Stojcevski v Nisselle [2003] VSC 466

(a) in the nature of certiorari, quashing the decision made 24 September 2002 by the Medical Panel, convened by the first defendant and constituted by the second and third defendants, on the reference made 19 August 2002 by the fourth defendant, Victorian WorkCover Authority, of medical questions pursuant to s 104B(9) of the Accident Compensation Act 1985 (the Act),

(b) in the nature of prohibition, preventing or restraining the fourth defendant from giving effect to the decision,

(c) in the nature of mandamus, that the medical questions be referred to a differently constituted medical panel and heard and determined according to law.

2 The originating motion, as amended, also set out a number of Grounds relied upon by the plaintiff;

"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 - (a) that the plaintiff had undergone tests (WA tests) for loss of hearing in Western Australia where he worked for BHP until 1993, (b) the results of the WA tests, (c) that the WorkCover Authority, the fourth defendant was of the view that loss of hearing sustained outside Victoria would fall within the definition of industrial deafness which had occurred in circumstance which did not create liability to pay compensation under the Act, (d) The Medical Panel failed to take into account only the relevant considerations in making the decision, namely, the assessment of the Plaintiff's hearing in accordance with s 91C (4) of the Act, and proper application of s 91C (3) of the Act and the Plaintiff's history of exposure to noise,, 5. The Medical Panel, by the Third Defendant, denied the Plaintiff natural justice or procedural fairness in refusing to accept and consider relevant material concerning the Plaintiff's history of exposure to noise. 6. The decision was so unreasonable that no reasonable panel could have made it."

3 On 23 April 2001, the plaintiff, Bogoja Stojcevski, applied for compensation for permanent disability arising out of hearing loss. By letter dated 4 June 2002, he was advised by the NRMA Workers Compensation (Vic) Ltd, the Authorised Agent of the Victorian WorkCover Authority, that it accepted the plaintiff's claim for "Impairment Benefits pursuant to s 98C" of the Act in relation to industrial deafness injury sustained by him during the course of his employment with Skilled Engineering. It advised that the date of the injury was determined to be 17 December 1999 being the date he was last employed by them. He was further advised that Mr G Little, who had examined him, had assessed his "Whole Person Impairment" as being "Nil %" as assessed in accordance with s 91 of the Act. It advised that on the basis of that assessment it had determined his entitlement to compensation, pursuant to s 98C of the Act, as being nil, his degree of impairment being less than 10 percent.[1] He was invited to accept that assessment and advised that if he disputed the assessment the Authority would refer the claim to a Medical Panel to assess the degree of permanent impairment in accordance with s 91 and whether the injury constituted a total loss under s 98E of the Act.

4 The plaintiff rejected the assessment and asked by letter of 27 June 2002 that the matter be referred to the Medical Panel. By letter dated 19 August 2002, the Authority's authorised agent sent a referral to the Convenor of Medical Panels for submission to a Medical Panel.

5 By letter dated 22 August 2002, the Deputy Convenor of Medical Panels, Mr Dickens, appointed a Panel to deal with the referral pursuant to S 104B(9) of the Act. The plaintiff's solicitors were advised of the appointment of the Panel on the same day.

6 The referral document noted under the heading "Accepted Injury" the following -

"hearing loss through exposure to noise throughout employment".

"Throughout employment to (sic) the course of employment to the 17th December 1999".

Under the heading " Issues and Reason for Referral" the following was recorded-

"The worker disputes assessment of his whole person impairment in accordance with the Determination of Percentage Loss of Hearing (1988 Edition) published by the National Acoustic Laboratory, pursuant to Section 91 of the Accident Compensation Act 1985. Mr G J Little assessed the worker as not having sustained loss of hearing assessable under Section 91 of the Act, having diagnosed him as suffering with progressive bilateral otosclerosis. Mr Little, in his report, mentioned that a number of investigations had been undertaken at the R.V.E.E.H. We do not have copies of the results, but would be happy to request them if the Panel considers it necessary to reach its findings. The worker underwent tests for loss of hearing in Western Australia, where he worked for BHP until 1993, and the results are included. We would respectfully point out to the Panel that we are of the view that loss of hearing sustained outside Victoria would fall within the definition of industrial deafness which has occurred in circumstances which do not create liability to pay compensation under the Victorian Accident Compensation Act 1985".

A little later in the document there was a list of "medical questions". The ones marked for consideration by the Panel were as follows:

"2. What is the degree of impairment of the whole person resulting from the workers binaural hearing impairment assessed in accordance with section 91 (3) of the Act and is the impairment permanent? 3. Does the worker have an accepted injury which has resulted in a total loss injury mentioned in the tables and section 98 E. (1)? If yes, which injury has resulted in a total loss."

