employment, I do not propose to recite the applicant’s evidence in full. Suffice to say, I accept the applicant’s evidence and that of Mr Pappalardo.
Having so found, the question of whether the applicant’s employment was noisy is decided in his favour, as is the question of the respondent being the applicant’s last noisy employer.
This, however, is not the end of the exercise.
Whether the applicant suffered an injury in the course of his employment with the respondent
Section 17 of the Workers Compensation Act 1987 (the 1987 Act) provides a unique statutory framework surrounding industrial deafness claims. The section relevantly provides:
“(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,…”
In this instance, the applicant brings his claim in circumstances which may fall within s 17(1)(a)(ii), in that the evidence discloses the respondent is the last noisy employer for whom the applicant worked.
As Byron DP noted in Elias Fadallah v Canterbury City Council [2004] NSWWCCPD 6, if a worker is able to establish noisy employment, as I have found the applicant has in this matter, the evidentiary onus then shifts to the employer to seek to establish that protective measures that were in place excluded the possibility of any such injury.
In this matter, there is no evidence of any protective measures having been adopted.
In Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52, the Court of Appeal reviewed the relevant authorities as to the interpretation of s 17(1) of the 1987 Act. Kirby J noted at 55:
“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.”
His Honour continued at 56:
“If that nature was of a kind which could cause hearing loss, the burden of carrying all past hearing loss falls upon that employer. If that employer contends, notwithstanding the ‘nature’ of its employment, that it did not in fact cause any hearing loss (and thus that ‘the injury was not due’ to the nature of the employment properly understood) the forensic onus of exculpating itself falls upon it...it is enough for the worker to succeed against that employer to show that the ‘nature’ of the employment was such as to give rise to a hearing loss.”
At 64, Cole J stated:
“...it follows from these authorities that in determining whether, at the time when notice of injury was given, Mr Lobley was ‘employed in an employment to the nature of which the injury was due’, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.”
There is no question the applicant previously worked in noisy employment with a previous employer Email Limited, and that he made a claim in relation to hearing loss against that employer with a deemed date of injury of 22 November 2000.
Relevantly, that claim was settled in or about 2001 for the sum of $11,531 pursuant to s 66 of the 1987 Act.
By reference to the relevant tables of disability in effect at the time of the applicant’s prior injury and claim, the parties each submitted this figure represented a binaural hearing loss of approximately 17.7%.
In a report dated 14 January 2022, the applicant’s independent medical examiner (IME) Dr Scoppa assessed him as suffering from 13.8% binaural hearing loss due to industrial deafness. In his report, Dr Scoppa was appraised of the applicant having made a prior claim for industrial deafness in or about 2001. It is apparent, however, that Dr Scoppa was not aware of the amount for which that claim was settled or the percentage of binaural hearing loss assessed on that occasion.
The question then is, given my acceptance of the applicant’s evidence as to noisy employment and that his general hearing has deteriorated since leaving the employ of the respondent in 2009, whether an injury has been established in the nature of aggravation of hearing loss.
Dr Scoppa provided a further report in January 2024, in which he noted the applicant’s overall hearing had diminished even since his initial assessment in 2022. Dr Scoppa, quite appropriately, noted this deterioration was age-related and the applicant’s underlying industrial deafness had not worsened between his two assessments, as he was no longer exposed to noisy employment in between times.
Given the operation of s 17 of the 1987 Act, in my view the applicant has established an injury in the nature of aggravation to his binaural hearing loss, by virtue of establishing the respondent was his last noisy employer. Having established the nature of that employment, the respondent has not, in my view, discharged the evidentiary onus which then fell upon it to demonstrate the employment did not worsen the applicant’s condition.
Although Dr Scoppa’s assessment of binaural hearing loss is lower than that for which the applicant obtained compensation in 2001, the level of impairment is not proof of the existence or otherwise of an injury per se. Rather, having satisfied the requirements of s 17, the applicant has established a basis for liability in the respondent as the last employer whose employment was to the nature of which the injury was due.
Reasonable necessity of the hearing aids
I have no difficulty accepting the hearing aids proposed by Dr Scoppa are a medical necessity. Although the objective necessity of the hearing aids was raised as a dispute in the proceedings, this was primarily on the basis of the applicant’s hearing aids with which he was fitted in or about 2021 providing him with little to no assistance. I note the hearing aids recommended by Dr Scoppa are digital and far more powerful than those with which the applicant has been fitted, and I have no difficulty accepting Dr Scoppa’s view the applicant would benefit from them.
This being so, and Dr Scoppa’s opinion being the only medical evidence of note in relation to the overall suitability of the hearing aids, I have little difficulty accepting the applicant requires them and that they are reasonably necessary as a result of the injury at issue. In so finding, it must be remembered the relevant injury need only have made a material contribution to the need for the treatment sought.
The time limit defences
The respondent also relied on s 254 and s 261 of the 1998 Act. I do not propose to recite the terms of those sections in these reasons, however, there is no dispute those provisions act as a bar to the recovery of compensation in circumstances where either a notice of injury has not been given within time to an employer and/or a claim for compensation has not been made in time.
Having found the applicant a witness of truth, I accept his explanation that he was of the view he could not make a claim for hearing loss as he had ceased work. The applicant was of the view an injured worker needed to still be working in order to make a claim. That evidence is uncontested, and I accept it satisfies the requirements of s 254(3)(b) and s 261(4) of the 1998 Act.
However, the applicant failed to make a claim within three years of his deemed date of injury in 2009, and it is therefore necessary for him to establish he had suffered serious and permanent disablement as a result of the injury (s 261(4)(b) of the 1998 Act).
In determining whether this is the case, it must be remembered the injury in this matter is the worsening of the applicant’s preexisting condition.
The claim in this matter is for the provision of hearing aids, not for permanent impairment. In my view, the earlier assessment and payment for an approximate 17% binaural hearing loss, as opposed to the 13% assessed by Dr Scoppa for the purposes of the present proceedings is not of itself fatal to the applicant’s claim, as the concept of serious and permanent disablement is not defined purely by an impairment rating. The applicant’s unchallenged evidence is his hearing has worsened over time, and that he now finds it almost impossible to hear people speak, hear the television or the radio. He says he has to guess what people are saying to him, and that his wife needs to yell at him to communicate.
This evidence, which I accept, combined with a 13% binaural hearing loss due to the injury at issue, in my view satisfies a finding of serious and permanent disablement. Accordingly, I find the applicant has established an exception to the provisions of s 261(1) of the 1998 Act, and the respondent will therefore be ordered to pay for the costs of the hearing aids as sought.
Mr Hickey also submitted the provisions of s 261(8) were enlivened as this was a matter where two or more persons were liable in respect of compensation, and as a result the applicant’s claim on his former employer in 2000 would be sufficient to satisfy this exception to the prohibition form claiming compensation.
Given my other findings in the matter, it is not necessary to determine this question.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.
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