Holcim (Australia) Pty Ltd v Thomas [2022] NSWCA 183 | Case summary

Holcim (Australia) Pty Ltd v Thomas [2022] NSWCA 183 | Case summary | Zoe

JUDGMENT

WARD P: I agree with the reasons of White JA and the making of an order that the application for leave to appeal be dismissed.
MACFARLAN JA: I agree with White JA.
WHITE JA: This is an application for leave to appeal from a decision of Deputy President Wood of the Personal Injury Commission confirming a certificate of determination made by Senior Member Capel dated 18 May 2021.
The application before the Personal Injury Commission concerned a claim by the present respondent, Mr Thomas, that a former employer, the appellant, Holcim (Australia) Pty Ltd (formerly CSR Ltd) ("Holcim"), pay for the cost of new hearing aids. He had been employed by Holcim for many years until he ceased work with it in 2009. He thereafter obtained employment with ACI Operations as a factory worker and was working with ACI Operations at the time of the hearing before the Commission.
On 28 June 1999 Mr Thomas's former solicitor served a notice of claim on Holcim for lump sum compensation for 16.8% binaural hearing loss. Senior Member Capel recorded that the parties negotiated a compromise settlement of $9,665.50 in respect of 14.87% binaural hearing loss.
In 2010, and again in 2016, Mr Thomas made a claim on Holcim for the cost of hearing aids and Holcim paid for them. On 14 September 2020 his solicitor served notice of a further claim for hearing aids. It was this claim that was the subject of the determination in the Commission.
Senior Member Capel recorded that, on 10 August 2020 a Dr Macarthur reported that Mr Thomas had noticed slowly increasing deafness over the past 30 years, particularly in the presence of background noise and had been troubled by tinnitus for 10-12 years. He observed that Mr Thomas had been exposed to industrial noise since 2009 at his current employer, ACI Operations. Senior Member Capel recorded: "[25] Dr Macarthur diagnosed bilateral mid to high tone sensori-neural deafness due to exposure to loud noise over more than 30 years. The doctor was satisfied that the applicant's employment at ACI Operations was employment to the nature to which the disease boilermaker's deafness was due and that it was the last noisy employer. He considered that this employment had the tendencies, incidents and characteristics to give rise to a material risk of noise induced hearing loss. [26] Dr Macarthur assessed a 21% binaural hearing loss which was the equivalent of 11% whole person impairment. This represented a further loss of 3% whole person impairment. He did not comment on the need for hearing aids. [27] In a report dated 6 April 2021, Dr Macarthur stated that the 14.8% binaural hearing loss that was agreed between the parties in 1999 was sufficient to warrant the use of bilateral hearing aids. [28] A quote for the cost of digital hearing aids was provided by Bay Audio on 27 August 2019 in the sum of $5,824.40."
Senior Member Capel's determination and order were as follows: "The Commission determines: 1. The applicant sustained an injury in the form of sensorineural hearing loss arising out of or in the course of his employment with the respondent on 28 June 1999 (deemed). 2. The parties resolved a claim for lump sum compensation in respect of 14.87% binaural hearing loss on 21 October 1999 and a Registration of Agreement was registered on 12 November 1999. 3. The respondent paid for hearing aids when claims were made by the applicant in 2010 and 2016. 4. The respondent was the last employer who employed the applicant in an employment to the nature of which the injury, sensorineural hearing loss, was due for the purposes of section 17(1)(a)(i) of the Workers Compensation Act 1987 when he gave notice of injury to the respondent on 28 June 1999 (deemed). 5. The provision of bilateral digital hearing aids is reasonably necessary as a consequence of the applicant's injury. The Commission orders: 6. The respondent is to pay medical expenses in respect of the supply and fitting of bilateral digital hearing aids on production of accounts and/or receipts pursuant to section 60 of the Workers Compensation Act 1987."
Deputy President Wood confirmed that determination (Holcim (Australia) Pty Ltd v Thomas [2021] NSWPICPD 46). An appeal lies from her decision where the appellant is aggrieved "in point of law" (Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act") s 353(1)). Because the amount in dispute is less than $20,000 the appeal lies only with leave (s 353(4)(c)).
Holcim submitted that leave should be granted because the decision of the Deputy President is erroneous and because hearing aid claims are extremely common and the circumstances of the present matter will repeat themselves.
