Victorian WorkCover Authority v Del Borgo
[2004] VSCA 108
•11 June 2004
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 | 1st 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 1st Respondent | Dr K.P. Hanscombe, S.C. | Maurice Blackburn Cashman |
| For the 2nd and 3rd 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. (1960) 104 C.L.R. 328 at 335 per Fullagar, J.
One thing which appears to be tolerably clear as a consequence of the 1997 amendments is this : that “further injury”, in the sense of further loss of hearing suffered after a prior loss has been compensated, will not – in cases where the “further injury” is deemed to have been suffered on or after 12 November 1997[2] - fall to be compensated by calculating, in accordance with s.89(3), the difference between the total percentage loss assessed at the later date, and the total percentage loss assessed at the earlier date. This is because s.89 is expressed not to apply to a “further injury” suffered on or after 12 November 1997[3]. Rather, the assessment of impairment, constituted by the further loss of hearing, is to be calculated by assessing the “degree of impairment of the whole person resulting from the binaural hearing impairment” determined in accordance with the formula set out in sub-ss. (3) and (4) of s.91, each of which sub-sections were introduced by the 1997 amendments. I agree with Eames, J.A. that the application of this formula does not require the deduction of the percentage hearing loss which was assessed at the time of the prior claim, and which was determined on a discretely different basis. There is no “threshold” now imposed for claims for hearing loss beyond the initial claim, save that which is “built into” the formula expressed in s.91(3).
[2]sub-ss.88(4)(b), 89(5).
[3]Sub-s.89(5).
A further problem arises because it is apparent from the terms of s.90(3) of the Act that a determination for compensation for industrial deafness should fully extinguish all rights of the worker to compensation for industrial deafness “under (inter alia) the Workers Compensation Act 1958 up to the date of the determination”; without however disentitling the worker from obtaining compensation under (inter alia) s.98C for further industrial deafness suffered after that date. However, s.98C (also introduced into the Act by the 1997 amendments) only provides for the deduction of prior compensation paid under ss. 98 and 98A, but not deductions of compensation paid under the Workers Compensation Act 1958. This is clearly an oversight which will have to be rectified; but it cannot alter the outcome of this appeal. The worker is, in accordance with the proper construction of the Act, entitled to recover compensation for “non economic loss” in accordance with s.98C. Counsel for the worker agrees that such compensation will have to be reduced by the amount already recovered by the worker in the previous claim.
ORMISTON, J.A.:
Having had the benefit of reading the judgment of Eames, J.A., I agree that the appeal should be dismissed for the reasons he gives. There is no doubt, as his reasons and those of the President demonstrate, that there are difficulties in accepting either of the constructions put forward on behalf of the parties to this appeal, because of the convoluted and piecemeal form that the legislation has taken. But a decision must be made and the preferable construction must lead to the dismissal of the appeal, notwithstanding the anomalies referred to.
EAMES, J.A.:
This is yet another case involving interpretation of the much amended and frustratingly obscure provisions of the Accident Compensation Act 1985 ("the Act")
Mr Luigi Del Borgo commenced work as an assembly worker with Toyota Motor Corporation in 1954 in which noisy environment he remained until at least 2001. He first made a claim for compensation pursuant to the provisions of the Workers Compensation Act 1958 and on 25 August 1988 the Accident Compensation Tribunal, which was then administering the Workers Compensation Act, made an award in his favour, ordering by consent that AMI Toyota Limited "pay the applicant the sum of $10,214.00 representing 26 per cent permanent partial binaural loss of hearing at this date pursuant to the table appended to s.11(1) of the Act" (the “Act" referred in that quotation is the Workers Compensation Act).
Having received compensation in that amount Mr Del Borgo continued his employment and then, in May 2001, he made a new claim for compensation, this time under the Accident Compensation Act, seeking a lump sum payment for permanent disability, on account of a condition he described as "sixty per cent loss of hearing".
The Victorian WorkCover Authority (“the Authority”), by its agent, referred the worker to an ear, nose and throat surgeon, Mr Francis Nagel, who reported on 14 July 2001 that the worker "has a binaural (permanent hearing loss) of 31.2 per cent which equates to 16 per cent (whole person impairment). His hearing loss is consistent with acoustic trauma in his occupation". In response to that report the insurer wrote to Mr Nagel advising him that the worker had received a previous settlement, and requesting Mr Nagel to provide them "with a whole person impairment, discounting the previous settlement". On 6 September 2001 Mr Nagel responded, advising that the worker had suffered "a further 5.2 per cent loss of hearing since the date of determination in August 1988”. He then stated that because there had been only an increase of 5.2 per cent beyond the previous hearing loss claim his whole person impairment was zero per cent. In so concluding Mr Nagel interpreted s.91(3) as imposing a threshold which necessitated an additional 10% binaural hearing loss be established before any permanent impairment would be deemed to have arisen.
The plaintiff was accordingly informed that he had no entitlement to compensation under the provisions of s.98C of the Act. The worker disputed that assessment and the Authority, through its agent, on 18 January 2002 referred medical questions to a Medical Panel pursuant to s.104B(9) of the Act. That sub-section provides:
"(9)The Authority or self-insurer must within 14 days of being advised by the worker that the worker disputes either of the assessments refer the medical questions as to the degree of permanent impairment resulting from the injury to the worker for the relevant purposes specified in sub-section (5)(a) and whether the worker has an injury which is a total loss mentioned in the Table to s.98E(1) to a Medical Panel for its opinion under s.67."
The Medical Panel, which comprised one specialist doctor, was posed two "medical questions", in the following terms:
"1.What is the degree of impairment of the whole person resulting from the worker's binaural hearing impairment assessed in accordance with s.91(3) of the Act and is the impairment permanent?
2.Does the worker have an accepted injury which has resulted in a total loss injury mentioned in the table in s.98E(1)? If yes, which injury has resulted in a total loss?"
On 27 February 2002 the Medical Panel, Mr Gerald Little, answered the first question as follows:
"The whole person impairment calculated in accordance with s.91(3) of the Act is zero per cent. The impairment is permanent."
The second question was answered 'No'", but that question and answer are not relevant for present purposes.
By originating motion filed 3 May 2002 the worker, pursuant to R.56.01 of the Supreme Court Rules, sought judicial review of the Medical Panel's determination. The following grounds were stated:
"1.The Medical Panel did not answer the first medical question in accordance with law.
2.The Medical Penal erred in law in its construction of s.91(3) of the Act.
3.The Medical Panel erred in law in its application of s.91(3) of the Act.
4.The Medical Panel took into account irrelevant considerations in making the decision, namely that the plaintiff had suffered the injury previously for which he had received compensation.
5.The decision was so unreasonable that no reasonable medical Panel could have made it."
