Reported Decision : (2001) 22 NSWCCR 82 Compensation Court of New South Wales CITATION : Scanlon v Powercoal [2001] NSWCC 130 PARTIES : Garry John Scanlon v Powercoal Pty Limited MATTER NUMBER(S) : 56332 of 1999 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: S. 71(2) Glebe Rowing Club Pty Limited v Pride (unreported) 6 December 1995 - Neilson J; CASES CITED: Carroll v Forgacs Floating Dockyard Pty Limited (2000) 19 NSW CCR 353 - Armitage J; Marangoni v Grocon Pty Limited (2000) 19 NSW CCR 577; Callaby v State Transit Authority (Neilson J 7 December 2000) DATES OF HEARING: 5 December 2000 DATE OF JUDGMENT: 06/25/2001 FOR APPLICANT: Mr A Brown instructed by Reid & Reid LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S Flett instructed by Sparke Helmore JUDGMENT: BACKGROUND 1. This is a claim for industrial deafness benefits brought by a 52 year old employee of the respondent. Compensation is sought for 15.8 per cent binaural hearing loss amounting to $13,587.21 and in addition for pain and suffering under s 67. 2. The application raises squarely for determination the issue of whether under the somewhat different legislation that applies to coalminers it is possible for a coalminer to aggregate claims for lump sum compensation for deafness under s 66 in order to surmount the threshold and be entitled to compensation under s 67. 3. With regard to the general application of the legislation this issue has been examined in recent times in a couple of decisions which will be referred to shortly relative to the repeal of s 71 of the Act and the consequences thereof on this particular problem. 4. Before examining the legislative framework and the submissions of the parties in some detail it is appropriate to set out the factual background of this particular application. 5. There was no issue about the exposure of the applicant to industrial noise in the course of his employment as a miner. In 1993 he gave notice of a claim for deafness against a prior employer in the mining industry and underwent a medical panel examination on 15 March 1993 which certified as to a 13.5 per cent binaural loss of hearing due to what can be referred to as boilermaker's deafness. Terms of settlement were filed on 29 June 1993 in accordance with the medical panel and the appropriate compensation under s 66 was paid. Subsequently on 16 March 1999 the applicant underwent a further medical panel examination which on this occasion assessed a binaural loss of 15.8 per cent. This second medical panel took place following notice of injury on 5 January 1999 at which stage the applicant was employed by the present respondent. 6. The amount paid to the applicant following the first medical panel was insufficient for him to surmount the threshold to qualify for compensation for pain and suffering under s.67. The assessment arrived at by the second medical panel was sufficient to surmount that threshold. 7. As to how his deafness had affected him the applicant indicated that he continued working after the medical panel in 1993 but that he had not improved since the second panel in March 1999. He had difficulty in communicating with his family and outsiders. Watching television was not easy because the volume had to be turned up and the same sort of problem occurred with the radio in his car. His wife would ask him from time to time why he was talking so loud and he would occasionally be irritated as a result of this problem. In social contexts he found he had to look at people to try to understand what they were saying. Communication was difficult and he had a feeling of isolation. This was particularly bad in dealing with children. He found it very difficult going out with his friends for a beer because he would have a lot of trouble determining who was talking because of background noise. He had similar problems sitting next to people at football matches and was feeling that it was not really worth going. Background noise affected his ability to carry out a conversation on the telephone and he had a ringing noise all the time in ears like cicadas. This he said occurred 24 hours a day. He had developed some ability with lip reading and sign language. He agreed that he had learned to live with it a bit. 8. The applicant was a perfectly straightforward and acceptable witness. SUBMISSIONS OF THE PARTIES 9. It is convenient at the outset to set out the terms of s 71 of the Act which provided as follows:- S.71(1) If: a) compensation is paid or becomes payable under this division (or s 16 of the former Act) for a loss, being: i) The loss of a proportion (but not all) of a thing: and ii) an occupational disease; and b) the worker suffers a further loss of that thing, compensation is payable under this Division for the further loss, but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable. (2) Any such further losses may be taken into account for the purpose of determining whether compensation is payable for pain and suffering because of the operation of s 67(2). 10. Subsection (3) specifically included in the term occupational disease loss of hearing due to boilermakers deafness. 11. S 71 was repealed by the WorkCover legislation Amendment Act 1996 number 120 coming into force on 12 January 1997. 12. The submissions of the applicant were effectively three in number. 1) Even though s 71 has been repealed its operation has been preserved for the benefit of coalminers as defined in the legislation. 2) If the court were to be of the view that s 71 no longer exists for coalminers then the applicant is entitled to an award for the full 15.8 per cent found by the medical panel without any deduction for the payments made by the earlier employer. 3) If neither of these earlier submissions found favour then it was submitted that s 68A does not apply to industrial deafness in the coal mining industry and that as a result the old principles in Rodios v Trefle (1937) WCR 290 would apply. 