STATE RAIL AUTHORITY OF NEW SOUTH WALES v CHALKER [1995] NSWCA 447

STATE RAIL AUTHORITY OF NEW SOUTH WALES v CHALKER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 7 April 1995, 20 June 1995

[1995] NSWCA 447

WORKERS COMPENSATION — boilermaker's deafness — s131 certificate of a medical panel Compensation Court Rules

State Rail Authority of New South Wales appeals from a decision of his Honour Judge Maguire QC in the Compensation Court on the hearing of an application by the respondent for a claim for lump sum compensation under s66 of the Workers Compensation Act 1987 (WCA).

In evidence were two conflicting reports; an otorhinolaryngologist's report and a certificate of a medical panel purporting to be issued under s131. The appellant challenged his Honour's finding that the certificate of the medical panel was not conclusive under s131(5) as no rules had been made by the Compensation Court pursuant to s131(8) when the dispute was referred to the medical panel; Bartlett v Elcom Collieries Pty Ltd (unreported) 17 May 1994 followed.

At the hearing of the appeal the appellant's counsel agreed that if the certificate was inclusive evidence of the respondent's loss the amount of the award should be varied to $2,190.50 in respect of an additional binaural hearing loss of 2.6 percent.

Held: (1) S131(5) operated to make the certificate conclusive evidence of the respondent's condition. (2) (per Handley and Sheller JJA) On the basis of the appellant's counsel's concession the amount of the award should be varied to $2,190.50 in respect of the additional binaural hearing loss.

(per Powell JA) As the respondent had left the employ of the appellant in June 1991, the relevant injury is deemed to have occurred at the date of the termination of the employment; s17(1)(a) and the statutory amount by reference to which the relevant award was to be calculated was that in force at the termination of the employment; Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318.