Thomas v Holcim (Australia) Pty Ltd - [2021] NSWPIC 124

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thomas v Holcim (Australia) Pty Ltd [2021] NSWPIC 124
APPLICANT:	Stephen Thomas
RESPONDENT:	Holcim (Australia) Pty Ltd
SENIOR MEMBER:	Mr Glenn Capel
DATE OF DECISION:	18 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for hearing aids; previous claim paid in 2010 and 2016; further claim made in 2020 for replacement hearing aids when worker in the employ of another noisy employer; no notice of injury given to current noisy employer; dispute regarding last noisy employment; Bluescope Steel (AIS) Pty Ltd v Sekulovski, Sukkar v Adonis Electrics Pty Ltd, Dawson t/as The Real Cane Syndicate v Dawson, Blayney Shire Council v Lobley, Hay v Commonwealth Steel Company Pty Ltd and Fischer v Endeavour Energy & others discussed; Held- leave granted to respondent; respondent last noisy employer for purposes of section 17(1)(a)(i) of the 1987 Act; award for the worker in respect of the claim for medical expenses.
DETERMINATIONS MADE:	1. The applicant sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the respondent on 28 June 1999 (deemed). 2. The parties resolved a claim for lump sum compensation in respect of 14.87% binaural hearing loss on 21 October 1999 and a Registration of Agreement was registered on 12 November 1999. 3. The respondent paid for hearing aids when claims were made by the applicant in 2010 and 2016. 4. The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of section 17(1)(a)(i) of the Workers Compensation Act1987 when he gave notice of injury to the respondent on 28 June 1999 (deemed). 5. The provision of bilateral digital hearing aids is reasonably necessary as a consequence of the applicant’s injury.
ORDERS MADE	6. The respondent is to pay medical expenses in respect of the supply and fitting of bilateral digital hearing aids on production of accounts and/or receipts pursuant to section 60 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

Stephen John Thomas (the applicant) is 59 years old and was employed by Holcim (Australia) Pty Limited (formerly CSR Ltd) (the respondent self self-insurer) as a plant operator and front-end loader driver until he ceased work in 2009. The applicant then obtained employment with ACI Operations as a factory worker. He is still working for this employer.
On 28 June 1999, the applicant’s former solicitor served a notice of claim on the respondent for lump sum compensation for 16.8% binaural hearing loss pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). The date of injury was 28 June 1999 (deemed).
The parties negotiated a compromise settlement of $9,665.50 in respect of 14.87% binaural hearing loss. This was formalised by a Registration of Agreement that was registered by WorkCover on 12 November 1999.
I understand that the applicant made claims for bilateral hearing aids and the respondent as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 124
Decision Date: 18 May 2021

CaseChat Overview and Summary

In Thomas v Holcim (Australia) Pty Ltd, the plaintiff, Mr Thomas, sought compensation for hearing loss sustained during his employment with various employers, including the defendant, Holcim. Mr Thomas claimed that he required replacement hearing aids after working for another employer who operated a noisy environment. The dispute centred on whether the defendant, Holcim, or another employer was the last noisy employer, which would determine liability under section 17(1)(a)(i) of the Workers Compensation Act 1987. The case required the court to decide whether Mr Thomas's failure to notify his most recent noisy employer of his injury precluded him from recovering compensation from Holcim.

The court examined several precedents, including Bluescope Steel (AIS) Pty Ltd v Sekulovski, Sukkar v Adonis Electrics Pty Ltd, Dawson t/as The Real Cane Syndicate v Dawson, Blayney Shire Council v Lobley, Hay v Commonwealth Steel Company Pty Ltd, and Fischer v Endeavour Energy & others, to understand the implications of the statutory provisions and case law regarding the determination of the last noisy employer. The court noted that the statutory scheme aimed to identify the employer most likely responsible for the worker's hearing loss, and the failure to notify a subsequent noisy employer did not automatically bar recovery if the earlier employer was determined to be the last noisy employer.

Ultimately, the court found that Holcim was the last noisy employer for the purposes of section 17(1)(a)(i) of the 1987 Act. The court concluded that Mr Thomas's failure to notify his most recent noisy employer did not preclude him from recovering compensation from Holcim. The court granted leave to the respondent and ruled in favour of the worker's claim for medical expenses related to the replacement hearing aids.

The final orders of the court were that Holcim (Australia) Pty Ltd was liable for the worker's claim for medical expenses in respect of the replacement hearing aids. The court directed that Holcim pay the amount claimed by Mr Thomas for the replacement hearing aids, along with any associated costs of the proceedings.

Orders