Sukkar v Adonis Electrics Pty Ltd - [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

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.
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 in circumstances where the worker had made a claim prior to the passing of the amending Act on 19 June 2012, and seeks to make a further claim for additional compensation after that date.

THE QUESTION OF LAW REFERRED FOR DETERMINATION

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 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?
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?

BACKGROUND TO THE REFERRAL OF THE QUESTION OF LAW

The applicant, Mr Sukkar, has been employed by the 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 of each working day using tools of trade and equipment including kanga hammers, electric drills, saws, power drills, compressors, jack hammers, ramset guns, grinders, hydraulic cable cutters, hydraulic crimper and power saws.
There is no dispute that Adonis has employed Mr Sukkar in employment which has the tendencies, incidents and characteristics to give rise to a real risk of occupational noise induced hearing loss by a gradual process (industrial deafness) Blayney Shire Council v Lobley (1995) 12 NSWCCR 52.
In 1996 Mr Sukkar made a claim for permanent impairment compensation, against the respondent under s 66 of the 1987 Act, in respect of his noise induced hearing loss. The application resulted in the registration of an agreement with WorkCover on 29 August 1996. The agreement records that Mr Sukkar suffered 12.9 per cent binaural hearing loss, at the time of the agreement, for which he was paid compensation in the sum of $11,093.35. The deemed date of injury for that claim was not disclosed in the evidence but had to be on or shortly before 29 August 1996.
On 14 June 2012, Mr Sukkar completed an “Industrial Deafness - Notice of Injury” form. Apart from recording formal information, the notice recorded the details of the previous settlement and Mr Sukkar’s ongoing employment with Adonis.
On 19 June 2012 Mr Sukkar’s lawyers, Turner Freeman, served a letter of demand on Adonis claiming $12,375.00 in respect of an additional nine per cent whole person impairment. The claim was based on a report from Dr S Stylis, ear, nose and throat specialist, dated 18 June 2012. Dr Stylis assessed that Mr Sukkar suffered 31.6 per cent hearing loss after allowance for non-occupational impairment and an adjustment for age (presbyacusis). This equated to a whole person impairment of 16 per cent. After adjustment for the prior claim, 12.9 per cent, the remaining hearing loss 18.7 per cent equated to nine per cent whole person impairment.
On 19 June 2012, a copy of the letter of demand was sent to Adonis’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz) by document exchange.
As Mr Sukkar was in employment with the respondent when he gave notice of the injury, there is no dispute that the deemed date of injury in respect of his second claim is 19 June 2012 (s 17 (1)(a)(i)).
Allianz rejected the claim on the basis that the whole person impairment claimed did not meet the impairment threshold of “greater than 10%” in s 66(1), as amended by the Workers Compensation Legislation Amendment Act 2012.
On 17 September 2012, Mr Sukkar lodged an Application to Resolve a Dispute (the application) in the Commission. He claimed $12,375.00 in respect of “additional 9% whole permanent impairment” due to hearing loss with a date of injury stated as 19 June 2012.
On 9 October 2012, Adonis filed a reply to the Application, noting the matters in dispute as:
“the 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.”
On 18 June 2012, the matter became before Arbitrator Nicholl for an arbitration hearing. The parties were both represented by counsel.
The Arbitrator noted that there was a dispute between the parties as to whether the applicant 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.
The Arbitrator considered those issues raised questions of law that were novel and complex and determined, of her own motion, to refer the matter to the President for determination.
On 4 September 2013, the Arbitrator lodged an application to refer a question of law raising the two questions to which I previously referred (see above [3] and [4]).

