Qantas Airways Ltd v Strong - [2011] NSWWCCPD 40

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

Mr Strong was employed by Qantas as a baggage handler/ramp operator from 13 March 2002 to 16 July 2010.
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.
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.
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.
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 denying the claim, Qantas relied, among other things, on s 69A of the Workers Compensation Act 1987 (the 1987 Act) on the basis that Mr Strong’s total hearing loss due to industrial deafness was less than the six per cent threshold required by s 69A.
On 18 January 2011, Mr Strong lodged an Application to Resolve a Dispute with the Commission. He claimed $4,125 in respect of three per cent whole person impairment due to “binaural hearing loss” arising from “nature and conditions of employment with respondent – last noisy employer”.
On 28 January 2011, Qantas filed a Reply to the Application to Resolve a Dispute. It denied liability for the reasons set out in its s 74 notice.
On 14 March 2011, Mr Strong was assessed by an Approved Medical Specialist (AMS), Dr Kenneth Howison, who is also an ear, nose and throat surgeon. Dr Howison recorded a 4.5 per cent binaural hearing loss. He also recorded symptoms of severe tinnitus and agreed with Dr Lucchese’s assessment of a further two per cent additional loss, resulting in a 6.5 per cent binaural hearing loss, which equates to a three per cent whole person impairment. Dr Howison issued a Medical Assessment Certificate (MAC) reflecting those findings on 14 March 2011.
On 19 April 2011, Senior Arbitrator Snell conducted a telephone conference, during which the parties were legally represented. Both parties joined in an Application to Refer a Question of Law pursuant to s 351 of the 1998 Act. On 20 April 2011, Arbitrator Snell issued a direction and a timetable relating to the filing of the Application.
On 4 May 2011, the Commission received an Application for Leave to Refer a Question of Law at the request of the applicant, Qantas Airways Ltd. On 9 May 2011, the Commission received a Notice of Opposition to the Application for Leave to Refer a Question of Law filed by the solicitors for Mr Strong.
The Commission’s Practice Direction No 5 requires, among other things, that applications for leave to refer a question of law must be served on the WorkCover Authority of New South Wales at the time they are lodged with the Commission. That did not occur. On 27 May 2011, I issued a direction requiring service of the Application on the WorkCover Authority of New South Wales and providing directions for the filing and service of any submissions by WorkCover in the event that it sought to intervene in the Application.
The WorkCover Authority of New South Wales (WorkCover) filed submissions with the Commission on 9 June 2011 in accordance with the direction.

THE QUESTION OF LAW

The question of law referred by Qantas is as follows:
“3.1.1Whether 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?
3.1.2Further 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.
3.1.3Further or alternatively, whether severe tinnitus within the meaning of clause 9.11 of the WorkCover Guides for the Evaluation of Permanent Impairment, Third 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.”

LEAVE

Before granting leave to refer the question, I must be satisfied that the question meets the requirements of s 351(3) of the 1998 Act, which provides:
“(3)The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.”

