Winters v Endeavour Energy

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Winters v Endeavour Energy [2021] NSWPIC 375

APPLICANT:

Ross Winters

RESPONDENT:

Endeavour Energy

MEMBER:

Glenn Capel

DATE OF DECISION:

28 September 2021

CATCHWORDS:

WORKERS COMPENSATION -  Claim for hearing aids; no dispute regarding noisy employment and last noisy employer; dispute in respect of notice of injury and notice of claim, and whether hearing aids were reasonably necessary to address small level of industrial deafness; worker unaware that he suffered an injury at the respondent until qualified medical evidence and legal advice was provided; worker had non-work related hearing loss and a lesser degree of industrial deafness; Inghams Enterprises Pty Ltd v Jones, Bluescope Steel (AIS) Pty Ltd v Sekulovski, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, Diab v NRMA Ltd, Matthews v State Rail Authority of New South Wales, and Murphy v Allity Management Services Pty Ltd discussed and applied; Held – worker gave valid notice of injury and made a valid claim; employment materially contributed to the need for reasonably necessary hearing aids; award for the worker for medical expenses.

DETERMINATIONS MADE:

1.     The applicant sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the respondent on 7 November 2018 (deemed).

2. The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of section 17(1)(a)(i) of the Workers Compensation Act1987.

3.     The applicant became aware and gave notice of his injury on or about 17 December 2020.

4.     The applicant gave notice of a claim for compensation on or about 17 December 2020.

5.     The applicant complied with sections 254(1) and 261(1) of the Workplace Injury Management and Workers Compensation Act1998 by reason of s 261(6) of the Workplace Injury Management and Workers Compensation Act1998.

6.     The provision of hearing aids is reasonably necessary as a consequence of the applicant’s injury.

7.     The respondent is liable for the cost of hearing aids.

ORDERS MADE:

8. The respondent is to pay the applicant $5,495 for hearing aids on production of accounts and/or receipts pursuant to section 60 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

1. Ross Winters (the applicant) is 57 years old and was employed by Endeavour Energy (formerly Energy Australia) (the respondent and self-insurer) as an electrical fitter from
   24 November 2001 until he ceased work due to a neck injury on 7 November 2018.

2. There is no dispute that the applicant developed sensorineural hearing loss as a result of exposure to industrial noise at the respondent, and that the respondent was the last noisy employer for the purposes of s 17(1)(a)(i) of the Workers Compensation Act1987 (the 1987 Act).

3. On 17 December 2020, the applicant’s solicitor served a notice of claim on the self-insurer for the cost of hearing aids pursuant to s 60 of…