13. The respondent conceded parliament intended s 71 to continue to apply to coalminers. It was however argued that that did not permit the agglomeration of claims in order to surmount the threshold. Reliance was placed in particular on the decision of the Court of Appeal in Glebe Rowing Club Pty Limited v Pride (unreported) 6 December 1995. The authorities it was argued required that s 71(2) be construed strictly and the word may in that section referred to a discretion. In the circumstances of the claim against the present respondent the applicant's lump sum claim was for 2.3 per cent further loss of hearing in the ears. It was further submitted that the old law relative to the decision in Clutha Limited v Danswan (1993) 9 NSW CCR 225 did not apply in the present case because that decision related to the circumstances where the deemed injuries occurred both before and after the 1987 Act. 14. These submissions will now be examined in more detail. 15. The written submissions of counsel for the applicant pointed out that the legislative trail relative to coalminers operated in the following fashion. 1. The notional date of injury with regard to the applicant's claim against the second respondent was in January 1999 which was subsequent to the date on which the WorkCover Legislation Amendment Act 1996 came into force which was 12 January 1997. 2) Coalminers as defined were exempted from certain parts of this legislation by the Worker's Compensation Transitional Regulation 1997. These exemptions originally operated from the date of operation of the Act namely 12 January 1997. However the operative date of these exemptions was changed by way of the Workers' Compensation Transitional Amendment Regulation 1997 and then the Workers' Compensation (General) Coalminers Regulation 1987 as a result of which the exemptions from the relevant sections of the 1996 Act were extended to coalmining injuries whenever they occurred. 16. This extension of the exemptions is now found in cl 81 of the Worker's Compensation (General) Regulation 1995 as amended and it is appropriate to set this out in full:- 81. A worker employed in and about a mine to which the Coal Mines Regulation Act 1982 applies is exempt from the operation of the amendments made by the following provisions of the WorkCover Legislation Amendment Act 1996 with effect from the date of ascent to that Act: (a) Sch 1.2 (employment required to be a substantial contributing factor); (b) Sch 1.4 (reduction in maximum lump sum compensation amounts); (c) Sch 1.6 (deduction for previous injuries and pre-existing conditions and abnormalities). 17. The relevant excluded part of the schedule is Pt 1.6. In broad terms this part extended the operation of s.68A to all injuries as distinct from restricting it to impairments of the back, neck and pelvis. S.68B was also extended and s 71 omitted. Various other matters were inserted relative to deductions for claims under s 16 of the prior Act with regard to losses under the current Act where the description was slightly different. 18. The applicant's submission was that the regulation referred to the whole of sch 1.6 and that as a result coalminers were exempted from the repeal of s 71. 19. This argument is I consider correct and the written submissions from the respondent did not in fact dissent from it. I accept the conclusion on this point set out in the written submissions by counsel for the applicant but before determining what results therefrom I should indicate that with regard the two further submissions raised by counsel for the applicant I do not for reasons set out hereunder consider that it is necessary to determine those issues. 20. The effect of the repeal of s 71(2) has been considered in the context of non coalmining cases on several occasions. (see Carroll v Forgacs Floating Dockyard Pty Limited (2000) 19 NSW CCR 353 per Neilson J, Marangoni v Grocon Pty Limited (2000) 19 NSW CCR 577 per Armitage J and Callaby v State Transit Authority (Neilson J 7 December 2000). The effect of these decisions is that the repeal of s 71(2) in general cases brings the agglomeration principle to an end from the point of view of surmounting the threshold under s 67. It was concluded that whether or not the failure to re-enact s 71(2) was by oversight or not it was not re-enacted. It was accepted that when s 71(2) was in effect successive losses could be aggregated in order to reach the threshold in deafness cases: - see for example per Neilson J in Callaby's case at para 52. Also in Pasminco Mining v Winders (1995) 12 NSW CCR 181 it was pointed out by Sheller JA at p 183: - Section 67(1) in Division 4 entitles a worker, who has suffered a loss mentioned in the Table to the Division which is therefor compensable under s 66, to receive from the employer by way of compensation for pain and suffering resulting from the loss, in addition to any other compensation under the Act, an amount not exceeding the amount stipulated. Subsection (2) provides that the section does not apply if the compensation paid under section 66 for the loss is less than 10 per cent of the maximum amount from time to time referred to in section 66(1). Ignoring section 71, if a worker, who has already received, for a loss mentioned in the Table, compensation equal to less than 10 per cent of the maximum amount referred to in section 66,and is therefore not entitled to compensation under section 67 for that loss, suffers a further loss of that thing also compensable in an amount equal to less than 10 per cent of the maximum amount, the worker cannot, because of the threshold, claim compensation for pain and suffering under section 67 for either loss. Section 71 meets this situation by allowing the worker, after the further loss, to apply under section 67 for compensation for pain and suffering resulting from the first loss by taking into account the second further loss for the purpose of the threshold provision, section 67(2). 