Schofield v Abigroup Limited

1. [1]

   HER HONOUR: By summons the plaintiff seeks an order that the decision of the Delegate of the Registrar of the Workers Compensation Commission of New South Wales not to refer the medical assessment of the plaintiff to the Medical Appeal Panel under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) be quashed as contrary to law and an order that the matter be referred to an Appeal Panel for determination in accordance with the law.

2. [2]

   On 16 December 2010, the plaintiff made a claim under s 66 of the Workers Compensation Act 1987 (NSW) (“the 1987 Act”) for lump sum permanent impairment benefits resulting from a binaural hearing loss (commonly known as industrial deafness) which he sustained in the course of his employment in a succession of industrial environments in New South Wales between 1957 and 1981.

3. [3]

   The plaintiff commenced work with the first defendant in 1980 as a crane driver operating a friction crane. He left New South Wales in 1981 without resuming employment in this State. Between 1981 and 2001 he worked in a number of noisy industrial environments in Queensland, the Northern Territory and Western Australia. He has not worked since 2001.

4. [4]

   In the pro forma Notice of Injury which accompanied the claim, reference was made to s 17 of the 1987 Act. That section provides:

5. [5]

   Because the plaintiff was not employed at all when he gave notice of injury, s 17(1)(a) operates to deem his binaural hearing loss to have occurred on the last day he worked in New South Wales in “an employment to the nature of which the injury was due before he gave notice”, while s 17(1)(c) operates to attribute liability to the first defendant as “the last employer by whom [he] was employed in an employment to the nature of which the injury was due before he … gave notice”.

6. [6]

   Section 17 of the 1987 Act has been described as a “special provision” designed to operate to the benefit of workers who suffer hearing loss by gradual onset by providing an easier path to receiving compensation (see A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41 at 43 per Beazley JA). Subject only to s 9A of the 1987 Act, which provides that an injured worker shall receive compensation from the worker’s employer in respect of employment which is connected with New South Wales (as to which there is no issue in this case), s 17 operates to relieve a worker of the obligation of proving causation in the strict sense, that is, when the injury to his or her hearing occurred (in the sense of its onset), where it occurred, how it occurred, or whether employment with the employer against whom the claim is made was a substantial contributing factor. It is sufficient for the worker to establish that employment could (if the worker were not adequately protected) cause binaural hearing loss, not whether that employment actually caused it.

7. [7]

   The first defendant gave notice under s 74 of the 1998 Act disputing liability.

8. [8]

   In the course of processing the plaintiff’s claim as a medical dispute under the 1998 Act a number of matters were referred to an Approved Medical Specialist for assessment under s 319 of that Act, including the degree of permanent impairment the plaintiff suffered as a result of his injury (as provided for in s 319(c)) and whether any proportion of the permanent impairment from that injury, as assessed, was due to any previous injury or pre-existing condition or abnormality and the extent of that proportion (as provided for in s 319(d)). Section 319 makes no provision, in express terms, for any assessment to be made of the extent to which the degree of permanent impairment, as assessed, is attributed to an injury suffered after the deemed date of injury or for any apportionment of the degree of permanent impairment resulting from that state of affairs.

9. [9]

   The Approved Medical Specialist found that of the plaintiff’s work history in New South Wales, which extended over a 24 year period between 1957 and 1981, 21 years was spent in noisy industrial environments without protection, and that for the balance of his working life (from 1981 to 2001) he also worked in similar noisy environments as a plant operator/rigger in other States and Territories, also without adequate protection. The Approved Medical Specialist found that 21 years (or 51%) of the plaintiff’s total “noisy” working life was spent in New South Wales with most of his work over the 41 years of his working life of “equal noise exposure”.

10. [10]

    After diagnosing bilateral high frequency sensorineural deafness due to occupational noise exposure (which the parties agreed in the referral documents was an injury deemed under s 17(1)(a)(ii) of the 1987 Act to have occurred in January 1981), the Approved Medical Specialist certified as follows:

11. [11]

    The effect of the certification of total occupational binaural hearing impairment of 5% is that the plaintiff is not entitled to an award of a lump sum compensation under s 66 of the 1987 Act.

