Del Borgo v Niselle [2002] VSC 368

Supreme Court of Victoria|2002-10-08|Before: OSBORN J

WORKERS COMPENSATION - Review of Medical Panel decision - Industrial deafness - Further loss of hearing - Where worker previously compensated for 26% hearing loss - Whether previously compensated hearing loss should be excluded from calculation of impairment under s.91 Accident Compensation Act 1985 - Accident Compensation Act 1985, ss.82, 88, 89, , , , , .

Mr. Luigi Del Borgo has been an assembly worker employed by a motor car manufacturer since 1954. During the course of his employment he has been exposed to noise which has resulted in hearing loss. In 1988 he made a claim for workers' compensation and received the sum of $10,214. Despite the date of the claim and award, the documents tendered to me demonstrate on their face that the award was made pursuant to Division 2A of the Workers Compensation Act 1958. The amount paid to the plaintiff reflected an assessment that he had suffered a 26% permanent partial binaural loss of hearing.

Since 1988 the plaintiff has suffered a further loss of hearing and on 1 May 2001 he made a further claim for compensation.

The agent for the third defendant the Victorian Workcare Authority ("the Authority") arranged a medical examination with Mr Francis Nagle, who in due course reported on 14 July 2001 and expressed the following opinion:

"Mr. Del Borgo has a binaural PHL of 31.2% which equates to 16% Whole Person Impairment. His hearing loss is consistent with acoustic trauma in his occupation. Please note he has a previous hearing loss claim for 26%."

Subsequently Mr. Nagle provided a revised opinion by way of letter dated 6 September 2001 in which he advised the Authority's agent that:

"In answer to your query, Mr Del Borgo PHL is 31.2%. His previous hearing loss claim was 26% some 15 years ago. Opinion: He has an increase of 5.2% on his previous hearing loss claim, but as this is less than 10% his Whole Person Impairment is 0%."

It can be seen that the difference between Mr Nagle's first opinion and his second opinion is dramatic. The first opinion indicated that the plaintiff had suffered a 16% whole person impairment whereas the second opinion was that he had a 0% whole person impairment.

This dichotomy of opinion reflects the underlying division of the parties in this case. In essence the plaintiff contends that the assessment of whole person impairment should be an assessment of the cumulative level of impact resulting from consecutive injuries and that the Accident Compensation Act 1985 ("the Act") then contemplates that the manner of assessment of compensation may have regard to the question of previous compensation. On the other hand the Authority maintains that the assessment of whole person impairment should itself be restricted to that impairment resulting from the further injury suffered since the prior award of compensation. On one view, these differences of approach crystallise in the meaning of the reference in ss.98C and 104B(9) of the Act to the concept of permanent impairment resulting from an injury to the worker.

Not surprisingly perhaps, the plaintiff was dissatisfied with the advice he received consequent upon Mr Nagle's second opinion, that he had been assessed as suffering a combined whole person physical impairment of 0%. The plaintiff therefore gave notice that he disputed the assessment and in due course he was advised by letter that in accordance with s.104B(9) of the Act, the Authority's agent referred to a medical panel "the medical questions as to the degree of your permanent impairment resulting from the injury to yourself and whether you have an injury which is a total loss mentioned in the Table to Section 98E(1) for its opinion under Section 67 of the Act."

The referral document stated under the heading "Issues and Reasons for Refusal":

"Mr Del Borgo has had a previous hearing loss settlement 15 years ago in relation to a loss of 26%. Mr. Del Borgo was medically assessed by Mr Nagle on 9.7.01. He stated that the worker has a 16% Whole Person Impairment but did not deduct the previous loss. In a supplementary report dated 6 September 2001, Mr Nagle advised that he believed the worker had a 5.2% increase on his previous hearing loss. Based on this, a zero determination was made. The worker has disputed the assessment and requested the matter be referred to the medical panel."

The first medical question was: "What is the degree of impairment of the whole person resulting from the worker's binaural hearing impairment assessed in accordance with s.91(3) of the Act and is the impairment permanent?"

This form of question is responsive to the definition found in sub-paragraph (d) of the definition of medical question set out in s.5 of the Act.

"(d) A question as to the level of impairment of a worker including a question of the degree of impairment of a worker assessed in accordance with s.91 and a question as to whether or not that impairment is permanent;".

This form of question is to be distinguished from the question postulated by paragraph (c) of the definition of medical question:

"(c) A question as to the extent to which any physical or mental condition, including any impairment, resulted from or was materially contributed to by the injury;".

In due course the medical panel certified on 27 February 2002 that its opinion with respect to this question was as follows:

"Question: What is the worker's degree of impairment of the whole person resulting from the worker's binaural hearing impairment assessed in accordance with s.91(3) of the Act and is the impairment permanent? Answer: The whole person impairment calculated in accordance with s.91(3) of the Act is zero percent. The impairment is permanent."

