Ware v NSW Rural Fire Service - [2014] NSWWCCPD 33

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ware v NSW Rural Fire Service [2014] NSWWCCPD 33
APPELLANT:	Graham Ware
RESPONDENT:	NSW Rural Fire Service
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-11907/12
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:	6 September 2013
DATE OF APPEAL HEARING:	20 May 2014
DATE OF APPEAL DECISION:	3 June 2014
SUBJECT MATTER OF DECISION:	Meaning of firefighter in cl 25 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; boilermaker’s deafness; deemed date of injury; s 17 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr B McManamey, instructed by Villari Lawyers
Respondent:	Mr P Perry, instructed by Hicksons
ORDERS MADE ON APPEAL:	1. The respondent employer’s name is amended to NSW Rural Fire Service. 2. Paragraph 1 of the Certificate of Determination of 31 January 2014 is revoked and the following order made in its place: “1. That the respondent pay the applicant lump sum compensation in the sum of $9,625 under s 66 of the Workers Compensation Act 1987 in respect of a seven per cent permanent impairment resulting from a loss of hearing deemed to have happened on 20 June 2012.” 3. Paragraphs 2 and 3 of the Certificate of Determination of 31 January 2014 are confirmed. 4. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

The appellant worker, Graham Ware, is a motor mechanic employed by the respondent employer, NSW Rural Fire Service (wrongly sued as Rural Fire Services). He performs the overwhelming majority of his duties at the respondent’s workshop at Katoomba. However, on rare occasions, he repairs fire-fighting equipment at the “fire front” of an active bush fire. It is accepted that his duties at both locations created a real risk of causing a loss of hearing of such a nature as to be caused by a gradual process (boilermaker’s deafness or industrial deafness).
On 20 June 2012, Mr Ware claimed lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for a six per cent (amended on appeal to be seven per cent) whole person impairment due to boilermaker’s deafness. Under s 17(1)(a), 20 June 2012 is the deemed date of injury.
By amendments to s 66 of the 1987 Act, introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments), which apply to claims made on or after 19 June 2012, no compensation is payable for permanent impairment unless the impairment is greater than 10 per cent (cl 15 of Pt 19H of Sch 6 to the 1987 Act).
However, cl 25 of Pt 19H of Sch 6 to the 1987 Act (cl 25) provides that:
“The amendments introduced by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.” (emphasis added)
The issue in this appeal is whether Mr Ware is a firefighter and, therefore, exempt from the 10 per cent threshold introduced in the 2012 amendments.

BACKGROUND

Mr Ware started work for the respondent as a motor mechanic in 1988. In 2001, he was promoted to the position of district team zone fleet officer, but his duties remained those of a mechanic. His duties in both positions required him to repair fire trucks and fire-fighting equipment, such as chain saws, brush cutters and pumps.
Mr Ware normally worked at the respondent’s workshop at Fire Control at Katoomba, but he also worked, from time to time, at other Brigade Stations where he did similar work. Whenever there was a bush fire, he was “on call” to carry out emergency repairs on fire trucks and fire-fighting equipment at the “fire front”. When he attended the fire front, he was often as close to the fires as “the people holding the fire hoses”. Since 2001, he attended the fire front, to carry out emergency repairs on fire-fighting equipment, on about 31 occasions.
Mr Ware’s duties, both at the workshop and on the fire front, exposed him to noise from equipment and other sources. It is not disputed that his employment, both in the workshop/s and on the fire front, was employment to the nature of which boilermaker’s deafness or deafness of a similar origin is due (s 17(2) of the 1987 Act).
After noticing a gradual loss of hearing in the 10 years up to 2012, Mr Ware sought legal advice and was referred to Professor Paul Fagan, ear, nose and throat specialist. In his report of 24 May 2012, Professor Fagan took a history that Mr Ware’s work with the respondent from 2000 exposed him to noise from rattle guns, grinders, hammers, compressors and machinery. He concluded that the work posed a real risk of sensorineural hearing loss (boilermaker’s deafness). He assessed Mr Ware to have a binaural hearing loss of 12.3 per cent, which equated to a whole person impairment of six per cent.
On 20 June 2012, Mr Ware’s solicitors claimed $8,250 lump sum compensation on his behalf under s 66 in respect of a six per cent whole person impairment due to his hearing loss. This letter also attached a Notice of Claim under s 260 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it described Mr Ware’s occupation as “Motor mechanic and fleet officer”. Under “EXPOSURE”, the following appears, “rattle guns, grinders, brake drums, hammers, compressors, various air tools and general worksite machinery. Hearing protection provided”.
On 31 July 2012, the respondent’s insurer issued a s 74 notice in which it disputed liability on the ground that Mr Ware had not met the 10 per cent threshold in s 66, as amended by the 2012 amendments. It asserted that the amendments applied to Mr Ware because he was not a firefighter for the purposes of the 1987 Act.
After seeing Mr Ware’s statements, which described the noise to which he was exposed at fire fronts, Professor Fagan said in a second report, dated 15 May 2013, that Mr Ware’s employment while attending fire fronts was “even more injurious to his hearing than his regular mechanical repair duties”.

