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

1. 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).

2. 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.

3. 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).

4. 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…