The reasons of the panel for its opinion were stated as follows:

"The Panel conducted a hearing test in accordance with the Improved Procedure for Determination of the percentage loss of hearing (1988 edition) published by the National Acoustic Laboratory. The worker informed the Panel of his exposure to noise in his occupation as a Leading Hand in the Body Shop Department of the Toyota Motor Corporation from 1954 to the present day. Work site hearing testing was performed at the Toyota Motor Corporation and hearing protection was provided since the 1980s. On 25 August 1988 the worker received Compensation of $10,214 for and accepted 26% hearing impairment. The Panel considers the loss of hearing based on the frequencies 1.5khz, 2khz, 3khz and 4khz as representing hearing impairment which may have resulted from noise exposure in his occupation. There is an appropriate deduction for presbyacusis as the worker is aged 65 years 8 months. The binaural percentage hearing impairment has been calculated to be 30.6% (NAL 1988). An independent Otolaryngologist in his report dated 14 July 2002 derived a figure of 29.4% after presbyacusis deductions. The two results are in acceptable agreement. The Panel considers the worker has lost an additional 5% of hearing impairment since his previous industrial hearing claim of 26% on 25 August 1988. The Panel considers the worker's employment has been a significant contributing factor to his loss of hearing. The loss has occurred despite the worker conscientiously wearing hearing protection. The worker has developed hypertension and this pathology may have induced degenerative vascular disease which could also contribute to his progressive hearing impairment. The Whole Person Impairment calculated in accordance with s.91(3) of the Act is zero percent."

The plaintiff was advised of the Panel's opinion under cover of a letter dated 5 March 2002, posted on 7 March 2002 and received on 8 March 2002. The proceedings before me were issued on 3 May 2002 seeking judicial review of the Panel's determination. A preliminary issue arose as to whether such proceedings were instituted within 60 days of the Panel's determination as required by order 56 of chapter 1 of the Rules of the Supreme Court. For reasons I have previously stated, I have given leave insofar as necessary to institute such proceedings out of time. There are a number of factors giving rise to special circumstances in the present case including:

(a) The fact that if the determination is regarded as made on 27 February 2002 time ran initially against the plaintiff without his knowledge; and

(b) The existence of no statutory right of appeal against the Panel's determination.

The originating motion states the following grounds:

1. The Medical Panel did not answer the first medical question in accordance with law.

2. The Medical Panel erred in law in its construction of s.91(3) of the Act.

3. The Medical Panel erred in law in its application of s.91(3) of the Act.

4. The Medical Panel took into account irrelevant considerations in making the decision, namely that the plaintiff had suffered the injury previously for which he had received compensation.

5. The decision was so unreasonable that no reasonable medical panel could have made it.

The Act defines "injury" to include "industrial deafness". This is in turn defined to mean "any condition of deafness caused by -

(a) exposure;

(b) continued exposure; or

(c) periods of continued exposure -

to industrial noise;"

In Accident Compensation Commission v Fletcher[1] the Court of Appeal had to consider the situation of a worker who suffered deafness caused by continued exposure to industrial noise. The exposure occurred both before and after the "appointed day" on which the relevant parts of the Act came into operation. Marks J said at p.111:

"An understanding of industrial deafness was also regarded by the parties as important to the issue. Each accepted the description of 'boilermaker's deafness' by Barwick CJ in Commissioner for Railways v. Bain [1965] HCA 5; (1965) 112 CLR 246, at p.251 as applicable to 'industrial deafness': 'It seems that boilermaker's deafness results from successive impacts of sound on the terminal nerve system connected with hearing and that the effect of these successive traumas is to cause cumulative deterioration in the capacity to hear.' In Burls v. A.A. Mitchell Pty. Ltd. [1979] VicRp 45; [1979] VR 417 this court appears to have accepted the invitation of counsel for all parties to take judicial notice of the matters of fact referred to in the statement of Barwick CJ: see Starke J., at p.419 and Fullagar J., with whom Young CJ agreed, at p.423. If the description is correct, as has been here assumed, industrial deafness is not strictly speaking a disease but rather a condition resulting from a large number of traumata. The cumulative effect, when measurable, is capable of constituting an 'injury' compensable under the A.C.A. or the Workers Compensation Act, perhaps both (depending on the time and number of measurements or assessments). Although industrial deafness is in ordinary language a 'condition', it is by definition an 'injury', as will be seen, under the A.C.A. (s.5(1)), but not under the Workers Compensation Act (s.3(1)). In the latter, s.25B deems industrial deafness, in the circumstances mentioned, a personal injury 'arising out of or in the course of the employment' which are the words of s.5(1) of that statute governing liability to pay compensation."

In addition to the definition of industrial deafness as a form of injury pursuant to s.5(1) it is pertinent to note that injury is also defined to include:

"(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;".

This definition reflects an element of the terms of the Workers Compensation Act 1958 which defined injury to include:

"(b) the recurrence, aggravation or acceleration of any pre-existing injury or disease where the employment was a contributing factor to such recurrence, aggravation or acceleration -".

Such words were regarded as apt to describe "an aggravation of a pre-existing hearing injury or defect" in Stevenson v Buchanan and Brock Pty Ltd[2].