SUBMISSIONS BEFORE THE ARBITRATOR

Mr Ware’s solicitor, Ms Faura, argued that the 2012 amendments did not apply to her client because of cl 4 of Pt 19H of Sch 6 to the 1987 Act, which provides, among other things, the amendments do not apply for the purposes of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (the Emergency Services Act) and a reference in that Act to a provision of the Workers Compensation Acts (the 1987 Act and the 1998 Act) is a reference to the provision without regard to any amendment made by the benefits amendments.
In the alternative, Ms Faura argued that Mr Ware should be considered a firefighter and therefore, under cl 25, excluded from the application of the amendments introduced by the 2012 amendments.

THE ARBITRATOR’S DECISION

The Arbitrator was not satisfied that, when working in his capacity as an employee of the respondent, Mr Ware fell within the definition of “firefighter” in the Emergency Services Act and that, in any event, the Commission does not deal with claims under that Act. Mr Ware has not challenged these findings.
Dealing with Ms Faura’s alternative argument, the Arbitrator found that had Mr Ware only sustained injury when at the respondent’s workshop, where he did the overwhelming majority of his work, he would not fall within the exclusion afforded to firefighters. However, as he also worked (for 31 days over about 10 years) in active fire grounds with other emergency service personnel, and as it was “integral to the job of extinguishing fires” ([59]) that persons such as Mr Ware be present at those fires, to repair trucks and equipment, the term “firefighter” in cl 25 can include staff such as Mr Ware. If, at those times, workers such as Mr Ware were injured they would be exempt from the amendments.
Therefore, Mr Ware was entitled to bring a claim for industrial deafness arising out of his employment with the respondent and the Arbitrator referred the assessment of his whole person impairment to an Approved Medical Specialist (AMS) for assessment (s 319 of the 1998 Act). However, the question referred required the AMS to assess the degree of industrial deafness “relating to Mr Ware’s employment with the [respondent] confined to exposure to noise in an active fire ground as distinct from at Brigade Stations or at the workshop at Fire Control Katoomba”.
Consistent with the Arbitrator’s determination, the Commission issued a Certificate of Determination on 6 September 2013 in the following terms:
“The Commission determines:
1.       The permanent impairment claim is remitted to the Registrar for referral to an Approved Medical Specialist to assess the degree of industrial deafness (binaural hearing loss) from date of injury 20 June 2012 relating to Mr Ware’s employment with the Rural Fire Services confined to exposure to noise in an active fire ground as distinct from at Brigade Stations or at the workshop at Fire Control Katoomba. The documents to be referred to the Approved Medical Specialist are to include those in evidence before me, and this Certificate of Determination and Statement of Reasons.
2.       The order referred to in [1] above is to be vacated if the parties file a complying agreement to resolve Mr Ware’s entitlement to lump sum compensation.
3.       The respondent is to pay the applicant’s costs as agreed or assessed.
4.       Complexity is certified for both parties’ costs with a 20 per cent uplift.”

The AMS issued a Medical Assessment Certificate on 9 December 2013 in which he assessed Mr Ware to have the following losses:
Total binaural hearing impairment   37.2 per cent
Less pre-existing non-related binaural hearing impairment         20.8 per cent
Less presbycusis correction  2.4 per cent
Adjusted total binaural hearing impairment   14.0 per cent
Resultant whole person impairment   7 per cent
The AMS then did a calculation for “possible hearing loss during active fires pro rata for 31 days” during noise exposure over a 41 year working career, which gave a loss due to noise from active fires of .00145 per cent, which rounded down to nil.
Based on the Medical Assessment Certificate, the Registrar, acting as an Arbitrator, issued a Certificate of Determination on 31 January 2014 in the following terms:

“The Commission determines:

1. That the applicant suffers 0% permanent impairment in respect of hearing loss resulting from injury deemed to have happened on 20 June 2012.
The Commission notes:
2. That the respondent was ordered to pay the applicant’s costs as agreed or assessed by Certificate of Determination dated 6 September 2013. The matter was certified complex with an uplift of 20% applicable to both parties.
Brief statement of reasons
3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.”

Mr Ware has challenged the Arbitrator’s determination of 6 September 2013 and the orders made by the Registrar on 31 January 2014.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     finding that Mr Ware was exempt from the 2012 amendments in respect of injuries while in an active fire ground but was not exempt in respect of injuries sustained at other times and places;
(b) her interpretation of the exemption for firefighters in cl 25;
(c)     limiting the remittal to the AMS to an assessment of industrial deafness confined to exposure to noise in an active fire ground, and
(d)     determining that Mr Ware suffered a nil impairment in respect of hearing loss resulting from the injury deemed to have happened on 20 June 2012.
The grounds of appeal essentially raise two main issues: the first, which encompasses the first two grounds of appeal, is whether the 2012 amendments apply to Mr Ware. This question turns on whether Mr Ware is a firefighter. The second, which encompasses the third and fourth grounds, is whether the Arbitrator erred in limiting the remittal to the AMS to an assessment of industrial deafness confined to exposure to noise at an active fire ground.

Do the 2012 amendments apply to Mr Ware?

Submissions by Mr Ware

Counsel for Mr Ware, Mr McManamey, submitted that Mr Ware is excluded from the operation of the 2012 amendments because he is a firefighter. He said that the Macquarie Dictionary defines a firefighter as “someone whose activity or employment is to extinguish fires, especially bushfires” and that the Oxford Dictionary definition is “one whose task is to extinguish fires”.
Mr McManamey contended that the “plain and ordinary meaning of the words [in cl 25] [are] that a ‘firefighter’ is a person employed to be involved in the task of extinguishing fires”. The exclusion in cl 25 directs attention to the type of employment, not the individual duties being carried out at the time of the injury. Thus, police officers and paramedics are exempt from the 2012 amendments without reference to the duties being performed at the time of the injury.
Mr McManamey argued that guidance can be gained from cl 26 of Pt 19H of Sch 6 (cl 26), which states that the 2012 amendments do not apply to or in respect of an injury received by a coal miner. Relying on Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272 (Pilgrim) and Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427, Mr McManamey submitted that the “coal miner provisions allow for someone whose substantial job is to work in a mine to be a coal miner whether at or away from the mine” and it was only the person who does not usually work at the mine who must be in its proximity to be a coal miner.
In contrast to cl 26, which has a definition of a “coal miner”, namely, “a worker employed in or about a mine”, cl 25 does not have a definition that requires a police officer, paramedic or a firefighter to be at a particular place or engaged in a particular activity to fit within the exclusion. Accordingly, the three terms should not be limited in that way.
In the same way that it is accepted that a person whose “substantial job” is to mine coal is within the definition of coal miner, a firefighter is someone whose “substantial duties are directed to the purpose of fighting fires”. To conclude otherwise would create the situation that a firefighter within the NSW Fire Brigade would be excluded from the amendments if injured at a fire but would not be excluded if injured undergoing training.
The process of fighting fires is a complex operation and, for every person at the fire front, it is necessary to have a support team performing essential tasks such as co-ordination, supply, transport and repair of equipment. The Commissioner in charge of the operation is as much engaged in the activity of fighting a fire as the person directing the fire hose. All those integral to the operation are “engaged in fire fighting and are fire fighters” and there is no warrant to limit the term firefighter to people actually on the active fire ground directing the hose.
It is essential that fire-fighting equipment is in proper working order and Mr Ware is employed as an essential part of the fire fighting operation working on the fire ground repairing fire trucks and other fire fighting equipment.
This case can be distinguished from The Australian Workers Union, New South Wales v Office of Environment and Heritage [2012] NSWIRComm 133 (AWU), on which the Arbitrator placed some reliance, because that case considered the case of workers whose duties may include fire fighting but who had other duties not connected with any form of fire fighting. The conclusion in AWU is consistent with the conclusion by the Court of Appeal that people whose duties do not normally involve any aspect of fire fighting may be exempt if the injury occurs while engaged in fire fighting. The present case is different because Mr Ware’s duties are all addressed to the needs of fire fighting.
The Arbitrator’s conclusion failed to address the plain and ordinary meaning of the words in cl 25. Had she done so, she would have concluded that all of (Mr Ware’s) employment was exempt and referred the matter for assessment of the entirety of his hearing loss and not just part of it.

Submissions by the respondent

Counsel for the respondent, Mr Perry, submitted that the interpretation urged by Mr McManamey, namely, that “a ‘firefighter’ is a person employed to be involved in the task of extinguishing fires” is an invalid extension of the definition. That is because “to be involved in” the task of extinguishing fires could include a purely administrative employee of the respondent who is involved in the logistics of allocating equipment to rural fire stations. Such a person could be described as being involved in the task of extinguishing fires but it is not their task to extinguish fires.
Mr Perry relied on AWU, where Boland J found (at [102]) that it was apparent from the Parliamentary debates that the purpose of extending cl 25 to cover firefighters and paramedics was to exempt from the 2012 amendments “only a small and select group of occupations that had in common the provision of emergency services and may be working side by side with each other attending to the same emergency”.
AWU envisages persons being classified as firefighters for the purpose of the exemption (in cl 25) only during certain activities and periods of employment. It is clear from that decision that employees of the various departments referred to in that decision would not be exempt from the amendments in respect of injuries sustained in part of their duties when they were not directly involved in firefighter related activities.
Mr Ware was not employed as a firefighter and the Arbitrator correctly determined that he would only be exempted from the 2012 amendments while undertaking duties in an active fire ground.
The coal miner decisions do not necessarily assist Mr Ware. The respondent employed Mr Ware as a mechanic. Though his job had some involvement in the “overall business” of working towards controlling and minimising fires, it only involved him as a “firefighter” when he was at the fire front.
At the hearing of the appeal, Mr Perry sought to raise an additional argument to the following effect: as the deemed date of injury is 20 June 2012, and as there is no evidence that Mr Ware was a firefighter on that day, he is not entitled to the exemption in cl 25. This point was not argued before the Arbitrator and Mr McManamey opposed it being raised for the first time on appeal.

Discussion and findings

I approach this question of statutory interpretation bearing in mind the following observations by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47]; 239 CLR 27 at 46–47 (footnotes omitted):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
After quoting the above passage in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378, at [23], French CJ and Hayne J added, at [24]–[25] (footnotes omitted):
“24. The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.
25. Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. ‘[T]he 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’ (emphasis added). And as the plurality went on to say in Project Blue Sky:
‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’”

Applying the above principles, I have concluded that the legal meaning of firefighter corresponds with its normal grammatical (dictionary) meaning and there is nothing in the context, purpose or policy behind cl 25 that leads to a different conclusion. It follows that firefighter means “someone whose activity or employment is to extinguish fires, especially bushfires”. As Mr Ware was employed as a mechanic, not a firefighter, he is only a firefighter, for the purposes of cl 25, when he is engaged in providing support at the fire front during a fire.
The interpretation urged by Mr McManamey extends the meaning of firefighter from “someone whose activity or employment is to extinguish fires” to include someone “involved in the task of extinguishing fires”, however remote and indirect that involvement may be. Such an interpretation would result in the respondent’s receptionist being a firefighter. That is an artificial extension of the meaning of firefighter that is not justified by the words used, or by the context in which they appear in cl 25.
The argument that cl 25 directs attention to the type of employment, not the individual duties being carried out at the time of injury, does not assist Mr Ware. Mr Ware’s “type of employment” was that of a mechanic: he maintained and repaired equipment for use in fighting fires. Though it may be accepted that the maintenance of that equipment is necessary for the efficient operation of the respondent’s activities, that does not change the essential character or “type” of Mr Ware’s employment. He was and is a mechanic and, plainly, not a firefighter.
The argument that police officers are exempt, regardless of the activity in which they are engaged, does not advance Mr Ware’s position. The term police officer is defined in s 3 of the Police Act 1990 to mean “a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer”. It follows that a person who meets that definition is exempt from the amendments, regardless of the activity in which he or she is engaged at the time of injury. That does not mean that a person whose “type of employment” is something other than that of a firefighter becomes a firefighter because his or her duties are indirectly involved in providing support in the form of maintaining fire-fighting equipment in a workshop well removed, in both time and distance, from a fire.
There is no similar definition of a firefighter. Firefighter is defined in cl 3 of the Fire Brigades Regulation 2008 to mean “a permanent firefighter or a retained firefighter”. Mr McManamey did not argue that Mr Ware comes within that definition. He relied on the definition of “fighting” in s 5 the Emergency Services Act, which states:
“‘fighting’, in relation to a bush fire, includes any reasonable act or operation performed by a firefighter at or about the scene of or in connection with a bush fire which is necessary for, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire, or in any other way necessarily associated with the fire.” (emphasis added)
This definition does not assist Mr Ware. Though it talks about operations that are “incidental to” the control or suppression of fires, it is clear that it is talking about activities by a “firefighter” in respect of “a” fire and the control or suppression of “the” fire. It is plainly not talking about activities that are “incidental to” fire fighting in general, such as the maintenance of fire-fighting equipment in a workshop at a time when there are no fires being fought.
Section 5 of the Emergency Services Act includes the following definition of firefighter:
“(a) an official fire fighter, being the captain, deputy captain or any member of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades,
(b) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire:
(i) with the consent of or under the authority and supervision of the captain, or deputy captain of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, or
(ii) in conjunction with any civil authority, and
(c) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire and who, in the opinion of the Authority having regard to all the circumstances, should be deemed to be a fire fighter.”
It has not been argued that this definition applies to Mr Ware. It is, however, instructive to note that, in contrast to the definition of a police officer in the Police Act, this definition defines a firefighter by reference to the person’s classification and/or by reference to the person engaging in the activity of “fighting a bush fire”.
I do not accept that cl 26 provides any guidance. That clause contains a definition of a coal miner. It is true that, in contrast to cl 26, cl 25 does not have a definition that requires a police officer, paramedic or firefighter to be at a particular place or engaged in a particular activity before the exclusion can be applied to them. That does not assist Mr Ware. Clause 25 provides that the 2012 amendments do not apply to injuries received by workers in specified categories. One of those categories is firefighter. Mr Ware is not a firefighter; he was and is a mechanic. Save for the periods when he was working at the fire front, he did not work as a firefighter.
In Pilgrim, Handley JA observed (at [13]) that the focus in that case was on the actual work being done by the worker at the time of his injury, provided it was “substantially centred in or about the mine”. This excluded workers who visit the mine in the course of their employment for relatively short periods whose general work was not in or about the mine. It included a worker whose general work for the time being was in or about the mine, even if it was expected to last only for a relatively short time.
This does not advance Mr Ware’s case. His duties are not substantially centred in or about fire fighting. He is a mechanic whose substantial duties are centred on repairing fire-fighting equipment in a workshop. While that is clearly important work, it is not fire fighting.
The suggestion that, on the Arbitrator’s approach, a firefighter within the NSW Fire Brigade would be excluded from the exemption if injured at a fire but would not be excluded if injured undergoing training is not correct. Counsel acknowledged at the hearing (at T5.4) that it was common ground that a member of the NSW Fire Brigade is a firefighter. Such a person would be a firefighter whether injured fighting a fire or in some other work situation away from a fire. However, Mr Ware is not such a person. Looking at his substantive position, as urged by Mr McManamey, he is plainly not a firefighter.
