Loo v Commissioner of Police

The issue for determination

1. The issue before me is one of narrow compass. It is essentially the question of whether the court is to determine the extent of the hearing loss and whether it reaches the compensable threshold set out in s 69A(3) Workers Compensation Act 1987 (NSW), or whether, in light of the admissions made by the defendant (which Mr Dodds concedes means that only the relief sought in paragraph 8 is before the court) this is a matter for the Trustee to determine in accordance with the statutory scheme in the legislation.

The relevant provisions

1. Section 69A Workers Compensation Act 1987 (NSW), which is now otherwise repealed, provides: "69A No compensation for less than 6% hearing loss (1) In assessing, for the purpose of the determination of permanent impairment compensation, the degree of permanent impairment resulting from loss of hearing (the present loss) due to boilermakers deafness regard must not be had to any hearing loss due to boilermakers deafness unless the worker's total hearing loss due to boilermakers deafness is at least 6%. (2) The worker's total hearing loss is the aggregate of the present loss and all previous losses of hearing due to boilermakers deafness. (3) The fact that compensation is not payable in respect of a loss of hearing because of this section does not prevent notice of injury being given or a claim being made in respect of that loss, and does not affect the operation of section 17 in respect of that loss (if and when the worker's total hearing loss reaches 6%). (4) An example of the operation of this section is as follows (assume that all hearing losses mentioned are due to boilermakers deafness and that no other injury is involved): (a) A worker suffers a hearing loss of 4% (the first hearing loss that the worker has suffered). No permanent impairment compensation is payable in respect of the loss because it is less than 6% and cannot be taken into account to assess the degree of permanent impairment, though notice of injury can be given or a claim can be made for the hearing loss. (b) The worker suffers a further hearing loss of 4%, bringing the total loss to 8%. The total loss has now passed the 6% threshold and compensation is payable on the basis of the full 8%. Compensation in respect of the initial 4% hearing loss will be payable by the earlier employer if the worker made a claim or gave notice of injury for that initial hearing loss. (c) The worker suffers a further hearing loss of 5%. The worker is entitled in the usual way to compensation in respect of the 5% further loss because the 6% threshold has already been passed (the total loss is now 13%). (5) For the purposes of determining the percentage of loss of hearing due to boilermakers deafness, that loss of hearing is to be determined as a proportionate loss of hearing of both ears, even if the loss is in one ear only. The regulations may prescribe a method for calculating the proportionate loss of hearing of both ears. (6) A legal practitioner or agent who acts for a worker on a claim for compensation for loss of hearing due to boilermakers deafness is not entitled to recover any costs from the worker or the employer in connection with acting on the claim if no compensation is payable on the claim because the worker's total hearing loss due to boilermakers deafness is less than 6% (even if compensation subsequently becomes payable because the worker's loss of hearing reaches 6% as a result of further hearing loss). (7) A worker who refuses or fails to submit himself or herself for, or who obstructs, an examination required under section 119 or 122 of the 1998 Act in connection with a claim for which no permanent impairment compensation is payable because of this section is (for the purposes of that claim) presumed in the absence of evidence to the contrary to have no hearing loss due to boilermakers deafness. (8) A reference in this section and in section 69B to boilermakers deafness includes a reference to any deafness of similar origin. (9) For the purposes of the operation of section 68B in relation to compensation for loss of hearing, a reference in that section to compensation that is payable under this Division includes a reference to compensation that would be payable were it not for the operation of this section."
2. As is noted by Neilson DCJ in Meyers v Commissioner of Police [2015] NSWDC 123 at [14], for many years, hearing loss matters were determined by a medical board. That has not been the case where the cause of the deafness is the subject of factual challenge due to mixed hearing loss factors and/or challenges to causation or liability, as occurred in Meyers v Commissioner of Police and also in Brown v Commissioner of Police [2013] NSWDC 273 and Bannon v Commissioner of Police [2015] NSWDC 60.

Analysis of s 69A

1. The first point drawn to my attention by Mr Ower is the language of the section, which starts with the words "[i]n assessing, for the purpose of the determination of permanent impairment compensation, the degree of permanent impairment resulting from loss of hearing…". Section 69A sets out a series of examples of increasing hearing loss. Mr Ower submits that this is the language of assessment where liability for the noisy workplace is conceded and causation is unchallenged, as is the case here.
2. Second, s 69A needs to be construed in light of appellate consideration of the structure of the whole of this legislation. In Commissioner of Police v Kennedy (2007) 5 DDCR 380 Hodgson JA, after setting out the statutory provisions at [11]-[13] and explaining the word "injury", noted issues to be determined by the Commissioner as follows: "[31] On the question of what has to be determined by the Commissioner under s 12D(4)(a), I accept that it does include issues under s 9A and s 14 of the Workers Compensation Act, and where applicable, s 10 and s 11. I would not however understand what was said in Calman at [38] as requiring that the Commissioner also determine whether some total or partial incapacity has resulted: s 9 of the Workers Compensation Act asserts entitlement to compensation without reference to incapacity, and medical expenses are payable under s 60 without proof of incapacity."
3. Mr Dodd submits that this part of the judgment favours his client, in that Hodgson JA is noting the disputed issues of fact that must be determined by the trier of fact. By inference, s 69A (and other similar provisions, such as s 11A) similarly fall into this category.
4. Hodgson JA is not giving a list of all the sections in the legislation where the court is required to determine disputed issues of fact, but merely listing sections where issues of fact fall to be determined, some of which (ss 9A and 14) fell to be determined in the case before the court and others of which (such as ss 10 and 11) did not. None of those sections are the subject of factual dispute in this court and, as already noted, Mr Dodds has conceded that s 9A has no part to play in this case by reason of the concessions of fact made by the defendant at the commencement of the hearing.
5. Finally, although not referred to by either counsel, I note the observations of Neilson DCJ in Brown v Commissioner of Police at [59] where his Honour states that Commissioner of Police v Kennedy is "authority for the proposition that it is up to the SASTC to decide the quantum of any case where there is an application for a gratuity pursuant to section 12D of the Act", but goes on to note the difficulties where liability and/or quantum are in issue. In view of the concessions made by the defendant at the commencement of this case on these issues, the sole issue remaining, namely the relief sought in paragraph 8 of the statement of claim, does not require me to determine any threshold issue, as this is part of the quantum process.
6. It is a common feature to legislation concerning personal injury that the legislation focuses upon whether an injury has been suffered and, dependent upon those findings, what the nature and extent of that injury is, which may or may not involve thresholds. It was to these broad principles that Basten JA was referring in Commissioner of Police v Kennedy at [42]: "[42] Broadly speaking, claims for compensation turn upon two issues. The first is whether a worker has suffered an injury and, if so, the nature and extent of the injury. The second question is whether the injury arose out of or in the course of employment or otherwise satisfied the conditions identified in ss 4, 9A (employment a substantial contributing factor), 10 (journey claims), and 11 (recess claims) of the Workers Compensation Act, subject to s 14 (exclusion of injury solely attributable to serious and wilful misconduct and self-inflicted injuries). In a crude dichotomy, the relevant questions can thus be identified as those involving quantification of compensation payable and those involving causal connection with employment. Because s 12D(3) and (4) refer to causation, the apparent intention is that the Commissioner should determine questions involving causal connection with employment and the STC questions relating to the nature and extent of compensation payable. On that basis, her Honour was correct in concluding that questions of permanent impairment were for the STC. Thus the Commissioner was required to determine whether Mr Kennedy had received an injury arising out of his work as a member of the police force, whereas the STC would determine whether the injury had resulted in permanent impairment for the purposes of s 66(1) of the Workers Compensation Act."
7. Basten JA went on to apply those principles in relation to a claim for a person who was "hurt on duty" in circumstances where, absent a challenge to liability or causation, the plaintiff "triggers an entitlement to compensation". "[48] The purpose of s 12D was thus to provide access for police officers to benefits which might be obtained under Divs 3, 4 and 5 of Pt 3 of the Workers Compensation Act. Adoption of the phrase "hurt on duty" was a means to that end. As a defined phrase, the definition removed a lengthy circumlocution from the operative provisions. It was not intended to qualify the concept of "injury" as contained in s 4 of the Workers Compensation Act. Thus, the primary entitlement to compensation under the Workers Compensation Act arises under s 9 by reference to the circumstances of a worker "who has received an injury". In picking up that entitlement, the definition of "hurt on duty" has substituted the word "injured" for "received an injury" however, nothing turns on that change in expression, any more than on the double use of the concept of injury in s 12D(3) and (4). [49] Thirdly, the definition of "hurt on duty" does no more than pick up the concept of an injury which triggers an entitlement to compensation. It does not import into the definition an assessment of the nature or extent of the injury or of the compensation payable in respect of it. [50] The Commissioner also relied upon a passage in Calman as suggesting that the determination of the Commissioner in the present case must extend beyond the relationship between the injury and employment as a police officer. The particular passage was in the following terms: [38] Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled 'to compensation … under [that] Act' upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant's incapacity was causally connected to the underlying anxiety disorder."
8. Basten JA went on to explain that this passage did not involve bifurcation as asserted (at [51]) and that it would be curious if the function of the Commissioner were of a different kind. The function is the same in each case. Thus, where concessions are made which no longer require determination of issues of fact concerning liability or causation, the question is simply one of which two fact-finders on quantum - the court or the Trustee - is seized with the obligation to do so. As noted by Neilson DCJ in Brown v Commissioner of Police at [59], that task, according to Commissioner of Police v Kennedy, is the trustee. Once a concession is made concerning paragraph 4, the only issue left in the case is a redetermination of the kind sought in paragraph 8, pursuant to s 21(1) of the Act.
9. For these reasons, I agree with Mr Owers' characterisation of the provisions of s 69A, which is supported by the language, as well as by the content, and which is clearly aimed at a condition which may result in more than one application. The hearing of that application is not bifurcated into contested issues as to whether the degree of injury falls within or outside the threshold amount.

Conclusion

1. As a result, the plaintiff's claim is made out and orders should be made for redetermination under s 21A.
2. In the ordinary course of events I would have proceeded to determine, in the event that I had erred in this interpretation of the legislation, whether the plaintiff had exceeded the threshold. This was not possible, as one of the expert witnesses required for cross-examination had, as a result of a death in his family, left the jurisdiction in circumstances which were discovered minutes before the hearing was to commence. As a result, neither party was ready to proceed. In those circumstances, it was not possible to embark upon alternate findings.

Orders 1. The decision of the Defendant's Delegate dated 6 February 2017, pursuant to section 12D(4)(a) of the Police Regulation (Superannuation) Act 1906 (NSW) ("the Act"), that the Plaintiff's 'hearing loss injury' was not caused by the Plaintiff's having been hurt on duty, be set aside, pursuant to section 21 of the Act. 2. The Plaintiff's 'hearing loss injury' was caused by him having been hurt on duty. 3. The Defendant pay the Plaintiff's costs as agreed or assessed.

Amendments 08 March 2018 - Typographical errors at [13] and [16] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2018