CASE LAW UPDATE
10 February 2015
Sukkar v Adonis Electrics Pty Limited  NSWCA 459
The Worker was employed by Adonis Electrics Pty Limited as an electrician in about 1996. His work involved exposure to extreme noise throughout the whole working day, using tools of trade and equipment such as jack hammers and power saws.
The Worker was paid compensation in respect of a 12.9% binaural hearing loss in 1996. It was held that the deemed date of the compensable injury was on or shortly before 29 August 1996.
On 19 June 2012 the Worker’s solicitor served a letter of demand claiming $12,375.00 pursuant to Section 66 for an additional 9% whole person impairment due to further hearing loss.
The insurer rejected the claim on the basis that pursuant to Section 17(1)(a)(i) the deemed date of injury was 19 June 2012. It was stated that the amendments to Section 66 applied and the Worker did not meet the 10% threshold. Accordingly the Worker had no entitlement to lump sum compensation.
Decision of President Keating in the NSW Workers Compensation Commission
When the matter came before the Workers Compensation Commission, it was referred to the President as a question of law in accordance with section 351 of the Workplace Injury Management and Workers Compensation Act 1998. President Keating was required to determine whether the amendments to Section 66 applied to hearing loss claims where a previous payment had been made and whether the Worker was able to aggregate impairments from multiple injuries in order to meet the Section 66(1) threshold.
We note that there was no dispute that as the claim for further loss was made by way of letter on 19 June 2012 that was the date that the claim had been made. In the circumstances the amendments to Section 66 applied.
The Worker submitted that, where the pathology of the two injuries were the same, whilst the Worker may have two separate claims and two different dates of injury under Section 17 of the 1987 Act, there was only one pathological condition and the one injury, being neurosensory hearing loss.
In the course of his judgment the President pointed out that there were previous decisions of the Commission which had permitted the aggregation of injuries for hearing loss in order to meet the threshold for pain and suffering under Section 67: see for example Lauda Enterprises Pty Limited v Akkanen  NSWWCCPD 91. However, the President held that the 2012 amendments ‘… ushered in a new regime for the compensation of injured workers suffering whole person impairments’.
President Keating decided that even if it was accepted that the Worker suffered from one pathological condition, the relevant claim was for “a further loss of hearing which arises from a series of micro traumata between 29 August 1996 and 2012.”
Decision of the Court of Appeal
Mr Sukkar appealed the decision of President Keating. The matter was heard in the NSW Court of Appeal on 20 June 2014. In a decision dated 22 December 2014, the Court of Appeal affirmed the decision of President Keating.
The Court considered that the claim for further hearing loss was made on 19 June 2012 and that was then the deemed date of injury for the purposes of Section 17(1)(a) of the 1987 Act.
It was observed by McColl JA, that “The aim, therefore, is to address the state of “permanent impairment” of a particular person produced by a single incident, with all injuries arising out of the incident being treated as a single injury and all resultant impairments being “assessed together”…”
It was not accepted that separate injuries of the same pathology can be aggregated for the purpose of satisfying the 10% threshold imposed by Section 66.
The Court found that the claim was in respect of an injury “received” after the commencement of the new Section 66 and therefore the threshold provision applied. The Worker’s permanent impairment arising from that “injury” was not “greater than 10%” and therefore the Worker had no entitlement to receive compensation for that permanent impairment. Accordingly, President Keating’s decision was confirmed.
We note that WIRO has recently advised that, as a result of this decision, if a worker has received approval for funding an application for lump sum compensation arising from hearing loss then in order for that to proceed (irrespective of the date of injury) then the impairment must exceed 10%, otherwise it must fail.
Accordingly, matters with WIRO funding where the hearing loss claim has been made after 19 June 2012 and where the level of whole person impairment is not greater than 10%, will not be granted funding beyond 14 January 201
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