The current extended definition of injury by reference to the concepts of aggravation, exacerbation or deterioration found in paragraph (c) of the definition of injury is also in my view apt to describe an aggravation or exacerbation of industrial deafness or a deterioration of hearing loss as a result of industrial deafness. This view is of some significance in this matter because s.98C of the Act picks up this concept to provide expressly for the deduction of prior compensation under ss.98, 98A or 98C from any further amount paid under s.98C relating to "any impairment resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has previously been paid under this section or s.98 or 98A."

The view I take of this definitional question is supported by the decision of the Court of Appeal in Accident Compensation Commission v Fletcher[3]. McGarvie J said as follows in considering the then provisions of s.129:

"Where industrial deafness had occurred by way of gradual process in the earlier employment, that would involve its having been caused, aggravated or exacerbated or having deteriorated in that earlier employment. It would be foreign to the notion of a right to contribution for the commission or self-insurer to be able to recover contribution in respect of those developments in the worker's deafness, if the commission or self-insurer was not liable to pay the worker compensation for the resultant diminution in hearing. As the commission or self-insurer has a right to recover contribution in respect of those developments in the worker's deafness in other employment before the appointed day, the compensation payable to the worker must include compensation for so much of the industrial deafness as was due to exposure to industrial noise before the appointed day." (My emphasis)

Marks J also commented on s.129 in terms which confirm that it is appropriate to regard industrial deafness as an injury resulting from exacerbation or deterioration over time.

"Section 129 of the A.C.A. is concerned with contribution to the commission or a self-insurer from employers and insurers where one of them pays compensation for an injury which occurred by way of 'gradual process over time'. Industrial deafness, it would seem, is such an 'injury'."[4]

Part IV of the Act deals with compensation. Division 1 deals with the application of that part and Division 2 with benefits. The dispute between the parties ultimately turns upon the proper relationship of s.98C which provides for benefits by way of compensation for non-economic loss and s.91 which provides for assessment of degree of impairment as the basis for calculation of such benefits.

It is necessary, however, to first state the framework within which these provisions sit. Section 82(1) provides for the basic entitlement to compensation as follows:

"(1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act."

Section 82(6) further provides:

"(6) Where a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed and if employment of that nature was a significant contributing factor at any time before notice of the injury was given, the worker or the worker's dependents shall be entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment."

Sections 82(1) and (6) thus give the plaintiff a right to compensation.

Section 88 provides specifically for compensation for industrial deafness as follows:

"(1) Industrial deafness or a proportion of industrial deafness which has occurred in circumstances which do not create any liability to pay compensation under this Act shall be excluded from the assessment of deafness for the purposes of calculating compensation under this section. (2) Compensation for industrial deafness shall be in accordance with this section, section 89 and Division 2. (3) Unless the Authority, self-insurer, a Conciliation Officer or the County Court (as the case requires) determines otherwise industrial deafness shall be deemed to have occurred at a constant rate within the total number of years of exposure to industrial noise in employment. (4) Notwithstanding sub-section (3), the date of injury shall be deemed to be - (a) the last day of the worker's employment out of which or in the course of which the injury arose; or (b) the date of the claim if the worker is still employed in that employment at the date of the claim."

Sub-section (1) excludes compensation for deafness that has occurred in circumstances which do not create any liability to pay compensation under the Act. Industrial deafness might result from exposure to industrial noise in a capacity other than that of a worker. It might also result from exposure outside the jurisdiction. It is clear such matters should be excluded from assessment of deafness for the purpose of compensation. The language of the sub-section is nevertheless somewhat problematic. The reference to the calculation of compensation "under this section" gives rise to difficulty because the section does not in terms provide for the calculation of compensation. The exclusion comprised in the sub-section is also not expressed by reference to entitlement to compensation (the terminology of s.82) but by reference to liability to pay compensation. Nevertheless in the present case it was not contended that the plaintiff's industrial deafness had not occurred "in circumstances which do not create any liability to pay compensation under this Act". I accept that this was rightly so. The word "liability" may be used in several senses - see Ogden Industries Pty Ltd v Lucas[5]. In that case Windeyer J referred in the High Court to the word "liability" as being in a phrase of Hohfeld "chameleon-hued." He said of its use in s.5(1) of the Workers Compensation Act 1958

"It seems to me that without descending to too much refinement there are at least three main senses in which lawyers speak of liability or liabilities. The first, a legal obligation or duty: the second the consequence of a breach of such an obligation or duty: the third a situation in which a duty or obligation can arise as the result of the occurrence of some act or event. It is in the third sense that s.5(1) speaks of an employer as liable to pay compensation in accordance with the Act."[6]

In my view s.88(1) uses the word "liability" in the same third sense. In my view the reference to "circumstances which do not create any liability to pay compensation under this Act" is a reference to circumstances not falling within s.82 of the Act.

Section 88(2) refers forward to the specific provisions relating to further loss of hearing in s.89 and to Division 2 which includes s.98C providing for compensation for non-economic loss.