It was common ground that these questions followed the wording of questions (d) and (e) of the definition of "medical questions" in the Act. It was also common ground that to answer question 3 was sequential upon the answer to question 2.

7 By letter dated 27 September 2002, the first defendant, Dr Paul Nisselle forwarded a copy of the Medical Panel Opinion and Reasons for Opinion to the plaintiff's solicitors. In answer to the first question, the Certificate of Opinion stated that the "Whole Person Impairment calculated in accordance with s 91(3) of the Act was zero per cent". In answer to the second question it stated that the worker did not have an accepted injury which had resulted in a total loss injury mentioned in the table and s 98E(1). The stated reasons of the Panel were as follows:

"The Panel noted that it is accepted that the worker sustained a noise induced hearing loss as a result of his employment with Skilled Engineering with a deemed date of injury as 17 December 1999. He had been employed with Skilled Engineering from October 1994. The Panel noted that prior to this employment he had also been employed in noisy surroundings with BHP in Western Australia for 16 years. The panel conducted hearing tests in accordance with the Improved Procedure for Determination of the Percentage Loss of Hearing (1988 Edition) published by the National Acoustic Laboratory. The pattern of the audiogram shows a moderate to severe mixed cause hearing loss. Panel considers the worker probably suffers from Otosclerosis which has resulted in both a conductive and sensori-neural hearing loss as well as a high frequency noise induced sensori-neural hearing loss. The panel considers the maximum noise exposure he could have experienced at the frequencies of 2, 3 and 4 KHz is 70dB. The panel therefore calculated a binaural hearing loss of 26.8% resulting from noise exposure. Due to the nature of the worker' s loss of hearing and in the absence of accurate pre-employment hearing tests, the Panel considers the hearing loss should be regarded as occurring at a constant rate over the period of his exposure to noise. The Panel therefore calculated loss of hearing resulting from noise exposure occurring in Victoria as 5/21 of 26.8%. The panel concluded that the worker has a 6.4 percent permanent partial binaural loss of hearing resulting from the accepted hearing loss injury with Skilled Engineering. The whole person impairment calculated in accordance with section 91 (3) of the Act is 0%."

8 By letter dated 2nd October 2002 the plaintiff's solicitors advised him the outcome and of the options open to him.

9 By letter dated 3 October 2002, the solicitors for the plaintiff wrote to the Deputy Convener of Medical Panel stating that the Panel:

"made a patent error in answering a question which it was not asked. Specifically, the questions were "what is the degree of impairment of whole person resulting from the workers binaural hearing impairment assessed in accordance with section 91 (3) of the Act and is the impairment permanent, and second, "does the worker have an accepted injury which has resulted in a total loss injury mentioned in the Table in Section 98 E. (1), if yes, which injury has resulted in total loss?".

The solicitors argued that in answering the first question the Panel had:

"clearly referred to the contribution of the employer upon which the claim is served. It has divided the assessed hearing loss proportionate to the length of time in which the worker was engaged with the employer respondent to the claim. We respectfully submit that the Panel was not asked to consider this issue and that because it has, the opinion is fundamentally flawed. The Panel was not invited to consider any issue of contribution."

The plaintiff's solicitors asked that the decision be examined and a response was sought within seven days, stating that absent a response they would seek instructions to issue proceedings.

By letter dated 4 October 2002 , Dr Paul Nisselle replied that he was unable to assist the plaintiff's solicitors in the request because there was no provision in the Act for a Medical Panel to review its Certificate of Opinion given in answer to a medical questions and the Panel could not receive further material after it had issued its Certificate of Opinion.

10 The first, second and third defendants indicated through their counsel that they did not wish to make any submissions and would abide by the result.

The plaintiff's case is put in the alternative. The plaintiff's case on the first 5 grounds turns on the question of what the Act requires the Medical Panel to consider when called upon to assess the degree of impairment in accordance with s 91(3) of the Act.

The plaintiff submitted that the Medical Panel should do no more than assess the diminution of hearing in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing published by the National Acoustic Laboratory (s 91 (4)). He submitted that once the diminution is determined, the Panel should simply apply the formula set out in s 91(3) of the Act in determining the whole person impairment regardless of the fact that some of the industrial deafness alleged arose out of exposure to noise in the course of the plaintiff's employment out of the jurisdiction in Western Australia.

The fourth defendant, the WorkCover Authority, submitted that the Medical Panel was required to exclude industrial deafness which occurred outside Victoria when asked to carry out the task set out in s 91(3).

The resolution of these issues turns on the correct construction of the Act.