QANTAS’S SUBMISSIONS ON THE GRANTING OF LEAVE

The threshold requirement contained in s 69A of the 1987 Act commenced on 20 December 1995. At that time, under the regime applicable for the determination of impairment compensation claims based on industrial deafness, severe tinnitus (or any tinnitus) was not a component of the ultimate determination of impairment.
The additional allowance for severe tinnitus as part of a s 66 entitlement was brought about by reforms which install the current impairment regime in respect of an injury on and after 1 January 2002.
Qantas submits that severe tinnitus does not constitute a loss of hearing due to boilermakers deafness and must be excluded from consideration when assessing whether a worker has satisfied the threshold contained in s 69A.
The only decision concerning the issue is a decision of Arbitrator Leigh Virtue in James Galea v Blacktown City Council [2003] NSWWCC 31 (Galea) determined on 2 May 2003, which the employer submits was wrongly decided.
Qantas contends that the question of law posed is novel because the allowance for severe tinnitus was not contemplated at the time s 69A was introduced to the legislation and has only been brought into existence by cl 9.11 of the WorkCover Guides for the Evaluation of Permanent Impairment (WorkCover Guides).
Qantas further contends that the issue is likely to mainly arise in practice at case or claims management level involving cases of relatively low binaural hearing loss due to boilermakers deafness, which will often not be the subject of litigation and determination by the Commission. It is therefore important that I determine the question of law to assist in the proper determination and resolution of such claims.
Further, Qantas contends that the proper construction of s 69A and of cl 9.11 of the WorkCover Guides is both novel and complex, and there is currently no authority from a Presidential member on the issue.
By virtue of the threshold provisions in s 352, no appeal to a Presidential member from the decision of the Arbitrator is available, as the amount in question ($4,125) is less than the threshold of $5,000 referred to in s 352(3) of the 1998 Act, below which an appeal may not be granted under s 352.
The question warrants a Presidential ruling which will assist not only in the determination of these proceedings, but also in the proper adjustment and determination of similar claims generally.

THE WORKER’S SUBMISSIONS ON THE GRANTING OF LEAVE

First, the worker submits that there is no jurisdiction for the matter to be referred on a question of law. The matter has been referred to an AMS and a certificate has been given certifying the extent of the worker’s impairment. Section 326 of the 1998 Act prescribes that such a certificate is conclusively presumed to be correct. Mr Strong submits that, had the employer wished to raise the tinnitus issue, it should have been raised in the Reply and it should have been raised specifically before the AMS. Once the AMS has given his certificate, in Mr Strong’s submission, it is too late to raise these issues. The only valid way to challenge the AMS certificate is by way of an appeal under s 327 of the 1998 Act.
Second, Mr Strong submits that the issue sought to be raised is not a “novel or complex question of law”, in that the terms of cl 9.11 of the WorkCover Guides are quite explicit and straightforward. The language is plain. The guidelines are validly issued pursuant to s 376 of the 1998 Act.
Third, the worker submits that the matter has been previously considered and determined in Galea. That decision has remained uncontradicted since 2003.

WORKCOVER’S SUBMISSIONS ON THE GRANTING OF LEAVE

WorkCover submits that the application for leave raises novel and complex questions of law for the purpose of s 351(3) of the 1998 Act.

DETERMINATION OF THE LEAVE ISSUE

The questions raised by this referral of law involve complex questions concerning the construction of s 69A of the 1987 Act and cl 9.11 of the WorkCover Guides for the Evaluation of Permanent Impairment, 3^rd ed, issued pursuant to s 376 of the 1998 Act, with respect to the assessment of the degree of permanent impairment arising from a work-related injury or condition occurring on or after 1 February 2009.
The only decision, Galea, touching upon these issues was determined by an arbitrator in 2003. No decisions have been issued by the Commission at a Presidential level. Given the relatively low level of compensation involved, it is likely that many matters, including this matter, would be excluded from an appeal under s 352 of the 1998 Act by reason of the compensation concerned being below the threshold necessary ($5,000) to pursue an appeal from the decision of an arbitrator.
If leave were to be refused, considerable uncertainty would exist concerning the correct application of s 69A and the WorkCover Guides, both within the Commission and at a claims management level.
I accept the employer’s submission that complexity also arises from the fact that the threshold requirements in s 69A were introduced into the 1987 Act in 1995, whereas the WorkCover Guides introduced in 2002, for the first time, a component of compensation for severe tinnitus. The construction and interaction of these provisions has not been the subject of consideration by a Presidential member.
For reasons which I will come to in due course, I do not accept the worker’s submission that there is no jurisdiction for me to consider the matter as a question of law due to the fact that an AMS has provided a certificate certifying the extent of the worker’s impairment. Whilst I accept the worker’s submission that, pursuant to s 326 of the 1998 Act, the certificate issued by the AMS is conclusively presumed to be correct as to the level of impairment, the certificate issued by the AMS does not equate to a determination of the dispute by the Commission (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321).
For these reasons, I am satisfied that the questions raised involve novel and complex questions of law, and I grant leave pursuant to s 351(1) for the questions to be referred for the opinion of the Commission constituted by the President.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties and Workcover submit that the matter is capable of being determined ‘on the papers’.
Having regard to Practice Directions Nos 1 and 5, and the documents that are before me, including the written submissions by the parties and WorkCover, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEGISLATION

Section 69A of the 1987 Act provides:
“69ANo compensation for less than 6% hearing loss
(1) In assessing, for the purpose of the determination of permanent impairment compensation, the degree of permanent impairment resulting from loss of hearing (the present loss) due to boilermakers deafness regard must not be had to any hearing loss due to boilermakers deafness unless the worker’s total hearing loss due to boilermakers deafness is at least 6%.
(2) The worker’s total hearing loss is the aggregate of the present loss and all previous losses of hearing due to boilermakers deafness.
(3) The fact that compensation is not payable in respect of a loss of hearing because of this section does not prevent notice of injury being given or a claim being made in respect of that loss, and does not affect the operation of section 17 in respect of that loss (if and when the worker’s total hearing loss reaches 6%).
(4) An example of the operation of this section is as follows (assume that all hearing losses mentioned are due to boilermakers deafness and that no other injury is involved):
(a)  A worker suffers a hearing loss of 4% (the first hearing loss that the worker has suffered). No permanent impairment compensation is payable in respect of the loss because it is less than 6% and cannot be taken into account to assess the degree of permanent impairment, though notice of injury can be given or a claim can be made for the hearing loss.
(b)  The worker suffers a further hearing loss of 4%, bringing the total loss to 8%. The total loss has now passed the 6% threshold and compensation is payable on the basis of the full 8%. Compensation in respect of the initial 4% hearing loss will be payable by the earlier employer if the worker made a claim or gave notice of injury for that initial hearing loss.
(c)  The worker suffers a further hearing loss of 5%. The worker is entitled in the usual way to compensation in respect of the 5% further loss because the 6% threshold has already been passed (the total loss is now 13%).
(5) For the purposes of determining the percentage of loss of hearing due to boilermakers deafness, that loss of hearing is to be determined as a proportionate loss of hearing of both ears, even if the loss is in one ear only. The regulations may prescribe a method for calculating the proportionate loss of hearing of both ears.
(6) A legal practitioner or agent who acts for a worker on a claim for compensation for loss of hearing due to boilermakers deafness is not entitled to recover any costs from the worker or the employer in connection with acting on the claim if no compensation is payable on the claim because the worker’s total hearing loss due to boilermakers deafness is less than 6% (even if compensation subsequently becomes payable because the worker’s loss of hearing reaches 6% as a result of further hearing loss).
(7) A worker who refuses or fails to submit himself or herself for, or who obstructs, an examination required under section 119 or 122 of the 1998 Act in connection with a claim for which no permanent impairment compensation is payable because of this section is (for the purposes of that claim) presumed in the absence of evidence to the contrary to have no hearing loss due to boilermakers deafness.
(8) A reference in this section and in section 69B to boilermakers deafness includes a reference to any deafness of similar origin.
(9) For the purposes of the operation of section 68B in relation to compensation for loss of hearing, a reference in that section to compensation that is payable under this Division includes a reference to compensation that would be payable were it not for the operation of this section.”
Section 322 of the 1998 Act provides:
“322Assessment 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) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”

Section 376 of the 1998 Act states:
“376Issue of guidelines
(1) The Authority may issue guidelines with respect to the following:
(a)  the assessment of the degree of permanent impairment of an injured worker as a result of an injury,
(a1)  the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury,
(b)  the giving of interim payment directions by the Registrar under Part 5,
(c)  such other matters as a provision of the Workers Compensation Acts provides may be the subject of WorkCover Guidelines.
(2) The Minister may issue guidelines with respect to the procedure for assessment under Part 7 (Medical assessment).
(3) The Authority may amend, revoke or replace WorkCover Guidelines made by the Authority, and the Minister may amend, revoke or replace WorkCover Guidelines made by the Minister.
(4) WorkCover Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.
(5) WorkCover Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.
(6) The regulations may make provision for or with respect to any matter for which the WorkCover Guidelines can provide.”