Sub-section (3) contains a deeming provision which assists assessment of contribution under s.129 and 129B of the Act. In Accident Compensation Commission v Fletcher Marks J stated at p.113:

"Where the 'injury' is industrial deafness, s.88(3) assists the assessment of contribution by deeming it to have occurred at a constant rate within the total number of years of exposure to industrial noise. Mr. Phillips submitted that s.88(3) was merely another 'deeming' provision to be read with that of s.88(4) as part of the new scheme to assess apportionment between pre and post appointed day industrial deafness. However, despite its position in the A.C.A. I think its purpose is to assist assessment of contribution under s.129."

Section 88(4) is a significant element in the scheme of the Act with respect to industrial deafness. It contains a deeming provision which materially simplifies the conceptual framework within which industrial deafness is to be understood under the Act. In Accident Compensation Commission v Fletcher Marks J said at p.116:

"The submission of the appellant is, however, that in so far as s.88(4) admittedly creates a notional or fictional industrial deafness occurring on a particular date as though, contrary to the fact, it happened all at once at that time arising out of or in the course of employment at that time (perhaps with the proviso that the employment was relevantly noisy, which is unnecessary here to decide) that is as far as the fiction goes. Thereafter, as the logic of the argument would compel, it is necessary to revert to the fact (as distinct from the fiction) that the industrial deafness of the respondents resulted to some extent from traumata in their employment before the appointed day. In my opinion, the fiction is not to be set aside in that way, particularly as s.82(6), s.90(3) and perhaps s.129 are indicia that the legislative intent is to the contrary. Regard must also be had to the difficulty of providing compensation for industrial deafness and the history of legislative attempts to deal with it. The problems are obvious. The contributions of particular employment to the onset and development of industrial deafness cannot be quantified or assessed retrospectively, if at all, with any precision. The industrial deafness provisions of the A.C.A. (principally ss.88 to 90) were adapted from Div.3A of the Workers Compensation act which was introduced in 1981 by Act No. 9613 to deal specially with the difficulties which I have mentioned, The Bill for Act No. 9613 was introduced by Mr. Ramsay, then Minister for Labour and Industry, who, in his second reading speech, 30 October 1981 said: 'The new division will be the sole basis for compensation of industrial deafness. It is not dissimilar to the existing provisions of the act covering industrial diseases. This division determines when the industrial deafness will be deemed to have occurred, permits the worker to claim against one employer only, and provides that the amount of compensation will be in accordance with the existing provisions of the Act.' (Hansard, p.2435.) Division 3A represented an attempted solution different from that of New South Wales where workers compensation legislation came to deem boilermaker's deafness an industrial disease. This was not done in Victoria. The New South Wales legislature, however, sought to deal with the difficulties after they had been highlighted there by the well known commission decision of Milne v. International Combustion Australia Ltd. [1953] WCR (NSW) 80. On 1 December 1960, s.16(1A) was introduced into the Workers' Compensation Act 1926-60 (NSW) and provided: 'Where an injury mentioned in the first column of the said table is a disease which is of such a nature as to be contracted by a gradual process and which has not resulted in incapacity, such injury shall, for the purpose of determining a worker's right to the amount indicated in the second column of the said table, be deemed to have happened at the time when such worker makes his claim for compensation.' The section went on to provide that 'disease' included the condition known as 'boilermaker's deafness'. In Commissioner for Railways v. Bain [1965] HCA 5; (1965) 112 CLR 246 the High Court held that the effect of s.16(1A) was to give a worker suffering from boilermaker's deafness a right to compensation for the full extent of the loss of hearing from which he was in fact suffering at the dates specified by the statute not merely for the loss of hearing suffered between the time when the condition became compensable and that date. Barwick CJ said, at p.257: 'According to the meaning which, in my opinion, should be given to the words of the amending section, the worker is to be entitled upon an application made after the enactment of the amendment to be compensated for his physical condition at the date of that application by a lump sum payment under s.16. No doubt his then condition is a product of past events but by the express words of the statute it is to be treated as having occurred at the date of his application, i.e. at a time subsequent to the making of the amendment. This does give him a right to compensation for the present result of the progressive deterioration of his hearing caused during many prior years of boilermaking.' (Emphasis added.) It can thus be seen that the solution in New South Wales has been understood to provide compensation on the footing that the whole deafness, no matter over what period it arose and progressed or by what employment at what time it was compounded, occurred at the one time so as to become compensable as if in truth it had done so. In my opinion, a fiction of the same kind has been adopted to achieve a similar solution in Victoria. Here, however, industrial deafness is not deemed to be a disease nor restricted to boilermaker's deafness. Industrial deafness is treated separately and compensation provided for it."

It follows from the terms of s.88(4) that the plaintiff is deemed to have suffered the injury comprising his industrial deafness on the date of the claim, 1 May 2001. The effect of this deeming provisions is as stated above adopting the words of Barwick CJ with respect to the New South Wales legislation:

"No doubt his then condition is a product of past events but by the express words of the statute it is to be treated as having occurred at the date of his application."

Section 89 deals expressly with "Further Loss of Hearing". It specifically contemplates circumstances such as the present case where following an initial injury constituted by industrial deafness for which the worker has received or become entitled to receive compensation for loss of hearing, a further loss of hearing occurs as a result of industrial deafness. Nevertheless its provisions have no application to the present case because s.89(5) provides that the section does not apply to a further injury suffered on or after 12 November 1997. By reason of s.88(4) the plaintiff's further injury is deemed to have been suffered on 1 May 2001.