In its summary of argument, Holcim submitted that the questions involved in the appeal are: "(a) Whether upon the true construction of the legislation a limited injury deemed to occur in 1999 can operate to enable recovery of medical expense in 2020 in the presence of significant increase in the hearing loss and subsequent work in employment to the nature of which industrial deafness is due. (b) Whether upon its true construction sec 17(3) of the Workers Compensation Act 1987 applies when the factual elements of a further and more substantial injury have supervened after the giving of notice of injury completing the existence of a deemed injury."
Mr Thomas submitted that the question for determination is: "[W]hether in circumstances where a worker has served notice on his then employer under s.17(1) of the [Workers Compensation Act] and has satisfied the tests under s.60 of the [Workers Compensation Act] for the provision of hearing aids whether the liability to pay for the hearing aids imposed on that employer ceases if the worker engages in further employment which aggravates the hearing loss."
He submitted that leave should be given because this is the first case where the issue, as so formulated, has arisen for appellate determination. He submitted that the appeal should be dismissed.
For the reasons which follow, I do not consider that either party's submission accurately identifies a point of law arising from the Deputy President's decision and, if there be an error in the decisions below, the error is one of fact, not law. Notwithstanding that the application for leave to appeal and the appeal if leave be given were heard concurrently, for the reasons which follow, I would refuse leave to appeal.
As noted above, on 14 September 2020, Mr Thomas's solicitor served a notice of claim on Holcim for hearing aids. The claim was made pursuant to s 60 of the Workers Compensation Act 1987 (NSW) ("the Act"). Section 60(1) provides that: "(1) If, as a result of an injury received by a worker, it is reasonably necessary that - (a) any medical or related treatment (other than domestic assistance) be given, … the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service…"
"Injury" is defined in s 4 of the Act as follows: "injury - (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means - (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …"
Special provision is made in s 17 for injuries consisting of loss, or further loss, of hearing. Such "losses" of hearing are deemed to be losses of hearing which are of such a nature as to be caused by a gradual process (s 17(2)). The effect of s 17(1)(a) and (c) is that the injury of loss of hearing (or further loss of hearing) is deemed to have happened at the time notice of the injury is given by the worker to his employer (or his last "noisy" employer if not employed at the time the worker gives notice of the injury). Provided the worker had been employed in an employment "to the nature of which the injury was due" at the time of the giving of notice (or was his last "noisy" employer), that employer will be liable notwithstanding that the worker's loss of hearing may have been attributable to multiple noisy employments. The injury, being the loss of hearing, or further loss of hearing, as the case might be, is taken to have happened "as it were, at one blow" (per Barwick CJ; Commissioner for Railways v Bain (1965) 112 CLR 246; [1965] HCA 5, at 256-257) without the need to prove that it was the employment with the employer to whom notice of injury was given (or the last "noisy" employer) that caused the loss of hearing, provided the worker was or had been employed in an employment to the nature of which the loss of hearing (or further loss of hearing) was due. The time at which injury actually occurred is irrelevant. The section deems the injury to have occurred at the date notice of the injury is given. [1]
Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 concerned the construction of transitional provisions of the Act in relation to a claim for compensation for pain and suffering under the since-repealed s 67. Sheller JA, with whom Priestley JA agreed, described the operation of s 17 as follows (at 690): "Section 17 deems the injury here suffered to have happened at a particular time for the purposes of the Act. The time the injury actually happened is irrelevant. Clause 2 of Pt 6 limits the application of s 67 to injuries received after a particular time. The question for decision is whether cl 2 refers to the point of time at which the injuries were actually received or to the deemed or notional point of time prescribed by s 17. To choose the actual point of time is to depart from the result of an historical development in workers compensation legislation in New South Wales designed, in the case of progressive slow growing industrial or occupational diseases or injuries, to relieve the worker from the daunting forensic task of proving when they occurred and, if they were employment related, by which relevant employer compensation therefor is payable. In the case of loss of hearing caused by a gradual process, s 17 achieves this design by providing that the loss is an injury which happened at a particular arbitrary point of time, making compensation payable upon demonstration that the worker was employed by an employer in an employment to the nature of which the injury was due and fixing a particular employer with liability, though leaving that employer a right to recover contribution from another or other employers in appropriate circumstances."
This is common ground. It provides the background, but no more than that, to the present dispute. A different issue is raised by the present application. Notice of injury was given in 1999 in respect of the hearing loss Mr Thomas had suffered to that point. Mr Thomas and Holcim agreed in 1999 that his hearing loss at that time was 14.87% binaural hearing loss. Mr Thomas compromised a claim for lump sum compensation pursuant to ss 66 and 77 of the Act on that basis.