21. There is nothing in the wording of s 71(2) nor in the dicta to suggest that its operation must be restricted to successive claims against the same employer. 22. This then leaves for determination the effect of the decision in Glebe Rowing Club Pty Limited v Pride referred to above. 23. In Caufield v Ward (2) unreported 30 August 1996 Neilson J made the following remarks about Pride's case:- In that case the worker had two back injuries each in a different employment. Burke J found a 22 per cent impairment of the back resulting from both injuries. He awarded the worker $12,000 under section 67. The majority (Meagher JA and Rolfe A-JA) inferred that the trial Judge thought that each of the employers was equally responsible and that, therefore, an 11 per cent impairment resulted from each injury. Such a finding would not entitle the worker to an award under section 67 for either injury and the majority set the award under section 67 aside. There was a powerful dissent from Priestley JA, who pointed out that Burke J found only one impairment, not two impairments. Burke J gave his decision on 7 December 1992. The interpretation given to the then section 22 was contained in such decisions as IGF-NEM v GIO (1994)33 NSWLR 247; 10 NSWCCR 74; MLC Insurance Ltd v Pinto (1994) 10 NSWCCR 101; IGF-NEM v MMI (1994) 10 NSWCCR 431. Both Meagher JA and Rolfe A-JA said that section 22 was not applicable, but the construction they reached achieved de facto the same result. The majority thought that Burke J found two impairments each resulting from a separate injury in a different employment. Priestley JA was in the minority in holding that Burke J found that there was only one impairment. However, an extract from Burke J's judgment set out by Rolfe A-JA indicates to me that Burke J did find only one impairment. The decision appears to me no more than one concerning the correct interpretation of Burke J's judgment. 24. I would respectfully agree with His Honour that really this case turned the correct interpretation of the judgment of the trial judge. The majority did however point out that one could not pass the threshold from the point of view of s 67 by the agglomeration of two losses. Such a view is consistent with the remarks of Sheller JA in Pasminco Mining v Winders referred to above. Sheller JA however pointed out in the quotation referred to that s 71 cures this problem by specifically permitting the aggregation of the two losses in order to surmount the threshold. I would respectfully adopt His Honour's conclusions. 25. It follows from this that in my view Pride's case cannot assist the respondent in this instance. Furthermore His Honour's remarks support the submission of applicant's counsel that in s 71(2) the word may means can and does not import that which counsel for the respondent submitted, that is, the interposition of a discretion. As applicant's counsel pointed out this was precisely the purpose of the enactment of this section. CONCLUSION 26. For the reasons outlined above I am of the opinion that s 71 has been preserved for the benefit of coalminers within the meaning of that definition. It follows from that that the entitlement of the applicant to further compensation under s 66 is governed by s 71(1) and is restricted to the amount of the further loss as identified by the second medical panel. The operation of s 71(2) however entitles the applicant to aggregate the two losses and surmount the threshold under s 67 and receive compensation for pain and suffering. AWARD 27. The plain words of s 71 make it clear that the applicant's entitlement to lump sum compensation under s 66 is for an additional 2.3 per cent binaural hearing loss. For the reasons outlined above this will attract the operation of s 67. One of the most salient factors is the applicant's age being 52. The summary of his evidence indicated above demonstrates that the nature of his problems with social interaction as a result of his loss of hearing falls far short of an extreme case of actual pain and suffering experienced or likely to be experienced in the future. Nevertheless his unchallenged testimony about his difficulties of communication, the complaints from family and friends about the high level of television and radios, his difficulty in speaking on the telephone and his general social inhibitions because of the difficulties of background noise all combine to produce in my view on his evidence a moderate degree of distress in a man who is a very practical and straightforward individual. To this must be added the effect of his constant complaints of tinnitus which I am satisfied would be distressing being on such a constant basis. On my opinion the relativities for the purposes of s 67 should be found in the area of 1:7 to 1:8. 28. The award I make in the applicant's favour is in the following terms. 1) I find that the applicant was employed by the respondent in employment to the nature of which industrial deafness is due. 2) As at the deemed date of injury of 5 January 1999 I find that the applicant suffered from 15.8 per cent binaural loss of hearing due to boilermaker's deafness or deafness of like origin. 3) The applicant had previously received from an earlier employer appropriate compensation for 13.5 per cent binaural loss of hearing due to boilermaker's deafness or deafness of like origin the deemed date of injury being 22 January 1993. 4) I make an award for the applicant under s 66 for $1,977.89 for 2.3 per cent additional binaural hearing loss. 5) Under s 67 I find the appropriate figure to be $9.000. 6) The respondent is to pay the applicant's costs which should include a fee for preparation of written submissions. Mr A Brown instructed by Reid & Reid appeared for the applicant. Mr S Flett instructed by Sparke Helmore appeared for the respondent 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.