Section 90 deals with the effect of a determination for industrial deafness. It relevantly provides:

"(1) A determination for the payment of compensation for industrial deafness which is not reviewed shall be a final determination in respect of the percentage of the diminution of the worker's hearing on the date of assessment. (2) A determination for the payment of compensation shall state the percentage of diminution of the worker's hearing in respect of industrial deafness at the date of the determination in relation to which the amount of the compensation is assessed. (3) A determination for compensation for industrial deafness shall fully extinguish all rights of the worker to compensation for industrial deafness under s.98, 98C or 98E or under the Workers Compensation Act 1958 up to the date of the determination but shall not prevent the worker from obtaining compensation under s.98, 98C or 98E for further industrial deafness suffered after that date."

Section 90 is expressed in prospective language. It deals with determinations under the Act in which it is contained. The word "determination" is given an extended meaning by s.5(3) of the Act but it is nowhere defined or expressed to include a determination under the Workers Compensation Act 1958. Section 90 does not in terms contain a provision relating back to determinations or compensation paid under the Workers Compensation Act, which is comparable e.g. with s.4AA(1) which provides:

"(1) Compensation for the death of a worker is not payable under this Act if compensation for the death of the worker has been paid under the Workers Compensation Act 1958."

The failure to refer to determinations under the Workers Compensation Act 1958 occurs despite an express reference to rights under that Act in s.90(3).

In addition it is to be observed that a final determination in respect of the percentage of the diminution of the worker's hearing on the date of assessment as contemplated under s.90(1) is an assessment made by way of a prescribed methodology under s.91. It follows that a determination made under prior legislation is not necessarily an assessment made in accordance with the prescribed methodology. Where a worker has acquired industrial deafness over a period in excess of 45 years (as in the present case) it is quite possible a prior assessment will not have been made strictly in accordance with the now prescribed methodology. Paradoxically if the prior assessment were generous to the worker with respect to the issue of presbyacusis (that being a matter which was for a number of years contentious in the assessment of hearing claims) or for some other reason, the worker may now find that further loss of hearing is relatively less (if the two assessments are taken at face value) and indeed may fall below the 10 percent threshold which the authority contends is the precondition to a further claim. This hypothesis reinforces the view I have expressed, that the determination contemplated under s.90 is a determination made under and in accordance with the current Act.

Returning to the terms of s.90 it can be seen that sub-s.(2) contemplates a statement of the percentage of the diminution of the worker's hearing in respect of industrial deafness in relation to which the amount of the compensation is assessed. Section 90 does not purport to state the basis of the relationship pursuant to which compensation is assessed.

Section 90, sub-s.(3) was the cornerstone of the contentions made on behalf of the Authority in argument before me. The written outline of contentions submitted on behalf of the Authority commences:

"1. On 25 August 1988, the Accident Compensation Tribunal ordered that the plaintiff in this proceeding be paid the sum of $10,214 representing 26% permanent partial binaural loss of hearing due to industrial deafness pursuant to the provisions contained in division 3A of the Workers Compensation Act 1958. Industrial deafness bears the same meaning in the Accident Compensation Act 1985 (the 'Act') as it did in the Workers Compensation Act 1958. 2. The award constituted a determination for compensation for industrial deafness within the meaning of sub-s.(3) of the Act and accordingly fully extinguished all of the plaintiff's rights to compensation for industrial deafness up to 25 August 1988."

The outline of contentions culminated in the further submission:

"14. The injury the subject of the worker's application, ultimately in this matter the subject of consideration by the Medical Panel, necessarily excludes (on the proper construction of s.90(3) of the Act) the industrial deafness the subject of the 1988 determination. That injury was the subject of Dr Nagle's assessment, the subject of reference to the Medical Panel and the subject of determination by that Panel. The extinguishment automatically effected by s.90(3) of the Act would necessarily answer any contention that the proper question for the Medical Panel was an evaluation of the whole of the plaintiff's industrial deafness."

In the present case the Authority's argument faces a threshold difficulty. In my opinion for the reasons I have given s.90 is concerned with the effect determinations made under the current Act "shall" have. The determination upon which the Authority seeks to rely in the present case was made under the Workers Compensation Act 1958.

Even if I were wrong in the above view, however, I would still reject the contentions made on behalf of the Authority. It can be seen that the Authority's argument moves from the proposition (which is undoubtedly correct) that the Act contemplates that a determination will extinguish rights up until a particular date, to the proposition that s.90(3) determines the manner in which the percentage of diminution of the worker's hearing is to be assessed for the purposes of determining compensation for a further injury. In my opinion, the proviso to s.90(3) is quite clear. The extinguishment "shall not prevent the worker from obtaining compensation under s. ... 98C ... for further industrial deafness suffered after that date." It follows that s.90(3) does not determine the effect of the combined operation of s.91 and 98C of the Act. These provisions are to be given their full effect notwithstanding the terms of s.90(3).

The view I have with respect to the plain terms of s.90(3) is reinforced by the reference to s.98 in that sub-section. Section 98 provides for compensation pursuant to a table of maims. No compensation is payable under that section in respect of an injury that arose after 12 November 1997. The table provides for compensation both with respect to total loss of hearing and partial loss of hearing (being not less than 7%). Section 98(2A) and (2AB) provide for the assessment of diminution of hearing. Section 98(4) provides:

"(4) If a worker suffers any injury - (a) which as to the major part consists of an injury for which compensation is payable under sub-section (1); or (b) which consists of a lesser but substantial degree of any injury for which compensation is payable under sub-section (1) - the injury shall be regarded as an injury for which compensation based on the Table shall be payable, and the worker may be awarded as compensation such amount as, having regard to sub-section (1), appears to be just and proportionate to the degree of injury suffered."

This provision envisages that the assessment of compensation may take account of the degree to which it is just to regard diminution of hearing as consisting of an injury for which compensation is payable. This supports the view that the effect of s.90(3) is not necessarily to preclude the assessment of the full extent of diminution of hearing at the date of the relevant injury for the purpose of assessing compensation by a subsequent process which provides for specified adjustments.

I note for the sake of completeness that s.98 reflects the terms of an element of the Workers Compensation Act 1946.

"After the enactment of the Workers Compensation Act 1946, the applicant would have been entitled to an award of compensation once he established that after the commencement of that Act, he suffered 'any injury which consists of a lesser but substantial degree of any injury for which compensation is payable under the said Table'. The only injuries relating to hearing then appearing in the Table were 'total loss of hearing' and 'complete deafness of one ear'. If after the enactment of the amending Act the noise of the applicant's work operated to contribute to a reduced condition of hearing, which represented a substantial deficiency, that circumstance would, I think, have attracted this provision of the amended Act, and that, notwithstanding the pre-existence of a condition of defective hearing, and notwithstanding that such a condition existed prior to the employment as well as prior to the act." [7]

Section 91 provides for assessment of hearing impairment. It is brought into play by the provisions of s.98C to which I will refer before turning back to s.91. Section 98C relevantly provides:

"(1) A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with s.91, entitled to compensation for non-economic loss calculated in accordance with this section. (2) The amount of the non-economic loss in respect of permanent impairment other than psychiatric impairment is to be calculated as at the date of the relevant injury as follows - (a) if the worker's degree of impairment is less than 10% - the amount of the non-economic loss is zero; (b) if the worker's degree of impairment is not less than 10% and not more than 30% - the amount of the non-economic loss is to be determined in accordance with the formula - $10,300 plus [(D - 10) x $2,060]; ... (6) If the compensation payable under this section is for industrial deafness, the amount of compensation is to be calculated - (a) if the date of injury is deemed under s.88 to be the last day of the worker's employment out of which or in the course of which the injury arose - as at that day; or (b) if the date of injury is deemed under s.88 to be the date of the claim - as at the day on which the compensation is to be determined. ... (9) Where compensation has been paid under this section for an impairment resulting from an injury or under s.98 or 98A in respect of an injury, that compensation must be deducted from any compensation payable under this section in respect of any impairment resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has previously been paid under this section or s.98 or 98A."

It is necessary to analyse each of the elements referred to in s.98C(1).

(a) The plaintiff is a worker who has suffered an injury.

(b) The injury is one which entitles the worker to compensation in terms of s.82(1) and (6).

(c) The injury has resulted in permanent impairment capable of assessment in accordance with s.91.

(d) That assessment is in turn to provide the basis for compensation calculated in accordance with this section.

This calculation is not simply the calculation of the amount payable under s.98C(2). It also includes, where appropriate, the deduction of compensation previously paid in accordance with s.98C(9).

As I have already observed the words of s.98C(9) are apt to describe industrial deafness consisting of an aggravation or exacerbation of deafness or a deterioration of the worker's hearing.

If s.98C(9) does apply to situations of further injury by way of industrial deafness, then it will require the deduction of prior compensation paid under s.98C from any compensation payable under s.98C. This strongly suggests that the impairment which is to be assessed under s.98C(1) is the cumulative impairment resulting from an injury.

Both s.98C(1) and in turn s.104B(5) require the assessment of permanent impairment "resulting" from an injury "as assessed in accordance with s.91".

Section 91 relevantly provides:

"(3) For the purposes of assessing the degree of impairment of the whole person resulting from binaural hearing impairment, the percentage of the diminution of hearing determined in accordance with sub-section (4) is to be converted as follows - (a) if the binaural loss of hearing is less than 10% NAL, the degree of impairment is zero; (b) if the binaural loss of hearing is 10% NAL, the degree of impairment is 10%; (c) if the binaural loss of hearing is more than 10% NAL, the degree of impairment if the percentage equivalent of the number (rounded up to the next whole number) given by the formula - 10 + [0.278 (NAL - 10)] - where NAL is the percentage of diminution of hearing determined in accordance with sub-section (4). (4) For the purposes of this section, the percentage of diminution of hearing - (a) shall be determined - (i) by a person or class of persons approved; and (ii) in the manner approved - by the Minister; and (b) shall be determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory ... (7) For the purposes of s.98C - (a) impairments other than psychiatric impairments resulting from injuries which arose out of the same incident or occurred on the same date are to be assessed together using the combination tables in the A.M.A. guidelines; (b) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury; (c) impairments from unrelated injuries or causes are to be disregarded in making an assessment. ... (9) This section as amended by s.25 of the Accident Compensation (Miscellaneous Amendment) Act 1997 applies to all claims for compensation under s.98C, irrespective of when the injury occurred or the claim is made."

It can be seen that s.91(3) and (4) provide for the assessment of the diminution of binaural hearing determined in accordance with s.91(4) to be converted to an assessment of degree of impairment of the whole person by way of the formulae set out in s.91(3).

The terms of s.98C(1) refer to and require "an injury resulting in permanent impairment.". The use of the phrase "resulting from" and the associated concept of causation has a long history in workers compensation law. See Ystradown Colliery v Griffiths[8]. It has been consistently held that where an injury is a material factor or one of two or more material factors as a consequence of which death or incapacity occurs, then such death or incapacity is to be regarded as resulting from the injury.

In Ward v Corrimal-Balgownie Collieries Ltd[9] Latham CJ said with respect to the then New South Wales legislation:

"Compensation is paid under the Act in respect of death or total or partial incapacity resulting from an injury (secs. 8 and 9) not in respect of the injury itself (See Harwood v Wyken Colliery Co. (1913) 2 KB at pp.162, 163; King v Port of London Authority (1920) AC 1. Incapacity under sec. 9 is measured by loss of earning power (Wicks v Union Steamship Co. of New Zealand Ltd. [1933] HCA 58; (1933) 50 CLR 328; Ball v William Hunt & Sons Ltd (1912) AC 496 at p.500). In determining whether incapacity results from an injury the law necessarily adopts an idea of causation which, in a sense, isolates the injury as a causative element from other elements which are taken for granted or ignored. If the addition of the injury to other concurrently existing facts brings about the incapacity, then the incapacity is regarded as resulting from the injury, although in fact it results from the injury taken together with the other circumstances. The legal doctrine may be illustrated by considering the case of a worker who has a condition of heart disease which is not an injury within the meaning of the Act and which has not produced any incapacity. Although the worker has heart disease, he is able to earn full wages, and, as his earning capacity is not diminished, he is suffering from no incapacity within the meaning of the Act (Wicks v Union Steamship Co. of New Zealand [1933] HCA 58; (1933) 50 CLR 328). If such a worker then receives an injury within the meaning of the Act and suffers incapacity as the consequence of the injury added to his heart disease, then the incapacity (total or partial as the case may be) in those circumstances results from the injury. The injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense: but in the legal sense it is itself the cause of the incapacity which therefore is said to 'result' from it (See Clover, Clayton & Co. Ltd. v Hughes (1910) AC 242; Partridge Jones and John Paton Ltd. v James (1933) AC 501 - cases on 'arising out of the employment.'). If an employer employs a man who suffers from some defect, though the defect produces no incapacity, the employer runs the risk that incapacity may more readily result from an injury to such a man than from an injury to a man who does not suffer from any such defect."[10]

In Calman v Commissioner of Police[11] the High Court approved the following statement by Jordan CJ in Salisbury v Australian Iron and Steel Ltd[12]:

"It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases."

At the date of the assessment of his binaural loss of hearing by the Medical Panel, the plaintiff's level of hearing impairment did result from the injury forming the subject of his claim. To hold otherwise would deny the cumulative impact of the industrial deafness which the plaintiff had suffered. Accordingly, the language of s.98C(1) does not lead to the conclusion that anything other than the plaintiff's actual level of cumulative hearing impairment should be assessed. The provisions of s.98C(9) then provide a mechanism for adjustment of compensation by way of deduction of compensation received with respect to prior industrial deafness. The work and effect of s.98C(9) would be particularly problematic if the degree of hearing impairment to be assessed were disaggregated before compensation were assessed and prior compensation was still required to be deducted.

This is not to say, of course, that s.98C(9) produces an entirely satisfactory or comprehensive outcome in the present case, because it is expressed by reference to prior compensation "paid under this section." It accordingly does not catch prior payments under the previous Act. Nevertheless it must be read as part of a scheme which gives rise to a sensible outcome for the joint application of ss.90, 91 and 98C to cases involving prior claims under this Act.

If the view were taken that the impairment resulting from an injury which was required to be assessed pursuant to s.98C(1) was that portion of the impairment only which had occurred since a prior award of compensation, this might be thought to be arbitrary and unjust in other ways as well.

(a) The Authority's position would be that a worker such as the plaintiff was entitled to compensation with respect to the full extent of his hearing impairment if he had made no prior claim but to no further compensation if he had made a prior claim and his impairment at the time of current assessment was not 10% more than it was at the time of the prior claim. It would follow that there was a powerful disincentive to a worker to making a claim until retirement. It would create a situation where the parts of an injury compensable under the Act were not in many cases equal to the sum of the same injury.