That proceeding was heard by Osborn, J., who delivered reasons for decision on 8 October 2002 in which, in effect, he upheld grounds 1 to 3. His Honour made orders quashing the determination of the Medical Panel and directing it to reconsider the first question in accordance with law. From that decision the present appeal is brought. As framed by the parties, the questions which arise are twofold:
1. Was the previous award which was made under the Workers Compensation Act in August 1988 a "determination for compensation for industrial deafness" for the purposes of s.90(3) of the Act?
2.If the answer to the first question was yes, then, for the purposes of s.98C(1) of the Act does:
(a)the worker's injury include industrial deafness arising out of pre 25 August 1988 employment;
(b)the worker's hearing impairment include impairment consequent upon industrial deafness arising out of pre 25 August 1988 employment?
If the answer to both of those questions was yes then there was a further question as to whether it was open to the Medical Panel to conclude that an impairment of zero per cent could be permanent. It emerged during the hearing of the appeal that the parties were in agreement that, contrary to his Honour’s opinion, the answer to the first question was “yes”.
The Medical Panel upon testing the hearing of the worker assessed his binaural percentage hearing impairment as 30.6 per cent. But having regard to the fact that as at 25 August 1988 his binaural loss of hearing was 26 per cent the Panel concluded that the worker had lost an additional five per cent of hearing and that degree of additional loss of hearing fell below a 10 per cent threshold which was imposed by s.91(3) of the Act.
The case raises the overarching question of the respective roles which the Act assigns to the Medical Panel, on the one hand, and to the Authority, on the other hand, but the immediate question raised by this case is whether, as the worker contends, the 10% threshold applies only to claims first made for industrial deafness, so that once compensation has been initially awarded for a binaural hearing loss which was more than 10%, thereafter any new claim made with respect to additional industrial deafness would not have to demonstrate that the additional deafness exceeded a further 10 percent. The Authority contends that the 10% threshold applies to each new claim and in each case an additional 10% binaural loss would have to be established.
In order to understand the arguments which were presented on the appeal it is necessary to set out a number of the provisions of this Act. The starting point for a claim is s.82(1) which provides that if there is caused to a worker an injury arising out of or in the course of any employment to which the employment was a significant contributing factor then the worker is entitled to compensation in accordance with the Act.
Relevant definitions in s.5(1) included, at the relevant time, the following[4]:
[4]For convenience, I have referred first to the definition of “injury”, although it appeared later in s.5(1) than the following two definitions.
"'Injury' means any physical or mental injury and without limiting the generality of the foregoing includes –
(a) industrial deafness;
(b)a disease contracted by a worker in the course of the worker's employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and
(c)the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;”
“'Industrial deafness’ means any condition of deafness caused by –
(a) exposure;
(b) continued exposure; or
(c) periods of continued exposure –
to industrial noise;
'Incapacity' includes –
(a)in relation to industrial deafness, inability to engage in the worker's own or other suitable employment because of an immediate and substantial risk of increasing the industrial deafness to a level of material disability;
(b)a disfigurement that is sufficient to affect the earning capacity of a worker or a worker's opportunities for employment."
“Medical question” was defined at the relevant time in s.5(1) by reference to 15 separate paragraphs, some of which are extremely broad and others quite specific. For present purposes relevant paragraphs are to be found in (c) and (d) which read as follows:
"(c)A question as to the extent to which any physical or mental condition, including any impairment, resulted from or was materially contributed to by the injury; or
(d)A question as to the level of impairment of a worker including a question of the degree of impairment of a worker assessed in accordance with s.91 and a question as to whether or not that impairment is permanent;"
Section 88 provides as follows:
"88. Compensation for industrial deafness
(1)Industrial deafness or a proportion of industrial deafness which has occurred in circumstances which do not create any liability to pay compensation under this Act shall be excluded from the assessment of deafness for the purposes of calculating compensation under this section.
(2)Compensation for industrial deafness shall be in accordance with this section, section 89 and Division 2.
(3)Unless the Authority, self-insurer, a Conciliation Officer or the County Court (as the case requires) determines otherwise industrial deafness shall be deemed to have occurred at a constant rate within the total number of years of exposure to industrial noise in employment.
(4)Notwithstanding sub-section (3), the date of injury shall be deemed to be-
(a)the last day of the worker's employment out of which or in the course of which the injury arose; or
(b)the date of the claim if the worker is still employed in that employment at the date of the claim.
Applying s.88(4)(b), the injury in this case is deemed to have occurred at the date of the claim, 1 May 2001.
Section 89 reads as follows:
"89. Further loss of hearing
(1) In this section –
‘further injury’ means a further loss of hearing in respect of industrial deafness after a worker has on one or more occasions suffered a prior injury;
‘prior injury’ means industrial deafness for which the worker has received or become entitled to receive compensation for loss of hearing.
(2)A worker who suffers a further injury shall be entitled to receive in respect of the further injury, in addition to any other compensation payable under section 88, a percentage calculated in accordance with sub-section (3) of the amount that would have been payable for a total loss of hearing.
(3) The percentage shall be the difference between –
(a)the total percentage of the loss of hearing in respect of industrial deafness from which the worker was suffering immediately after the injury in respect of which the claim is made; and
(b)the total percentage of the loss of hearing in respect of industrial deafness immediately after the prior injury or in the case of more than one prior injury the latest of the prior injuries.
(4)For the purposes of this section the register kept under section 90 shall be taken into account.
(5)This section does not apply to a further injury suffered on or after 12 November 1997."
Section 90 reads as follows:
"90 Effect of determination for industrial deafness
(1)A determination for the payment of compensation for industrial deafness which is not reviewed shall be a final determination in respect of the percentage of the diminution of the worker's hearing on the date of the assessment.
(2)A determination for the payment of compensation shall state the percentage of diminution of the worker's hearing in respect of industrial deafness at the date of the determination in relation to which the amount of the compensation is assessed.
(3)A determination for compensation for industrial deafness shall fully extinguish all rights of the worker to compensation for industrial deafness under section 98, 98C or 98E or under the Workers Compensation Act 1958 up to the date of the determination but shall not prevent the worker from obtaining compensation under section 98, 98C or 98E for further industrial deafness suffered after that date.
(4)The Authority shall be advised of any determination for the payment of compensation for industrial deafness.
(5)The Authority shall keep a register of determinations for the payment of compensation for industrial deafness notified under sub-section (4)."
Section 91(3) and (4) are critical to the outcome of this appeal. They read as follows:
"(3)For the purposes of assessing the degree of impairment of the whole person resulting from binaural hearing impairment, the percentage of the diminution of hearing determined in accordance with sub-section (4) is to be converted as follows –
(a)if the binaural loss of hearing is less than 10 per cent NAL, the degree of impairment is zero;
(b)if the binaural loss of hearing is 10 per cent NAL, the degree of impairment is 10 per cent;
(c)if the binaural loss of hearing is more than 10 per cent NAL, the degree of impairment is the percentage equivalent of the number (rounded up to the next whole number) given by the formula –
10 + [0.278 (NAL – 101)] –
where NAL is the percentage of diminution of hearing determined in accordance with sub-section (4).