LEAVE

Before granting leave to refer the question of law, I am required to be satisfied that the question meets the requirements of s 351(3) of the 1998 Act which provides:
“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.”
The Arbitrator considered the following matters were relevant to the granting of leave:
(a)the matter raises issues consequent upon the 2012 amendments to the 1987 and 1998 Acts, that have not yet been determined in the Commission and that potentially affect, in many cases, presently before the Commission and yet to be filed. These issues have not yet been resolved by the decisions in Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60; Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel) andDi Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27 (Di Matteo);
(b)the issue of whether aggregation of impairments resulting from the same pathology is permissible when determining an entitlement pursuant to s 66 (as amended) has not previously arisen. Whilst the decisions in Department of Juvenile Justice Services v Edmed (2008) NSWCCPD 6 (Edmed) and OneSteel Limited v Devine [2012] NSWWCCPD 52 (Devine) are relevant they do not address the specific questions created by the passage of the 2012 amending Act;
(c)there may be many cases of this type where the amount of compensation in dispute is less than the $5,000.00 threshold prescribed in s 352 of the 1998 Act and would thus preclude an appeal from the decision of an Arbitrator to a Presidential member;
(d)question (2) is not limited in its application to industrial deafness cases, but affects any claim where there have been multiple injurious events, and
(e)the determination of the questions of law would assist the Commission in meeting its overall objectives and in ensuring decision making that is correct in law and would alleviate any potential for inconsistent decisions between arbitrators and subsequent appeals.
Neither of the parties, nor the intervener, provided any submissions in relation to the question of leave, but all agreed that it was appropriate for the matter to proceed by way of a referral under s 351 of the 1998 Act.
I accept that the questions raised involve novel and complex questions of law involving 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.
Whilst the question of aggregation of losses arising from the same injury has been considered in a number of decisions of this Commission, the issue has not been considered in the context of the amendments introduced by the amending Act.
I consider it expeditious and appropriate that those issues be dealt with by way of a referral of a question of law. For those reasons leave is granted.

THE LEGISLATION

Section 17 of the 1987 Act provides:
“(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,
(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,
(c) compensation is payable by:
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury-that employer, or
(ii) where the worker was not so employed-the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(d) an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e) in paragraph (d), the relevant period means:
(i) where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing) – in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury…”
The amendments to s 66 in the 2012 amending Act were to:
(a) omit s 66(1) and insert new subsections (1) and (1A);
(b) omit s 66(2)(a), and
(c) omit “example 1” and insert a new “example 1” in s 66(2A).
The new sub-s (1) and (1A) of s 66 now 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.”
The 2012 amending Act also included the following relevant savings and transitional provisions in Pt 19H of Sch 6 to the 1987 Act:
Clause 3(1) provides:
“3(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.”
Clause 15 provides:
“15 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 before that date.”

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 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?

APPLICANT’S SUBMISSIONS

Mr McManamey counsel for Mr Sukkar, submitted that whilst Mr Sukkar may have two separate claims and two different deemed 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. As notice was first given in respect of that injury in 1996, applying cl 15 of Pt 19H of Sch 6 of the 1987 Act (hereinafter referred to as cl 15 of Pt 19H) and the principles discussed in Goudappel, the amending Act provisions do not apply.
Relying on the principles discussed by Deputy President Roche in Devine at [20], [24], [41]-[43] and [60]-[63] Mr McManamey submitted:
a) the 1996 and 2012 deemed dates of injury pursuant to s 17 represent a legislative fiction, rather than applicable injuries;
b) the pathology of the applicant’s gradual process occupational noise induced hearing loss is the same for both the 1996 and 2012 deemed dates of injury;
c) the applicant’s injury is the said pathology caused by day-to-day repeated injurious events of trauma to the outer hair cells of the applicant’s ears during the period 1996 to date during the course of his employment with the respondent rather than the dates deemed by s 17, and
d) the applicant has suffered only one injury despite making separate claims in 1996 and 2012.
In cases where workers claim sensorial hearing loss caused by exposure to noise over many years, although there may be two separate claims and two different deemed dates of injury, under s 17 the injury is in fact only one injury or one pathological condition where aggregation of the claims is permissible to reach the former s 67 threshold: Lauda Enterprises Pty Limited v Akkanen [2010] NSWWCCPD 91 (Akkanen).
The applicant’s claim in 1996 was a previous claim in respect of the same injury as the injury for which he now claims compensation. The applicant relies on “the general principles concerning the construction of s 322(2) of the 1998 Act and the decision in Edmed as to the concept of injury being pathology”.
The factual circumstances of this claim involve a claim for the same injury having been made prior to 19 June 2012 (that is the 1996 claim) and consistent with the decision in Di Matteo, the 2012 amendments to Div 4 of Pt 3 of the 1987 Act do not apply to the present claim for compensation pursuant to ss 66 and 67 of the 1987 Act.
The applicant submits that the answer to question 1 must be “no”.

