Qantas Airways Ltd v Strong

WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:		Qantas Airways Ltd v Strong [2011] NSWWCCPD 40
APPLICANT:		Qantas Airways Ltd
RESPONDENT:		Cain Strong
INSURER:		Self-insured – Qantas Airways Ltd
INTERVENER:		WorkCover Authority of NSW
FILE NUMBER:		364/11
DATE OF DECISION:		3 August 2011
SUBJECT MATTER OF DECISION:		Novel or complex question of law; application of s 69A of the Workers Compensation Act 1987; boilermakers deafness; threshold requirements and additional allowances for severe tinnitus
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Applicant:	Bartier Perry
Respondent:	Koutzoumis Lawyers
Intervener:	WorkCover Authority of NSW

ORDERS MADE:

The answers to the questions of law referred by this application are set out below.

Question One.

“Whether it is permissible in the application of section 69A of the Workers Compensation Act 1987 (the 1987 Act) to have regard to any allowance for severe tinnitus?”

Answer: Yes.

Question Two.

“Further or alternatively, does the correct application of section 69A of the 1987 Act require consideration only of a worker’s binaural hearing loss without any addition of an allowance for severe tinnitus.”

Answer: No.

Question Three.

“Further or alternatively, whether severe tinnitus within the meaning of clause 9.11 of the WorkCover Guides for the Evaluation of Permanent Impairment, 3^rd edition dated 1 February 2009 (the WorkCover Impairment Guides) constitutes hearing loss due to boilermakers deafness within the meaning of section 69A(1) of the Workers Compensation Act 1987.”

Answer: Not necessary to answer.

As between the parties, the costs of this application be costs in the cause.

The Workcover Authority of NSW is to pay its own costs.

BACKGROUND TO THE REFERRAL OF THE QUESTION OF LAW

1. Mr Strong was employed by Qantas as a baggage handler/ramp operator from 13 March 2002 to 16 July 2010.

2. Mr Strong alleged that throughout his employment he was exposed to the noise of heavy machinery used in loading and unloading aircraft, and jet engine noise. As a result of the noise exposure, he suffered from noise-induced hearing loss.

3. On 20 September 2010, Mr Strong’s solicitors made a claim on his behalf for $4,125 in respect of a three per cent whole person impairment relating to the alleged industrial deafness. His claim was supported by a report from Dr G Lucchese, an ear, nose and throat surgeon. Dr Lucchese assessed that Mr Strong suffered a binaural hearing loss of 4.5 per cent. Dr Lucchese noted that Mr Strong suffered from severe tinnitus and added an additional two per cent, making the total compensable binaural hearing loss 6.5 per cent, which equates to a whole person impairment of three per cent.

4. Qantas arranged for Mr Strong to be examined by Dr John Walker, an ear, nose and throat surgeon, on 16 November 2010. He assessed that the binaural hearing impairment at 1.3 per cent.

5. On 31 December 2010, Qantas issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). In…