I accept, as Mr McManamey submitted, that the process of fighting fires is a complex operation and that, for every person at the fire front, there is a support team performing tasks that are incidental to the activity of fire fighting. Such support personnel may well, depending on the circumstances, be firefighters during a fire. However, in the absence of a definition of firefighter, such as the definition of police officer in the Police Act, members of the support team, whose normal duties do not involve work at the fire front, cannot be regarded as firefighters while performing those duties when there is no fire.
To suggest that there is no warrant to limit the term firefighter to people actually on the active fire ground is to ignore the clear meaning of that term in circumstances where there is nothing in the context or policy of the legislation that justifies doing so.
In support of his position, Mr McManamey relied on the following speech by Mr David Shoebridge, Greens member of the NSW Legislative Council, on 21 June 2012 in support of the motion to amend the proposed terms of cl 25 by adding “paramedics and firefighters” after “Police officers”:
“These amendments will ensure that the protection from benefit cuts proposed by the Government to apply to police, Rural Fire Service, and State Emergency Service workers will also apply to those other, much-prized emergency personnel, paramedics, and firefighters. As the Government’s bill is currently drafted, police have their benefits protected, Rural Fire Service personnel and State Emergency Service personnel have their benefits protected, but the other emergency service personnel, the firefighters and the paramedics, who will be working side by side with Rural Fire Service and State Emergency Service personnel – all of whom will be going to the same bushfires, or the same road trauma incidents, or to fight the same fires and dealing with the same consequences of emergencies throughout our city, country and regional areas – will not. There will be two classes of benefits. The employed firefighters and the employed paramedics will get the stripped-down benefits, but the police, Rural Fire Service and State Emergency Service personnel will have the superior benefits, before they were so badly savaged by this Government’s amending bill. That is grossly unfair for the emergency services sector.”
Dealing with this speech, Mr McManamey submitted, at T6.17:
“Now what’s important about that, Deputy President, is that the amendment was being moved to give parity between the paramedics and fire fighters and those who are already exempted, and that included the Rural Fire Service, under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act. And for that reason, in my submission, it is informative to consider what the coverage is for a person under that legislation because the intention is to have an equivalence between the two.”
When one looks at the Emergency Services Act, there is no support for the argument that a person employed as a mechanic should, while working as a mechanic in a workshop, be considered a firefighter. The definitions in that Act (see [46] and [48] above) point strongly to the opposite conclusion. Therefore, to the extent there was an intention to have “equivalence” between those covered by the Emergency Services Act and firefighters who are not so covered, it seems logical that the “equivalence” be applied to workers who are actually engaged in fighting fires and not otherwise.
The only feature of Mr Ware’s employment that might bring him within the term firefighter is the work he performed at the fire front during bush fires. Though he was not a firefighter in the sense of attempting to extinguish fires with a water hose, or through some other method, his work on those occasions is incidental to the control or suppression of a fire and the respondent conceded as much. That was the conclusion reached by the Arbitrator, who applied the reasoning and conclusion in AWU to the effect that a worker who is not employed as a firefighter should be considered a firefighter immediately he or she commences to perform fire-fighting duties (AWU at [105]).
In AWU, Boland J said (at [102]) that it was apparent from the Parliamentary debates (referring to Mr Shoebridge’s speech quoted above) that the:
“purpose of extending [cl] 25 to cover firefighters and paramedics was to exempt from the 2012 amendments only a small and select group of occupations that had in common the provision of emergency services and may be working side by side with each other attending to the same emergency.”
Mr Ware only worked “side by side” with emergency services workers when he attended an emergency at an active fire front.
I accept that workers compensation legislation is beneficial legislation and entitlements under that legislation should not depend on “distinctions which are too nice” (per Mahony JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765). At the same time, however, the principle that beneficial legislation should be given a liberal construction 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).
The construction urged by Mr McManamey is artificial and not reasonably open on a proper construction of the text of cl 25, taking into account the context of the clause and the intention of Parliament, as gleaned from the text itself and the parliamentary debates.
It follows that the Arbitrator did not err in her conclusion that Mr Ware was a firefighter only when he was repairing equipment at the fire front, which was an integral part of the job of extinguishing fires. If, at those times, workers such as Mr Ware were injured they would be exempt from the amendments and entitled to compensation according to the terms of the applicable legislation.
Last, the additional point raised by Mr Perry at the hearing, which was not argued before the Arbitrator, is rejected. The date of injury of 20 June 2012 is the date on which the injury is “deemed to have happened” (s 17(1(a)(i)). It is not the date on which the injury was received and it was not necessary for Mr Ware to establish that, on that date, he was a firefighter.
The deeming provision is necessary because the condition of boilermaker’s deafness is a condition that is of such a nature as to be caused by a gradual process and, without it, it would be impossible for a worker to establish a date of injury. It is a legal fiction. The actual injury is received gradually over time, when the worker is employed in noisy employment. The significance of the deeming provision in s 17 is discussed further below.