THE RESPONDENT’S SUBMISSIONS

The respondent and WorkCover submit that the current claim is prohibited because of the combined operation of cl 15 of Pt 19H and s 17 of the 1987 Act. Pursuant to s 17, on the facts of this case the injury is deemed to have occurred at the time the notice of claim was given, namely, 19 June 2012, from which date the 2012 amendments apply.
The respondent submits that the prohibition in cl 15 of Pt 19H is absolute. It provides:
“An amendment made by Sch 2 of the 2012 amending Act extends to a claim for compensation made on and after 19 June 2012, but not to such a claim made before that date.”
Accordingly the applicant’s claim, made as it is on 19 June 2012, is caught by the amending legislation unless it is characterised as “but not to such a claim made before that date”.
The applicant’s claim is that on a deemed date, namely 19 June 2012, as a consequence of exposure to noise with the respondent, he has suffered additional hearing loss. The respondent submits that the applicant’s claim has not been made before, but rather is a new injury with “new consequences”.

Section 17(1) of the 1987 Act applies if any injury is a loss, or further loss, of hearing which is of such a nature to be caused by gradual process. In this case, it is submitted, the applicant alleges further loss caused by a gradual process.
The respondent submits that the decision of Roche DP in Devine does not deal with cases that are affected by the 2012 amendments. The respondent submits that cl 15 of Pt 19H works hand in hand with s 17 to determine the date upon which the amendments are to have application.
The determination by the Court of Appeal in Goudappel (at [33]) held that a benefit under s 66 accrues at the date of injury which in this case is 19 June 2012.
The respondent also adopts the arguments advanced by WorkCover in relation to question 1.

WORKCOVER’S SUBMISSIONS

Mr Sukkar made his claim for compensation by way of a letter from his solicitors to Adonis dated 19 June 2012. That appears to have been the first notification of injury to Adonis. Accordingly, s 17(1)(a)(i) of the 1987 Act operates to deem the injury as having happened on that date. It is so deemed to have happened “for the purposes of” the 1987 Act. As was held in Devine (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 purpose of cl 15 of Pt 19H of the 1987 Act is, in essence, to pick up on operative dates such as any deemed dates pursuant to s 17, and to apply those dates to determine the law applicable at the relevant time.
On the basis of the reasoning set out above, WorkCover submits that the 2012 amendments apply to Mr Sukkar’s claim because he did not make a claim until 19 June 2012.
Mr Sukkar cannot take advantage of the reasoning of the NSW Court of Appeal in Goudappel. Mr Goudappel’s first general claim and his subsequent claim for lump sum compensation both related to the one incident and to an impairment or set of impairments caused by that single incident. The general nature of the claim for compensation to which Basten JA referred, must relate to the linked causality of the injury and/or impairment to which the claim relates. This is a significant distinguishing feature, whether injury is used in the sense of “pathology” or “injurious event”.
If a worker has an impairment which is the result of a particular injury (in the sense of pathology) caused by one incident, and a different incident causes additional impairment as a result of a different injury, any entitlement that the worker has to make a claim in respect of the additional impairment plainly does not arise out of the original incident.
Consistently, if a worker has an impairment which is the result of a particular injury (in the sense of pathology) caused by one incident, and a different incident causes additional impairment (“further loss of hearing”) as a result of the same injury (in the sense of pathology), any entitlement the worker has to make a claim in respect of the additional impairment cannot arise out of the original incident only because of the coincidence that the two incidents caused the same injury (in the sense of pathology).
The reasons given by Basten JA in Goudappel do not extend to supporting the proposition that a similarity of injury results in a worker’s additional claims being part of one general claim for compensation.
This reasoning is strengthened if injury is used in the sense of injurious event in this context.
Accordingly, there is nothing in Goudappel to affect the answer to question 1 set out above, that is, that the amendments apply to Mr Sukkar’s claim because he did not make that claim until 19 June 2012.