(4)For the purposes of this section, the percentage of diminution of hearing –
(a) shall be determined –
(i) by a person or class of persons approved; and
(ii) in the manner approved –
by the Minister; and
(b)shall be determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory."
Section 98C in its relevant parts reads as follows:
"98C. Compensation for non-economic loss
(1)A worker who suffers from an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section
(2)The amount of the non-economic loss in respect of permanent impairment other than psychiatric impairment is to be calculated as at the date of the relevant injury as follows-
(a)if the worker's degree of impairment is less than 10 per cent-the amount of the non-economic loss is zero;
…..
(6)If the compensation payable under this section is for industrial deafness, the amount of compensation is to be calculated- (a) if the date of injury is deemed under section 88 to be the last day of the worker's employment out of which or in the course of which the injury arose-as at that day; or (b) if the date of injury is deemed under section 88 to be the date of the claim - as at the day on which the compensation is determined.
…..
(9)Where compensation has been paid under this section for an impairment resulting from an injury or under section 98 or 98A in respect of an injury, that compensation must be deducted from any compensation payable under this section in respect of any impairment resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has previously been paid under this section or section 98 or 98A.”
Mr Gorton, senior counsel for the Authority, submitted that the scheme of the legislation, as amended by the Accident Compensation (Miscellaneous Amendment) Act 1997, required the Panel, and not the Authority, to make an assessment of the whole-person impairment of the worker, from which the worker’s entitlement to compensation, if any, could be calculated by the Authority. Where an award had previously been made for industrial deafness, the assessment of impairment (if any) required the Panel to dis-aggregate the binaural hearing loss which existed at the time of the award from the binaural hearing loss assessed at the time of the new injury. Unless there had been a further binaural hearing loss of 10% then, Mr Gorton submitted, the Act deemed there to be no impairment, and the Panel was therefore obliged to answer the question put to it as it did.
Dr Hanscombe, senior counsel for the worker, submitted that if the interpretation for which the Authority contends were to be adopted then not merely would there be a threshold of 10% on an initial claim made by a worker for industrial deafness, but each subsequent claim would have to separately involve a further loss of at least 10%. That would produce the anomalous consequence, she submitted, that a worker who had not made a previous claim and who was assessed as having a loss of binaural hearing of 32% would recover for the whole of that loss whereas a worker who had made an earlier claim with respect to a loss of 26% and whose binaural loss was subsequently assessed at 32% could not recover for the additional 6% binaural loss. Such an outcome assumes that a subsequent further loss of less than 10% should be regarded as being of no greater consequence than an initial loss of 10%. The contrary must be the case, counsel submitted. The loss of an initial 10% hearing might have little impact on a person’s life, counsel submitted, but for a person who had already lost, say 60% of hearing, a further loss of 10% would be very serious. The Act should not be interpreted to produce such an unjust outcome, she submitted. Furthermore, Dr Hanscombe submitted, when the threshold was
introduced into the Act[5] in 1994 the responsible Minister in his Second Reading Speech made it clear that it was intended that the threshold would only apply to an initial claim.
[5]By an amendment to the Table of Maims provision s.98 which was made by s.41 of Act No 50 of 1994. The threshold when introduced was only 7%, later increased to 10%.
In introducing the Accident Compensation (Amendment) Act 1994 the responsible Minister in his Second Reading Speech said this (the emphases are mine):
“INDUSTRIAL DEAFNESS
Despite substantial overall reductions in claims incidence under WorkCover the number of reported hearing loss claims continues to rise.
Hearing loss claims, which were only 15 per cent of all claims in 1992-93, now represent nearly 30 per cent of all claims being made.
The bulk of these claims are for relatively minor degrees of hearing loss for which hearing aids and appliances are not generally necessary and which have little impact on the worker’s lifestyle. The costs of dealing with these claims in many cases are in excess of the compensation that the worker receives.
The increase in the number of hearing loss claims corresponds with the emergence of organisations directly canvassing workers to lodge claims – in many cases the worker ceased employment with the relevant employer some years earlier. Two organisations alone are involved in two-thirds of all hearing loss claims settled. Such companies are not only incurring costs against the scheme but have also directly charged workers for lodging claims.
Against this background, hearing loss testing and the assessment of the extent to which work was a significant contributing factor to any hearing loss have emerged as areas requiring much more rigorous and consistent procedures.
In order to address these burgeoning problems and preserve compensation for those with a significant work-related hearing loss the bill introduces a threshold of 7 per cent loss of binaural hearing before a table of maims payment under section 98 of the Accident Compensation Act becomes payable.
The threshold will apply in respect of all claims lodged on and after midnight tonight. The threshold level of 7 per cent has been carefully chosen so as to ensure minimal disadvantage to workers, as typically this is the level below which medical opinion indicates a hearing aid is not generally required.”
The 7 per cent threshold is considerably more favourable than the hearing threshold of 20 per cent under the ComCare scheme or 10 per cent in the Western Australian scheme.
In addition, the 1988 National Acoustic Laboratory (NAL) binaural tables are being formally adopted and the manner of assessing hearing loss and the persons authorised to make conclusive assessments of compensable hearing loss are to be approved by the minister on the recommendation of the convenor of the medical panels.
One effect of this increase in claims has been that many employers’ premium costs have risen substantially as a result. The government will therefore exempt costs for below threshold hearing loss claims from employers’ premiums. This will apply to confirmed premiums for 1993-94.”
The amendments which were introduced in 1994 concerned s.98, which provided a table of maims, whereby reference to a particular injury in the table a calculation based on a percentage loss of use could be made as to the compensation payable. The opening words of s.98(1) read:
"A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury mentioned in the table to this sub-section, entitled compensation …"
Section 98(2AA), as introduced in 1994, reads:
"Compensation is not payable under this section for a loss of hearing unless the percentage of the diminution of hearing determined in accordance with sub-section (2AB) is at least seven."
Sub-section (2AB) was also introduced by the 1994 amending legislation and provided that the assessment of “the percentage of diminution of hearing” was to be assessed by reference to the NAL standards.
I agree with Dr Hanscombe that the 1994 threshold was intended to apply, and only did apply, to an initial claim for hearing loss. When the 1994 amendments took effect s.89 continued to apply to “further injury” claims for hearing loss. As s.89(2) stipulated, the right to compensation for “further injury” was in addition to any other compensation payable under s.88, which, in turn, would have included claims under the table of maims in s.98. As seen in the passages from the parliamentary debate above, when the original 7% threshold was introduced in 1994 the statements of the Minister in his Second Reading Speech clearly confined the 7% threshold to first claims. That statement was made in the context that s.89(3) provided that for the “further injury” the worker was entitled to receive the amount of compensation which was calculated by reference to the difference between the percentage loss of hearing after the “prior injury” (for which he received or was entitled to compensation) and the percentage loss of hearing after the “further injury”. The 1994 amendments ensured that, as at that time, the threshold could only have applied to first claims because not only was there no threshold stated in s.89 but also, by s.89(2), the right to compensation by way of the “difference” between awards for prior injury and further injury was linked to the “total loss of hearing” provisions in s.98, not to the “partial loss of hearing” provisions, and, by virtue of s.98(2AA), it was only the latter to which the 7% threshold applied, by virtue of the amendments then made[6].