Did the Arbitrator err in limiting the remittal to the AMS to an assessment of industrial deafness confined to exposure to noise in an active fire ground?

Submissions by Mr Ware

Section 17 provides for the payment of compensation by the last employer who employed the worker in employment to the nature of which boilermaker’s deafness, or any deafness of a similar origin, is due. The liability of the employer does not require that the employment in fact caused the injury (A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158 (Civitarese)).
Once it is determined that the employer is the last employer to the nature of which the injury is due, the only task is to refer the matter to an AMS to assess the extent of the hearing loss. The Arbitrator did not do that. She referred the matter for assessment of the hearing loss caused by exposure to noise while in an active fire ground. If she had made the correct referral, the result would have been an assessment of seven per cent whole person impairment.
Section 17 proceeds on the basis that employment is of a single type and there is no mechanism to adjust a worker’s entitlement because he or she performs different duties at different times. Once it is determined that the employer is the last noisy employer, that employer is liable. The Arbitrator’s decision means that, though the employment with the respondent is noisy, there is a separation of liability based on time spent performing different duties. Such a separation can only be made on the basis of actual causation in a provision where liability does not depend on causation.
As the Arbitrator found that the 2012 amendments do not apply to Mr Ware, the referral should not have been limited in the way it was.

Submissions by respondent

It was submitted that Civitarese does not assist Mr Ware. Based on the Arbitrator’s determination, apart from Mr Ware’s impairment that resulted from injury that occurred while performing fire fighting in an active fire ground, Mr Ware has no entitlement to s 66 compensation for his hearing loss. As a result, it is appropriate for an assessment of impairment to be based only on that part of Mr Ware’s employment that is exempted from a broader exclusion to entitlement to compensation. Therefore the referral involved no error.
Mr Perry conceded that, rather than looking at the proportion that 31 days is to Mr Ware’s whole working life (41 years), as the AMS did, the AMS should have looked at the proportion that 31 days is to the 10 years that Mr Ware worked for the respondent up to the deemed date of injury. That calculation gives a loss of .096 per cent, which, rounded down, still gives a nil loss.
Mr Perry contended that the “factoring amount” of that period when Mr Ware was not working at the active fire ground is no different to what is accepted to be a proper deduction by an AMS in hearing loss cases for that part of the overall hearing impairment that is considered to be “non-occupational nor is [a] related loss”.
In this case, the AMS assessed Mr Ware to have an overall binaural hearing loss of 37 per cent. Based on the nature of his testing, the AMS concluded that binaural hearing loss of 20.8 per cent was a “Pre-existing non-related loss” and that 2.4 per cent was related to presbycusis. The adjusted binaural hearing loss was 14 per cent, which equates to 7 per cent whole person impairment.
Based on the Arbitrator’s findings and directions, it was proper to “factor out” that proportion of hearing impairment that was considered to have occurred during that period of Mr Ware’s employment with the respondent not exempted by cl 25.
Mr Perry added, at the hearing, that “the task that is set for determination of what [Mr Ware’s] entitlement must be is whether his loss that follows from the injury, which is preserved[,] is sufficient to reach the threshold, and some formula must be employed to look at that question” (T34.17) (emphasis added).

Discussion and findings

Mr Perry’s submissions fly in the face of the clear terms of s 17 and cannot be accepted.
Clause 25 provides that the 2012 amendments do not apply “to or in respect of an injury” (emphasis added) received by a firefighter before or after 19 June 2012. Section 66, both before and after the amendments introduced in 2012, talks about a worker who “receives an injury” (emphasis added) being entitled to permanent impairment compensation. The “injury” in the present case is a loss of hearing of such a nature as to be caused by a gradual process (s 17(1)). In these circumstances, s 17 applies to determine when the injury is deemed to have happened and by whom the compensation is payable.
Relevantly, s 17 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)     …
(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) …”
The Court of Appeal considered the operation of s 17 in Civitarese. In that case, the applicant worked for the appellant in noisy employment in NSW from 1976 until he moved to the Northern Territory in 1988 where he worked two jobs. He returned to NSW in 1990 and again worked for the appellant between July and September 1990, though this time he was provided with earmuffs. In September 1990, the worker returned to the Northern Territory and worked for three years in his son’s refrigeration business. In the course of this work, he occasionally went into his son’s workshop where a grinder was in use.

As in the present case, injury was not in issue. The trial judge found that both the worker’s employment with his son and with the appellant was employment to the nature of which the injury was due. The judge held that the appellant was liable to pay compensation for the worker’s hearing loss because it was the last employer by whom the worker was employed in NSW in employment to the nature of which the injury was due.
On appeal, counsel for the appellant argued that a worker who suffered a hearing loss (injury) in NSW, but whose last noisy employment was with an employer outside NSW, could not use s 17 to claim compensation from the NSW employer. In an argument substantially the same as the argument presented by the respondent in the present matter, counsel submitted that the worker had to prove the extent of the loss caused by the employment in NSW and that the employer against whom the claim was made actually caused the loss for which the claim was made.
In rejecting this argument, Beazley JA (as her Honour then was) (Handley and Sheller JJA agreeing) said, at 160G:
“Section 17, as the appellant’s case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann (1932) 47 CLR 426 at 440; Russo v World Services & Constructions Pty Ltd (1979) 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689–690, section 17 proceeds on a series of fictions or assumptions, upon which a worker’s entitlement to recover an award under section 66 is based.”
It followed that, as the appellant was the last employer in NSW to whom the legislation applied, it was liable to pay the worker’s compensation and the worker was not required to prove the extent of the loss caused by his employment in NSW.
Significantly, in the context of the present matter, Beazley JA added, at 161E:
“Given the fictional basis upon which section 17 proceeds, the construction for which the appellant contends involves the implication of language for which there is not only no warrant, but which runs counter to the very purpose of the section.”
The full quote from Sheller JA in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679; 8 NSWCCR 515, is also instructive and relevant. His Honour said, 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)).”
These principles are applicable in the present case. The submission that, apart from the impairment that resulted from injury that occurred while performing firefighting at an active fire ground, Mr Ware has no entitlement to s 66 compensation for his hearing loss is incorrect and involves the same error identified by Beazley JA in Civitarese. It seeks to look at what caused Mr Ware’s injury. Section 17 does not work in that way.
Once it is established (or accepted) that Mr Ware suffered an injury which is of such a nature as to be caused by a gradual process, and that his employment was employment to the nature of which the injury was due, and both those things are accepted in the present case, s 17 applies according to its terms. The section does not permit the assessment of the impairment to be divided in the way the Arbitrator directed the AMS.
Section 17 is not concerned with how much of the injury was received in one activity and how much in another. The injury is taken to have been received “in one blow”, namely, in this case, on 20 June 2012. Once that is accepted, as it must be, the compensation is payable by the employer who employed Mr Ware in employment to the nature of which the injury was due. In this case, that is the respondent.
While the assumption that the injury is received “in one blow” is a fiction, that is how the section works. Nothing in cl 25, which talks about “an injury received by a … firefighter”, alters the terms of s 17, or its operation. Clause 25 does not talk about part of the injury. Nor does it talk about apportioning the impairment, in the case of a hearing loss claim, between different activities. Nor does it talk about thresholds. It follows that, once s 17 applies, it applies for all purposes and nothing in cl 25 suggests the contrary.
This interpretation is consistent with s 66, which, prior to the 2012 amendments, provided that a worker who “receives an injury” that results in permanent impairment is entitled to receive compensation for that permanent impairment. The phrase “who receives an injury” is also used in s 66 as amended by the 2012 amendments. The injury in the present case is the hearing loss injury deemed to have been received on 20 June 2012. If permanent impairment has resulted from that injury, the worker is entitled to compensation for that permanent impairment.
The legislation leaves no scope for Mr Perry’s approach, which involves reading into s 17 the power to find one injury due to exposure to noise while working at the fire front and one injury while working in the workshop. There is no such power and the proposed approach is not open. If the injury is a loss of hearing, which is of such a nature as to be caused by a gradual process, the provisions of s 17 apply.
There is no analogy between this case and a deduction made by an AMS for a non-occupational loss. Mr Ware’s hearing loss, and his consequential impairment, is all due to his occupation and it is not open, under s 17, to “factor out” the impairment due to Mr Ware’s work as a mechanic in the workshop.
Nor is it correct to say that the task is to determine if the loss (impairment) that follows from the injury that is “preserved” is sufficient to reach the new s 66 threshold. Clause 25 does not preserve “injuries”, it exempts from the operation of the 2012 amendments “an injury” received by (in this case) a firefighter. For the reasons explained above, if that injury is a loss of hearing caused by a gradual process certain consequences follow. For the respondent’s submissions to have any merit, s 17 would need to be substantially amended.
It follows that the Arbitrator erred in directing the AMS to divide the impairment between that caused by the work on the fire front and that caused by work in the workshop and the orders made on 31 January 2014 cannot stand.

CONCLUSION

Consistent with AWU, the Arbitrator correctly found that Mr Ware was only a firefighter while he was working at an active fire front. However, she erred in directing the AMS to divide Mr Ware’s impairment between that caused while working at an active fire front and that caused while working in the workshop at Katoomba. The parties agreed that, should either part of the appeal succeed, Mr Ware is entitled to compensation in the sum of $9,625 in respect of the seven per cent whole person impairment assessed by the AMS and that is the order I will make.

DECISION

The respondent employer’s name is amended to NSW Rural Fire Service.
Paragraph 1 of the Certificate of Determination of 31 January 2014 is revoked and the following order made in its place:
“1. That the respondent pay the applicant lump sum compensation in the sum of $9,625 under s 66 of the Workers Compensation Act 1987 in respect of a seven per cent permanent impairment resulting from a loss of hearing deemed to have happened on 20 June 2012.”
Paragraphs 2 and 3 of the Certificate of Determination of 31 January 2014 are confirmed.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Deputy President

3 June 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE