Did you hear? The Court of Appeal dismisses the employer's application for leave in an industrial deafness claim

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Last updated: 28 Jun, 2021

Originally Published by Michael Poulos and Chad Farah on Wednesday, June 26, 2019 12:48:17 PM

Most of us are familiar with the causation test under Section 60 of the 1987 Act (in other words, whether the need for treatment was 'as a result of' the injury). So, what evidence is the Workers Compensation Commission able to consider in determining this question? What happens if that evidence is inconsistent with a binding Medical Assessment Certificate?

 

Author: Chad Farah
Judgment Date: 13 June 2019
Citation: Bluescope Steel (AIS) Pty Ltd v Sekulovski [2019] NSWCA 136
Jurisdiction: NSW Court of Appeal1

Principles

  • The issue of causation under Section 60 of the Workers Compensation Act 1987 is not ordinarily dependent on the worker's level of impairment.

  • It is open to the Commission to accept evidence from a medico-legal examiner that goes to causation under Section 60 of the Act, even if the report contains an assessment of permanent impairment that is inconsistent with a binding Medical Assessment Certificate.

Background


Mr Sekulovski commenced his employment with Bluescope Steel around 1965 at its well-known Port Kembla plant. He was exposed to industrial noise occasioning hearing loss during his employment.

It was not in dispute that Mr Sekulovski had suffered compensable hearing loss within the meaning of Section 17 of the Workers Compensation Act 1987. Nor was it in dispute that he required hearing aids. The sole issue in dispute was whether the need for hearing aids resulted from noise-induced hearing loss within the meaning of Section 60 of the Act.

The Workers Compensation Commission found in Mr Sekulovski's favour on 9 November 2018. Deputy President Wood concluded from the bulk of the evidence before her that Mr Sekulovski's need for hearing aids was as a result of noise-induced hearing loss sustained during his employment with Bluescope Steel.

Despite Mr Sekulovski's claim only amounting to $5,657.80, Bluescope Steel sought leave to appeal the Commission's findings to the Supreme Court because it had received in excess of 25,000 similar claims. It even undertook to pay Mr Sekulovski's costs irrespective of the outcome.

Court of Appeal


Bluescope Steel advanced the argument that Deputy President Wood erroneously accepted the findings in the medico-legal report of Dr Tamhane, which was relied upon by Mr Sekulovski, in concluding that his percentage of hearing loss was 7.1%. It argued that the percentage of hearing loss that was attributable to Mr Sekulovski's employment was in fact 1.9%, in line with a binding Medical Assessment Certificate from 2002.

In dismissing Bluescope Steel's application, the Court agreed with Deputy President Wood that the 2002 Certificate was only binding as to the percentage of loss (i.e. impairment); the Certificate was otherwise not binding on the issue of causation in the context of any subsequent need for treatment or hearing aids under Section 60 of the Act.

Emmett AJA expressly discerned between the issue of impairment and the unrelated issue of causation under Section 60 of the 1987 Act, stating:

'Had the Deputy President… made a finding that the Worker’s binaural hearing loss was something different from 1.9%, either the Worker or Bluescope may have had a basis for a complaint. However, notwithstanding the contentions advanced on behalf of Bluescope, the Deputy President did no such thing.

Rather, the Deputy President observed that there was nothing in Dr Tamhane’s report that indicated that his opinion as to the need for hearing aids was dependent upon the extent of the assessed percentage hearing loss.' 2

Additionally, the Court found there to be no evidence before it to contradict the following key matters that underscored Deputy President Wood's decision:

  1. Firstly, that Mr Sekulovski had trouble hearing while working for Bluescope Steel;

  2. Secondly, that Mr Sekulovski's hearing problems during his time with Bluescope Steel were due to noise-induced hearing loss; and

  3. Thirdly, that Mr Sekulovski was recommended the use of digital hearing aids by Dr Tamhane to address his trouble hearing. This evidence was uncontested.

Why this case is important


Where a medical report contains evidence relating to more than one type of statutory benefit under the 1987 Act, the Commission need only have regard to the portion of that report that is relevant to the claim before it. That is even if the balance of the report, in dealing with other statutory benefits, is overshadowed by evidence to the contrary.

It follows that the Commission is not required to have regard to the most accurate evidence overall, but only to the most accurate evidence in respect of the discreet issue at hand. Such is the separation that exists between claims relating to permanent impairment, weekly benefits and medical expenses under the workers compensation scheme.



1 Gleeson JA, White JA and Emmett AJA.
2 Emmett AJA, Paragraphs 26 and 27.