Victorian WorkCover Authority v Del Borgo

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.