[6]In 1997 amendments were made which introduced s.98E which thereafter dealt with total loss claims by way of a table of maims approach. Also introduced was s.98(6), which provided that the table of maims provision (s.98) no longer applied with respect to injuries after 12 November 1997.
Nonetheless, in his Second Reading Speech the Minister expressed concern not merely to prevent small claims but also the multiplicity of small claims. Although I do not consider that the 1994 amendments produced this result, the concerns expressed by the Minister might equally have supported legislation which applied a 7% threshold to all claims, both first claims and further claims. Mr Gorton contends that those concerns have now been met, by the 1997 amendments, which not merely increased the threshold to 10% but extended its operation, he contends, to all claims. This expanded operation of the threshold was achieved, he must accept, without such a change being explicitly mentioned when the amending legislation was debated in 1997. At that time the Treasurer, in the Second Reading Speech for the 1997 Bill, expressed great concern as to the increasing liabilities of the WorkCover Scheme. He said that it was intended to remove the “lump sum culture”, at the centre of which was the table of maims, and to adopt an approach based on a fundamentally different approach:
“Compensation will be calculated on the basis of whole-person impairment with a threshold of 10 per cent whole–person impairment for physical injuries – the level currently applying under the TAC and ComCare schemes.”[7]
[7]Hansard, Victorian Parliament, Legislative Assembly debates, 12 November 1997, at p.1076.
The intended central role of the Medical Panels (and the intended reduced role of plaintiff lawyers and courts) was made clear by the Treasurer. He listed eight “fundamental changes” which would occur, the fifth of which was that permanent impairment assessments would be conducted using the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, and they would be modified to take account of Australian best practice “in evaluating psychiatric and hearing impairments”. As to the role of the Medical Panel he said:
“Seventh, a number of changes will be made to improve the efficiency of the dispute resolution process. Opinions of the medical panels will be made final and conclusive irrespective of who referred the medical question and must be adopted by the courts as the answer to the medical question”.[8]
[8]Ibid, at 1074.
When turning to deal with “the major features” of the Bill, one of which concerned permanent impairment non-economic loss benefits, the Treasurer said:
“Impairment assessments will be carried out by doctors who have passed an approved training course and will be made using the Fourth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment as modified in three areas by the Act. On the advice of the medical panels, there will be a revised method for assessing and ascribing permanent impairment percentages to psychiatric conditions. Hearing losses will be assessed using current National Acoustic Laboratory methods converted to a whole-person impairment percentage. The chapter of the guides dealing with pain will be excluded because it provides no workable methodology for ascribing a percentage impairment to the assessment of chronic pain.”[9] (My emphasis).
[9]Ibid, at p.1077.
Clearly enough, the Treasurer did not expressly identify a radical change to the application of the threshold (save that it was raised to 10%), but it must be said that had an increased scope of operation for the threshold been intended to be introduced, that approach would not have been plainly inconsistent with anything said in the Second Reading Speech.
Among the amendments in 1997 was the introduction of s.98(6), which provided that the table of maims provision, s.98, thereafter applied only to injuries which occurred before 12 November 1997. At the same time s.89(5) was inserted and provided that s.89 - which was titled “Further loss of hearing”, and had applied the concepts of “prior injury” and “further injury” – would not apply to a “further injury suffered” on or after 12 November 1997.
Had the worker’s new industrial deafness injury occurred before 12 November 1997 (and it is common ground that it did not) then a relatively straightforward situation would have arisen. By virtue of s.88(4)(b) the date of the injury would have been deemed to be the date of the claim. The injury would have been “industrial deafness” as defined. The provisions of s.89 would have applied so that he would have been a worker who had a “prior injury” and now a “further injury”. By virtue of s.89(3) the compensation to which he was entitled, in addition to any other entitlement under s.88, would have been the difference between the percentage of loss of hearing he suffered after the further injury and the percentage at the time of the prior injury. In the present case that would have been the difference between 32% and 26%. In determining “the difference” reference would be made to the register referred to in s.89(4) and kept by the Authority pursuant to s.90(5). The worker would have been entitled, therefore, to 6% of the sum due under the table of maims provision, s.98, for total loss of hearing.
The determination of the percentage diminution of hearing due to the further injury would have been made by an approved person using the NAL procedures introduced by s.98(2AB) in 1994. Because that entitlement was referable to “total loss of hearing” under s.98 it would not have been subject to the threshold which was applicable to “partial loss of hearing” under s.98. Had it been otherwise and the claim been made for 6% diminution of hearing, but without there having been a prior injury, then that would not have met the 7% threshold under s.98(2AA) for partial loss claims, and no compensation would have been payable. Thus, under that regime for claims for a pre-1997 “further injury” there could have been no dispute about the fact that the threshold applied only to first claims for loss of hearing. A first claim must meet a 7% threshold, but since there had been a prior injury then a further injury claim involving a loss of hearing of less than 7% would be accommodated. So much was made clear by the terms of s.89, and nothing in s.90 (upon which Mr Gorton now places considerable emphasis, as I shall discuss) would inhibit the application of these provisions to a further claim for less than 7% loss of hearing.
The terms of s.90(3)[10] provided that although the determination of the prior claim fully extinguished any rights for compensation up to the date of that determination a claim for “further industrial deafness suffered after that date” was permitted. Section 89 provided a procedure for making such claims and calculating compensation where “further injury” had occurred. McGarvie, J. held in Accident Compensation Commission v. Fletcher; Accident Compensation Commission v. Moyle[11] that s.90(3) did not preclude compensation being paid for an injury which was a product of a gradual process of aggravations occurring both before and after the appointed day at which the Workers CompensationAct was replaced by the Act. The deemed date of injury was also deemed to be the time when the total hearing impairment happened[12]. He held that in that situation “the injury is the total industrial deafness on the date of injury”, and “The worker is entitled to recover compensation for that injury”[13]. McGarvie, J. held that the Commission, nonetheless, was entitled to recover contribution from an employer whose workplace contributed, before the appointed day, to the industrial deafness suffered as at the date of injury.
[10]Which before the 1997 amendments was in substantially the same terms as now, but s.90(3) referred only to s.98 and the Workers Compensation Act and not also to ss.98C and 98E.
[11][1990] V.R. 102.
[12]Ibid, at 107.
[13]At 108.
McGarvie, J. held that what s.90(3) precluded was compensation being paid under both Acts for hearing loss which occurred at the same time[14]. Marks, J., with whom Fullagar, J. agreed, reached the same conclusion.[15] Marks, J. also agreed that by virtue of the deeming provision (s.88(4)(a), in the case of the respondent, Fletcher), the injury must be taken to have occurred as at the deemed date[16]. Having identified when the injury (and the total loss of hearing) was deemed to have happened, Marks, J. then considered what compensation was payable, and held that:
“ . . . once it was concluded that the ‘injury’ of industrial deafness was an ‘injury’ within the meaning of the A.C.A. and became compensable under the table it was proper to award the full amount of the percentage (after of course, any relevant deduction, as, in the case of Fletcher, was required [s.89(3)] on account of the previous award in 1982).
[14]At 108.
[15]At 118.
[16]At 113-114.
The reasons of McGarvie, J. and Marks, J. are consistent with the contention of Dr Hanscombe that when injury is identified and deemed to have arisen then, notwithstanding the terms of s.90(3), it is the full hearing impairment as recorded at that date which is compensable, although a separate question will then arise whether any deduction should be made from the sum thereby assessed in order to allow for a sum paid under a previous award. In my view, however, too much reliance can not be placed on the judgments in Fletcher; Moyle. The court was then dealing with a regime which, unlike this case, did not have any threshold at all, and in which (again, unlike this case) the specific provisions of s.89 applied, concerning "further injury”.
The relatively straightforward scheme as at 1997 was altered by the 1997 amendments, but there is disagreement between counsel as to precisely what was the nature of the change wrought, as it affects the present case. Some things are agreed, however.
For injuries after 12 November 1997 the “table of maims” approach was to cease[17]. Instead, there would be a process for determining impairment on a “whole person” basis. The date of injury for a claim for industrial deafness was to remain that deemed by s.88(4), in this case the date of claim, but a claim for non-economic loss would now be governed by s.98C. By s.98C(1), a worker who had suffered an injury resulting in permanent impairment, as assessed in accordance with s.91, would receive the compensation calculated by the provisions of that section. By s.98C(6) the compensation for industrial deafness was to be the sum to which the worker was entitled as at the date of the claim.
[17]See s.98(6), which provided that the section applied only to injuries before that date.
It is at this point where agreement ceases as to the operation of the new provisions of the Act as inserted in 1997.
The contentions for the Authority
Mr Gorton submitted that in the case of a further injury the only significant change created by the 1997 amendments was as to the method of calculating the compensation payable. Thus, whereas the pre-1997 process had involved determining, through s.89, “the difference” in the before and after percentages of loss of hearing – thereby ensuring that the worker did not gain a windfall by retaining both the compensation earlier paid and that due by the new determination - the new system involved an assessment only of the additional loss of hearing that had occurred after the prior claim had resulted in an award or determination. If the further loss of hearing resulted in less than 10% binaural hearing loss (the threshold having been increased from the earlier 7%) then the degree of impairment was zero, by reference to s.91(3), and the compensation due was nil. Thus, the Medical Panel had correctly answered the question put to it. The approach identified in Fletcher, of, first, pursuant to s.89, calculating the total impairment, secondly, fixing the appropriate sum thereby due under s.98, and then, finally, deducting the sum previously awarded, was no longer the approach adopted by the legislation.
This interpretation of the scheme is supported by the terms of s.90, Mr Gorton submitted, whereas the approach proposed by counsel for the worker required a determination of impairment to be made and a sum of compensation to be thereupon determined, which sum included compensation for industrial deafness for which an award of compensation had previously been made. That flew in the face of the s.90(3) extinguishment of rights for compensation for deafness occurring up to the date of the previous award, counsel submitted.
In his judgment Osborn, J. interpreted the references to “a determination” appearing throughout s.90 as referring only to determinations made under the Act. Thus, his Honour concluded, the section did not apply to “awards” made under the Workers Compensation Act 1958. His Honour had not received submissions as to that question and before us counsel on both sides agreed that his Honour was wrong in the interpretation he gave to the word “determination” and that it did apply to “awards” under the earlier Act[18]. His Honour, however, allowed for the fact that he might be wrong in his conclusion on this question and said, alternatively, that, in any event, if s.90(3) did apply then it did not preclude the assessment of further industrial deafness being conducted by means of assessing the full extent of diminution of hearing as at the date of the new injury.
[18]See s.5(3) and Accident Compensation Commission v. Fletcher; Moyle, at 118.
Mr Gorton submitted that by s.90(1) the award under the Workers Compensation Act was a final determination of the percentage diminution of the worker’s hearing as at that date and by sub-s.(3) all rights to claim for industrial deafness up to that date were thereby extinguished. By virtue of s.90(4) a later claim could only be for “further industrial deafness”, Mr Gorton submitted, thus demonstrating that what had to be identified was the additional loss of hearing which the worker suffered after his first award had been made. The method of calculation had altered, by virtue of the removal of operation of s.89, but the concept remained the same, as discussed in Fletcher, namely, that where there had been a previous award the entitlement, with respect to a further injury, was to be compensated for the additional loss of hearing which had occurred since the award was made. There could be no point for the requirement of s.90(2) that a determination state the percentage diminution of hearing due to industrial deafness as at that date, nor for the requirement by s.90(4) of the Authority being advised of a determination, or the requirement by s.90(5) that the Authority keep a register of determinations, if it was not intended that the hearing loss as at the time of the award would form the base figure from which the “further” loss of hearing could later be calculated, Mr Gorton submitted. Not only did s.90(3) specify that it was further industrial deafness which was to be compensated, it was further deafness “suffered after that date” i.e. the date of the award. Thus, the scheme of the Act provided merely a different mechanism for calculating “the difference” which had previously been dealt with by s.89(3).
The interpretation of the scheme of the amended Act for which the Authority contended had to confront some obstacles to its acceptance.
In the first place, neither in s.90(3), nor in s.98C, nor in s.91 is it stated that the task of the Medical Panel, or anyone else, is to dis-aggregate the total binaural loss of hearing recorded for the new injury, by reducing it by the percentage binaural loss of hearing recorded at the time of the previous award. The language of s.91(3) and (4) is entirely consistent with what Dr Hanscombe contends is the role assigned to the Medical Panel, i.e. to simply record the percentage diminution of hearing for the new claim and if that exceeds 10% then convert that to the appropriate degree of impairment.
The next difficulty for the Authority’s argument – i.e. that if it was intended that what was to be calculated by the Panel was merely the additional loss of hearing, and that it was only that amount which was to be compensated – can be illustrated by an example. Assume that the previous award was in respect of only 20% binaural loss of hearing and upon an assessment that his binaural hearing loss was now 32% then, on the Authority’s argument, there being binaural hearing loss above 10%, compensation would be payable pursuant to s.91(3). On that approach there would be no reason to have a provision in the Act requiring that the worker pay back, or have deducted from his compensation, such sum as had been paid under the previous award. In the illustration I have given, it would be inequitable if from his award with respect to 12% additional hearing loss he had to repay the compensation previously awarded for his earlier 20% loss. A provision which required that an offsetting of earlier payment occur would suggest that, just as before 1997, it was intended that what would be determined was the total loss of hearing at the later date, i.e 32%, on my example, and from the compensation thereby calculated to be due for that percentage loss of hearing, there would be deducted the sum previously paid. Dr Hanscombe submits that there is just such a provision, s.98C(9), which I have earlier quoted but will repeat, for convenience:
(9)Where compensation has been paid under this section for an impairment resulting from an injury or under section 98 or 98A in respect of an injury, that compensation must be deducted from any compensation payable under this section in respect of any impairment resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has previously been paid under this section or section 98 or 98A.”
Mr Gorton met that argument in a number of ways. He submitted that sub-s.(9) had no application to hearing loss claims, at all. That was so, he submitted, because where a claim was being made for a “further loss of hearing”, as was permitted by s.90(3), it was in fact a claim for a “further injury”. In other words it was a new “injury”. And it was a new “injury” as defined only by virtue of clause (a) of the definition of “injury”, that is, it was only an injury as constituted by “industrial deafness”, not as constituted by clause (c) of the definition of injury, which defined injury, alternatively, to be the “recurrence, aggravation, exacerbation, or deterioration of any pre-existing injury . . .” That he submitted, is consistent with the judgments in Fletcher; Moyle[19], which acknowledge that because of the peculiar features of industrial deafness - being in reality a series of successive aggravations and accelerations - the fiction is adopted by s.88(4) that the cumulative effect constitutes an injury happening on a deemed date. In other words, where a claim is made for industrial deafness you ignore the fact that it is a product of daily incidents of aggravation and acceleration (etc.), and once the relevant date of injury is fixed by s.88(4) it is treated as though all of the incidents of industrial deafness occurred on that day. Therefore, in a hearing loss claim (at the very least, one under the Act as amended in 1997) the court is never concerned with aggravations etc., and sub-s.(9) has no relevance.
[19]Per McGarvie, J. at 107; per Marks, J. at 111, 113-114.
The difficulty with Mr Gorton’s argument is that s.98C(9) in terms does not exclude from its operation an injury by way of industrial deafness. If it was intended to be excluded it is surprising that the draftsperson did not say so, since in sub-paragraph (2) the clause expressly excludes psychiatric impairment from the method of assessment which applies to all other injuries and provides discretely for the assessment of compensation for that condition in sub-s.(3). Industrial deafness is not treated discretely save that, for the purpose of fixing the date for calculation of compensation, industrial deafness is expressly addressed in sub-s.(6). Thus, throughout s.98C the draftsperson demonstrates care in including and excluding particular types of injuries where appropriate to specific sub-sections. An example of how simple it would have been to exclude industrial deafness may be seen by the terms of s.104B(1A) which was introduced in 2000 and which, in imposing a time limit on the bringing of claims, stipulated that the section applied to any claim “not being a claim for compensation for industrial deafness”.
There are some other difficulties in Mr Gorton’s contentions as to the scheme of the Act, post-1997. If he be correct as to the intended scheme then the Parliament has produced the result that where a person who had previously been assessed as having a 26% binaural hearing loss suffers an additional 6% hearing loss he is entitled to no additional compensation, because he did not meet the 10% threshold for his new claim. If, on the other hand, he had not made an earlier claim then he would be compensated on the basis of his assessment of 32% binaural hearing loss. As earlier discussed, that result would be at odds with the process that would have pertained before 1997.
Mr Gorton met that argument by saying that the new regime of calculating compensation for claims concerning injuries after the commencement of the 1997 amendments was solely determined by s.91(3) and (4), and the 10% threshold set out in s.91(3) was not, in its terms, confined to first claims. The calculation which is to be made under s.91(3) resulted from a referral to a Medical Panel under s.104B(9) which required an assessment of the degree of permanent impairment “resulting from the injury” and that should be read to mean “resulting from the new/further injury” which required assessment as at the deemed date of the new injury. If the degree of impairment for “further” loss of hearing was less than 10% then no compensation was payable. That was the intention of the Parliament, Mr Gorton submitted, to discourage small claims, including multiple small claims. If it were otherwise, then successive claims could be made for each additional 1% loss of hearing[20].
[20]One response, of course, would be that (as I have concluded to be the case) such small claims were possible between 1994 and 1997, and yet the Treasurer, in his speech in 1997, did not identify particular problems occasioned thereby.
If such a significant change was intended by the amendments then no reference was made to it by the Treasurer in the Second Reading Speech for the 1997 amending legislation. Mr Gorton submitted that the earlier 1994 speech, when the threshold was first introduced and fixed at 7%, did not expressly limit the threshold to new claims, and it should also not be taken that the 1997 amendments were intended to be so limited. It is logical to think that Parliament meant to stop such claims, he submitted.
The overall difficulty in the arguments as to the scheme of the Act presented by Mr Gorton is that they contend for a legislative purpose which at no point is expressly stated by the amending legislation. In any other legislation such an omission of a clear statement of intention would be highly significant, especially if a more beneficial interpretation was also open. The history of this legislation, however, requires the interpreter of its terms to treat such an omission cautiously, and not to assume that an absence of clear terms provides a meaningful clue to the intention of the draftsperson.
The worker’s contentions as to the post-1997 legislative scheme
Dr Hanscombe submitted that an alternative interpretation of the legislation was open which (save for one anomaly, which I shall discuss) would be entirely consistent with the legislative scheme being that a worker making a further claim was not obliged to prove an additional hearing loss of 10% since his last award of compensation. This being beneficial legislation, that interpretation ought to be favoured she submitted[21].
[21]See Wilson v. Wilson’s Tile Works Pty. Ltd. (1960) 104 C.L.R. 328, at 335; Bird v. The Commonwealth (1988) 165 C.L.R. 1, at 6, 9; Hegedis v. Carlton & United Breweries Ltd (2000) 4 V.R. 296, at [32].
Dr Hanscombe acknowledges that a significant alteration of the scheme of compensation was introduced in 1997 but places emphasis on the fact that not only did the Minister not suggest that the 10% threshold was to apply to claims for further deafness, the language of the Act, particularly s.91(3) and (4), suggested the contrary was intended. Thus, applying the NAL standards, as required by s.91(4) the Panel first determines “the percentage of the diminution of hearing” (as noted in s.91(3)), being the binaural loss of hearing (in this case 32%) and then converts that to the relevant degree of impairment (being approximately 16%, applying the formula in s.91(3)(c)). At no point in the legislation is the Panel asked to do what was previously required to be done under s.89, that is, determine the “difference” between the binaural hearing loss as recorded for the new claim (i.e. what had been a “further injury” under s.89(1)) and that which had been recorded at the time of determination of the right to compensation for the previous claim (i.e. for the “prior injury”). This conclusion, Dr Hanscombe submitted, is confirmed by the language of s.104B(5) which states that the purpose of an independent examination is to obtain an assessment of “the degree of permanent impairment . . . resulting from the injury” to the worker. It is consistent, too, with s.104B(9) which requires the Panel to answer the medical question as to the “degree of permanent impairment resulting from the injury to the worker”.
The Panel was authorised to answer the medical question as to the percentage diminution of hearing, not the legal one, which would be what compensation was due once the previous award of compensation was taken into account. That was a task for the Authority, not the Panel, counsel submitted. Osborn, J. accepted that the role of the Panel was confined strictly by the power given to it under the Act and could not be given a role that properly belonged to the Authority. The question asked of the Panel, therefore, had to be both clear in terms and clearly within power. His reasons have been adopted by Smith, J. in a subsequent decision[22].
[22]Stojcevski v. Niselle & Others [2003] VSC 466.
Once the Panel had made its assessment of the degree of impairment (in this case based on a 32% binaural hearing loss), then, so Dr Hanscombe submitted, from the sum of compensation to which the worker was entitled pursuant to s.98C(1) and (2)(c), there would be deducted compensation previously paid to the worker, where the compensation which he was now due had been “in respect of any impairment resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration”[23] of the injury in respect of which the previous compensation order was made. Save for one anomaly, that would be this case, Dr Hanscombe submitted. This is a case, she submits, where the claim now made is for what amounts to a recurrence, aggravation, deterioration, etc., of the earlier injury although s.88 avoids the necessity of having to prove precisely when the aggravations occurred, by deeming the date of injury to be the date of the claim. Thus, there is a perfectly logical scheme where a worker who suffers, as in this case, an additional 6% loss of hearing would not be denied that compensation, but having been assessed at 32% cumulated loss of hearing he would have to account for the sum previously paid for 26% of that loss of hearing.
[23]S.98(c)(9).
The “anomaly” which Dr Hanscombe acknowledges, but asserts to be an unintended omission by the draftsperson, in my view presents a serious problem for acceptance of her contention as to the scheme of the Act.
The problem to be confronted by Dr Hanscombe is that s.98C(9), in identifying the earlier compensation which is to be deducted, refers to compensation paid “under this section” or under s.98 or 98A. Thus, it does not refer to compensation paid under the Workers Compensation Act, and it was pursuant to s.11 of that Act that Mr Del Borgo was paid his previous sum. The result, as Dr Hanscombe accepts, is that the worker would be entitled to retain the full amount of compensation, without any deduction for the earlier award. Dr Hanscombe submits that this “omission” in drafting can be met by the worker undertaking to ensure that an appropriate refund is made from the compensation which he now receives. Mr Gorton submits that even if that is done as a voluntary action in this case it would not bind the many other workers who would benefit from acceptance of the interpretation for which Dr Hanscombe contends. Such a result would fly in the face of the extinguishment of rights to compensation provided by s.90(3), he submitted.
Discussion of competing contentions
Section 90(3), in much the same terms, has been in the Act since its introduction in 1985, as has s.88 and s.89. Thus, even when there had been a regime of “prior injury” and “further injury”, with a mechanism for awarding the “difference”, there had also been the reference in s.90(3) to “further industrial deafness” giving a right to compensation under the table of maims provisions (initially only s.98 was referred to, but by the 1997 amendments it had included references to s.98C and 98E). Mr Gorton submitted that although s.89 did not apply to injuries suffered after 12 November 1997 (by virtue of s.89(5)) the concept[24] of “further” and “prior” injury did not cease, and compensation for a further injury continued to be for the “difference”, that is, for the “further” industrial deafness, and the calculation of the additional loss was now to be made by using s.91(3) and (4).
[24]As I understood his argument, Mr Gorton went so far as to contend that despite its plain words to the contrary, s.89(5) explicitly retained the definition of “further” and “prior” injury, as appear in s.89(1), for claims for injuries happening after 12 November 1997. That, in my view, cannot be right, but the notion of further hearing loss is in any event retained by s.90(3).
Mr Gorton submitted that the continuing purpose of s.90(3) was that it emphasised that when the Medical Panel was set the task pursuant to s.104B(9) to assess the “degree of permanent impairment resulting from the injury”(my emphasis) it was only the “further” industrial deafness that resulted from the new injury identified in the new claim (which by s.88 occurred as at the date of claim).
There was, he submitted, no incongruity in the task being set for the Medical Panel to determine what the further industrial deafness was: by calculating the binaural hearing loss for the new injury, deducting the percentage loss as at the time of the previous award, as noted in the register, and then determining whether a compensable degree of impairment resulted. The new regime was intended to have the expert Panel members perform such roles, he submitted. To adopt that interpretation creates a workable scheme.
Dr Hanscombe submitted that the contentions for the worker that the Panel was required to determine the total degree of impairment, without making adjustments for the past assessment and compensation, did not run counter to the extinguishment of rights provided by s.90(3). Whilst the assessment of binaural hearing loss post-1997 did include hearing loss which had been sustained before the previous award, no “right” to compensation for that was being asserted; it was accepted that he could not recover twice for the earlier loss of hearing. Once the calculation had been made based on the combined binaural hearing loss as then recorded the worker would have to have deducted, or repay, the sums previously awarded.
Conclusion
In my opinion, whilst s.98C(9) could literally apply to a hearing loss claim (in the sense that any hearing loss claim is inevitably an aggravation or deterioration of an earlier injury, because industrial deafness involves continuous traumata, each of which adds cumulatively to the total deafness[25]), the section much more readily could be applied to injuries other than industrial deafness. By way of example, if a worker injured his leg, and received compensation for that, then a subsequent accident involving the same leg may well involve an aggravation of the earlier injury. That situation is one where a claim for aggravation of the earlier injury by virtue of the later one (and the claim must still identify an “injury” under s.82(1)), would be expressly claimed and proved. Such a situation is quite different from the notional cumulating aggravations of industrial deafness, where the Act itself, by s.88(4), eliminates the need for argument or proof as to aggravations or deterioration and deems the industrial deafness (once the component of compensable deafness is determined) to have occurred on a given date.[26] In those circumstances it seems an unlikely way to provide for a repayment of earlier compensation for industrial deafness to rely on a general provision dealing with aggravations and deterioration, etc. For similar reasons, a claim based on psychiatric impairment, which is now allowed under s.98C(3) but which is also not expressly excluded by s.98C(9), would seem less comfortably addressed by the latter sub-section.
[25]See Commissioner for Railways v. Bain (1965) 112 C.L.R. 246, at 251, per Barwick, C.J. ; Accident Compensation Commission v. Fletcher; Moyle at 111, per Marks, J., and at 107, per McGarvie, J.
[26]I note, too, s.88(3) deems that industrial deafness occurs at a constant rate over the years of exposure.
As may be seen, on both sides s.98C(9) presents a problem.
If, as Mr Gorton submits, s.98C(9) does not apply to industrial deafness then it does not say so. What, then, is its purpose? If it had a purpose in ensuring that there would not be a windfall for workers who had received compensation for an earlier injury, such as the person with the leg injury as I have postulated, then why would it not address awards under the Workers CompensationAct? On any view there appears, therefore, to be an omission of reference to the old Act in s.98C(9) with respect to the injuries to which Mr Gorton says it does apply.
If, as Dr Hanscombe submits, s.98C(9) was meant to apply to industrial deafness awards under the Workers CompensationAct then it does not say so, and if it applies to all injuries then it applies, too, to psychiatric impairment, and yet a reference to the Workers CompensationAct could not have applied to psychiatric impairment as there was no table of maims provision for such a condition under the old Act; it was first introduced in 1997 by s.98C(3).
I have found it very difficult to resolve the conflict between the competing contentions in this appeal. If Dr Hanscombe is correct then there is found a quite workable scheme of the Act for determining impairment arising from a further injury. Its primary deficiency, and it is a significant one, is that it permits a worker to retain, as a windfall, compensation awarded under the Workers Compensation Act (but not compensation awarded by a determination under the Accident Compensation Act). In contesting that interpretation of the scheme Mr Gorton must concede, however, (not that he did) that s.98C(9) does, indeed, inexplicably omit reference to the Workers CompensationAct with respect to those injuries which it is intended to embrace.
The scheme of the Act for which Mr Gorton contends, is not articulated in any provision of the Act, but must be extracted by inference from a bundle of provisions. Words must be read into s.91(3) which do not appear, so as to permit the Panel to do what it did in this case, in order for it to answer as a medical question what is undoubtedly a question of mixed fact and law. The scheme, as then postulated, would impose a 10% threshold in ways not previously imposed upon a worker and not discussed by the responsible Minister when introducing the amendment said to have produced that outcome.
In my view, the interpretation proffered by Dr Hanscombe, notwithstanding its own limitations, is to be preferred. The deficiency exposed in the Act for ensuring that a worker does not “double-dip”, is one that Parliament must correct. It would not be the first time that Parliament has had to correct errors and omissions in this Act.
Accordingly, the decision of Osborn, J. to set aside the decision of the Medical Panel in this case was correct, and the appeal should be dismissed.
A more narrow question
Although my conclusion, above, would be sufficient to dispose of the case (if it gains support) I will briefly address a discrete and alternative argument advanced by Dr Hanscombe in the event that the Court rejected her primary argument as to the scheme of the Act.
Dr Hanscombe submitted that even if it was the case that the Panel could have been asked a medical question which required the Panel to undertake the task of dis-aggregating the loss of hearing as between the earlier determination and the later assessment, that was not the question which was in fact asked, and the answer was not responsive to the question: accordingly, the judge was right to have made the order he did and the appeal would fail on that more limited basis.
Mr Gorton acknowledged that the question posed to the Panel did not, in terms, ask what was the “further industrial deafness” which had been caused since the last determination, but submitted that the Act had to be read as a whole and the Medical Panel, as an experienced medical practitioner well versed and trained as to the operation of the Act, would know that what was required was the answer to that question, because the question is posed in terms which amount to requiring an answer as to the impairment “resulting from the injury”.
It is important to note the precise terms of the question posed to the Panel (omitting the last few words for present purposes) which required assessment of “the degree of impairment of the whole person resulting from the worker’s binaural hearing impairment assessed in accordance with s.91(3)”. That follows the opening words of s.91(3) but they continue in the sub-section, and state that it is the “percentage of diminution of hearing determined in accordance with sub-s.(4)” which is to be converted to determine whole person impairment. Thus, were I wrong as to the proper interpretation of the provisions of the Act, so that the task set by s.98C(1) and s.91 was to have the Panel identify the “further” loss of hearing, then the Authority failed to ask the proper question. What was not asked by the question, but might then be said to have been permitted by s.104B(9) to be asked, is what is the degree of further impairment resulting from the injury. Mr Gorton contended that that must be read into the question which was asked because s.104B(5) and (9) by use of the expression “resulting from the injury” both identify that as being the purpose of the question to the Panel. In my view, however, whilst those sections give the Authority power to ask a relevant question of the Panel, and the Panel is empowered to answer a medical question which the Authority is empowered, in turn to ask (see, s.67), the question must be asked in precise terms. The form of such a question that might have been asked is demonstrated by the form of referral to the Medical Panel. One box which was not ticked by the Authority to indicate a question which the Panel was to answer was in the following terms:
“What is the worker’s degree of impairment resulting from the accepted injury/s as assessed in accordance with Section 91, and is the impairment permanent?”
Thus, the Panel was not asked to do anything more than proceed from an assessment of the binaural hearing loss to determine the degree of impairment. The Panel was not asked, in effect, how much of that is due to this injury rather than the last one? Assuming, for this purpose, that the Authority’s interpretation of the scheme of the Act is the correct one then that question could have been asked of the Panel, even though it involved mixed questions of fact and law[27]. It was not asked, however.
[27]A mixed question of fact and law could be asked if that was, indeed, the scheme of the Act: see Masters v. McCubbery [1996] 1 V.R. 635.
If the scheme of the Act was as the Authority contends then a question seeking an answer as to the “further loss of hearing” could have been asked, because s.91(3) must be read with s.104B(9) and with the definition paragraphs (c) and (d) of “medical question”, and, thus, the Panel could have been asked to determine the extent to which there was further impairment “resulting from the injury”. That would then have permitted the Panel to perform the task which Mr Gorton submitted the scheme set to the Panel to perform. As a narrow point, then, the appeal ought to be rejected on that basis, since the Panel did not respond to the question asked.
The question of the powers of the Panel, as opposed to the powers and obligations of the Authority, is an important one. On the interpretation which I favour for the Act, the Panel performs a technical, medical, function of assessing binaural hearing loss and then takes that figure and makes an arithmetical calculation of impairment under s.91(3). What that translates to in terms of a payment of compensation would be the task of the Authority and might require consideration of other sections of the Act in determining whether a sum representing the previous award can be deducted. The Authority is set the task of assessing claims by s.20(1)(aa), but if it is the task of the Panel to conduct the dis-aggregation of past and further injuries in coming to an assessment of “permanent impairment” then its assessment of the degree of such impairment is expressly excluded from appeal to any court or tribunal. (See s.104B(12).) The issue of what is involved in a medical question as to the degree of permanent impairment is a matter of importance.
For the reasons discussed above, I conclude that the appeal should be dismissed.
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