12. [12]

    It was not in contest, either before the Delegate or in this Court, that the plaintiff is deemed to have sustained the injury to his hearing in January 1981, being the last day that he worked in employment in New South Wales to which his binaural hearing loss was due before he gave notice of his injury (in accordance with s 17(1)(a)(ii)) and that, since the first defendant was the employer at that date, it is liable to pay compensation for that injury (in accordance with the operation of s 17(1)(c)). The matter in issue was whether the first defendant’s liability to compensate the plaintiff includes compensation for the impairment to his hearing which was assessed by the Approved Medical Specialist to be attributable to exposure to industrial noise outside New South Wales after the deemed date of injury, that is, after the plaintiff left New South Wales and continued to work in noisy industrial environments in other States and Territories.

13. [13]

    Section 327 confines the grounds upon which a medical assessment may be appealed to those provided under ss (3). They include:

14. [14]

    Section 327(4) provides that an appeal is not to proceed unless the Delegate is satisfied on the face of the application and the submissions advanced by the parties, that at least one of the grounds in s 327(3) is made out.

15. [15]

    In the plaintiff’s submissions before the Delegate, the Medical Assessment Certificate contained a demonstrable error in attributing 51% of the plaintiff’s whole person impairment to his work in industrial environments outside New South Wales after the deemed date of injury.

16. [16]

    On the Delegate’s construction of ss 323(1) and (2) of the 1998 Act and s 68B(4) of the 1987 Act (and the decisions of the Workers Compensation Commission concerning their application), he was not persuaded there was any demonstrable error in the approach of the Approved Medical Specialist to an assessment of the plaintiff’s whole person impairment and refused to order that the appeal proceed.

17. [17]

    Section 68B(4) of the 1987 Act provides:

18. [18]

    Section 323(1) of the 1998 Act provides that:

19. [19]

    A number of grounds of legal error in the Delegate’s reasons for decision were relied upon in the summons and addressed in the filed submissions of the parties, principal among them that the Delegate erred in the application of s 68B(4) of the 1987 Act and s 323 of the 1998 Act in reasoning to the conclusion that the matter not be referred to the Appeal Panel.

20. [20]

    At the hearing of the summons, the first defendant accepted that since there was no evidence that the plaintiff suffered from any pre-existing condition or abnormality which would justify any deduction of any proportion of the degree of permanent impairment to his hearing (his work in a range of noisy environments outside New South Wales being undertaken after the deemed date of injury), neither s 323(1) of the 1998 Act nor s 68B(4) of the 1987 Act had any application. The first defendant submitted, however, that despite error in the Delegate’s application of those statutory provisions, his decision not to refer the matter to the Appeal Panel was legally defensible on other grounds.

21. [21]

    In the first defendant’s submission, the question referred to the Approved Medical Specialist under s 319(c) of the 1998 Act was to assess the degree of permanent impairment to the plaintiff’s hearing as a result of the injury. In counsel’s submission, this required the assessor to assess and certify the degree of permanent impairment resulting from the injury, but limited to the injury for which the first defendant is liable under s 17(1)(c) of the 1987 Act, that is, the binaural hearing impairment which is deemed under s 17(1)(a) to have occurred in New South Wales in January 1981. He submitted, that being the case, the Approved Medical Specialist was obliged to factor into his assessment of the plaintiff’s permanent impairment the injury to the plaintiff’s hearing which is attributable to his employment in noisy environments outside New South Wales after that date. The first defendant submitted the approach of the Approved Medical Specialist is defensible for that reason.

22. [22]

    The plaintiff submitted that the first defendant’s construction of s 319(c) of the 1998 Act is contrary to law. In the plaintiff’s submission, s 17 of the 1987 Act operates to both appoint January 1981 as the deemed date of the injury (of which his binaural deafness is both the symptom and the source of impairment) and to treat the injury as having occurred as at that date “in one blow” (see Barwick CJ in Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 at [27]), that is, in a single unbroken event operating both retrospectively and prospectively. That being the case, the plaintiff submitted it is immaterial whether the plaintiff’s binaural hearing loss can be traced to exposure to industrial noise at some specified time before the deemed date of the injury, or that his hearing progressively worsened after that date, including that he might have been exposed to industrial noise outside New South Wales after that date, or whether the plaintiff’s reaction to it was more or less pronounced whilst he was employed in New South Wales or elsewhere. In counsel’s submission, it is sufficient that there was some exposure to a noisy work environment in New South Wales “to the nature of which the injury is due”, for the operation of s 17 of the 1987 Act to be invoked and for the plaintiff to be entitled to claim compensation for the total permanent impairment to his hearing as assessed.

23. [23]

    The plaintiff emphasised that industrial deafness, an injury which is notoriously the product of a gradual process, and attracting the operation of s 17 of the 1987 Act for that reason which has long been recognised as operating “on a series of fictions or assumptions” (see A & G Engineering). In counsel’s submission, not only are issues of causation subsumed by the legislature deeming the date on which the injury occurred, but s 17(1)(c), which is concerned with identifying the employer who last employed the worker in employment in New South Wales (in the nature of which the industrial deafness was due), operates on that fiction by rendering the entirety of the worker’s whole person impairment attributable to that injury, whenever and wherever it occurred, compensable by that employer. It is on this analysis that the plaintiff claims an entitlement to be compensated for the total permanent hearing impairment he suffered by the onset and the gradual process of hearing loss he suffered in noisy employment in New South Wales, despite that process continuing after he continued to work in noisy employment upon leaving New South Wales in 1981, up to and including when he ceased work in 2001.

24. [24]

    The construction of the words “resulting from the injury” in s 319(c) of the 1998 Act for which the parties now contend was not considered by the Delegate in the decision appealed from. It was, however, the sole question to which the parties addressed oral argument in this Court. Although none of the authorities to which the parties referred deal with the particular issue raised on this appeal, in the plaintiff’s submission the consistent construction given to s 17 of the 1987 Act and its intended effect dictates that the construction of s 319(c) of the 1998 Act advanced by the first defendant is not open and, that being the case, that the Medical Assessment Certificate and, in turn, the Delegate’s finding that there was no error in the approach taken to the assessment of the plaintiff’s permanent hearing impairment as certified are wrong in law.

25. [25]

    The first defendant accepted that each of the decisions upon which the plaintiff relies as illustrating “the fictions and assumptions” that underpin the operation of s 17 of the 1987 Act, were decided consistent with the long settled and beneficial purpose of ensuring that a worker who is injured by a gradual process in industrial environments in New South Wales is compensated by fixing liability to pay compensation upon the last employer in New South Wales (see Smith v Mann [1932] HCA 30; 47 CLR 426). Counsel submitted, however, that none of the decisions to which the plaintiff referred are authority for the interpretation of s 17 of the 1987 Act and s 319(c) of the 1998 Act for which the plaintiff contends, an interpretation which he submitted would have the effect of imposing upon an employer (as the last of a succession of employers to whom the legislation applies) liability to compensate the plaintiff for injury sustained in the course of employment by employers to whom the legislation does not apply (in this case, those who employed the plaintiff for 20 years from 1981 to 2001 in other States and Territories). Counsel emphasised that, unlike this case, where the first defendant has always accepted liability for the injury statutorily deemed to have occurred in New South Wales on January 1981, each of the decisions relied upon by the plaintiff were concerned to ensure that a worker was not left without compensation. In counsel’s submission, however, s 17 should not be construed so as to entitle a worker to recover compensation for injury (caused by a gradual process) by imposing on the last employer in New South Wales liability to compensate for that injury when there is clear evidence that some part of it (in this case 51% of it) occurred outside the jurisdiction and after the date upon which its liability is fixed by statute, being the date upon which the injury is deemed to have occurred for the purposes of the 1987 Act.

26. [26]

    In Russo v World Services & Constructions Pty Ltd [1979] 1 NSWLR 330 the worker was employed by the respondent in New South Wales between January 1967 and November 1972 in the course of which he suffered the onset of industrial deafness. From November 1972 to October 1975 he was employed by the Commonwealth where the impairment to his hearing worsened. Whilst working for the Commonwealth he applied for and was awarded compensation under the Compensation (Australian Government Employees) Act 1971-1974 (Cth) limited to the aggravation to his existing injury. He then applied for compensation under the Workers Compensation Act 1926 (NSW). Section 7(4) of that Act operated in the relevantly identical terms to s 17 of the 1987 Act. The respondent sought to avoid liability under the Act by claiming that as at the date of the worker’s claim made under the New South Wales Act the Commonwealth was the last employer. The Court held that on its proper construction s 7(4) did not extend to include the Commonwealth as an employer for the purposes of the Act. No issue arose as to whether the compensable injury should be assessed to include any part of the injury that resulted from the worker’s employment with the Commonwealth (for which he had been compensated) after his employment with the respondent. In obiter dicta Hope JA observed:

27. [27]

    In A & G Engineering the respondent worker was employed in a series of noisy environments in New South Wales (including with the appellant) between 1976 and 1988, after which he worked in the Northern Territory for a short period, also in a noisy work environment. He returned to New South Wales in July 1990 where he resumed work with the appellant for a period of months during which time he was provided with protection against the effects of industrial noise. The respondent left New South Wales and again worked in the Northern Territory where he had minimal exposure to noise.