Clause 9.11 of the WorkCover Guides deals with binaural hearing impairment and severe tinnitus. The clause states:
“Up to five per cent may be added to a work-related binaural hearing impairment for severe tinnitus caused by a work-related injury:
· after presbycusis correction, if applicable, and
· before determining whole person impairment.
Assessment of severe tinnitus is based on a medical specialist’s assessment.”

SUBMISSIONS

Qantas and WorkCover submit that s 69A(1) of the 1987 Act imposes a threshold which must be satisfied to trigger an entitlement under s 66. It is only after the threshold has been reached that consideration may be given to an additional allowance of up to five percent due to severe tinnitus.
Qantas submits that, under the terms of s 69A, the worker must establish “permanent impairment resulting from a hearing loss … due to boilermakers deafness … of at least six per cent”. The section does not expressly or impliedly authorise or permit regard to be had to tinnitus or severe tinnitus in the assessment of permanent impairment resulting from loss of hearing due to boilermakers deafness. If the legislature had intended that outcome, it could have provided for it at the time of the complete replacement of s 69A by the Act 61 of 2001 which, in part, ushered in the current impairment regime. Qantas submits that the words of cl 9.11 make it clear that the allowance for tinnitus is something separate and distinct to the loss of hearing due to boilermakers deafness.
Mr Strong submits that s 69A of the 1987 Act provides a threshold for the recovery of lump sum compensation for hearing loss due to boilermakers deafness of six per cent (binaural) hearing loss. Section 69A does not describe how the level of hearing loss is to be assessed.
Mr Strong submits that the workers’ compensation legislation contains a comprehensive scheme for the assessment of permanent impairment. One of the principal parts of this scheme is the WorkCover Guides. The first edition of the WorkCover Guides commenced operation on 1 January 2002. Since 6 February 2009, impairments have been assessed under the third edition of the WorkCover Guides.
Mr Strong submits that the fact that severe tinnitus was not taken into account in deciding the level of hearing loss as at December 1995 or that the various amendments to s 69A have not expressly dealt with the question of tinnitus is irrelevant. The worker’s entitlements are governed both by the Act and the WorkCover Guides.
Mr Strong submits that cl 9.11 of the WorkCover Guides is quite specific and unambiguous. Specifically, cl 9.11 states that:
(a) an allowance of up to five per cent may be added to the work-related binaural hearing impairment for severe tinnitus caused by a work-related injury
(b) it is to be done before determining whole person impairment. (emphasis added)
Further, he submits that there is no reason to give s 69A and cl 9.11 any meaning other than their plain and obvious meaning.
Qantas argues that to allow a worker to utilise an allowance for severe tinnitus to satisfy the threshold constitutes a weakening or reduction of the threshold that was not intended by the Parliament when s 69A was introduced and subsequently amended.
Qantas refers to the Second Reading Speech on 13 December 1995 in the New South Wales Legislative Council, where the Honourable J W Shaw QC (Attorney General and Minister for Industrial Relations) said, amongst other things:
“The proposals concentrate on controlling costs through efficient delivery of benefits and as far as possible, non-litigious methods of dispute resolution.”
Qantas points to the fact that the introduction of s 69A was one of the proposals in the WorkCover Legislation Amendment Bill at that time. It argues that subsequent reforms to the legislation in New South Wales have all concentrated on controlling workers’ compensation costs. At all relevant times, it has been the intention of the Parliament to have a clear and firm threshold requirement preventing the recovery of compensation for industrial deafness unless the loss of hearing due to boilermakers deafness is at least six per cent. The introduction of an allowance for severe tinnitus in circumstances where that allowance is utilised by the worker to overcome the requisite threshold was not the intention of the Parliament when introducing or amending s 69A.
Qantas submits that the decision in Galea does not address the employer’s submissions in their entirety. WorkCover submits that, to the extent that the Arbitrator aggregated binaural hearing loss by adding a severe tinnitus assessment to reach the six per cent threshold, the matter was wrongly decided.
Qantas submits that s 69A(2), which provides that the worker’s total hearing loss is the aggregate of all present losses and all previous losses of hearing due to boilermakers deafness, does not refer to or expressly authorise the addition of a tinnitus allowance to a binaural hearing loss assessment to enable the worker to satisfy the threshold.
Qantas also refers to s 69A(4), which provides several examples to illustrate the operation of the threshold of s 69A(1). Accepting that the examples do not constitute an exhaustive list, it argues that it is significant that none of the examples contemplate an allowance for severe tinnitus in the determination of whether or not the threshold requirement has been met.
Similarly, Qantas directs attention to s 69A(5), which provides that, for the purposes of determining the percentage loss of hearing due to boilermakers deafness, a loss of hearing is to be determined as a proportionate loss of hearing of both ears, even if the loss is in only one ear. The employer notes that this sub-section does not contemplate, either expressly or impliedly, consideration of tinnitus in the assessment of hearing loss for the purpose of the threshold.
Qantas submits that there is no statement from Mr Strong filed in these proceedings containing any evidence as to how the tinnitus in his case arises, operates or affects him. There is no evidence from Mr Strong, or any medical evidence filed in the proceedings, to establish that the tinnitus in his case constitutes loss of hearing due to boilermakers deafness.
Qantas submits the AMS concluded that the respondent worker’s tinnitus affects his daily living, but he did not say it was affecting his ability to hear or impacting on his hearing loss. Dr Walker, in a report of 16 December 2010 attached to the Reply, accepts that there is a degree of tinnitus, but, in his view, it is not severe. He does not say how the tinnitus operates. Dr Lucchese, in a report dated 8 September 2010 attached to the initiating application, records the applicant’s history as “quite severe tinnitus”. However, he does not say how the tinnitus affects the applicant in terms of his hearing or how it constitutes hearing loss due to boilermakers deafness.
WorkCover supports Qantas’s position. It submits that severe tinnitus is a secondary symptom of binaural hearing impairment and does not stand alone as a compensable impairment in the absence of binaural hearing loss. The reference to severe tinnitus is in the WorkCover Guides, not in s 69A.
WorkCover does not accept that tinnitus is itself a form of noise-induced hearing loss and, as such, it cannot be counted in addition to the noise-induced binaural hearing loss in order to reach the aggregated total in excess of six per cent for the purposes of s 69A.
WorkCover submits that, even if tinnitus is regarded as a form of noise-induced hearing impairment, it would not attract the provisions of s 69A since it is not exclusively a symptom of boilermakers deafness, but may also be a symptom of traumatically-induced hearing loss.
WorkCover submits that s 69A only refers to a hearing loss induced by exposure to noise over a period of time. Neither secondary symptoms (such as tinnitus) nor other types of hearing loss (such as traumatically-induced hearing loss) are relevant for the purposes of the section (Cunningham v Westpac Banking Corporation (1997) 15 NSWCCR 430 (Cunningham)).

CONSIDERATION

Section 69A of the 1987 Act was introduced by the WorkCover Legislation Amendment Act 1995 – Act No 89 of 1995. Amendments were made to s 69A by the WorkCover Legislation Amendment Act 1996 – Act No 120 of 1996. Section 69A was replaced in its entirety by the Workers Compensation Legislation Amendment Act 2001 – Act 61 of 2001.
Section 69A in its original form, which commenced on 20 December 1995, stipulated there was no entitlement to compensation under s 66 for a loss of hearing due to boilermakers deafness if the worker’s total loss of hearing due to boilermakers deafness was less than six per cent. Section 69A in its current form requires the worker to establish the degree of permanent impairment resulting from loss of hearing due to boilermakers deafness to be six per cent or greater. All versions of s 69A have required a loss of hearing due to boilermakers deafness of six per cent or more before an entitlement under s 66 in respect of industrial deafness is established.
When the s 69A threshold was introduced to the legislation, commencing on 20 December 1995, severe tinnitus was not a relevant factor or consideration in determining a worker’s s 66 entitlement for industrial deafness at that point.
The allowance for severe tinnitus in the determination of entitlements under s 66 in respect of boilermakers deafness claims was introduced by cl 9.11 of the WorkCover Guides, which further regulate the determination of impairment entitlements in respect of injuries on and after 1 January 2002.
In the foreword to the introduction of the third edition of the Guides, Jon Blackwell, the Chief Executive Officer of the WorkCover Authority of New South Wales, noted:
“These Guidelines, known as the ‘WorkCover Guides’, are issued under section 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the purpose of assessing the degree of permanent impairment that arises from a work related injury or condition in accordance with section 322(1) of the 1998 Act. The first edition of the WorkCover Guides was issued in December 2001. The focus of the workers compensation legislation is injury management which aims to assist the injured worker to recover and return to work. When a worker sustains a permanent impairment, however, these Guides are intended to ensure an objective, fair and consistent method for the evaluation of the level of permanent impairment. This third edition of the WorkCover Guides replaces the second edition which was issued in November 2006.
The 1998 Act requires that assessment of permanent impairment be made in accordance with these Guides. Medical specialists trained in the use of the WorkCover Guides are to assess the degree of permanent impairment arising from work related injury or condition.
The WorkCover Guides are based on the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment, fifth edition. The AMA Guides are the most authoritative and widely-used source for the purpose of evaluating permanent impairment. However, extensive work by eminent medical specialists, representing all medical colleges, has gone in to reviewing the AMA Guides to ensure that they are aligned with Australian clinical practice.
These Guides apply to all assessments of the degree of permanent impairment that occur on or after 1 February 2009.”
As I noted at [28], the questions referred by this application involve a consideration of the construction of s 69A of the 1987 Act and cl 9.11 of the WorkCover Guides.
Section 33 of the Interpretation Act 1987 is relevant to that task:
“33 Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”
In other words, s 33 requires a purposive approach to interpreting statutory provisions.
The principles of statutory construction were recently discussed in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 (Wilson). At [12], Allsop P (Giles and Hodgson JJA agreeing) stated the relevant principles, which were recently considered and summarised by Deputy President Roche in Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31 at [61]:
“(a) ‘[i]t is the language of Parliament that must be interpreted and construed’;
(b)‘in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context’;
(c)‘[c]ontext is to be considered in the first instance, not merely when some ambiguity is discerned’;
(d)‘[c]ontext is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed’;
(e)‘[f]undamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose’, and
(f)‘general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect’.”
The submissions by Qantas and WorkCover concerning the literal interpretation of s 69A ignore the fact that the assessment of an entitlement to compensation for boilermakers deafness is governed by the application not only of s 69A, but also by s 322 of the 1998 Act and by cl 9.11 of the WorkCover Guides. Section 322(1) provides that the assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is to be made in accordance with the Workcover Guides (as in force at the time the assessment is made) issued for that purpose. As Mr Strong points out, the WorkCover Guides are specific and unambiguous, in that an allowance of up to five per cent may be added to the work-related binaural hearing impairment before the determination of the whole person impairment.
Section 376 of the 1998 Act provides a power for the authority (WorkCover) to issue guidelines with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury.
Pursuant to the power under s 376, WorkCover first issued Guidelines for the Evaluation of Permanent Impairment in 2001. Since then, the WorkCover Guides have been reviewed and updated, and the third edition, issued on 1 February 2009, is currently in force. The provision of an allowance for severe tinnitus has been a feature of all versions of the guide. The use of the WorkCover Guides has been widely accepted and adopted in the assessment of whole person impairment under the Workers Compensation Acts for almost a decade. There has been no submission made by the parties or WorkCover to bring into question the validity of the WorkCover Guides.
It is not to the point that when s 69A was introduced into the 1987 Act no additional allowance was available for severe tinnitus. Since 1 February 2009, the quantification of workers’ entitlements has been assessed by reference to the WorkCover Guides, which clearly permit an additional allowance of up to five per cent to be added to the binaural hearing loss for workers suffering severe tinnitus.
For the reasons given at [69]–[72], I am not persuaded by the submission that, because ss 69A(2) or 69A(5) do not refer expressly to a consideration of tinnitus in the assessment of hearing loss, the questions of law referred for consideration should be construed in the manner contended by Qantas and WorkCover.
Similarly, reference by Qantas to s 69A(4) does not assist in construing s 69A and the WorkCover Guides. Whilst I accept there is no reference to allowances for severe tinnitus in the examples given, the examples are principally directed to the application of s 69A in a case of multiple hearing losses or for losses falling under the threshold. As acknowledged by Qantas at [53], the three examples given are clearly not intended to be exhaustive.
In submitting that to allow a worker to utilise an allowance for tinnitus to satisfy the threshold would constitute a weakening or reduction of the threshold referred to in s 69A(1), Qantas refers to the Minister’s Second Reading Speech at [49] and the Minister’s remarks concerning the measures introduced in 1995 being aimed at controlling costs through the efficient delivery of benefits as far as possible by non-litigious methods of dispute resolution.
The Minister’s remarks applied to a broad range of measures that accompanied the introduction of s 69A. In referring to the threshold provisions in s 69A, the Minister said:
“This addresses the problem of disproportionate administrative and other costs associated with claims for small amounts of hearing loss. The new provisions will, however, still allow workers in noisy jobs to claim the cost of periodic hearing tests to check whether they have reached the six per cent level.”
Clearly, the Minister’s remarks concerned the administrative costs associated with small claims; however, there is nothing that I can discern from the Minister’s comments that would lend any support to Qantas’s submissions concerning the utilisation of an allowance for severe tinnitus in connection with the satisfaction of the threshold requirements.
In Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at 31, the plurality approved the observations of Gummow J in Wik Peoples v State of Queensland (1996) 187 CLR 1; HCA 40, stating:
“It is necessary to keep in mind that when it is said the legislative ‘intention’ is to be ascertained, ‘what is involved is the “intention manifested” by the legislation.’ [75] Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear and emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.”
Even if I were to accept the Qantas submission regarding the import of the Minister’s remarks, which I do not, they cannot overcome the language of cl 9.11.
Section 69A in its terms creates an entitlement to compensation for boilermakers deafness subject to the qualification that no compensation is payable unless the worker’s total hearing loss is at least six per cent. The provision makes no attempt to prescribe how the assessment of the hearing loss is to be undertaken. By virtue of the application s 322 of the 1998 Act, that task is undertaken in accordance with the terms of the Workcover Guides, which prescribe in considerable detail how the assessment of the hearing loss is to be undertaken.
As the preamble to the WorkCover Guides states, they are intended to ensure an objective, fair and consistent method for the evaluation of the level of permanent impairment. They are based on the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment, 5^th edition. The guides have been modified after “extensive work by eminent medical specialists, representing all medical colleges, has gone into reviewing the AMA Guides to ensure that they are aligned with Australian clinical practice”.
The WorkCover Guides are expressed in clear and unambiguous terms. An allowance of up to five per cent may be added to the work-related binaural hearing impairment for severe tinnitus caused by a work-related injury, after presbycusis correction if applicable, and before determining the whole person impairment. Neither Qantas nor WorkCover has made any submissions regarding the construction of s 322 in light of the clear terms of cl 9.11 of the WorkCover Guides.
The language of cl 9.11 is inconsistent with the submission by Qantas and WorkCover that the threshold must first be satisfied in order to trigger an additional allowance for severe tinnitus. If that were so, the words of cl 9.11 might have been expected to have been expressed in terms of permitting an additional allowance after determining the whole person impairment, but that is not the case.

WorkCover submits that tinnitus is a secondary symptom of binaural hearing impairment and does not stand alone as a compensable impairment in the absence of binaural hearing loss. To that extent, it is submitted that it should not be permissible to add any allowance for tinnitus to the noise-induced binaural hearing loss in order to aggregate the total losses to exceed the six per cent threshold for the purposes of s 69A. The submission was not further developed and no evidence was submitted regarding the nature of condition. Whether the condition is characterised as a secondary symptom or not is irrelevant because tinnitus is recognised as a compensable condition under the WorkCover Guides and, for the reasons I have already given, any additional allowance for tinnitus must be added to the assessed hearing impairment before an assessment of the whole person impairment is reached.
Galea was decided by Arbitrator Virtue on 2 May 2003. Arbitrator Virtue determined that any allowance for severe tinnitus may be added to the assessed hearing loss in order to satisfy the threshold in s 69A(1).
Since the decision in Galea, the WorkCover Guides for the Evaluation of Permanent Impairment were re-issued in November 2006 (second edition) and on 6 February 2009 (the current edition). Had the legislature intended that any allowance for severe tinnitus was to be excluded for the purposes of satisfying the threshold in s 69A(1), it could easily have made that plain in the subsequent editions of the WorkCover Guides, but did not do so.
Qantas has made reference to the absence of evidence concerning the extent of the worker’s tinnitus and the impact on his ability to hear. The evidentiary issues concerning Mr Strong’s Application to Resolve a Dispute are not a matter for consideration in this referral of a question of law. They are matters to be determined by the Arbitrator. However, I note that Dr Lucchese, ear, nose and throat surgeon, in his report of 8 September 2010, accepted that the worker suffered from tinnitus. Dr K Howison, ear, nose and throat surgeon, the Approved Medical Specialist to whom Mr Strong had been referred by the Commission, also accepted that he suffered from tinnitus. In both cases, the doctors’ opinions were based on an acceptance of the worker’s history. Section 60 of the Evidence Act 1995 has the effect that a history taken by a doctor and recorded in a medical report is evidence of the facts so recorded (R v Welsh (1996) 90 A Crim R 364; Guthrie v Spence [2009] NSWCA 369).
It is trite to observe that the workers’ compensation legislation is beneficial legislation. Section 9 of the 1987 Act provides that a worker who has received an injury (and in the case of death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with the Act.
In Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765, Mahoney JA noted that, in respect of beneficial legislation such as the workers compensation legislation, entitlements under such legislation should not depend on “distinctions which are too nice”. At the same time, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J).
If there is any ambiguity in the language used, which I do not accept, then, in the context of beneficial legislation, the ambiguity should favour the worker and the Act should be construed beneficially (Bull v The Attorney General for New South Wales [1913] 17 CLR 370 at 384).
For the reasons given, the proper construction of s 69A(1) of the 1987 Act and cl 9.11 of the WorkCover Guides permits workers suffering from severe tinnitus in addition to binaural hearing impairment to aggregate the losses arising from those conditions to satisfy the threshold requirements of s 69A(1).
This construction is consistent with a purposive approach to the construction of s 69A of the 1987 Act and cl 9.11 of the WorkCover Guides. It is not a construction that is “unreasonable or unnatural” and gives full effect to the provisions which entitle workers to compensation for hearing impairment, including the compounding effects of severe tinnitus, subject to satisfying the statutory threshold.

CONCLUSION

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.

COSTS

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.

Judge Keating

President
3 August 2011

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE