Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 Hearing dates: 20 June 2014 Decision date: 22 December 2014 Before: McColl JA at [1]
Basten JA at [96]
Beech-Jones J at [123]Decision: (1) Grant leave to appeal to the extent necessary to vary the answers given by the Commission to the following:
Q1 Do the amendments to Div 4, Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012?
Ans A claim for lump sum compensation for permanent impairment made on or after 19 June 2012 is a claim to which the 2012 Amending Act applies by virtue of the transitional provision in cl 15, Pt 19H, Sch 6 to the 1987 Act. If there is an unresolved claim, specifically for lump sum compensation for permanent impairment, made before 19 June 2012, the 2012 Amending Act will not apply to it.
Q2 If yes [to question 1], whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker's claim exceeds the s 66(1) threshold?
Ans The scope of the injury involving hearing loss should be determined by applying s 17 of the Workers Compensation Act. A second claim with respect to "an injury", being the loss of hearing which had arisen before, and was the subject of, a prior claim, whether made before or after 19 June 2012, is prevented by s 66(1A). Section 66(1A) would not preclude a claim for a further loss of hearing, post-dating the prior claim, being a further injury. The question is not capable of further answer.
(2) Otherwise refuse leave to appeal.
(3) Make no order as to the costs of any party in this Court.Catchwords: WORKERS COMPENSATION - claim for permanent impairment compensation for hearing loss - assessment and amount - effect of amendments made by Workers Compensation Legislation Amendment Act 2012 - transitional provisions - application of amendments to lump sum compensation - aggregation of impairment arising from the same injury - s 17, 66(1) Workers Compensation Act 1987 (NSW) - ss 322, 323 Workplace Injury Management and Workers Compensation Act 1998 (NSW)
WORDS AND PHRASES - "claim" - "injury"Legislation Cited: Workers Compensation Act 1987 (NSW), ss 17, 66; Sch 6, Pt 19H, cl 15
Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 12
Workers Compensation Regulation 2010 (NSW), cl 11;…
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- AGLC
- Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459
- Case
- [2014] NSWCA 459
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the 2012 amendments applied to claims for permanent impairment compensation for hearing loss made after 19 June 2012, when a prior claim for hearing loss had been made before that date. Secondly, if the amendments did apply, the court had to determine whether multiple injuries arising from the same pathology, in the context of hearing loss claims under section 66 of the *Workers Compensation Act 1987* (NSW), could be aggregated to meet the threshold for compensation.
The Court of Appeal held that a claim for lump sum compensation for permanent impairment made on or after 19 June 2012 was subject to the 2012 Amending Act, provided there was no unresolved claim for lump sum compensation for permanent impairment made before that date. Regarding the aggregation of injuries, the court determined that section 66(1A) of the *Workers Compensation Act 1987* prevented a second claim for an "injury" that had already been the subject of a prior claim, even if the prior claim was made before or after 19 June 2012. However, a claim for further loss of hearing occurring after the date of a prior claim would not be precluded.
Leave to appeal was granted to the extent necessary to vary the answers given by the Commission on these questions, and otherwise, leave to appeal was refused. No order was made as to the costs of the appeal.
Orders
Orders of the court
(1) Grant leave to appeal to the extent necessary to vary the answers given by the Commission to the following:
Q1 Do the amendments to Div 4, Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012?
Ans A claim for lump sum compensation for permanent impairment made on or after 19 June 2012 is a claim to which the 2012 Amending Act applies by virtue of the transitional provision in cl 15, Pt 19H, Sch 6 to the 1987 Act. If there is an unresolved claim, specifically for lump sum compensation for permanent impairment, made before 19 June 2012, the 2012 Amending Act will not apply to it.
Q2 If yes [to question 1], whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker's claim exceeds the s 66(1) threshold?
Ans The scope of the injury involving hearing loss should be determined by applying s 17 of the Workers Compensation Act. A second claim with respect to "an injury", being the loss of hearing which had arisen before, and was the subject of, a prior claim, whether made before or after 19 June 2012, is prevented by s 66(1A). Section 66(1A) would not preclude a claim for a further loss of hearing, post-dating the prior claim, being a further injury. The question is not capable of further answer.
(2) Otherwise refuse leave to appeal.
(3) Make no order as to the costs of any party in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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