If the plaintiff's argument fails on the construction issue, he submitted that he was denied natural justice because the Medical Panel, by the actions of the third defendant, refused to consider evidence relevant to his exposure to noise in employment in Western Australia, a matter relevant to the determination of the Medical Panel if the construction advanced by the fourth defendant is correct.

Counsel for the fourth defendant conceded that, if such material was proffered to the Medical Panel and was relevant and was rejected, there had been a denial of natural justice.

11 In my view, if the fourth defendant's construction is correct, material relevant to the Medical Panel's consideration was rejected by it and accordingly it denied natural justice to the plaintiff.

12 I turn, therefore, to grounds 1 to 5 and the primary construction question.

13 The plaintiff's primary position may be simply put. It was that s 91(3) requires determination of the percentage of the person's "diminution of hearing". It was put that the quoted terms are given meaning by s 91(4) which provides that the diminution of hearing is to be determined in accordance with the Improved Procedure For Determination of Percentage Loss of Hearing published by the National Acoustic Laboratory. Counsel submitted that there is nothing in those provisions which refers to other issues such as;

* the causes of the hearing loss (e.g. was it caused by private activities such as shooting) or * the location of the employment where it is alleged that the hearing loss was caused.

The fourth defendant submitted that s 91(3) must be construed in light of the whole Act and that, properly construed, requires a Medical Panel to consider such matters when asked to conduct a determination under s 91(3).

14 The entitlement to make an application is found in s 82. It provides:

"82. Entitlement to compensation (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. . . . (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 dependants shall be entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment."

"injury" means any physical or mental injury and without limiting the generality of the foregoing includes - (a) industrial deafness; (b) a disease contracted by a worker in the course of the worker's employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and (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;"

The term "industrial deafness" is defined as follows:

"industrial deafness" means any condition of deafness caused by - (a) exposure; (b) continued exposure; or (c) periods of continued exposure - to industrial noise;"

In the present case, the plaintiff sought compensation for non-economic loss in respect of an injury resulting in permanent impairment. The Act sets out in s 98C how compensation for non-economic loss is to be calculated. It provides, so far as relevant,

"98C. Compensation for non-economic loss (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 section 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 per cent - the amount of the non-economic loss is zero; (b) if the worker's degree of impairment is not less than 10 per cent and not more than 30 per cent - the amount of the non-economic loss is to be determined in accordance with the formula - $10 300 + [(D-10) x $2060]; (c) if the worker's degree of impairment is more than 30 per cent and not more than 70 per cent - the amount of the non-economic loss is to be determined in accordance with the formula - $51 500 + [(D - 30) x $3220]; (d) if the worker's degree of impairment is more than 70 per cent and not more than 80 per cent - the amount of the non-economic loss is to be determined in accordance with the formula - $180 300 + [(D - 70) x $12 880]; (e) if the worker's degree of impairment is more than 80 per cent - the amount of the non-economic loss is $309 100 - where D is the worker's degree of impairment expressed as a number. . . . (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 section 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 section 88 to be the date of the claim - as at the day on which the compensation is determined. . . . (9) Where compensation has been paid under this section for an impairment resulting from an injury or under section 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 section 98 or 98A."

Section 104B sets out the procedures to be followed for processing claims for compensation under s 98C. It provides so far as is relevant as follows:

"104B.Claims for compensation under section 98C (1) In addition to the requirements under section 103, this section applies to a claim for compensation under section 98C. . . . (1C) If liability has been accepted or determined in respect of a prior claim for compensation for an injury, the Authority or a self-insurer may after the expiry of the period of 12 months after the date of the relevant injury and without a claim having been made under section 98C or 98E, request the worker to attend an independent examination under sub-section (4). (2) The Authority or self-insurer must within 90 days of receiving the claim - (a) accept or reject liability in relation to the claim; and (b) advise the worker of the decision. . . . (4) If - (a) the Authority or self-insurer accepts liability in relation to the claim; . . . the Authority or self-insurer must request the worker to attend an independent examination by a medical practitioner referred to in section 91(1)(b). (5) The purpose of the independent examination is to obtain - (a) assessments in accordance with section 91 as to the degree of permanent impairment, if any, of the worker resulting from the injury to the worker - (i) for the purposes of determining the entitlement of the worker, if any, to compensation under section 98C; and (ii) for the purposes of sections 134AB(3) and 134AB(15); and (iii) for the purposes of Subdivision 1 of Division 3A; and (b) a determination as to whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1). . . . (6) The Authority or self-insurer must within 60 days of obtaining the assessments and determination advise the worker of the assessments and the entitlement to compensation, if any, under section 98C or 98E and of the consequences as specified in sub-section (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled. (7) The worker must within 60 days of being advised under sub-section (6) advise the Authority or self-insurer as to whether the worker accepts or disputes each of the assessments and, if the worker accepts both of the assessments, whether or not the worker accepts or disputes the entitlement to compensation, if any, under section 98C or 98E and if the worker accepts the entitlement to compensation, whether or not he or she wishes to receive the compensation to which eh or she is entitled. . . . (9) The Authority or self-insurer must within 14 days of being advised by the worker that the worker disputes either of the assessments refer the medical questions as to the degree of permanent impairment resulting from the injury to the worker for the relevant purposes specified in sub-section (5)(a) and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1) to a Medical Panel for its opinion under section 67. (10) The Authority or self-insurer must within 60 days of obtaining the opinion of the Medical Panel under section 67 advise the worker of the opinion and the entitlement of the worker, if any, under section 98C or section 98E and of the consequence as specified in sub-section (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled. (11) For the purposes of this section, liability in relation to a claim does not include a question as to the degree of permanent impairment of a worker or whether a worker has an injury which is a total loss mentioned in the Table to section 98E(1). (12) No appeal lies to any court or Tribunal from an assessment or opinion - (a) as to the degree of permanent impairment of a worker resulting from an injury; or (b) as to whether a worker has an injury which is a total loss mentioned in the Table to section 98E(1)."

Section 91 sets out the methods to be employed in assessing the degree of impairment. It contains provisions for assessing impairment. It distinguishes between psychiatric and other impairments (s 91(2)(6)). So far as is relevant it provides as follows:

"91. Assessment of impairment (1) In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment - (a) made in accordance with (i) the A.M.A Guides; or (ii) methods prescribed for the purposes of this section - and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and (b) if the Minister has approved a training course in the application of those Guides or methods, made by a medical practitioner who has successfully completed such a training course. . . .

(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 per cent NAL, the degree of impairment is zero;

(b) if the binaural loss of hearing is 10 per cent NAL, the degree of impairment is 10 per cent;

(c) if the binaural loss of hearing is more than 10 per cent NAL, the degree of impairment is the percentage equivalent of the number (rounded up to the next whole number) given by the formula-

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 -

(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.

(5) An approval by the Minister for the purposes of sub-section (4)(a)(i) continues in force for the period not exceeding 3 years as is specified by the Minister in the approval unless revoked by the Minister.

(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 Guides;

(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."

There are also special provisions relating to industrial deafness contained in ss 88, 89 and 90. Of particular relevance to this case are the provisions of s 88 which provide:

"88. Compensation for industrial deafness (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."

15 Counsel for the fourth defendant, as noted above, emphasised the importance of construing s 91(3) in the context of the whole Act. Counsel noted that the definition of industrial deafness was confined to deafness caused by exposure to "industrial noise". The definition did not include, for example, deafness resulting from sporting shooting. Referring to s 82, counsel submitted that the references in its sub-sections to employment should be construed as employment with a connection with Victoria. Counsel submitted that a comparison should be drawn with s 84 which specifically addresses the entitlement to compensation of workers who are injured outside Victoria. That entitlement is confined to circumstances where the employer resides or has a place of business in Victoria and engages a worker in Victoria but the worker is injured outside Victoria. Compensation is payable if the injury, had it occurred in Victoria, would have entitled the worker or the worker' s dependent to compensation under the Act. Section 85 also addresses the situation where an injury is caused to a worker giving a right to claim compensation under the law of a place outside Victoria in circumstance which would otherwise have entitled the worker or the worker's dependents to compensation under this Act. Counsel submitted that s 84 could only be needed if s 82 did not apply to the situation described in it - and so indicates that s 82 does not apply where the injury arises in the course of employment outside Victoria.

16 Turning to s 98C, counsel for the fourth defendant submitted that compensation is calculated by reference to the degree of impairment. In relation to s 98(C)(6) dealing with the date of injury, counsel submitted that the subsection was in fact directed to indexation of awards under s 100. They argued, however, that it showed that the drafter was conscious of the interconnection between s 88 and s 98C. Counsel went on to argue that s 98C and s 88 operate in conjunction, with s 88 dealing specifically with the problem of hearing loss claims. After noting that s 88(4) deemed the date of injury to be either the last date of the employment in which the injury arose or the date of the claim if still employed in the employment, counsel submitted that s 88(1) was not dependent on date of injury, it making no reference to that concept. Counsel submitted that s 88(I) required to be excluded from the "assessment of deafness for the purposes of calculating compensation", industrial deafness or "a proportion of industrial deafness" which occurred "in circumstances which do not create any liability to pay compensation" under the Act. Counsel submitted that the effect of s 82(1) was that injury suffered outside Victoria was suffered

"in circumstance is which do not create any liability to pay compensation under this Act "

and that, therefore, s 88 required it to be excluded from the assessment of deafness for the purposes of calculating compensation under s 88. Counsel submitted that the calculation of compensation for industrial deafness involved the application of ss 88 and 98C and that this was supported by s 88 (2). Counsel submitted that they are intended to work together to produce the amount for compensation by a process of measurement and translation into whole person impairment.