28. [28]

    The appellant challenged a finding by the trial judge that it was liable to pay compensation under s 17 of the 1987 Act as the last employer by whom the respondent was employed in New South Wales “in an employment the nature of which the injury was due”. It was put on the appellant’s behalf that s 17(1)(c)(ii) should be read as including the words in italics:

29. [29]

    In rejecting that argument Beazley JA reasoned as follows:

30. [30]

    As counsel for the first defendant emphasised in oral argument, the construction for which the appellant contended in A & G Engineering would have had the result of leaving the worker without compensation and it was that result that the Court was concerned to avoid. Counsel submitted that despite the unqualified way in which Beazley JA applied the statements of principle as to the operation of s 17 to the issue with which the Court was concerned (an approach with which Handley and Sheller JJA agreed), A & G Engineering is not authority for the proposition for which it is sought to be relied upon by the plaintiff in this case. Unlike the situation with which the Court of Appeal was concerned, the question here is not the identity of the employer liable to pay compensation under s 17(1)(c)(ii) of the 1987 Act. In this case, the first defendant has acknowledged its liability to compensate the plaintiff for the injury to his hearing as the last employer in New South Wales. The question is the extent of its liability for that injury where there is unchallenged evidence apportioning the degree of permanent impairment resulting from the injury the plaintiff sustained in New South Wales as at the date that injury was deemed to have occurred in New South Wales and in “one blow”. That question of apportionment did not arise in A & G Engineering or in Russo.

31. [31]

    Although the plaintiff also referred to Lennon v TNT Australia Pty Ltd [2013] NSWCA 77; 84 NSWLR 161 and Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459, I do not read either decision as offering any guidance in resolving the particular question at issue on the appeal.

32. [32]

    Finally, the plaintiff referred to Pereira v Siemens Ltd [2015] NSWSC 1133 as a case analogous to the present case and providing support for the construction of s 17 of the 1987 Act for which his counsel contends. In that case, the respondent employer denied liability for the appellant’s binaural hearing impairment was because it was said to be the result of his employment in what were said to be noisy work environments in Pakistan before he emigrated to Australia and not the result of his employment in New South Wales at the time of making his claim. Although Garling J upheld the appellant’s challenge to the decision of the Medical Appeal Panel (which confirmed the correctness of the approach of the Approved Medical Specialist in adjusting the appellant’s permanent impairment to reflect an equal apportionment of hearing loss referrable to years worked in Pakistan and in Australia as contrary to law), he did so on the basis of the assessor’s failure to comply with s 323 of the 1998 Act and the WorkCover Guidelines in making that assessment. His Honour’s insightful observations concerning the operation of s 17 of the 1987 Act and its legislative history and purpose do not assist in the resolution of the issue that presents in this case. It might have been otherwise if the argument before his Honour had proceeded on the basis that the respondent, as the last employer in New South Wales, was liable to compensate the appellant for the injury that predated the deemed date of its occurrence in New South Wales so as to include the injury that resulted from its presumed onset in Pakistan. However, since s 323 of the 1998 Act expressly provides for an adjustment of the degree of permanent impairment for pre-existing conditions or abnormalities in such circumstances, that issue may not have arisen in any event.

33. [33]

    I regard the construction of s 319(c) of the 1998 Act as it applies in the context of the operation of s 17 of the 1987 Act for which the first defendant contends as the correct construction. That is, that as the plaintiff’s last employer in New South Wales at the date of the Notice of Injury, the first defendant was liable under s 17(1)(c)(ii) for the injury to the plaintiff’s hearing that had occurred “in one blow” as at the deemed date of injury by a gradual process predating that date. Accordingly, in assessing the degree of permanent impairment as a result of that injury, the Approved Medical Specialist was required to make an appropriate adjustment for injury that was the result of the plaintiff’s employment after the deemed date in the course of employment outside the jurisdiction.

Orders

1. [34]

   Accordingly, I make the following orders: