Sukkar v Adonis Electrics Pty Ltd

[2014] NSWCA 459

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; Sch 8
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 322, 351, 352

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 88 ALJR 624
Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246
Commonwealth of Australia v Western Mining Corp Resources Ltd [1998] HCA 8; 194 CLR 1
Department of Juvenile Justice Services v Edmed (2008) NSWCCPD [38]
Eraring Energy v Brownlie [2008] NSWWCCPD 42
Galluzzo v Little [2013] NSWCA 116
Manuel v BOC Ltd [2011] NSWWCCPD 20
Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276
OneSteel Limited v Devine [2012] NSWWCCPD 52
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679
Robertson v City of Nunawading [1973] VR 819

Category:

Principal judgment

Parties:

Jamil Sukkar (Applicant)
Adonis Electrics Pty Ltd (Respondent)
Workcover Authority of NSW (Intervenor)

Representation:

Counsel: BG McManamey, G Horan (Applicant)
SL Flett (Respondent)
BJ Tronson (Intervenor)

  Solicitors: Turner Freeman (Applicant)
Sparke Helmore (Respondent)
WorkCover Legal Services (Intervenor)

File Number(s):

2013/367078

Publication restriction:

No

 Decision under appeal 

Citation:

Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59

Date of Decision:

08 November 2013

Before:

Keating P

File Number(s):

WCCO10937/12

Judgment

1. McCOLL JA: The applicant, Mr Jamil Sukkar, seeks leave to appeal against a decision of Judge Keating, President of the Workers Compensation Commission (the "Commission"): Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59. The primary judgment answered two questions of law referred to the President pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 (the "1998 Act"). Leave to appeal is required because the amount of compensation in dispute is less than $20,000: s 353(4)(c), 1998 Act. The application for leave to appeal was heard concurrently with the appeal.

2. The referred questions of law and his Honour's responses were:

"Question one:

Do the amendments to the 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 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?

Answer: Yes

I shall refer to this as the "previous claim argument".

Question two:

If yes, 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?

Answer: No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act.

I shall refer to this as the "aggregation argument".

3. The second respondent, the WorkCover Authority of New South Wales ("WorkCover"), intervened in the proceedings before the Commission pursuant to s 106 of the 1998 Act. Leeming JA gave leave for WorkCover to be added as a party to the appeal on 10 February 2014. WorkCover undertook to pay its own costs of the proceedings.

4. For the reasons that follow, I would grant leave to appeal as the case raises significant questions of construction concerning workers' compensation legislation. However, I would dismiss the appeal with costs. I will refer to Mr Sukkar as the appellant.

Legislative framework

5. Determination of the referred questions turned on provisions of the Workers Compensation Act 1987 (the "1987 Act") and the 1998 Act. The 1987 Act is to be construed with, and as if it formed part of, the 1998 Act. In the event of inconsistency, the 1998 Act prevails: s 2A, 1987 Act.

6. The referred questions also concerned the application of amended and transitional provisions of the 1987 Act. A number of these provisions were considered in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 88 ALJR 624 ("ADCO Constructions") in which the High Court held that cl 11, Sch 8 to the Workers Compensation Regulation 2010 (NSW) (the "WCR") was valid.

7. Section 4 of the 1987 Act defines "injury" relevantly as follows:

" 'injury':

(a) means personal injury arising out of or in the course of employment,

(b) includes a 'disease injury', which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease..."

8. Section 17 of the 1987 Act relevantly provides:

"17 Loss of hearing-special provisions

(cf former s 7 (4B), (4BB))

(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

...

(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words 'as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury' were omitted therefrom." (Emphasis added)

9. The effect of s 17(1)(b) was to remove the timing obligation on the giving of notice of injury imposed by s 61(1) of the 1998 Act to which a worker who sought to recover compensation under the 1998 Act was otherwise subject.

10. Section 65 which appears in Div 4 of Pt 3 of the 1987 Act relevantly provides:

65 Determination of degree of permanent impairment

(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.

Note: The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A." (Emphasis added)

11. Prior to 27 June 2012, s 66(1), which also appeared in Div 4 of Pt 3 of the 1987 Act, provided:

"A worker who receives an injury that results in permanent impairment is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act."

12. Section 66(2)(a) set out a mechanism for calculating compensation when the degree of permanent impairment was not greater than 10 per cent.

13. Section 66 and other provisions of the 1998 Act were amended by the Workers Compensation Legislation Amendment Act 2012 (NSW) (the "Amendment Act"). Schedule 2, which contained the amendments relating to lump sum compensation, commenced on the date of assent to the Amendment Act, 27 June 2012.

14. Schedule 2 of the Amendment Act omitted s 66(1) and substituted a new s 66(1) and (1A), which provide:

"(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.

(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury."

15. The Amendment Act also repealed s 66(2)(a), thereby removing the mechanism for calculating compensation for permanent impairment less than 10 per cent.

16. Schedule 6 to the 1987 Act (which has effect by virtue of s 282 of the 1987 Act) is entitled "Savings, transitional and other provisions". The Amendment Act inserted a new Pt 19H into Sch 6 entitled "Provisions consequent on enactment of Workers Compensation Legislation Amendment Act 2012".

17. Part 19H relevantly provides:

"3 Application of amendments generally

(1) Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:

(a) an injury received before the commencement of the amendment, and

(b) a claim for compensation made before the commencement of the amendment, and

(c) proceedings pending in the Commission or a court immediately before the commencement of the amendment.

(2) An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.

...

15 Lump sum compensation

An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date."

18. As I have said, the amendments to s 66 of the 1987 Act were made by Schedule 2 of the Amendment Act. In ADCO Constructions (at [13]), the plurality (French CJ, Crennan, Kiefel and Keane JJ) said:

"In summary, cl 15 protected entitlements the subject of claims made before 19 June 2012 from the general application of cl 3 and, therefore, from the disentitling effect of the new s 66(1) ... The protection provided by cl 15 was, however, liable to be affected by regulation."

Gageler J wrote to like effect (at [41]).

19. The WCR was amended pursuant to the amended regulation-making power conferred by the 1987 Act by the insertion of a new Sch 8, commencing on 17 September 2012. Pt 1, Sch 8 deals with Savings and transitional provisions in relation to the Amendment Act. Clause 1 provides:

"1 Interpretation

(1) Words and expressions used in this Part have the same meaning as in Part 19H of Schedule 6 to the 1987 Act.

(2) The provisions of Part 19H of Schedule 6 to the 1987 Act are deemed to be amended to the extent necessary to give effect to this Part."

20. A second amendment, which commenced on 1 October 2012, inserted, a new cl 11 which provides:

"11 Lump sum compensation

(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.

(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1)."

21. It is also relevant to have regard to the following provisions of the 1998 Act:

"4 Definitions

claim means a claim for compensation or work injury damages that a person has made or is entitled to make.

...

compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.

...

permanent impairment compensation means compensation for permanent impairment under section 66 of the 1987 Act."

22. The following provisions appear in Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

"322 Assessment of impairment

...

(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

...

323 Deduction for previous injury or pre-existing condition or abnormality

(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality... "

Factual background

23. The factual background is uncontroversial and can be extracted from the primary judgment supplemented by some uncontroversial observations.

24. The appellant has been employed by the first respondent, Adonis Electrics Pty Limited ("Adonis") as an electrician since about 1996. His work has at all material times involved exposure to extreme noise throughout the whole working day, using tools of trade and equipment such as jack hammers and power saws.

25. In 1996 the appellant made a claim for permanent impairment compensation from Adonis pursuant to s 66 of the 1987 Act in respect of noise induced hearing loss (the "previous claim"). The application resulted in the registration of an agreement with WorkCover on 29 August 1996 which recorded that the appellant suffered 12.9 per cent binaural hearing loss at the time of the agreement, for which he was paid compensation of $11,093.35. The primary judge found that the deemed date of that injury was on or shortly before 29 August 1996: primary judgment (at [7]). That finding is not challenged.

26. On 19 June 2012 the appellant served a letter of demand on Adonis, by which he was still employed, claiming $12,375.00 in respect of an additional 9 per cent whole person impairment arising from hearing loss (the "current claim"). The claim was based on a report from Dr Stylis, an ear, nose and throat specialist, who assessed the appellant as suffering from 31.6 per cent hearing loss, after allowance for non-occupational impairment and an adjustment for age. This equated to a whole person impairment of 16 per cent. After adjustment for the prior claim of 12.9 per cent hearing loss, the remaining hearing loss of 18.7 per cent equated to 9 per cent whole person impairment.

27. There is no suggestion the appellant had given prior notice of that claim pursuant to s 61 of the 1998 Act, but, even if he had, the consequence of ADCO Constructions is that it would not have assisted him absent a pre-19 June 2012 s 66 claim. Rather, it appears that the 19 June 2012 letter of demand was treated as such notice of the injury. There was no dispute that by virtue of s 17(1)(a)(i) of the 1987 Act, the deemed date of injury in respect of the current claim was 19 June 2012.

28. On 19 June 2012 a copy of the letter of demand was sent to Allianz Australia Workers Compensation (NSW) Limited ("Allianz"), Adonis' workers compensation insurer. Allianz rejected the current claim on the basis that the whole person impairment claimed did not meet the impairment threshold of "greater than 10%" in s 66(1).

29. On 17 September 2012 the appellant lodged an Application to Resolve a Dispute in the Commission. He claimed $12,375,00 in respect of "additional 9 per cent whole permanent impairment" due to hearing loss. The date of injury was stated as 19 June 2012.

30. On 9 October 2012 Adonis filed a reply to the application, noting the matter in dispute as (primary judgment (at [14])):

"[T]he respondent maintains that the applicant is not entitled to claim lump sum compensation as the claim was made on or after 19 June 2012, and the applicant has not satisfied the s 66(1) threshold to be entitled to claim and receive lump sum compensation."

31. On 18 June 2013 the matter came before Arbitrator Nicholl for an arbitration hearing. According to the appellant's written submissions, at that stage he amended the current claim to claim for 16 per cent impairment resulting from injurious events occurring in 1996 and on 19 June 2012 together with pain and suffering pursuant to s 67 of the 1987 Act.

32. The Arbitrator noted that there was a dispute between the parties as to whether the appellant was entitled to aggregate the impairments due to the same pathology in order to satisfy the s 66(1) threshold or whether the claim was in substance two separate claims, with two different dates of injury as prescribed by s 17 of the 1987 Act.

33. The Arbitrator considered those issues raised questions of law that were novel and complex and referred the two questions of law I have earlier set out to the President of the Workers Compensation Commission pursuant to s 351 of the 1998 Act.

Primary Judgment

34. The primary judge concluded that the questions "involve[d] a novel or complex question of law" (s 351(3), 1998 Act) concerning "the aggregation of hearing impairments for the purposes of satisfying the newly introduced compensation threshold in s 66(1) of the 1987 Act and whether claims for compensation for hearing loss with different deemed dates of injury are to be treated as separate injuries, or in the alternative as one injury involving the same pathology arising from multiple injurious events of injury" arising under the Amendment Act. Accordingly he granted leave for the referral: primary judgment (at [19] - [24]).

34. After setting out the relevant legislative framework (at [25] - [28]), his Honour considered the previous claim argument.

35. The appellant argued before the primary judge (see primary judgment [29]) that, where the pathology of the two injuries were the same:

"[29]...whilst [the appellant] may have two separate claims and two different dates of injury under s 17 of the 1987 Act, there is in fact only one injury, only one pathological condition, that is, neurosensory hearing loss..."

37. As a result, the appellant submitted, since notice was first given in respect of that injury in 1996, by virtue of cl 15 of Pt 19H of Sch 6 of the 1987 Act ("cl 15 of Pt 19H"), the Amendment Act did not apply: primary judgment (at [29]).

38. The appellant also relied on 'the general principles concerning the construction of s 322(2) of the 1998 Act and the decision in Department of Juvenile Justice Services v Edmed (2008) NSWCCPD 6 as to the concept of injury being pathology": primary judgment (at 32]).

39. Adonis and WorkCover submitted that the current claim was prohibited because of the combined operation of cl 15 of Pt 19H and s 17 of the 1987 Act.

40. The primary judge rejected the appellant's submissions finding:

"[54] Even if it is accepted...that [the appellant] has suffered only one pathological condition namely, sensorineural hearing loss, the current claim does not arise from the same injury he suffered in 1996. It is a new injury or, as it is described in s 17, it is a 'further loss of hearing which arises from a series of micro traumata between 29 August 1996 and 2012'."

41. In this respect, his Honour applied Eraring Energy v Brownlie [2008] NSWWCCPD 42 (at [38]) and Manuel v BOC Ltd [2011] NSWWCCPD 20 (at [66]) which held that claims for a further loss of hearing constitute a separate "injury" for the purposes of the deeming provisions of s 17, as distinct from the initial loss of hearing: see primary judgment (at [55] - [56]).

42. The primary judge also applied Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 (at 689-690) where Sheller JA (Priestley JA agreeing) explained:

"The legislative scheme for awards of compensation for boilermaker's deafness proceeds on the following assumptions or fictions:

1 The condition known as 'boilermaker's deafness' is deemed to be a loss of hearing which is of such a nature as to be caused by a gradual process (s 17(2)).

2 A loss of hearing which is of such a nature as to be caused by a gradual process is an injury (s 17(1)).

3 In the language of Barwick CJ, in Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 at 256-257, the injury is taken to have happened 'as it were, in one blow'. If 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, the injury is deemed to have happened at the time when the notice of the injury was given; if the worker was not so employed, when he or she gave notice of the injury, the injury is deemed to have happened on the last day on which the worker was employed in such employment, before he or she gave the notice (s 17(1)(a)).

4 Compensation is payable by the worker's employer at the time when the notice of injury was given, if the worker was then employed in employment to the nature of which the injury was due; if the worker was not so employed at the time of the notice, it is payable by the last employer by whom the worker was so employed (s 17(c))."

43. After referring (at [60]) to OneSteel Limited v Devine [2012] NSWWCCPD 52 ("Devine") where Deputy President Roche held (at [41]):

"...the purpose of s 17 is to fix a date to determine the law applicable to calculating the quantum of an entitlement to compensation and to determine by whom that compensation is payable. The fictional basis on which the section proceeds is premised upon an injury being 'a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process'. In that sense, ... the loss, or further loss, of hearing is deemed an 'injury'."

The primary judge concluded:

"[61] It follows that [the appellant's] submission that s 17 assumes that a s 4 injury has been sustained is not accurate. The section proceeds on a number of assumptions for the critical purposes of fixing a date to determine the law applicable to calculating the quantum of an entitlement to compensation and to determine by whom that compensation is payable.

[62] Even where the subsequent losses arise from the same pathology (sensorial hearing loss), 'for the purposes of' s 17(1)(a) of the 1987 Act, the injury is deemed to happen on the date the worker gives notice of the injury. In this case the deemed date of injury is 19 June 2012, the date of notification of Mr Sukkar's further loss of hearing. That is also the date of the claim.

[63] On this basis the law applicable to calculating the quantum of Mr Sukkar's entitlement to lump sum compensation for his further loss of hearing is the law introduced by the 2012 amending Act, which applies to a claim made on or after 19 June 2012.

...

[66] It would be irrational to find that a claim in respect of the injury for which Mr Sukkar claims, namely a further loss of hearing, is part of the claim resolved in 1996....

[67] ... in the circumstances of this case, there is no reason to depart from the prima facie position in cl 15 of Pt 19H, that is, the amendments apply to Mr Sukkar's claim for further hearing loss because it was made on 19 June 2012."

44. Accordingly, his Honour concluded that the answer to question 1 was "yes".

45. As the primary judge had answered question one "yes", he turned to the aggregation argument.

46. The appellant argued that his 1996 and 2012 hearing loss assessments must be aggregated to determine whether or not the current claim exceeded the s 66(1) threshold of greater than 10 per cent whole person impairment. The submission depended on interpreting "injury" in s 66(1) as meaning the whole pathology of the hearing loss, rather than referring to a particular deemed date of injury pursuant to s 17 or being limited to the whole person impairment caused by the deemed injurious event created by s 17 of the 1987 Act: primary judgment (at [71] - [76]). He argued construing "injury" as "pathology" was consistent with s 322 of the 1998 Act concerning the assessment of impairments.

47. Adonis and WorkCover submitted that the Amendment Act permitted further hearing loss compensation provided that the loss exceeded the 10 per cent whole person impairment threshold referred to in s 66(1) of the 1987 Act. They contended that if, as the appellant argued, hearing loss from the previous claim could be aggregated with the impairment the subject of the current claim, he would, in effect, be compensated twice. They also argued that as s 323(1) of the 1998 Act required the "deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Div 4 of Pt 3 of the 1987 Act)", once that deduction was undertaken for the purposes of the current claim, the appellant was left with whole person impairment of nine per cent and, accordingly, still could not satisfy the s 66(1) threshold.

48. The primary judge rejected the appellant's submissions. His Honour held (at [94] - [95]), that "[t]he amendments introduced by Sch 2 of the 2012 amending Act ushered in a new regime for the compensation of injured workers suffering whole person impairment [which] ... were designed to restrict access to lump sum benefits." That "new regime ... is predicated on a construction of the legislation that permits 'only one claim'...for 'an injury'". While "[i]n that sense, 'injury' may mean injurious event or pathology", the post Amendment Act regime permitted "only one claim" for "an injury" (s 66(1A)), which must satisfy the 10 per cent threshold: primary judgment (at [102] - [103]). His Honour said it was plain that the amendments prohibited the aggregation of impairments arising from two claims, by permitting only one claim for permanent impairment that results from "an injury": primary judgment (at [105]).

49. His Honour concluded that this construction was consistent with the legislature's intention in passing the Amendment Act "to limit compensation to those less seriously injured workers in favour of allowing the scheme to focus on the more seriously injured workers": primary judgment (at [104]). It was also consistent with the repeal of the former s 66(2)(a) of the 1987 Act, which removed any mechanism for calculation of lump sum compensation for permanent impairment of less than 10 per cent: primary judgment (at [109]).

50. Accordingly, the primary judge answered the second question "No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act".

Appellant's Submissions

51. The appellant only faintly pressed his arguments in relation to the previous claim argument. In his written submissions he submitted that Pt 19H of Sch 6 to the 1987 Act and cl 11 of Sch 8 to the WCR excluded the operation of the 2012 amendments where there had been a s 66 claim prior to 19 June 2012 for permanent impairment benefits in respect of an impairment that results from injury. He contended that the 1996 claim satisfied that requirement for the following reasons.

52. First, the appellant contended that a series of cases dealing with the pre-Amendment Act s 67 held that where that provision referred to "injury that results in an impairment of 10% or more" the reference to "injury" could be to either the injury pathology or the injurious event, depending upon the context.

53. Secondly, the appellant argued that the same meaning should be given to these words when they appear in s 66, and "therefore to the implied reference to 'injury' in the transitional provisions". While s 17 created a new injurious event for hearing loss whenever a claim was made, each claim did not generate a new pathology. Accordingly, the transitional provisions excluded the operation of the 2012 amendments whenever there had been a claim in respect of the same pathology prior to 19 June 2012. As the appellant had made such a claim in 1996, the Amendment Act did not apply to the current claim.

54. Thirdly, the appellant argued that the primary judge failed to take into account that although s 17(1)(a) created a deemed date of injury, it did not create a new injury in the sense of a new pathology. Rather, in relation to industrial deafness, each claim is in respect of the same pathology.

55. Fourthly, the appellant contended that the reference to "further loss of hearing" in s 17(1) was not, as the primary judge concluded, a claim for hearing loss where there had previously been such a claim but, rather, should be read as applying where a worker had a pre-existing non-work related hearing loss and the injury suffered was then a further loss. He submitted that construction gave the words "further loss of hearing" work to do, while being consistent with s 322(2) of the 1998 Act which recognises the concept of a single injury (pathology) arising from separate injurious events and resulting in a single impairment.

56. In relation to the aggregation argument, the appellant first submitted that Devine was authority for the proposition that "the impairments resulting from multiple claims for permanent impairment compensation can be aggregated in order to satisfy the threshold requirement contained in section 67". Again, this approach should be applied to s 66, which was relevantly identical. Accordingly, he argued that "when the legislation is read as a whole, aggregation is available to satisfy the threshold requirements of section 66 ... ."

57. Secondly, the appellant argued that the primary judge erred in holding (at [102] - [105]) that "because there can only be one claim [pursuant to s 66(1A)] the intention is that whether injury means pathology or injurious event there can only be one claim and this evidenced an intention that aggregation was no longer available". He pointed out that in circumstances where there had not been a previous claim, a worker could rely upon a single pathology resulting from a series of injurious events to satisfy the threshold provisions of s 66(1), and that there was nothing in the restriction to a single claim which would prevent the consequences of a series of events being aggregated to assess a single permanent impairment.

58. Thirdly, the appellant submitted that s 66(1A) only applied to claims for lump sum compensation made after 19 June 2012. There was nothing in the relevant provisions which prevented the phrase "one claim" from including what was actually a further claim (i.e. here, the current claim) that happened to follow on from earlier claims made and paid before 19 June 2012.

59. Finally, the appellant included in his submissions about the aggregation claim, an argument which appeared to depend upon the success of the previous claim argument. He contended that by virtue of cl 15, Pt 19H of Sch 6 to the 1987 Act and WCR cl 11, Sch 8, the one claim restriction in Sch 6(1A) only applied to post 19 June 2012 claims. As the previous claim was made pursuant to s 66, there was nothing in the 1987 Act which prevented the words "one claim" in s 66(1A) from including a "further claim" that happened to follow on from the previous claim.

Adonis' Submissions

60. Adonis first submitted in relation to the previous claim argument that the appellant was seeking to read the phrase "not to such a claim made before that date" as "not to such a claim in respect of an injury before that date", then to read the word "pathology" for "injury", so that cl 15, Pt 19H effectively read that any amendment would not apply to "a claim in respect of a pathology before that date". Adonis contended that this process of interpretation was not supported by any principle of statutory construction.

61. Secondly, Adonis submitted the appellant's submissions impermissibly elided the concepts of "claim", "injury" and "pathology." It argued that the primary judge did not err in identifying the key issue as the meaning of "claim".

62. Thirdly, Adonis submitted that the appellant's submission that "there is only one injury" was wrong. Rather, because industrial deafness is the consequence of repeated traumata, the legislature had classed it as "a disease of gradual onset". It was the deeming provisions of s 17 of the 1987 Act which served to create a compensable injury being the loss of hearing as at the date of the application: Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 ("Bain") (at 257 - 258) per Barwick CJ. Accordingly, the appellant had suffered two separate compensable injuries, one in 1996 and one on 19 June 2012, which were the subject of two claims. That being the case, the current claim did not reach the s 66 threshold.

63. As to the aggregation argument, Adonis did not accept the appellant's submission that Devine stands for the proposition that "impairments resulting from ... two dates of claim could be aggregated" to determine whether the injury has resulted in a degree of impairment greater than 10 per cent. Rather, Adonis argued Devine determined (at [43]) that s 322(2) "allows for the aggregation of impairments resulting from incidents that have occurred at different times, provided they are the same pathology". However, Devine did not support the appellant's submission that impairments resulting from two dates of claim could be aggregated.

64. Secondly, Adonis submitted that it was the current claim which must satisfy the greater than 10 per cent threshold for permanent impairment and that threshold could not be satisfied by aggregating the deemed 1996 and 2012 injuries because by virtue of the deeming provision, they did not result from the "same injury", but, rather, each gave rise to a separate claim.

65. Generally, Adonis submitted that cases decided under s 67 of the 1987 Act such as Devine, which the appellant relied on to argue that "an injury that results in an impairment of 10 per cent or more" can refer to the "pathology" of injury were not relevant because the (now-repealed) s 67 placed no restriction on the number of claims that could be brought by an injured worker. Accordingly any construction of s 322 of the 1998 Act in respect of the threshold requirement under s 67 did not have to take issues of "claim" into account. The effect of the Amendment Act amendments was that the issue of "claim" was of central relevance both generally and to the extent to which s 322 of the 1998 Act might assist a worker to achieve the threshold requirement under s 66(1).

WorkCover's submissions

66. WorkCover submitted that the critical issue for the purposes of the previous claim argument is whether the appellant's "claim is 'a claim for compensation made on or after 19 June 2012'" within the meaning of cl 15, Pt 19H, Sch 6 to the 1987 Act. If it is, the argument proceeds, the amendments to Division 4 of Pt 3 of the 1987 Act introduced by Sch 2 of the Amendment Act apply.

67. WorkCover contends that as the appellant made his claim for compensation on 19 June 2012, s 17(1)(a)(i) of the 1987 Act deems the injury to have happened on that date. Clause 15 then specifies that the applicable law at that date is that in force consequent upon the Amendment Act.

68. Further, WorkCover submitted that the way the appellant contended he had recast his claim as one for a "single impairment resulting from the same pathology albeit from two injurious events" was not relevant. Rather, what was relevant was the proper construction of the legislation which applied to the claim and the characterisation of the claim on that basis.

69. In relation to the aggregation argument, WorkCover pointed to absurdities that would result from the appellant's construction of s 66 of the 1987 Act if it permitted a worker to aggregate previous injuries stemming from the same pathology so as to surpass the 10 per cent threshold.

70. If "injury" was read as the appellant contended as meaning "pathology", then a worker who made a claim following a particular incident leading to hearing loss would be barred (pursuant to s 66(1A)) from making another claim for the same injury (pathology) resulting from a different incident, even if both incidents separately surpassed the 10 per cent whole person impairment threshold. WorkCover argued it could not have been Parliament's intention to permit a worker to satisfy the s 66 threshold, but not be entitled to claim compensation.

71. Alternatively, WorkCover argued that even if the appellant was correct in his aggregation argument, the effect of s 323(1) of the 1998 Act meant the 1996 injury, the subject of the previous claim, had to be deducted for the purposes of the whole person impairment calculation. If that did not happen, the appellant would be compensated twice for his initial hearing loss. Once it did happen, the appellant could not satisfy the s 66 threshold and could receive no compensation - another absurdity.

72. Finally, in response to questions from the Court, WorkCover submitted that the words "in respect of that injury" should be inserted at the end of the President's answer to Question 2.

Consideration

73. The 1987 and 1998 Acts must be construed in accordance with the principles identified in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 where, at [69]- [70], the plurality (McHugh, Gummow, Kirby and Hayne JJ) said (footnotes omitted):

"[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the 'provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

74. Further, as the plurality said in ADCO Constructions (at [29]) the purpose of WCR Pt 1, Sch 8, cl 11 was "patently not beneficial". The same can be said of the amendments to s 66 of the 1987 Act and Part 19H, cl 15 in Sch 6. It is not possible in those circumstances to adopt the beneficial construction approach which characteristically applies to such legislation: ADCO Constructions (at [29]).

The previous claim argument

75. In my view the appellant's argument in this respect is untenable. It can be accepted that there is only one pathology underlying the appellant's hearing loss. However, the legislative fiction created by s 17 to facilitate a worker progressively claiming for further (i.e. increasingly severe) hearing loss operates, as was explained in Devine (at [41]), to deem the further loss of hearing to be an "injury" for the purposes of the recovery of further permanent impairment compensation for hearing loss.

76. It was because the appellant's "further [hearing] loss" was treated as an "injury", separate to the "injury" the subject of the 1996 claim, that the appellant was, subject to the amended s 66 of the 1987 Act, entitled to make a "claim" for "permanent impairment compensation". The claim was made on 19 June 2012. The appellant had not made a s 66 claim for the further [hearing] loss before 19 June 2012. That was the deemed date of injury for the purposes of s 17(1)(a) of the 1987 Act.

77. Accordingly, even if by reason of his further hearing loss the appellant was entitled to make a claim for compensation before 19 June 2012, he had not done so. The consequence is that because of the combined operation of s 17 of the 1987 Act and cl 15 of Pt 19H of Sch 6 to the 1987 Act the amended s 66 applied.

78. The current claim was for nine per cent whole person impairment which did not satisfy the s 66(1) threshold. Subject to the aggregation argument, the current claim was prohibited.

The aggregation argument

79. As is apparent s 65 of the 1987 Act set out earlier in these reasons requires the degree of permanent impairment that results from an injury to be assessed as provided by s 65 and Pt 7 of Ch 7 of the 1998 Act in which s 322 and s 323 appear.

80. In Galluzzo v Little [2013] NSWCA 116 ("Galluzzo"), Barrett JA (with whom Ward JA and Tobias AJA agreed) described the effect of s 65(2) of the 1987 Act and s 322(2) and s 322(3) of the 1998 Act as follows:

"[38] The provisions just quoted, read as a whole (and together with s 322(1) of the [1998] Act), indicate three things: first, that if a worker suffers several 'injuries' arising out of a single 'incident', those injuries are to be treated as a single injury and the impairments resulting from that composite single injury are to be 'assessed together'; second, that, even if the several injuries arising out of a single incident are not to be treated as a single injury, the impairments resulting from those injuries are to be 'assessed together'; and, third, the object of the process of assessment as a whole is to quantify is 'the degree of permanent impairment of an injured worker.

[39] The aim, therefore, is to address the state of "permanent impairment" of a particular person produced by a single incident, with all injuries arising out of the incident being treated as a single injury and all resultant impairments being "assessed together", so as to avoid the kind of situation illustrated by Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 (a case involving the Commonwealth workers compensation regime) where each "injury" was dealt with in its own right and without reference to the others even though all arose from the one incident.

81. Barrett JA referred (at [40]) to Roche DP's decision in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (at [26]) in which Roche DP said:

"That the term 'injury' can have two different meanings is acknowledged in s 322(3) of the 1998 Act where reference is made to 'Impairments that result from more than one injury arising out of the same incident...' This reference to 'injury' can only mean the 'pathology' that has resulted from the relevant work 'incident' or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one 'injury (an injured leg and an injured arm) within the terms of s 322(3) resulting from the one 'incident'. In other words, he or she has suffered more than one pathology ('injury') as a result of the one incident or injurious event. Those 'injuries' are to be assessed together. This interpretation is consistent with s 65(2) of the 1987 Act and is uncontroversial."

82. Barrett JA said of this paragraph:

"[41] This, in my respectful opinion, is an accurate summary, subject to one modification. The provisions envisage that an 'injury' (or several 'injuries') will 'arise from' an 'incident' and that one or more 'impairments' will 'result from' the 'injury' (or 'injuries'); and that it is 'impairment' or 'impairments' that must be assessed. The penultimate sentence in the quoted extract should therefore read:

'The impairments resulting from those 'injuries' are to be assessed together.' "

83. The aggregation argument depends upon "injury" in "same injury" in s 322(2) of the 1998 Act referring to the pathology of hearing loss, rather than to the "injury" deemed to have occurred by the operation of s 17(1)(a) of the 1987 Act.

84. In my view that submission cannot be accepted. The effect of s 17(1)(a) of the 1987 Act was to operate in the worker's favour, as Barwick CJ explained in Bain (at 257), to create a fictional date of injury which could found a compensation claim, even though "the condition is a product of past events". It also created a fictitious "incident" for the purposes of causation, that being the "one blow" to which Barwick CJ also referred.

85. That fiction was perpetuated by the inclusion in s 17(1) of the words "or further loss" which enabled the worker to make a further claim for compensation in relation to a further deemed injury arising from a deemed incident, despite hearing loss resulting from the same pathology. Indeed, it is not apparent that the current claim is based on the same pathology as the primary judge recorded (at [54]) that the current claim is for "a series of micro traumata between 29 August 1996 and 2012'"

86. The injury the worker claiming for hearing loss suffers is that deemed to have occurred on 19 June 2012, the s 17(1)(a) date. That is a different "injury" from the "injury" the subject of the previous claim which was deemed to have occurred on or shortly before 29 August 1996. The two injuries are not accordingly the "same injury" for the purposes of s 322(2) of the 1998 Act.

87. To adapt Barrett JA's explanation in Galluzzo (at [41]) concerning the operation of s 322(3), s 322(2) envisages that there will be more than one impairment resulting from the "same injury". If that is the case, the impairments must be assessed together. However in the context of s 17(1)(a), only one impairment arose from the deemed injury being the appellant's "further loss" of hearing the subject of the current claim.

88. That construction gives s 322(2) a construction which is consistent with s 17(1)(a) and s 66(1) of the 1987 Act. It also enables a harmonious construction of the operation of those provisions and s 322(2) of the 1998 Act.

89. Alternatively, it is difficult to understand the utility of the aggregation argument. Even if it was correct, the consequence of the application of s 323(1) would be that the current claim fell beneath the threshold. Either way, it could not succeed.

90. Finally I would observe that as I understand the respondents' arguments, they do not contend the current claim should be rejected because it is a second claim contrary to s 66(1A). Any such contention would be inconsistent with the proposition that the current claim is for "further loss" and is a new injury, different from that the subject of the previous claim. The appellant fails at the s 66(1) point because the current claim did not satisfy the "greater than 10%" threshold. The outcome would be the opposite if he had.

Conclusion

91. The effect of the answers to the referred questions is that as the current claim was in respect of an injury "received" after the commencement of the new s 66, the threshold that provision imposed applied. The appellant's permanent impairment arising from that "injury" was not "greater than 10%". Accordingly he is not entitled to receive from Adonis compensation for that permanent impairment.

Orders

92. On appeal, this Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires: s 75A(10), Supreme Court Act 1970 (NSW). I accept both the appellant and WorkCover's submission that the primary judge answered Question 2 too narrowly, in that his Honour did not answer it by reference to the circumstances of this case. Neither the appellant or Adonis objected to WorkCover's proposed amendment to that answer.

93. The consequence of the primary judge's answer to the referred questions was that the appellant's 19 June 2012 claim for his nine per cent hearing loss was not viable. Accordingly, his Application to Resolve a Dispute having been determined adversely to him, one might have thought his proceedings in the Commission should formally have been dismissed.

94. However, the primary judge appears to have assumed that was not the case and ordered (at [114]) that his costs be costs in the cause. Adonis accepted in this Court that the answers to the referred questions meant there was no longer a "cause". It did not seek to disturb the costs order below, but submitted that if the appeal was dismissed there should be a costs order in its favour. The appellant did not oppose that application.

95. I propose the following orders:

1. Grant leave to appeal.

2. Appellant to file a notice of appeal in the form of the draft in the White Book within seven (7) days of delivery of these reasons.

3. Amend the answer to Question 2 to read:

Answer: No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act in respect of that injury

4. Appeal dismissed with costs.

96. BASTEN JA: Mr Sukkar has been employed for many years as an electrician by the respondent, Adonis Electrics Pty Ltd. In the course of that employment, he has been exposed to levels of noise which have caused him significant loss of hearing but, as is characteristic of such a condition, not incapacity for work. He is, nevertheless, entitled under the Workers Compensation Act 1987 (NSW) to lump sum compensation for permanent impairment.

97. In mid-1996 the applicant made a claim for compensation which was assessed and paid. (This will be referred to as the "1996 claim".)

98. Mr Sukkar continued to work in a noisy environment and suffered further diminution of his hearing. On 19 June 2012 his solicitors served a notice of injury and a claim for lump sum compensation. The date of injury was identified as 19 June 2012.

99. Accompanying the claim was a report of an ear, nose and throat surgeon, Dr SC Stylis. Dr Stylis, after making due allowance for non-occupational impairment and a correction for age calculated a binaural hearing impairment due to industrial hearing loss of 31.6%. That, as a proportion of whole person impairment amounted to 16%. Dr Stylis further noted that he had previously been compensated for a 12.9% binaural hearing loss in 1996. He then apportioned the whole person impairment attributable to the period after August 1996 at 9%.

100. The success or failure of this claim turned upon the operation of amendments to the Workers Compensation Act introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW) ("the 2012 Amendment Act"). Relevant provisions in the 2012 Amendment Act commenced on the date of assent, namely 27 June 2012.

101. The 2012 Amendment Act relevantly effected two changes to the provision under which the applicant sought lump sum compensation, namely s 66 of the Workers Compensation Act. The first change was to remove paragraph (a) from s 66(2). The effect of that amendment was to remove any entitlement to lump sum compensation for permanent impairment where the impairment was not greater than 10%. Consistently with the removal of paragraph (a) from subs 66(2), s 66(1) was amended to refer to an entitlement where the permanent impairment was greater than 10%. To the extent that the applicant suffered a further hearing loss (since the 1996 claim) of only 9%, application of s 66 as amended would result in the rejection of his claim.

102. Secondly, a new subs (1A) was inserted permitting only one claim in respect of an injury. Accordingly, s 66 as amended now reads:

66 Entitlement to compensation for permanent impairment

(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.

(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.

