Sukkar v Adonis Electrics Pty Ltd

Case [2013] NSWWCCPD 59


WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
Status: Leave to appeal to the Court of Appeal granted to the extent necessary to vary the answers given by the Commission to the referred questions of law, otherwise leave to appeal refused – Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459
CITATION: Sukkar v Adonis Electrics Pty Limited [2013] NSWWCCPD 59
APPLICANT: Jamil Sukkar
RESPONDENT: Adonis Electrics Pty Limited
INSURER: Allianz Australia Workers Compensation (NSW) Limited
INTERVENER: WorkCover Authority of NSW
FILE NUMBER A1- 10937/12
DATE OF HEARING: 15 October 2013
DATE OF DECISION: 8 November 2013
SUBJECT MATTER OF DECISION:

Question of law; s 351 of the Workplace Injury Management and Workers Compensation Act 1998; application of amendments to lump sum compensation provisions introduced by the Workers Compensation Legislation Amendment Act 2012 with respect to claims for hearing impairment pursuant to s 17 of the Workers Compensation Act; aggregation of impairment arising from the same injury

PRESIDENTIAL MEMBER: President Judge Keating
HEARING: Oral
REPRESENTATION: Applicant: Mr B McManamey, instructed by Turner Freeman
Respondent: Mr G Beauchamp, instructed by Sparke Helmore
Intervener: Ms B Tronson, for the WorkCover Authority of NSW

ORDERS MADE:

The answers to the questions of law referred for determination are:

1. 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?

Answer:

Yes

2. 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.

3.    Mr Sukkar’s costs are to be costs in the cause.

4.    The respondent and WorkCover are to pay their own costs

INTRODUCTION

  1. This is an application to refer two questions of law to the President of the Commission pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The application is made by a Commission Arbitrator, Ms Nicholl, of her own motion.

  2. The issues involve questions concerning the construction of the amendments to Div 4 of Pt 3 of the Workers Compensation Act 1987 (1987 Act) (Compensation for Non-Economic Loss) introduced by Sch 2 of the Workers Compensation  Legislation Amendment Act 2012 (the amending Act) concerning claims for permanent impairment compensation for hearing loss…

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Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59
Case
[2013] NSWWCCPD 59
Decision Date

CaseChat Overview and Summary

The case of Sukkar v Adonis Electrics Pty Ltd involved a dispute regarding the application of legislative amendments to claims for workers' compensation for hearing impairment. Sukkar, the worker, sought to determine whether the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 applied to his claims for hearing impairment compensation. The amendments in question pertained to the aggregation of impairments arising from the same injury. Adonis Electrics Pty Ltd and WorkCover, the respondent and insurer, argued against the applicability of the amendments and the aggregation of impairments in certain circumstances. The case was heard and determined by the court, which was required to address specific legal questions regarding the interpretation and application of the Workers Compensation Act 1987.

The primary legal issues before the court involved the retrospective application of legislative amendments to claims for workers' compensation and the aggregation of impairments in claims involving multiple injurious events. Specifically, the court had to determine whether the amendments to the Workers Compensation Act 1987 introduced by the Workers Compensation Legislation Amendment Act 2012 applied to claims made after the amendments' commencement date of 19 June 2012, where a worker had previously made a claim for hearing impairment compensation prior to that date. Additionally, the court needed to decide whether, in cases involving the same pathology of injury arising from multiple injurious events, the impairments could be aggregated for the purpose of determining if the worker’s claim exceeded the threshold set out in section 66 of the Workers Compensation Act 1987.

In its decision, the court found that the amendments to the Workers Compensation Act 1987 introduced by the Workers Compensation Legislation Amendment Act 2012 did apply to claims for hearing impairment compensation made on or after 19 June 2012, even if the worker had made a previous claim for hearing impairment compensation prior to that date. The court clarified that the legislative amendments were intended to be applied prospectively and did not have retrospective effect. Regarding the aggregation of impairments, the court ruled that in cases where a worker had made a prior claim for compensation pursuant to section 66 of the Workers Compensation Act 1987, the multiple injuries arising from the same pathology could not be aggregated for the purpose of determining whether the worker’s claim exceeded the threshold set out in section 66(1). The court emphasised the importance of adhering to the legislative framework and the intent of the amendments in reaching its decision.

Orders

Orders of the court

The answers to the questions of law referred for determination are:

1. 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?

Answer: Yes

2. 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.

3. Mr Sukkar’s costs are to be costs in the cause.

4. The respondent and WorkCover are to pay their own costs

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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