After the date of injury of 28 June 1999 Mr Thomas suffered further loss of hearing which it can be assumed would have been due, at least partly, to his continued employment with Holcim up to 2009 and thereafter with his employment with ACI Operations from 2009 to 2020 when he made his present claim for the cost of further hearing aids. By 2020 he had been assessed as having a 21% binaural hearing loss which Dr Macarthur attributed to the nature of his employment with ACI Operations whilst also observing that a 14.8% binaural hearing loss was sufficient to warrant the use of bilateral hearing aids.
Holcim's position was that, if Mr Thomas had given notice of injury to ACI Operations, ACI Operations would have been liable for the cost of new hearing aids to the exclusion of Holcim, because the need for new hearing aids would have been attributable to the nature of the employment in which Mr Thomas was then engaged. Holcim refers to para 91 of the reasons of Senior Member Capel, where he said: "[91] Had the applicant served a notice of injury and made a claim for compensation on ACI Operations, then in accordance with s 17(1)(a)(i) and s 17(1)(c)(i) of the 1987 Act, the injury would be deemed to have happened when the notice was given to the ACI Operations, and it would be liable to pay for hearing aids, even if the applicant was not entitled to receive lump sum compensation due to the threshold issue caused by s 66(1) of the 1987 Act."
Holcim submits that s 17 should not be construed in such a way as would mean that the decision of the worker whether or not to give notice of injury should determine which employer was liable to pay for the cost of further hearing aids.
Holcim submitted that, as the worker had suffered a significant increase in hearing loss after a period of noisy employment with a subsequent employer, the responsibility of the earlier employer for hearing loss fixed at the date of injury of 28 June 1999 should be regarded as spent. The later employer would then be liable for the cost of hearing aids if and when the worker chose to give notice of injury to the later employer.
There is nothing in the text of s 17 that supports such a construction. It could only be supported if there is implied in the legislation an obligation by the worker to give notice of injury to the subsequent employer. (Even then, as explained below, it would not follow that the subsequent employer would necessarily be liable for the whole cost of medical treatment, whether by way of new hearing aids or otherwise.)
Deputy President Wood was correct in saying (at [85]) that there is no requirement in the legislation that compels the worker to give a notice of injury to a later employer.
Holcim's submission assumes that the notice of injury given to Holcim will be "spent" if a notice of injury be given to Mr Thomas's later employer, because the later employer would then be liable for the whole of the consequences of Mr Thomas's hearing loss. For the reasons below that assumption is not warranted.
Mr Thomas submitted that, because notice of injury of hearing loss had been given to Holcim on 28 June 1999, Holcim was liable for all the consequences of subsequent hearing loss suffered by Mr Thomas, including the additional hearing loss after 1999, whether or not attributable to Mr Thomas's subsequent employment with ACI Operations.
Neither construction is consistent with the text of the legislation. The loss of hearing which Mr Thomas suffered that was the subject of his notice of injury of June 1999 was an injury. The injury was agreed to have resulted in a hearing loss of 14.8%. Section 17 provides that further hearing loss is a further and separate injury.
If notice of injury were given to ACI Operations and if, as Dr Macarthur reported, Mr Thomas's employment with ACI Operations is employment to the nature of which his disease of boilermaker's deafness is attributable, then ACI Operations would be liable for the consequences of Mr Thomas's further hearing loss, not his total hearing loss.
In the same way, Holcim is liable for the consequences of Mr Thomas's hearing loss as at 1999.
Under s 60 the question is whether the cost of "that treatment or service" (that is, a particular treatment or service) is reasonably necessary as a result of an injury received by a worker. In the case against Holcim, the injury received by Mr Thomas was the injury the subject of his notice of 28 June 1999, that is, a binaural loss of hearing of 14.8%. The question before the Commission was whether or not the particular hearing aids whose cost was sought to be recovered from Holcim were reasonably necessary, as a result of that injury.
Senior Member Capel made findings of fact on that question. He recorded the submission of counsel for Holcim that a further loss of hearing represented a fresh injury and observed that that submission was consistent with the reasoning in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (at [41]). This observation was correct (Sukkar v Adonis Electrics Pty Ltd at [75]-[76], [85], [117]).
Senior Member Capel found: "[93] In this matter, the only notice of injury that was made on the respondent was that on 28 June 1999 (deemed). It is true that notices of claim for hearing aids were made in September 2020 and October 2020, but they were not in respect of a separate injury. They concerned claims for hearing aids that were required as a result of the injury that was deemed to have occurred on 28 June 1999. The applicant merely seeks replacement hearing aids. … [101] The medical evidence of Drs Scoppa and Macarthur supports the need for digital hearing aids as a consequence of the applicant's accepted injury on 28 June 1999 (deemed). There is no evidence to the contrary. … [110] The provision of bilateral digital hearing aids is reasonably necessary as a consequence of the applicant's injury."
These are clear findings that the bilateral digital hearing aids the subject of Senior Member Capel's determination were assessed by him as being reasonably necessary as a result of Mr Thomas's binaural loss of hearing of 14.8% suffered in 1999.
The appeal papers did not include any evidence relevant to this question, presumably because, at least prima facie, the question is one of fact rather than law.
The appeal to Deputy President Wood lay if Senior Member Capel's determination were affected by any error of fact, law or discretion and to the correction of any such error. It was not a review, nor a new hearing (1998 Act, s 352(5)).
It does not appear from the reasons of Deputy President Wood that Holcim challenged Senior Member Capel's finding of fact that the particular hearing aids the subject of his determination were reasonably necessary as a consequence of Mr Thomas's 1999 injury. Neither the notice of appeal nor the materials provided to Deputy President Wood were included in the papers before this court. Deputy President Wood identified the grounds of appeal as follows: "[45] The appellant brings the following grounds of appeal: (a) Ground One: the Senior Member erred in law by finding that the appellant was the last employer who employed the respondent in employment to the nature of which the sensorineural hearing loss was due when the respondent gave notice of the injury on 28 June 1999; (b) Ground Two: the Senior Member erred in law in accepting that the injury can have multiple causes and that the respondent was required to establish that the injury materially contributed to the costs of treatment; (c) Ground Three (wrongly referred to as Ground Four): the Senior Member erred in law by finding that s 17(3) of the 1987 Act applied to this matter, and (d) Ground Four (wrongly referred to as Ground Five): the Senior Member erred in law by finding that the supply of replacement hearing aids was akin to seeking revisionary procedure in respect of hip or knee replacements."
Assuming that the grounds of appeal were accurately summarised, and in this Court Holcim did not contend to the contrary, it does not appear that any challenge was made to Senior Member Capel's finding of fact that the hearing aids the subject of his determination were reasonably necessary as a result of Mr Thomas's 14.8% hearing loss the subject of his 1999 notice of injury. An erroneous finding of fact can give rise to a question of law if the finding is made on the basis of a wrong principle, but that is not established in this case.
Deputy President Wood summarised Holcim's principal claim as follows: "[47] The appellant generally submits that the respondent suffered a further injury in the form of hearing loss in the employ of ACI Operations. The appellant asserts that s 17 identifies ACI Operations as the party against whom the claim should have been made because it was the last noisy employer and, in accordance with s 61 of the 1998 Act, the respondent was required to give notice of his injury to ACI Operations before making his claim for hearing aids. The appellant contends that the notice of injury given in 1999 was applicable to the claim made at the time and has no part to play in these proceedings. The appellant says that the current claim is incompetent."
No submission based upon s 61 of the 1998 Act was advanced on the application for leave to appeal. Section 61 provides in substance that compensation may not be recovered unless notice of injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of injury (s 61(1)). The section applies only in respect of an injury received before the commencement of the section which was inserted by the Workers Compensation Legislation Amendment Act 2000 (NSW). The further injury suffered by Mr Thomas from his employment with ACI Operations would not have been an injury in respect of which notice was required to be given under s 61.
It may be, although this was not the subject of argument, that the reference to s 61 of the 1998 Act was intended to be a reference to s 261 of that Act, to which reference was made on the hearing of the application for leave to appeal. Section 261(1) provides that: "261 Time within which claim for compensation must be made (1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death."
Section 261 has no relevant application. Because of s 17, no date of injury for the further hearing loss which it may be assumed Mr Thomas has suffered through his employment with ACI Operations has yet arisen because no notice of injury has been given to ACI Operations under s 17 of the 1987 Act. Section 261 does not impose any obligation on Mr Thomas to make a claim under s 17.