Application of 2012 Amendment Act

103. Schedule 12 of the 2012 Amendment Act contained savings and transitional provisions now found in Sch 6, Pt 19H of the Workers Compensation Act. Relevantly, cl 15 of Pt 19H provides:

15 Lump sum compensation

An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.

104. A straightforward application of cl 15 rendered the amendments applicable, on the basis that the "claim" was that lodged on 19 June 2012. On the basis that the claim was for a further hearing loss involving permanent impairment of only 9%, if the new provisions applied, the claim failed.

105. The applicant sought to resist both conclusions. So far as the application of the 2012 Amendment Act was concerned, he submitted that, having made a prior claim, being the 1996 claim, he was not covered by cl 15, set out above. In his written submissions, which were not amplified orally, he sought to rely upon Sch 8 to the Workers Compensation Regulation 2010 (NSW), cl 11 of which provided:

11 Lump sum compensation

(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.

(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).

106. The effect of cl 11 was to preclude reliance on the old form of s 66 with respect to a claim made prior to 19 June 2012, unless the claim specifically sought lump sum compensation. The 1996 claim fell within the exception. However, that did not assist the applicant because, not only had that claim been disposed of, but it could not give rise to an entitlement to compensation for loss of hearing after August 1996. It followed that the 2012 Amendment Act applied to the only extant claim, namely that made on 19 June 2012.

107. The second limb to the applicant's case, designed to avoid the unavailability of compensation for whole person impairment which was not greater than 10%, was to assert that the "injury" for which compensation was claimed was the assessed loss of hearing at the date of the claim. That included the loss of hearing attributable to his employment prior to the 1996 claim, with the result that the whole person impairment amounted to 16%.

108. This argument was fatally flawed. Either it gave rise to a double payment for the hearing loss suffered prior to August 1996 (which the applicant wisely eschewed) or it required an explanation of what it meant to say that the "injury" involved whole person impairment of 16%, compensable as to only 9%, in circumstances where an impairment not greater than 10% was not compensable. No plausible submission was proffered, no doubt because the position put forward was incoherent.

109. These conclusions might, on one view, suffice to refuse a grant of leave to appeal. However, that step cannot be taken without reference to the proceedings in the Workers Compensation Commission which gave rise to the present application.

Proceedings in Commission

110. Pursuant to an application to resolve a dispute, the matter first came before an arbitrator in the Commission. The arbitrator considered the issues of law to be novel and likely to give rise to similar disputes in other cases. Furthermore, the amounts of compensation available with respect to levels of whole person impairment below 10% might give rise (although not in this case) to claims involving less than $5,000. The result would be that no appeal would be available from an arbitrator to a presidential member under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("Workplace Injury Act"), s 352. That difficulty was sought to be avoided by referral to the President of two "questions of law" arising in the proceedings, pursuant to s 351 of the Workplace Injury Act.

111. The first question was as follows:

(1) Do the amendments to the 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?

112. The President of the Commission, Keating DCJ, granted leave with respect to this question. In his reasons, delivered on 8 November 2013, he answered the question, "Yes": Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59.

113. Given the procedural history noted above, the intention of the question is reasonably clear. However, abstracted from that history, the scope of the question and the effect of the answer are less clear. The lack of clarity could, however, be reduced by giving the following answer in lieu of that proposed by the President:

"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."

114. The second question departed further from the language of the statute. It was in the following terms:

"2. 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?"

115. To this question, the President also granted leave and answered it:

"No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act."

116. Unfortunately, the question is difficult to understand. On the one hand it refers to "the same pathology of injury" (apparently referring to the physical or psychological conditions caused by some exogenous event), but also referring to "multiple injurious events of injury" (apparently referring to the exogenous events causing the physical or psychological harm). What the drafter of the question no doubt had in mind was the understanding that hearing loss may be caused, as recognised by s 17 of the Workers Compensation Act, "by a gradual process" involving long periods of exposure to loud noises.

117. As the President's answer identified, the question did not suggest there had or had not been any prior claim. If there had not been, the question was simply a somewhat confusing summary of the entitlement given by s 17. If there had been a prior claim, there could only be a claim for a further loss of hearing. That is recognised by s 17 which, so far as presently relevant, provides:

17 Loss of hearing-special provisions

(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,

...

(2) Without limiting the generality of subsection (1), the condition known as "boilermaker's deafness" and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.

118. Further, as the President explained in his reasons, s 66(1A) would prevent a second claim with respect to "an injury" which, in the case of the prior claim, would mean the loss of hearing which had arisen before, and was the subject of, the prior claim. By parity of reasoning, s 66(1A) would not preclude a claim for a further loss of hearing, being a further injury.

119. The answer to question 2 could be reformulated in those terms, together with a statement that the question is otherwise inappropriate to be answered.

Conclusions

120. There should be a limited grant of leave, for the purpose of reformulating the answers as indicated above. Otherwise leave to appeal should be refused. The reformulations do not assist the applicant and he cannot obtain costs in this Court in these circumstances.

121. There remains a question as to whether the applicant should be ordered to pay the costs of the first respondent, his employer. (The second respondent is the WorkCover Authority, joined by leave, which neither seeks nor offers to pay costs.) So far as the first respondent is concerned, unlike the applicant, it is insured and its insurer is presumably one of those parties who will benefit from the applicant's failure in the range of cases which the arbitrator foresaw and the President accepted as likely to arise, raising similar issues of principle. It is therefore appropriate that there be no order as to the costs in this Court.

122. The Court should make the following orders:

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 the 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.

123. BEECH-JONES J: In my view that part of the application for leave to appeal which concerns the first question posed to Keating DCJ, turns upon the meaning of the word "claim" in Clause 15 of Pt 19H of Schedule 6 to the Workers Compensation Act 1987 (NSW) and clause 11 of Schedule 8 to the Workers Compensation Regulation 2010. The applicant contends that those provisions confer some form of immunity from the amendments that came into force on 19 June 2012 if he just happened to have previously made a claim for workers compensation prior to then. This is misconceived. The reference to "claim" in those provisions is clearly directed to the claim under consideration which in this case was the claim made on 19 June 2012 (the "2012 claim").

124. In relation to that part of the application for leave to appeal which concerns the second question posed to Keating DCJ, for the reasons I will next explain, in my view the only substantial matter raised by the applicant for this Court to address concerns the meaning of the phrase "this Act" in s 66(1A) of the Workers Compensation Act.

125. The second question that was posed to Keating DCJ was unfortunately expressed, to say the least. First, it was drafted in a manner that had little, if any, relationship to Mr Sukkar's case. Thus the question posed was not specifically directed to claims involving loss of hearing even though Mr Sukkar made such a claim and special provision is made in respect of them by s 17 of the Workers Compensation Act. Instead the question was directed to all claims under s 66. Further, no part of the second question identified the relevant circumstance that there had been a previous claim which had been determined, and which related to one of the so-called "multiple injuries" that were sought to be aggregated. That circumstance was clearly of significance because it potentially brought s 66(1A) into play.

126. Second, the question invoked phrases such as "pathology of injury" which are not found within either of the Workers Compensation Act or within the Workplace Injury Management and Workers Compensation Act 1998.

127. The first matter gives rise to a real doubt as to whether the question posed was one that truly arose in the proceedings brought by Mr Sukkar. The second matter gives rise to a real doubt as to whether that which was posed was truly a "question of law" arising in the proceedings. Both doubts affect whether the questions were properly posed for Keating DCJ in accordance with s 351(1) of the Workplace Injury Management and Workers Compensation Act. Generally any attempt to provide a complete answer to question 2 would involve a lengthy essay addressing a variety of circumstances most of which would have nothing to do with Mr Sukkar's case.

128. This difficulty with the question was clearly recognised by Keating DCJ. His Honour addressed question 2 in a context that assumed there had been a prior claim. Thus His Honour stated:

"103. However compensation under s 66(1) of the 1987 Act is only payable 'as provided by this section'. The reference to 'this section' includes s 66(1A) and the limitation on the number of claims that can be made. It must follow that, irrespective of whether 'injury' referred to in s 66 refers to an injurious event or the same pathological condition, the one claim that may be made be made under the Act as amended must satisfy the 10% threshold before whole person compensation is payable under the section.

...

108. Construing the words in s 66 as a whole, the clear purpose of the amended provision is to restrict lump sum compensation claims for whole person impairment to workers who, in one claim, seek a whole person impairment of greater than 10 per cent. Regardless of whether injury in the amended s 66 means injurious event or pathology, Mr Sukkar does not meet the new threshold unless the impairment in his 1996 schedule is added to the impairment in his 2012 claim. This is not permitted."

129. Thus His Honour reasoned that, if aggregation of the hearing loss the subject of the 2012 and the claim made in 1996 (the "1996 claim") was possible, then it meant that both claims were for permanent impairment compensation "in respect of the permanent impairment that results from an injury" in the sense that both claims related to or concerned some permanent impairment arising from the injury the subject of the 1996 claim. If, on the other hand, aggregation was not possible then the claim was bound to fail because it was accepted that the threshold of having a degree of permanent impairment greater than 10% found in s 66(1) could not be overcome.

130. In this Court at least, the applicant sought to resist the application of s 66(1A) in the manner outlined in the first sentence of the previous paragraph. If that was overcome he then sought to explore the application of the aggregation provisions in s 322 of the Workplace Injury Management and Workers Compensation Act to hearing loss claims. Thus in his submissions in this Court the applicant said:

"It is submitted the restriction in the new Section 66(1A), which only permits one claim to be made for permanent impairment compensation can, by virtue of clause 15 Pt 19H and clause 11 of Schedule 8 of the Regulations, only apply to claims for lump sum compensation made after 19 June 2012. To assert that claims made before 19 June 2012 can be of relevance to Section 66(1A) is to assert that Section 66(1A) extends to and applies to claims made before that date. The fundamental fault with such an assertion is that both clause 15 Pt 19H and clause 11 of Schedule 8 of the Regulations provide a new form of s 66 does not extend to such claims.

Section 66(1A) permits one claim in respect of the permanent impairment that results from an injury. That should be read as one claim to which the section applies. In the circumstances of this case there is only one claim to which the relevant provisions apply. There is nothing in the relevant provisions which prevent the phrase 'one claim' from including what is actually a further claim that happens to follow on from earlier claims made and paid before 19 June 2012." (emphasis added)

131. Clause 15 of Pt 19H of Schedule 6 to the Workers Compensation Act is set out at [17] above. Clause 11 of Schedule 8 to the Workers Compensation Regulation is set out at [20] above. It is correct to state, as the above submission does, that those amendments do not apply to a claim for compensation under s 66 of the Act that was made before 19 June 2012.

132. However, it is not correct to state that s 66(1A) is not engaged in respect of a claim made on or after 19 June 2012 if there had previously been a claim made before 19 June 2012. When s 66(1A) is applied to a claim made on or after 19 June 2012 it restricts a worker to making one claim "under this Act". The phrase "this Act" is referring to the entirety of the Workers Compensation Act of which the amendments introduced in June 2012 forms part (see Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276 at 280 per Taylor J; Commonwealth of Australia v Western Mining Corp Resources Ltd [1998] HCA 8; 194 CLR 1 at 74 per Kirby J).

133. This approach is not inconsistent with the transitional provisions noted above and nor does it give s 66(1A) a retrospective operation. To the contrary it only involves s 66(1A) "tak[ing] account of antecedent facts and circumstances as a basis for what it prescribes for the future, and ... no more than that" (Robertson v City of Nunawading [1973] VR 819 at 824). On and from 19 June 2012 s 66(1A) mandates that there shall only be one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury. In doing so it may operate on facts antecedent to it coming into force including the existence of an earlier claim but it does no more than that.

134. It follows that the entire premise of the applicant's attempts to invoke the aggregation provisions was misconceived. His application was and is doomed to fail.

135. All that remains is the problematic nature of question 2. It follows from what I have stated that I consider that this case was an unsuitable vehicle to explore the interrelationship between s 17 of the Workers Compensation Act and s 322 of the Workplace Injury Management and Workers Compensation Act. Nevertheless I agree with the answer proposed by Basten JA which I do not understand to foreclose consideration of that issue. Further, it is clear that s 66(1A) operates with respect to a prior claim whether made before or after 19 June 2012.

136. I agree with the orders proposed by Basten JA.

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Amendments

16 September 2015 - changed "ADCO Constructions Pty Ltd v Goudappel [2014] HCA 1" to "ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18" in coversheet

Decision last updated: 16 September 2015