(b) It would lead to a situation where the initial 10% threshold was applied to claims whatever the level of deafness actually experienced by the worker. It does not follow from the imposition of an initial 10% threshold that the effect of the loss of the last 9% of a worker's hearing (in the event that a prior claim hypothetically established a loss of 91%) should be non-compensable. Likewise it does not follow that the loss of the second, third or fourth 9% of a worker's hearing will be of the same significance, (or insignificance) in terms of loss of enjoyment of life as the loss of the first 10%. Indeed, common sense suggests that it would not. When s.98 was introduced into the Act the Minister's second reading speech referred to the 7% threshold in the table of maims in the following terms:

"In order to address these burgeoning problems and preserve compensation for those with a significant work related hearing loss the bill introduces a threshold of 7% loss of binaural hearing before a table of maims payment under section 98 of the Accident Compensation Act becomes payable. The threshold will apply in respect of all claims lodged on and after midnight tonight. The threshold level of 7% has been carefully chosen so as to ensure minimal disadvantage to workers, as typically this is the level below which medical opinion indicates a hearing aid is not generally required."[13]

It can be seen that whereas the initial 10% forming the basis of a claim under s.98C(2) might be thought to have a similar rationale namely that a certain initial diminution of hearing might not be thought to cause material non-economic loss, the same rationale cannot be said to logically apply to subsequent increments of marginally less than the the same percentage loss.

It follows that insofar as the concept of "injury resulting in permanent impairment" may be thought capable of two interpretations, I prefer that which acknowledges the full extent of the worker's disability. In this regard I accept and respectfully adopt the following passage from the judgment of Ashley J in Hegedis v Carlton and United Breweries[14]:

"In construction of workers compensation legislation, which has been regarded as being remedial in character, there is a long-established principle that in the event of ambiguity a construction favourable to the worker should be adopted: Wilson v Wilson's Tile Works Pty. Ltd. (1960) 104 CLR 328 per Fullagar J at 335; Dodd v Executive Air Services Pty. Ltd. [1975] VicRp 66; [1975] VR 668 at 679 per Newton J. and at 682 per Norris J. That approach has continued until modern times: Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1 at 6 per Mason CJ, Brennan and Toohey JJ, and at 9 per Deane and Gaudron JJ. (who dissented in the result, but not upon the point of principle); Borovac v Corporate Ventures Pty. Ltd. (1995) 12 NSWCCR 84 at 89 per Mahoney JA. It has continued notwithstanding a tendency across jurisdictions to reduce the ambit of compensability of injury. It is not a vehicle for discovering ambiguity where none exists. It could not be used to set at nought the effect of s.35(a) of the Interpretation of Legislation Act 1984. But unless and until a court of the highest authority decides that the principle is irreconcilable with the modern conception of workers' compensation legislation, it appears to me that the principle continues to have a legitimate area of operation."

The remaining question arising from the scheme of the relevant provisions is whether the terms of s.91(7) qualify the notion of causation implicit in the terms of s.98C(1). Section 91(7)(c) provides that:

"Impairments from unrelated injuries or causes are to be disregarded in making an assessment."

In my opinion the injuries here in issue are not "unrelated". The further injury is a further loss of hearing. It is properly regarded as an aggravation or exacerbation of the prior injury, or as a deterioration of the prior condition of industrial deafness. Likewise the causes of the impairment are not unrelated but in both cases constituted industrial deafness derived from the same employment. It was not submitted that s.91(7) be construed otherwise.

It follows in my opinion the plaintiff was entitled to a directly responsive answer from the Medical Panel to the question asked of it "What is the worker's degree of impairment of the whole person resulting from the worker's binaural hearing impairment assessed in accordance with s.91(3) of the Act and is the impairment permanent?"

The Panel did not provide such an answer. It did not assess the degree of impairment of the whole person resulting from binaural hearing loss in accordance with s.91 as at the relevant date. It did not fulfil the purpose stated in s.104B(5). It did not answer the question directed to it framed by reference to the related sub-paragraph of the definition of medical questions found in s.5 of the Act.

Lastly I observe that the Panel answered the two-stage question asked of it firstly by finding a zero per cent impairment and secondly by finding such impairment was permanent. This combination of answer might be thought to emphasise the conceptual difficulty with a calculation that results in deeming a 30.6% binaural hearing impairment in fact to be a zero per cent loss in law. In my view if the correct finding were one of zero per cent (which for the reasons I have given I do not accept) it could not be correct for the Panel to find this impairment was permanent.

For the above reasons I propose to order that the determination of the Medical Panel set forth in the certificate of opinion dated 27 February 2002 be quashed and set aside and that the Medical Panel reconsider the first question asked of it in accordance with law.

[2] [1971] VicRp 63; [1971] VR 503 per Gowans J at 512 with whom Winneke CJ agreed

[7] Stevenson v Buchanan and Brock Pty Ltd [1971] VicRp 63; [1971] VR 503 per Gowans J at 508

[13] Mr Pescott, Second Reading Speech, House of Assembly, 31 March 1994, Accident Compensation (Amendment) Bill.

[14] (2000) VSC 380 (not yet reported)

Compensation Act 1958