17 Turning to what had occurred in this case, and tracing the steps in the proceedings through s 104B, counsel noted that the fourth defendant's agent having accepted liability, had accepted that the plaintiff had suffered industrial deafness in the course of his employment in Victoria. Counsel submitted, however, that this did not mean that compensation was payable or that liability had been accepted for industrial deafness caused outside Victoria.

18 Counsel for the fourth defendant submitted that one thing was clear, namely that the Medical Panel was obliged to do what it did and assess the impairment attributable to exposure in Victoria by applying s 88 (3) and so deemed the industrial deafness to have occurred at a constant rate over the plaintiff's 21 years of employment. Put that this involved the Medical Panel in considering questions of mixed fact and law, counsel submitted that that was the result of the statutory scheme as was acknowledged in Masters v McCubbery[2]. Counsel submitted that s 88(3) also could be used to apportion the burden of the compensation between contributors.

19 Returning to s 104 B, counsel submitted that once liability had been accepted, the Authority's agent had referred the plaintiff[3] for a medical examination by Mr Little to obtain his assessment in accordance with s 91, as to the "degree of permanent impairment . . . resulting from the injury" Counsel submitted that while the Act had provisions which deemed a date of injury, the Act did not deem injury to include all earlier injuries. Counsel submitted that the Authority's agent then complied with s 104B(6) after receiving the "assessments and determinations" and drew attention to the fact that the sub-section distinguished between "assessments" and the "entitlement to compensation" .

20 Counsel submitted that when the matter was referred to the Medical Panel[4] it was required to take into account s 88 in making its assessment of impairment. Counsel submitted that it was not clear under the Act whether the Authority itself could consider the impact of s 88. The question put to the Medical Panel was within the definition of medical question and that the Medical Panel was relevantly asked, in substance, to assess the impairment resulting from injury suffered in Victoria.

21 Counsel for the fourth defendant also relied upon s 91(7) of the Act. They submitted that it required the Medical Panel to exclude from its assessment of impairment that which flowed from exposure to noise in the plaintiff's employment in Western Australia. In particular, counsel submitted that that industrial deafness suffered in employment in Western Australia was an unrelated injury or an impairment from an unrelated cause. Reliance was placed on the analysis of Balmford J in Millane v Millane Pty Ltd & Ors[5]. As her Honour noted, however, industrial deafness has its own special characteristics. In such cases, because the impairments accumulate, they and the injuries causing them are related. If this analysis is incorrect, s 88(4) creates only one injury and so s 91(7) can have no application.

22 Counsel for the plaintiff submitted in response that the fourth defendant's argument was contrary to the scheme of the Act and contrary to the construction given to it in earlier decisions of this Court. Counsel submitted that the Act provides a special scheme to deal with workers' claims for industrial deafness under which there is deemed to be one injury occurring at the one time being the time specified in the legislation.

23 Counsel for the plaintiff submitted that the reasons of the then Appeal Division of this Court in ACA v Fletcher and ACA v Moyle[6] strongly support this view and the plaintiff's construction.

24 Those cases concerned two workers who had suffered industrial deafness over a period of time which straddled the period during which the Workers Compensation Act 1958 operated and the period the Accident Compensation Act 1985 operated. The latter Act came into operation after 4 PM on 31 August 1985, the "appointed day". The Accident Compensation Tribunal had awarded compensation under the Accident Compensation Act for the industrial deafness produced by the exposure to industrial noise before and after the appointed day. The Accident Compensation Commission appealed on the basis that compensation for industrial deafness due to exposure to industrial noise before the appointed day was to be paid under the Workers Compensation Act 1958 and not the Accident Compensation Act 1985. While the members of the Appeal Division did not agree on all points of construction, they agreed that the Accident Compensation Tribunal was correct in awarding compensation under the later Act for industrial deafness produced by exposure to industrial noise before and after the appointed day.

25 McGarvie J considered the scheme of legislation and commented that: [7]

"A distinct system of compensation for industrial deafness is built by the ACA on the foundation of s 82(1)."

"The system of compensation which the A C A provides for workers with injuries of industrial deafness occurring by way of gradual process has an implied deeming provision and an express deeming provision. Section 82 (6) provides the where a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of the employment in which the worker was employed at any time before the notice of the injury was given, the worker or the workers dependents shall be entitled to compensation under the Act as if the injury were a injury arising out of or in the course of employment. This sub-section together with section 82 (1) gives the respondents a right to compensation."

26 His Honour then quoted s 88 and noted that counsel for the appellant submitted that s 88(1) excluded compensation for industrial deafness which occurred during the operation of the earlier Act. His Honour considered that that sub-section on its own was equivocal as to whether it operated in that way but conceded that it would clearly operate in cases where the worker had suffered industrial deafness through exposure to industrial noise while self-employed. His Honour then analysed closely s 129 dealing with contribution. That section appears to have been amended since. His Honour, however, went on to say

"In the case of industrial deafness occurring by gradual process there is only one injury for which compensation is payable under the ACA. That injury is the whole hearing impairment existing on the deemed date of injury and produced by exposure to industrial noise in employment. There is no conceptual difficulty in this. The scheme of the Act is that compensation is payable for the total hearing impairment at the deemed date of injury, not for the successive aggravations and accelerations of deafness which produced the total hearing impairment. Consistently with this, section 98 (2) (a) provides for the calculation of compensation for industrial deafness under the table as at the date of the deemed injury. Section 98 (2) (b) makes a minor departure from that for an understandable reason."

The same comment may be made of the present section 98 - the amount of non-economic loss is to be calculated "as at the date of the relevant injury".

27 Counsel for the plaintiff further submitted that his Honour' s view was applicable to the present Act, namely, that the worker was entitled to compensation for the total impairment and the Authority had to look to its rights to contribution where the industrial deafness occurred over a period of time.

28 Marks J (with whom Fullagar J agreed[9]) also analysed the Act in detail. He referred to s 88(4) as creating a fiction that the industrial deafness occurred on a particular date and all at once on the date. His Honour commented [10]

"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. . . ."

After referring to further legislative history and the New South Wales approach, his Honour commented [11]

"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 be 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. ."

After consideration of further issues His Honour commented:[12]

"In my opinion, however, both statutes manifest with sufficient clarity the object of delivering compensation for industrial deafness by reference, so far as practicable, to the one table, notwithstanding the impairment has been long-standing or developed over a period for which earlier tables might, apart from the fiction, be applicable."

His Honour later commented that s 82 (6) was "virtually conclusive of the present question in favour of the workers.[13] His Honour went on to suggest that the

ACA provided "two divergent" approaches, the one relating to compensation and the other to recoupment by the Commission. His Honour said that the first employed the fiction of a single " occurrence " on a specified day and "all at once" for the purpose of "simplicity and minimisation of costs". [14]

29 I note that it was common ground that s 82 and s 88 have not changed relevantly since the judgments in that matter.

30 Counsel for the fourth defendants submitted that this case did not assist the plaintiff. They submitted that it concerned a situation where there was no change of employer over the period in question and the question was which insurer ultimately was to pay - the old or the new. The question was whether effect could be given to the general policy of the Act which was that liability to pay compensation for "injuries" prior to the appointed day should be under the old Act while that for "injuries" after the appointed day should be under the new Act[15]. The case was not concerned with the non-compensable hearing loss question.

31 The distinction thus articulated can obviously be made. The question that has to be answered, however, is whether the analysis in the judgments of the scheme provided by the Act for hearing loss is applicable also in resolving the construction issues arising in this case. It seems to me that it is.

32 Counsel for the plaintiff also relied upon the decision of Osborn J in Del Borgo v Niselle and others.[16] In that case, the worker had received compensation in 1988 for loss of hearing under the old Act reflecting a hearing loss of 26 percent. Subsequently he suffered further hearing loss and on 1 May 2001 claimed further compensation. His loss of hearing at that stage was assessed at 31.2 percent. The Authority maintained that the assessment of whole person impairment by the Medical Panel should be restricted to the impairment that resulted from the further injury subsequent to the earlier award. This would under the Act have resulted in a zero percent whole person impairment. For the worker, it was maintained that the Act requires that the assessment of whole person impairment by the Medical Panel should be the assessment of the total cumulative level of impact resulting from all exposure to industrial noise prior to and under the present Act periods.

33 In that case, the critical question asked of the Medical Panel was in the same terms as the question asked in this case

"What is the worker's degree of impairment of the whole person resulting from the worker's binaural hearing impairment assessed in the" by accordance with section 91 (3) of the Act and is the impairment permanent?

The Medical Panel answered the question as follows:

"The whole person impairment calculated in accordance with section 91 (3) of the Act is a zero percent. The impairment is permanent."

34 Osborn J held that this was erroneous and that, on its proper construction, the Act required the question to be answered by reference to the "actual level of cumulative hearing impairment" at the time of the assessment.[17]

35 His Honour also held that the prior hearing impairments could not be said to be unrelated injuries or causes and therefore were not excluded by s 91(7)(c). His Honour commented

"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."

I query whether this sub-section requires the same employment. The industrial deafness involved aggravation of pre-existing injury or deterioration of a prior condition. The injuries were therefore related. As to causes, they too were related being exposure to noise from time to time.

36 Counsel for the plaintiff noted that his Honour considered the Appeal Division decision in Fletcher and referred, among other things, to his Honour's reliance on s 82(6),[18] the provision that counsel indicated was relied upon also by their client. Counsel also pointed to his Honour's acceptance of the description of the statutory scheme and in particular the importance of s 88(4) deeming injury from industrial deafness to occur on a particular day.[19] Counsel also relied upon his Honour's analysis of s 98C. His Honour noted in particular, the provisions of s 98C(9) as shedding light upon the approach to be taken to the assessment of impairment under s 98C.[20] His Honour stated:

"This strongly suggest that the impairment which is to be assessed under section 98C (1) is the cumulative impairment resulting from the injury."[21]

Counsel drew attention to his Honour' s conclusion in the following paragraph

"55. 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 desegregated before compensation were assessed and prior compensation was still required to the deducted."

His Honour went on to point out that s 98C(9) was not entirely satisfactory because it referred to prior compensation "paid under this section". As a result, it did not catch payments made under the previous Act.[22] His Honour then mentioned some other consequences supporting his preferred construction.

37 Counsel for the fourth defendant argued that Osborn J's judgment assisted their client. Counsel referred to the following passage which comments on s 88 (1) of the Act:[23]

"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."

Counsel for the fourth defendant submitted that while technically his Honour's statement that s 88(1) excluded compensation for deafness that resulted from exposure outside the jurisdiction was obiter dicta, it nonetheless formed part of his Honour's reasoning and reflected his view of the proper construction of s 88(1).

38 Counsel for the fourth defendant submitted that the principle underlying the legislation was that it was to protect Victorian workers and that the cost was to be borne by Victorian employers. Counsel submitted that s 88(1) reflected this, it being designed in part to require the exclusion of industrial deafness which occurred outside the jurisdiction from the assessment of deafness for the purpose of calculating compensation.

39 I agree with the analysis of Osborn J. In particular, I agree that s 88(1) of the Act requires, among other things, that industrial deafness that is suffered outside the jurisdiction is to be excluded from any compensation under the Act. The provision requires consideration not of the deemed injury but of the circumstances in which the industrial deafness occurred and asks the question whether those circumstances created any liability under the Act.

40 That conclusion, however, does not resolve the issue raised in this case. That issue requires consideration of the point at which such hearing loss is to be considered in the assessment process.

41 Counsel for the plaintiff submitted that consideration of the issues raised in ss 88, 89 and 90 and the calculation of the entitlement compensation are matters for the Victorian WorkCover Authority. Counsel referred in particular to s 20(1)(aa) which provides

(aa) receive and assess and accept or reject claims for compensation;" [24]

42 Counsel for the plaintiff submitted that the quantification of compensation was a matter for the fourth defendant or its agent and not the Medical Panel. Counsel also submitted that Parliament's intention was revealed by s 88(3) which gave to the Authority, self insurer, conciliation officer or the County Court (as the case requires) the power to determine that industrial deafness did not occur at an otherwise deemed constant rate over a total number of years of exposure to industrial noise employment. Counsel submitted that this indicated that the Parliament had assumed that this was not an issue that would come before the Medical Panel for determination. If it was, Parliament would have included the Medical Panel in the list of those who could depart from the statutory deeming. Counsel submitted that this was understandable because it was the Authority that was likely to have any relevant information and it was the Authority that could enter into reciprocal arrangements with other States.[25] Counsel also referred to ss 129 and 129A which it was said provided mechanisms for the apportionment of liability between different employers' insurers and others.

43 Counsel submitted that by contrast with the above provisions, the Medical Panel was relevantly confined to the assessment prescribed by s 91.

44 Finally, counsel for the plaintiff submitted that if there was any ambiguity in the legislation it should be construed beneficially to the plaintiff. Counsel drew my attention to a passage in Osborn J's reasons[26] where his Honour adopted a passage from the judgment of Ashley J. in Hedigis v Carlton & United Breweries[27] which confirmed the principle that in construing this remedial legislation, a construction favourable to the worker should be adopted in the event of ambiguity.

45 If section 91 is applied literally in assessing the impairment, the Medical Panel should consider no more than the deemed injury and the impairment arising from that. Thus it would consider the accumulated hearing deficit as at the date of the deemed injury. This would be consistent with the above authorities.

46 The next step under the Act would be to assess the compensation for non-economic loss under section 98C. Again, applied literally, the compensation that would be calculated would be compensation for the accumulated hearing deficit. This arises because it, like section 91, refers to "injury" and "impairment".

47 The defendant seeks to have the provisions of section 88(1) brought into play during the assessment of impairment under section 91. Section 88(1)[28], however, does not use the terms to be found in section 91 of "injury" or "impairment" but rather the term "deafness". The drafter was plainly aware of the distinction; for s 88(4) uses the term "injury" not "deafness". If s 88(1) had stated that industrial deafness which had occurred in circumstances that did not create liability under the Act should be excluded from the assessment of "impairment", there would be no argument. It does not, however, do so. Nonetheless, despite the inappropriate language, the construction sought by the defendant might be required if that was the only way in which affect could be given to section 88 (1). It might also be required if it was clear that section 98C was intended to provide the final compensation figure in all cases.

48 A reading of s 98C, however, confirms that it is not intended to achieve that result. Section 98C(9) provides for the deduction of compensation previously paid in respect of an injury where the claim for which compensation is now payable is an aggravation of that earlier injury. This rather indicates an intention that the compensation calculated under s 98C can include compensation for the whole impairment where it results from the aggravation of an earlier injury.

49 In addition, the construction sought by the defendant is not required to give effect to s 88(1). There is a simpler approach.

50 Section 82 is a general provision conferring the entitlement to compensation. Section 98C deals generally with compensation for non-economic loss. Section 88, however, is a specific provision which deals with industrial deafness and spells out the limits to compensation otherwise recoverable for such an injury. It is the primary provision. [29] It does not require the straining of language to conclude that s 88(1) is intended to result in the deduction from the compensation figure otherwise arrived at under s 98C, compensation attributable to any industrial deafness or a proportion of it which has occurred in circumstances which do not create a liability to compensate under the Act. This can be done by the person or body with the responsibility of awarding compensation in a particular case whether it be the Authority, a self insurer, or the County Court.

51 Section 88(3) supports this conclusion in that it provides a deeming provision to be used by the specified persons or bodies in determining the rate at which industrial deafness may have occurred over time. It reveals an assumption on the part of the Parliament that the above-mentioned persons or bodies (together with the "Conciliation Officer") will find themselves in the situation where they will be deciding what portion of industrial deafness occurred during different occasions of exposure. Significantly, the subsection does not refer to Medical Panels.

52 On the other hand, the construction sought by the fourth defendant would create an anomaly in the scheme of the Act. For its construction would require the Medical Panel to deem industrial deafness to have occurred at a constant rate within the total number of years of exposure regardless of what the evidence before the Panel revealed as to the history, causes and locations of industrial deafness while empowering the above-mentioned persons and bodies to do otherwise.

53 The plaintiff's construction avoids this anomaly and confirms that it is the persons and entities named in s 88 (3) that are to apply s 88 and not the Medical Panel

54 In the course of discussion reference was made to provisions for contribution and for the making of agreements with other Authorities in other jurisdictions for sharing the burden of compensation. Such provisions raise the possibility that Parliament might intend that those provisions and agreements deal with problems such as the present where the worker suffers injury outside the jurisdiction. It remained open, however, to the Parliament to make special provisions where it was thought necessary notwithstanding other provisions dealing with contribution or the making of agreements share the burden of compensation. I am satisfied that this is one of those cases and Parliament made such a provision in s 88(1).

55 For the foregoing reasons, I am persuaded the plaintiff's construction of section 91 of the Act is to be preferred.

56 It follows that by having regard to the hearing loss that occurred outside Victoria, the Medical Panel did not answer the first question in accordance with law and erred in its construction and application of s 91(3) and took into account irrelevant matters, in particular, the matters listed in ground 4.

57 If these primary conclusions are incorrect, and the construction advanced by the fourth defendant is correct, the plaintiff was in any event denied natural justice.

58 The result of the primary conclusions, however, is that the decision made 24 September 2002 by the Medical Panel should be quashed, the fourth defendant restrained from giving effect to that decision and an order made referring the medical questions to a differently constituted Medical Panel to be determined according to law.

[1] Section 98C (2)(a).

[2] [1995] VICSC 209; [1996] 1 VR 635.

[4] S 104B(9).

[5] [2003] VSC 72 at para 11 and 12.

[6] [1990] VicRp 10; [1990] VR 102.

[16] [2002] V S C 368.

[24] And reference also made to section 104B (10).

[25] (s 237A).

[27] (2000) V. S. C. 380.

[28] And ss 88(2) and (3).

[29] Section 88 (2).