Deputy President Wood rejected the submissions made under each of the grounds of appeal above. Deputy President Wood said (at [86]): "…The Senior Member's ultimate conclusion was that the appellant was the last employer who employed the respondent in employment to the nature of which the sensorineural hearing loss was due when the respondent gave notice of the injury on 28 June 1999. This conclusion is undoubtedly correct. The notice of injury given in 1999 was the only notice of injury given and when it was given, the respondent was in the employ of the appellant. At the time the respondent made his further claim for hearing aids, he had commenced employment with ACI Operations however, in accordance with s 17(3), the appellant remained liable for compensation in respect of that deemed injury."
Thus the Deputy President recognised that Holcim remained liable for compensation in respect of the injury notified on 28 June 1999. There is no error in that conclusion. Deputy President Wood continued: "[87] The appellant asserts that if the legislation intended that a worker need give only one notice of injury in claims to which s 17 applies, the section would have contained a provision to that effect. I reject that submission. The legislation allows for further notices of injury to be given to later employers but does not oblige the worker to give a notice of injury to every employer. If the respondent was seeking lump sum compensation, he may very well have fallen into difficulties by not having proceeded against the later employer. His claim, however, was for s 60 expenses in the form of further hearing aids to replace those already provided in respect of the injury deemed to have occurred on 28 June 1999. In those circumstances, it was open to him to proceed as he did."
There is no error of law in that finding.
Deputy President Wood concluded: "[95] The question of whether the respondent suffered a further injury in accordance with s 17 is discussed above. No further injury is established until the respondent lodges a further notice of injury. Until that occurs, liability for the treatment expenses rests with the appellant if the respondent can establish that the hearing aids are reasonably necessary. The evidence establishes that: (a) in 1999, Dr Scoppa assessed the respondent's binaural hearing loss as 16.8%, which, in his view, was attributable to noisy employment with the appellant. Dr Scoppa noted that the respondent benefitted from hearing aids; (b) in 1999, Dr Carroll could not identify any other cause for the respondent's sensorineural deafness, other than industrial noise exposure, and assessed the respondent's hearing loss as 12.94%, although he did not consider hearing aids necessary at that stage, and (c) in a report dated 6 April 2021, Dr Macarthur advised that the binaural hearing loss of 14.8% recorded in the agreement reached in 1999 was more than sufficient to warrant the provision of hearing aids, which he believed to be reasonably necessary. [96] The evidence was supportive of the provision of hearing aids in order to address the respondent's hearing loss in 1999, agreed to be 14.8%. There was, therefore, evidence to support the Senior Member's conclusion that the deemed injury on 28 June 1999 materially contributed to the need for hearing aids, and the provision of hearing aids was reasonably necessary as a result of the injury deemed to have occurred on 28 June 1999."
Again, there is no error of law in those findings if reasonably construed. In particular, Deputy President Wood was correct to say that Holcim was liable for the treatment expenses if Mr Thomas could establish that "the" hearing aids, that is, the particular hearing aids the subject of the application before Senior Member Capel, were reasonably necessary as a result of the 1999 injury which resulted in a 14.8% binaural hearing loss. It is not clear that Dr Macarthur advised that a 14.8% binaural hearing loss warranted the provision of the particular hearing aids that were the subject of Senior Member Capel's determination, but the evidence on that issue was not before us and, in any event, would not raise a point of law.
Holcim submitted that the respondent's submission overlooked the fact that: "…as a matter of common knowledge and common sense, hearing aids are prescribed by reference to particular hearing losses and calibrated or adjusted by reference to them. The hearing loss at the time of the prescription of the third set of hearing aids is 21.8%. This is about a 50% increase in the hearing loss previously measured which was 14.8%. Surely the respondent is not suggesting that he would have acquired new hearing aids appropriate to the extent of the earlier disability when he knew his disability had substantially increased."
There was no evidence that the particular hearing aids the subject of Senior Member Capel's determination were not prescribed by reference to a hearing loss of 14.8%. There is no evidence that the same hearing aids that would be appropriate to address a hearing loss of that degree would not be used for a hearing loss of 21% subject to a different calibration. It was open to Holcim to contend before Senior Member Capel that it should only be liable for the cost of hearing aids appropriate to a 14.8% binaural hearing loss. It appears that such a contention was raised before Senior Member Capel but he determined that the hearing aids in question were reasonably necessary for such a hearing loss. That determination raises no point of law.
I propose that the summons filed 11 March 2022 seeking leave to appeal be dismissed with no order as to costs.

Holcim (Australia) Pty Ltd v Thomas

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