Gregory Shilton v Return to Work Corporation of South Australia [2025] SAET 48

1. He then deducted from this figure 8% on account of his assessment of pre-existing loss of hearing, arriving at a final figure of 20% WPI.
2. By determination dated 4 January 2024, Mr Shilton's claim for compensation based upon that assessment was rejected by the Return to Work Corporation (the Corporation). It did so having formed the view that Dr Fagan's assessment did not comply with s 22 of the RTW Act and the Impairment Assessment Guidelines (the Guidelines) promulgated thereunder, and in particular the methodology adopted by Dr Fagan in approaching the issue of deduction.
3. To put the application now before me into context, it is necessary to trace some of the background facts. I wish to emphasise that these are not conclusive findings.[1] It is also necessary to make reference to the parties' Statement of Issues and Contentions that have been filed in these proceedings.
4. Mr Shilton is a man in his late sixties. Over the course of his working life he worked in many noisy jobs. In his report, Dr Fagan listed these, recording that Mr Shilton was exposed to much noise when he had worked for Australian National Railways between 1981 and 2005 and from 2005 onwards, when he worked for Bis Industries Ltd, noting that this company came under Comcare in 2008.
5. It is common ground that of 1 October 2008 Bis Industries transitioned from the RTW Act to the Safety, Rehabilitation and Compensation Act Cth (1988) (the SRC Act).
6. Dr Fagan recorded that Mr Shilton said that he had had hearing loss, with accompanying tinnitus, for 15 years. Dr Fagan noted that there was an audiometry screening test conducted by Infraserv dated 26/06/2006, a medical report and Audiogram by Jobfit dated 21/07/2005 and 01/10/2010, an audiogram by Electronica Medical dated 26/03/2018, and an audiogram by MedRx dated 06/01/2022. He stated that the audiograms of Jobfit conducted in 2010 and Electronica Medical in 2018 did not indicate vital information such as test conditions, equipment used, calibration status of the equipment, or the identity and qualifications of the tester. He said that due to the absence of such important information, he could not be satisfied with the reliability of these audiograms. He added that they were performed too long ago to be of any use in assessing current impairment. Hence, he ignored them.
7. Dr Fagan noted that s 22 (7)(b) of the RTW Act provides that the assessment must be based on the worker's current impairment as at the date of assessment. He stated that compelling reasons were needed to disregard the audiogram that he performed on the consultation day. Having noted that the MedRx audiogram was within the accepted range of test-retest variation, including his own audiometry, he stated that he was unable to identify a compelling reason to disregard his audiogram.
8. In its Statement of Issues and Contentions, the Corporation elaborated on why it would not act upon Dr Fagan's assessment. It contended that Dr Fagan failed to comply with the RTW Act and the Guidelines in failing to properly consider audiometry conducted by JobFit on 1 October 2010, which was performed more proximate to when Bis Industries coverage for work injuries under the SRC Act commenced. It contended that an essential feature of an assessment of WPI is that it relates solely to that resulting from the compensable injury and impairments referable to an unrelated injury or cause must not be included in any assessment. It contended that in conformity with this, Dr Fagan should have found that the audiogram performed by JobFit on 1 October 2010 was reliable and he should have considered it.
9. Next, it contended that in any event Dr Fagan's assessment is flawed. It submits that he erred in his assessment by including losses below 2000 Hz. Whilst recognising that with cl 9.5 of the Guidelines envisages that frequencies lower than 2000 Hz may be used in the calculation of hearing loss, it makes the point that to do so a detailed explanation is required, and it says that that was lacking in this case.
10. In its Statement of Issues and Contentions, the Corporation also contended as follows:

In keeping with the principles described in the factually analogous matter of Richardson v Return to Work Corporation of South Australia [2021] SAET 85 ('Richardson') and more broadly, consistent with the decision in Return to Work Corporation of South Australia v Renfrey [2019] SASCFC 26 a shift in the insurance arrangements conferring coverage to an employer in respect of work injuries from the RTW Act scheme to the SRC Act scheme means that there is no employment to which the RTW Act applies after 1 October 2008, as BIS Industries Limited switched from the State to the Commonwealth insurance scheme on that date.

1. Return to Work Corporation of South Australia v Renfrey[2] concerned a worker who was employed by TNT Express from October 1978 until July 2011. When he was first employed there, his workers compensation entitlements were governed by the Workmen's Compensation Act 1971, and from 30 September 1987, by the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act). Pursuant to the WRC Act, the Corporation was liable to make compensation payments for injury suffered by the worker the course of his employment. On 1 July 2008, TNT Express became a licensed corporation pursuant to the SRC Act. The worker first gave notice of and made a claim for noise induced hearing loss on 15 February 2013. The Corporation rejected his claim, relying on the deeming provision of s 113(2) of the WRC Act, which is relevantly identical to s 188 (2) of the RTW Act. The Corporation reasoned that because when he made his claim on 15 February 2013, the worker as no longer employed, and because when he last employed by TNT Express, he was not subject to the WRC Act, it was not bound to compensate him for his hearing loss.
2. At first instance, and on appeal, it was held that the worker was entitled to compensation pursuant to the WRC Act. It was held that the worker became entitled to a lump sum for his hearing loss when he first suffered a hearing loss and that the evidence established that he had suffered most of that hearing loss when his workers compensation entitlements were governed by the WRC Act. It was held that because of this, he was entitled to compensation for his hearing loss, the quantum of which would be assessed as if the entirety of the loss occurred when he gave notice of injury in conformity with s 113(2) of the WRC Act.
3. In Richardson v Return to Work Corporation of South Australia.[3], the worker was employed as a blast furnace operator by Brambles Industries from a date in 1990, and then by Bis Industries from 23 May 2007. He retired from employment in February 2016. The worker was exposed to significant noise when he worked for Brambles and later Bis Industries and he put in multiple claims for compensation for noise induced hearing loss. In 1980 he received $1,035 in lump sum compensation under s 69 of the WC Act for having a 6.9% binaural noise induced hearing loss. In 1996 he received $4,389.74 under s 43 of the WRC Act based on him then being assessed with an 11% bilateral noise induced hearing loss. In June 2016, after he had retired from employment, he claimed further lump sum compensation for hearing loss, having been assessed on 7 November 2016 as having an 18% binaural noise induced hearing loss. On 3 July 2017, that claim was rejected by the Corporation on the basis that his employment was not covered by the RTW Act because on and from 1 October 2008, Bis Industries became a licensed corporation pursuant to the SRC Act.
4. At trial, the worker submitted that his claim should have a 2016 date of injury and he should receive $19,500 based on a 9% WPI and the 2016 prescribed sum, less the earlier payment of $4,389.74. The Corporation resiled from its earlier position and accepted that in conformity with Renfrey, it was liable to pay the worker lump sum compensation under the RTW Act on account of the worker's further hearing loss. However, it contended that because Bis Industries was covered for work injuries under the SRC Act from 1 October 2008, there is no employment to which the WRC Act or the RTW Act applies after that date, such that his entitlement had to be calculated by reference to the 2008 prescribed sum, being $15,902 less the $4,389.74, previously paid. The judge accepted this submission.
5. The Corporation's Statement of Issues and Contentions then says:

The respondent contends that they are only liable for any impairment arising from Noise Induced Hearing Loss (NIHL) which occurred with BIS Industries Limited prior to 1 October 2008 despite the operation of s 188(2) in respect the worker's noise induced hearing loss. The respondent says that the statutory fiction which deems the whole of the worker's noise induced hearing loss to occur prior to lodgement of their claim relates to the determination of compensability only, and does not preclude the operation of specific provisions of limitation within s 22 of the RTW Act which operate to ensure that a worker's impairment is limited only to the work injury in question.

1. As I understand the argument articulated by this is: Part of the ratio of Richardson is, that for the purposes of the RTW Act, relevant employment is confined to employment during the period in which the employer was covered under the RTW Act, and that it does not extend to employment during the period in which the employer was covered under the SRC Act; thus noise induced hearing loss that occurs outside of this period is precluded from the assessment of WPI because of the direction given in s 22(8)(b) of the RTW Act that "impairments from unrelated injuries or causes are to be disregarded in making an assessment".
2. The Corporation's Statement of Issues and Contentions concludes by stating that one or other of the following options would be available to the Court:

a. That utilising the earlier audiometry which has been transcribed by Dr Tomich at 2.3% BHL (0% WPI) the Court should apply the principles provided by s 22(8)(b) and (g) of the RTW Act and deduct all losses over and above that amount and determine that the applicant's whole person impairment is fixed at 0% WPI and accordingly his entitlement should be rejected in accordance with s 58(2) of the RTW Act.

b. This matter should be referred to an IMA pursuant to s 121 of the RTW Act, where the Assessor should be given specific directions in relation to conducting a fresh PIA, including in relation to the status of the Court's findings in respect of the reliability of the JobFit audiogram dated 1 October 2010.

1. In his Statement of Issues and Contentions, Mr Shilton contended that Dr Fagan correctly relied on hearing loss below 2000 Hz for the purpose of assessing the degree of his WPI.
2. Next, its states that Dr Fagan erred in making a deduction of 8% on account of the fact that some of the pre-existing noise induced hearing loss and that an order should be made that he is entitled to a lump sum payment pursuant to s 58 of the RTW Act in the amount of $112, 984 calculated on the basis of 28% WPI and the 2022 prescribed sum.
3. As for the argument that his hearing loss sustained in employment during the period in which Bis Industries was covered under the SRC Act is not compensable under the RTW Act, Mr Shilton contended that the RTW Act applies in the ordinary way to his claim, and that in conformity with s 188 (2) of the RTW Act, the whole of his loss is deemed to have occurred upon him making his claim. He submitted that to the extent that the decision in Richardson v Return to Work[4] says otherwise, it is wrong, and it should not be followed. This is the matter in respect of which, he wishes to seek an opinion from senior counsel.
4. In opposing this, the Corporation contended that the opinion is unnecessary, it is too expensive and that it is premature. It makes the point that if its arguments about Dr Fagan's assessment miscarrying are accepted, and there is a referral to an Independent Medical Adviser (IMA), even of all of Mr Shilton's hearing loss is included, after deduction, the ultimate assessment of WPI might not meet the 5% threshold.

1. I am not convinced that the correctness or otherwise of the decision in Richardson v Return to Work is going to be a critical issue in this case. I have not had the benefit of argument, but I simply observe that in Onody v Return to Work Corporation Stanley J said:

Section 22 and s 188 are provisions concerned with the assessment of a worker's impairment. Section 188 is the specific provision concerning noise induced hearing loss. Section 22 is the general provision. Section 188 prevails over s 22. It is an exception to the dominant purpose of s 22.[5]

1. Parker J said that he agreed with this.[6]
2. This might suggest that irrespective of what Richardson might be said to hold, there might be some difficulties with the argument that the Corporation wishes to mount in reliance upon that decision.
3. Be that as it may, I think Mr Colgrave is right to contend that in this case, it might be premature to contemplate engaging senior counsel to advise upon the correctness of Richardson.
4. The use of audiometry testing at levels below 2000kHz in this case resulted in a significant uplift in the assessment of Mr Shilton's WPI. If the Corporation is right, and this case is referred to an IMA, and the IMA is asked to assess anew, the IMA might resolve not to use losses at those lower frequencies. In that event, this is likely to lead to a much lower primary assessment of WPI.
5. Dr Fagan made an 8% reduction on account of pre-existing WPI. Noting that Mr Shilton contends that there should have been no deduction, it is at least arguable, for the reasons advanced by the Corporation, that a greater deduction should have been made.
6. Taking these into account, it is not inconceivable that the final assessment of WPI could be below the 5% threshold, in which case the Richardson v Return to Work point, if there is one, could become moot.
7. I am of the view that Mr Shilton's application should be adjourned for further consideration at a later date, and that for now, the proceedings before this Court should deal with whether Dr Fagan's report is compliant and whether there is good reason to seek an opinion from an IMA. Depending upon the outcome of that, if and when the issue regarding the correctness of Richardson v Return to Work arises, Mr Shilton can renew his application for certification.

[1] Adelaide Bank Ltd v Lucke [2010] SASC 59 at [18] per Gray J.

[2] [2019] SASCFC 26.

[3] [2021] SAET 85.