| 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…
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- AGLC
- Ware v NSW Rural Fire Service [2014] NSWWCCPD 33
- Case
- [2014] NSWWCCPD 33
- Decision Date
CaseChat Overview and Summary
The court held that Mr Ware was a "firefighter" for the purposes of cl 25 of Pt 19H of Sch 6 to the Workers Compensation Act 1987. The court found that the definition of "firefighter" in the Act was broad and included any person who was employed by a fire authority and who was engaged in activities which involved the extinguishing of fires. The court held that Mr Ware was employed by the respondent and was engaged in activities which involved the extinguishing of fires, and therefore he was a "firefighter" for the purposes of the Act. The court also held that the loss of hearing was caused by an injury which arose out of or in the course of employment as a firefighter, and that the deemed date of injury was 20 June 2012. The court found that Mr Ware was entitled to compensation for the loss of hearing under s 66 of the Workers Compensation Act 1987.
The court ordered that the respondent employer's name be amended to NSW Rural Fire Service, and that paragraph 1 of the Certificate of Determination of 31 January 2014 be revoked and replaced with an order that the respondent pay the appellant lump sum compensation in the sum of $9,625. The court also ordered that paragraphs 2 and 3 of the Certificate of Determination of 31 January 2014 be confirmed, and that the respondent employer pay the appellant worker's costs of the appeal, assessed at $2,530 plus GST.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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