Victorian WorkCover Authority v Del Borgo - [2004] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5410 of 2002

VICTORIAN WORKCOVER AUTHORITY
	Appellant
v.
LUIGI DEL BORGO & ORS	Respondents

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JUDGES:	WINNEKE, P., ORMISTON and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 March and 1 April 2004
DATE OF JUDGMENT:	11 June 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 108	1^st Revision – 8 February 2005

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ACCIDENT COMPENSATION – Industrial deafness – Previous award under Workers CompensationAct 1958 with respect to 26% binaural hearing loss – Claim under Accident CompensationAct 1985 for additional 5% binaural hearing loss – Whether 10% threshold applies to claim for additional hearing loss – “Further industrial deafness” – Role of Medical Panel – “Medical question” as to “the degree of impairment of the whole person” – Whether an “award” under old Act is a “determination” under new Act – Whether sum paid under prior award required to be deducted from sum due for further industrial deafness – Accident Compensation Act 1985, ss.5(1), 82, 88, 89, 90, 91, 98, 98C, 98E, 104B.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R.P. Gorton, Q.C. Mr P.H. Solomon	Herbert Geer & Rundle
For the 1^st Respondent	Dr K.P. Hanscombe, S.C. Mr A. Pillay	Maurice Blackburn Cashman
For the 2^nd and 3^rd Respondents	Mr I. Miller	Ebsworth & Ebsworth

WINNEKE, P.:

I have had the considerable benefit of reading, in draft form, the reasons which Eames, J.A. proposes to publish in this appeal. For the reasons which his Honour gives, I agree that this appeal should be dismissed. I desire to add some brief comments of my own.

The issues, which have existed between the parties in this litigation, have arisen largely because of amendments introduced into the Accident Compensation Act 1985 by the Accident Compensation (Miscellaneous Amendment) Act 1997 (Act No. 107/1997). As with many other amendments which have been made to this legislation, the 1997 amendments (insofar as they relate to “industrial deafness”) pay little regard to the contextual setting into which they were introduced, and have added to the difficulties which have been faced by the courts of this State generally in interpreting this constantly changing legislative scheme, and now, particularly, in seeking to discern the legislative intent as to the manner in which workers afflicted with industrial deafness are to be compensated for the cumulations to their “injury” which inevitably accrue with continued employment in the same environment. I agree with Eames, J.A. that the well presented arguments mounted on each side of the dispute reveal inelegancies of drafting. However, it seems to me, as it did to the trial judge, and as it does to Eames, J.A., that the merits favour the construction put upon the legislation by the respondent worker; and that it is not necessary to call in aid the well established principle that, where two constructions of a compensation statute are possible, that which is favourable to the worker should be preferred[1].
[1]cf. Wilson v. Wilson’s Tile Works Pty. Ltd.

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: [2004] VSCA 108
Decision Date: 11 June 2004

CaseChat Overview and Summary

The Victorian WorkCover Authority has brought this matter before the Court to determine the eligibility of Del Borgo for further compensation under the Accident Compensation Act 1985 (Vic) for additional hearing loss sustained in an industrial accident. Del Borgo previously received an award under the Workers Compensation Act 1958 (Vic) for 26% binaural hearing loss. The current dispute pertains to an additional 5% binaural hearing loss, and the central question is whether a 10% threshold applies to claims for further industrial deafness. Furthermore, it was argued whether the sum paid under the prior award must be deducted from the amount due under the new Act.

The court was tasked with interpreting several sections of the Accident Compensation Act 1985, including the definitions of "award" and "determination," and the provisions concerning the calculation of compensation for further industrial deafness. Additionally, the role of the Medical Panel in assessing the degree of impairment was examined, along with whether the determination of such impairment constitutes a "medical question." The court also needed to address whether an award under the old Act could be considered a determination under the new Act, and if so, how this affects the calculation of compensation for subsequent injuries.

The Court found that the 10% threshold does apply to claims for additional hearing loss under the Accident Compensation Act 1985. It clarified that an award under the Workers Compensation Act 1958 should be treated as a determination under the new Act for the purpose of calculating compensation for subsequent injuries. The Court held that the sum paid under the prior award should not be deducted from the amount due for further industrial deafness. The decision underscored the importance of the Medical Panel's role in assessing the degree of impairment, and it confirmed that such assessments are considered medical questions within the meaning of the Act. The Court ultimately ruled in favour of Del Borgo, determining that he was entitled to additional compensation for the further 5% hearing loss.

The final orders of the Court mandated that the Victorian WorkCover Authority pay Del Borgo the additional compensation for the 5% binaural hearing loss, without deducting the sum previously awarded under the Workers Compensation Act 1958. This ruling ensures that Del Borgo receives the appropriate compensation for his additional industrial deafness, consistent with the provisions of the Accident Compensation Act 1985.

Orders