CONSIDERATION

The amendments introduced by the amending Act included the introduction of s 66(1) and s 66(1A) into the 1987 Act. As I indicated at [27] section 66 (1) provides that a worker who has received an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive compensation for that impairment.
Section 66(1A) provides that only one claim can be made under the Act for permanent impairment compensation in respect of permanent impairment that results from an injury.
Even if it is accepted, as Mr McManamey submits, that Mr Sukkar 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.
In Eraring Energy v Brownlie [2008] NSWWCCPD 42 (at [38]) Deputy President Roche accepted a submission that in the application of s 17 of the 1987 Act, for there to be an injury by way of a further loss of hearing there must have been an initial injury by way of a loss of hearing. In that case he accepted that the worker’s initial claim was a “loss of hearing” within the meaning of s 17. Where a worker’s subsequent claim is in respect of an injury that is a “further loss of hearing” that is “the injury” to which the deeming provisions of s 17 are directed. The Deputy President held that this interpretation of “injury” is confirmed in s 17(1)(e)(i) where “prior injury” is referred to as “a loss of hearing or further loss of hearing”. He made the added point at [40], industrial deafness is not a progressive disease and that occupational induced hearing loss does not progress in the absence of continued exposure to noise.
In Manuel v BOC Ltd[2011] NSWWCCPD 20 (at [66]) Deputy President O’Grady also noted the distinction between claims that result in “a loss” of hearing and claims that result in a “further loss” of hearing. He concluded that the worker must establish that the employment had the “tendencies, incidents or characteristics” to give rise to the further loss of hearing, notwithstanding that it may have been accepted that that requirement was satisfied when the initial loss was suffered.
Mr McManamey argued that s 17 does not create an injury. It assumes by the opening words to s 17, “[i]f an injury is a loss or further loss of hearing…”, that an injury, within the meaning of s 4, has been sustained before the section applies. He argued that s 17 merely fixes the date for the injurious event and a date for the calculation of the quantum of the compensation.
The industrial deafness provisions were introduced into the legislation after the decision in Milne v International Combustion Aust Ltd [1953] WCR 80, where Rainbow J held that a gradual loss of hearing resulting from long exposure to noise was not a disease, but was rather a succession of trauma, each of which causes some minute amount of damage, the cumulative effect being the slow diminution of hearing ability. Hence it could not be classed as a disease, as defined, in the Workers Compensation Act 1926.
As Sheller JA explained in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690:
“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)).”
As Deputy President Roche held in Devine 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, as Mr Edwards submitted (at T3.16) at the arbitration, the loss, or further loss, of hearing is deemed an ‘injury’.
It follows that Mr McManamey’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.
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 claim.
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.
Mr McManamey’s submissions also depend upon an acceptance that the principles discussed in Goudappel have application in a claim to which s 17 applies. However, in Goudappel, Basten JA stated at [16]:
“None of these provisions suggest that the Acts required, in June 2012, that an injured worker must make a separate claim for lump sum compensation: rather they are consistent with the contrary conclusion. It must follow that cl 15 did not require the application of the amended s 66 where the worker was able to rely upon a claim made prior to 19 June 2012 to establish an entitlement to permanent impairment compensation. (To the extent that reliance was sought to be placed upon some further injury not specified in that claim, a different issue might arise, but that issue does not arise in this case and need not be considered.)” (emphasis added)
The compensation claimed in this case is for a “further loss” of hearing (which is an injury) due to exposure to continuing trauma to the ears subsequent to the initial claim. For the reasons I have discussed this is an important factual distinction. The facts with which the Court of Appeal was concerned in Goudappel concerned only one injury, in the sense of only one injurious event and one pathological condition.
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. In Goudappel Basten JA considered the terms of s 260 of the 1998 Act, which is concerned with how a claim is made, and s 261, relating to the time within which a claim must be made following an injury or death. His Honour was not concerned with whether “injury” within the meaning of those provisions meant “pathology” or “injurious event”. However, the requirement in s 261(1) that a claim be made “within six months after the injury or accident happened” tends to support WorkCover’s argument that “injury” within the meaning of those provisions means “injurious event”. However, that is not determinative of the issue before me.
For these reasons, the principles discussed in Goudappel do not insulate Mr Sukkar from the application of the 2012 amendments. Accordingly, 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.
No reliance was placed by any of the parties on cl 3 of Pt 18C of Sch 6 of the 1987 Act, which states that the lump sum compensation amendments introduced in 2001 do not apply to injuries received before 1 January 2002 and I express no view about the operation of that clause. The issue before me does not concern cl 3 of Pt 18C but concerns whether the 2012 amendments apply in cases where a worker has suffered a further loss of hearing (after an initial claim that was made and paid in 1996) with a deemed date of injury after 1 January 2002 and a date of claim on 19 June 2012.
It follows that the amendments to Div 4 Pt 3 of the 1987 Act introduced by Sch 2 of the amending Act 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 where the worker has made a previous claim for permanent impairment compensation prior to that date notwithstanding that the worker is claiming compensation for the same pathological condition.
For these reasons the answer to question 1 is “Yes”.

QUESTION 2

If yes, (to question one) 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 injuries/events of injuries, the multiple injuries can be aggregated for the purpose of determining whether or not the worker’s claim exceeds the s 66(1) threshold?

APPLICANT’S SUBMISSIONS

The applicant submits that in the event question 1 is answered “yes”, the answer to question 2 must also be “yes”.
Mr Sukkar’s 1996 and 2012 hearing loss assessments must be aggregated to determine whether or not his present s 66 claim exceeds the s 66(1) threshold (greater than 10 per cent whole person impairment). The reference to an “injury” in s 66(1) in the circumstances of an industrial deafness claim is a reference to the pathology of the hearing loss rather than a particular deemed date of injury pursuant to s 17. Such an approach is consistent with Devine, Edmed and Akkanen.
The pathology of industrial deafness results from multiple injurious events, that is, repeated day-to-day events of trauma to the outer hair cells of the worker’s ears during the period between 1996 and the present time. In circumstances where multiple injurious events occur, “injury” in s 66(1) of the 1987 Act should be construed as meaning the pathology resulting from the injurious event.
In construing “injury” as pathology, the applicant submits that such a construction is consistent with the construction of s 322 of the 1998 Act, concerning the assessment of impairments, in the decision in Edmed as applicable to one pathology resulting from multiple injurious events, and the decision in Akkanen.
The proper construction of s 66(1) does not import the deemed injury concept pursuant to s 17 of the 1987 Act into the concept of “injury” into s 66(1). Rather an “injury” means the industrial deafness caused over many years of exposure to loud noise.
Accordingly, the applicant submits that the current total whole person impairment of 16 per cent exceeds the s 66(1) threshold.

RESPONDENT’S SUBMISSIONS

The applicant’s submission with respect to the construction of s 66(1), and it’s interrelationship with s 17, is not available. To adopt the applicant’s construction of s 17 would give the words “further hearing loss” no work to do. The amending Act allows for further hearing loss compensation provided that such loss exceeds the 10 per cent whole person impairment threshold referred to in s 66(1) of the 1987 Act.
The respondent submits “the effect of this is that losses are aggregated subject to a deduction. It is that resultant figure [here 9 per cent] to which the amending Act applies and accordingly the claim fails”.
The respondent adopts and relies upon WorkCover’s submissions in relation to question two.

WORKCOVER SUBMISSIONS

On the basis of s 17 of the 1987 Act, Mr Sukkar’s claim is for an injury constituted by “further loss” of hearing. Mr Sukkar has already received lump sum compensation for his initial hearing loss assessed at 12.9 per cent binaural hearing loss.
If that hearing loss were to be included in an aggregate with the impairment to which Mr Sukkar’s current claim relates, he would, in effect, be compensated twice. Notwithstanding the beneficial and remedial nature of the workers compensation legislation, to construe it in this way would “give it a construction that is unreasonable or unnatural”: Devine referring to Amaca Pty Limited v Cremer [2006] NSWCA 164; 66 NSWLR 400.
Section 323(1) of the 1998 Act explicitly provides, relevantly, for 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) or that is due to a pre-existing condition”.
Whether injury in this context is used to mean “pathology” or “injurious event”, Mr Sukkar’s hearing loss as assessed before 19 June 2012 was an “impairment due to [a] previous injury”, or an “impairment due to [a] pre-existing condition” or both.
Accordingly, in assessing the degree of permanent impairment resulting from injury the subject of Mr Sukkar’s present claim, his previous hearing loss must be deducted.
On the basis of the medical report he has supplied, that results in whole person impairment of nine per cent which is below the threshold required in s 66(1) of the 1987 Act. That is the necessary effect of the express and unambiguous terms of the provision.
The repeal of s 66(2)(a) of the 1987 Act supports this interpretation. The repealed s 66(2)(a) provided a formula for the calculation of compensation for impairments of less than 10 per cent whole person impairment. If it was open on a construction of the legislation for the hearing loss for which Mr Sukkar had previously been compensated to be aggregated with the hearing loss to which his current claim relates, after applying s 323 of the 1998 Act, the loss would be assessed at 9 per cent whole person impairment and there is currently no mechanism in the legislation for the calculation of compensation for impairments that fall below the s 66(1) threshold.
The repeal of s 66(2)(a) is consistent with the legislative intention to prevent a person making a claim where the whole person impairment to which their current claim relates is below the threshold.
Accordingly, the answer to question (2) is that in this case, Mr Sukkar’s impairment arising from multiple injuries cannot be aggregated in relation to the threshold in s 66(1) of the 1987 Act.

SUBMISSIONS IN REPLY

In reply, WorkCover submitted that the answer to question two for which Mr Sukkar contends would lead to an absurd and unworkable result. To avoid such an outcome, the construction for which WorkCover contends should be preferred: Collector of Customs V AGFA-Gevaert Ltd (1996) 186 CLR 389 at [401].
The result of Mr Sukkar’s answer to question (2) would be that, even though he might surpass the threshold in s 66(1) of the 1987 Act as a result of the aggregation for which he contends, he would be entitled to lump sum compensation only “as provided by” s 66. Section 66 does not provide any mechanism for calculating any compensation except in relation to a degree of permanent impairment of more than 10 per cent.
By virtue of s 323 of the 1998 Act, Mr Sukkar would be entitled to compensation for only 9 per cent permanent impairment. Accordingly, there is no mechanism in s 66 of the 1987 Act for calculating any compensation owed to him, and he is therefore not entitled to any compensation “provided by” s 66.

It cannot have been the intention of Parliament to permit a worker to surpass the threshold but be entitled to no compensation. That would be an unworkable result and should not be upheld.
It is not possible to read the repealed s 66(2)(a) (or words to a similar effect) back into the 1987 Act, because to do so would directly contradict the intention of Parliament in repealing that provision and would not be based in the text of the legislation: R v Young [1999] NSWCA 166 (at [12]-[15]); 46 NSWLR 681.

DISCUSSION AND FINDINGS

The 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.
The amendments were designed to restrict access to lump sum benefits. This was achieved by the amendments I referred to at [52] to [53]. Namely, the introduction of s 66(1A), which restricts claims “made under this Act” for permanent impairment compensation in respect of the permanent impairment that results from an injury to one claim only, and the amendment to s 66(1), which imposes a 10 per cent impairment threshold for that one claim, whereas no threshold was imposed prior to the passing of the amending Act.
Section 66(2)(a) of the 1987 Act was also repealed. In so doing the legislature removed the mechanism for the quantification of permanent impairment compensation for workers suffering a permanent impairment of less than 10 per cent.
Mr McManamey submitted that, the answer to question 2 depends in large measure on what is meant by “injury” in s 66 (as amended). He submitted that the resolution of that question depended upon an acceptance that the meaning of “injury” in s 66(1) as meaning a pathological condition rather than a traumatic event. He drew support from decisions in this Commission, including Devine, Edmed and Akkanen. Those cases were concerned with the construction of the term “injury” as it applied to the application of s 322 of the 1998 Act, before the 2012 amending Act was passed.
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky) McHugh, Gummow, Kirby and Hayne JJ, discussing the principles of statutory construction held at [78]:
“... the duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision...”
Their Honours added at [69], that any particular provision should be read in the context of the legislation as a whole:
“The primary objective of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute: see Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 213 per Barwick CJ. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’: Cooper Brooks (Wollongong) Pty Limited v FCT [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumbles [1985] AC 609 at 617 per Lord Scarmon, ‘In the context of the legislation read as a whole’. Commissioner for Railways (NSW) v Agalianos[1955] HCA 27; (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of the provision and its consistency in 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.”
In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT)[2009] HCA 41; 239 CLR 27, in the context of the construction of a taxation statute, his Honour the Chief Justice stated at [4]:
“The starting point ... is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 340 as:
‘dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.’
In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.”
The New South Wales Court of Appeal recently applied the above passage from Project Blue Sky in Smalley v Motor Accidents Authority of New South Wales [2013] NSWCA318, where Leeming JA (Meagher and Barrett JA agreeing) observed at [44], “[i]t is axiomatic that the Act is to be read as a whole”.
The new regime, to which I have made reference, is predicated on a construction of the legislation that permits “only one claim” (emphasis added) for ‘an injury’. In that sense, “injury” may mean injurious event or pathology.
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 under the Act, as amended, must satisfy the 10 per cent threshold before whole person compensation is payable under the section.
This construction is consistent with the legislature’s intention to limit compensation to those less seriously injured workers in favour of allowing the scheme to focus on the more seriously injured workers. In introducing the Workers Compensation Legislation Amendment Bill into the Legislative Council on 20 June 2012, the Treasurer, in the second reading speech said:
“Schedule 2 to the bill reforms the scheme from lump sum payment of compensation by removing pain and suffering as a separate category of lump sum compensation and limiting lump sum payments to workers who meet an impairment threshold of greater than 10 per cent, which will be limited to only one claim. The amendment proposes only one assessment of the level of impairment for the purposes of permanent impairment commutation and common law injury claims and allows workers to waive their requirement to obtain legal advice before agreeing to a lump sum. These initiatives will help to reduce disputes and reduce administration costs while allowing the scheme to focus on the more seriously injured workers.”
Mr McManamey’s submission fails to come to grips with the construction of the meaning of “injury” in s 66, when read as a whole in the context of the 1987 Act as amended by the 2012 amending Act. If his submissions are accepted, Mr Sukkar could only succeed in his application by adding together the impairments arising from two claims, his 1996 claim and his 2012 claim. It seems plain that the amendments prohibit that approach by permitting only one claim for permanent impairment that results from “an injury”.
The decisions in Devine, Edmed and Akkanen, upon which Mr McManamey relies, were decided in the context of the former legislative regime that imposed no impairment threshold (in s 66) and no limit on the number of claims that may be made for lump sum compensation pursuant to s 66 for the same injury. This is an important distinction with the legislation presently under consideration.
As I have already found, in the answer to question one, that the 2012 amendments apply to Mr Sukkar’s second claim, the outcome is the same whether or not injury is construed to mean “pathology” or “injurious event”. As the High Court said in Project Blue Sky, as a matter of statutory construction the primary object is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute.
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 claim is added to the impairment in his 2012 claim. That is not permitted.
As WorkCover submitted, 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 adds weight to a construction of the legislation, when read as a whole, which would prohibit aggregation of losses to satisfy the statutory threshold, which could not otherwise be satisfied without aggregation of losses from prior claims.
It is trite to observe that the 1987 and 1998 Acts are beneficial in nature. Where the construction of the legislation is ambiguous a provision relating to the realisation of a benefit must be “construed so as to give the fullest relief which a fair meaning of its language could allow”: Bull v Attorney-General (NSW) [1913] HCA 60; 17 CLR 370.
However, where the legislation is beneficial in nature it does not entitle the Commission 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). Where two constructions are possible, that which is favourable to the worker should be preferred (Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335 per Fullagar J).
Given the clear terms in which s 66 (as amended) is expressed, coupled with the repeal of the former s 66(2)(a), I do not accept that there is any ambiguity. However, if such ambiguity does exist, the interpretation urged by Mr McManamey would lead to an unreasonable and unnatural result because it would permit the s 66 threshold to be satisfied by aggregating the losses from two claims, when only one is permitted under the new provisions. The aggregation of Mr Sukkar’s two claims would give an impairment greater than 10 per cent. However, for claims made after 19 June 2012, only one claim is permitted.
For the reasons given, it follows that the answer to question two is:
No in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act.

COSTS

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

The respondent and WorkCover are to pay their own costs.

Judge Keating

President
8 November 2013

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

ASSOCIATE