Compensation Court of New South Wales CITATION : Jenness v Oakbridge [2001] NSWCC 127 PARTIES : Ronald George Jenness v Oakbridge Pty Limited MATTER NUMBER(S) : 38203 of 2000 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: Garry John Scanlon v Powercoal Pty Limited (unreported) 25 June 2001 DATES OF HEARING: 22 March 2001 DATE OF JUDGMENT: 06/25/2001 FOR APPLICANT:Mr A T Brown instructed by Reid & Reid LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr B A Odling instructed by Sparke Helmore JUDGMENT: 1. This is a claim for compensation for industrial deafness brought by a 59 year old former employee of the respondent. The claim is expressed to be for lump sum compensation for 16.6 per cent binaural loss and also compensation is sought for pain and suffering under s 67. 2. No issue was raised in the answer about exposure to industrial noise but the respondent pleaded a prior payment in respect of 11.6 per cent binaural hearing loss deemed to have occurred on 8 September 1995 and recorded by agreement registered on 14 May 1996. The respondent further in its answer indicated that it did not dispute its liability for a further five per cent loss of binaural hearing. Finally it was pleaded that no liability existed under s 67 for pain and suffering as neither the original payment nor the further conceded payment were sufficient to surmount the threshold for s 67 to apply. 3. In giving his evidence the applicant was a perfectly straightforward and acceptable witness. He described how he had been in the mining industry since 1985 and although he was retrenched from the respondent when the colliery closed he has now doing some casual work. He indicated that he brought a prior claim for industrial deafness in 1995 with a notional date of injury as 8 September of that year which claim was resolved for a lump sum representing 11.6 per cent loss of hearing. The medical panel supporting this dated 9 April 1996 was tendered as Exhibit B. It is interesting to note that in Exhibit B the panel found an additional 18 per cent loss of hearing in the left ear of unknown origin and not consistent with boilermakers deafness. 4. The applicant confirmed that he gave notice of his further claim on 29 July 1998 which resulted in a medical panel examination on 4 August 1999. That panel report was tendered as Exhibit A and confirmed at the date thereof a 16.6 per cent binaural loss consistent with boilermakers deafness. However that panel also found the loss of hearing of an additional amount in the left ear of uncertain origin which was assessed on this occasion at 24 per cent, that is, significantly in excess of the finding in 1996. 5. The applicant stated that he felt that the deafness had affected his life adversely for approximately 15 years gradually deteriorating over that period. He indicated that watching television at home is difficult because he has to have it turned up too loud and this upsets his wife which worries him. He said that he gets embarrassed because he has to have it up so loud and would like to watch more sport on television. He said that he likes music but has difficulty hearing it and has the same problem with regard to radio at home or in the car namely to hear it he has to turn it up sufficiently loud that his wife is upset or other people in the car are find the situation disagreeable. He said that he cannot hear the phone ringing at home and that he sometimes has difficulty understanding people on telephone conversations. This he says makes him quite upset. He and his wife go out socially but he feels that when he is in a group he is left out of the conversation because he is embarrassed about having to ask his wife to repeat things that other people have said. This has led him not to go out as much as he would really like to. Background noise is very difficult from the point of view of his comprehension of people in conversations and he finds he has to look at people directly and has a level of ability to read their lips to help understand them. He has difficulty talking to his grandchildren who have to yell at him and he finds this is embarrassing as well. 6. The resolution of the basic issues in this case depends upon the question of whether s 71 of the Workers Compensation Act is still on foot from the point of view of persons in the coal mining industry. This issue has been dealt with in my judgment in Scanlon v Powercoal Pty Limited (25 June 2001). I will not repeat the matters dealt with in that judgment but simply indicate that my view is that s 71 still operates for the benefit of coalminers, that the effect of that is that the applicant's entitlement to lump sum compensation is for the additional degree of hearing loss and finally that it is open to him to aggregate the previous claim with the current one from the point of view of passing the threshold for entitlement under s 67. I now turn to the question of the applicant's entitlement under that section. 7. The age of the applicant has been indicated above together with the account of his evidence as to the way in which his hearing affliction affects him. I accept that his communication problem particularly in the family and social environment causes him embarrassment and distress. There is also an inhibition in his communication with his work mates. It does however seem to me that one of the aspects that must be taken into account in trying to assess the applicant's appropriate entitlement relates to the medical panels Exhibits A and B which indicate as well as clear evidence of binaural hearing loss due to industrial deafness a not insignificant unrelated hearing loss in the applicant's left ear. As noted above the panel in 1996 assessed this unrelated loss at 18 per cent and in 1999 at 24 per cent which would seem to indicate a progression thereof. At first blush it might be considered that as at the current date of injury to have an unrelated additional 24 per cent loss of hearing in one ear would significantly increase the applicant's social inhibitions and distress as a result thereof. However I do not consider the position is quite as clear as that. It can I think be said that somebody with a 24 per cent non compensable monaural hearing loss would be capable of compensating for that in social interaction with but a modest degree of difficulty. It seems to be that it is the addition of the binaural boilermakers deafness that has created by far the greater part of the applicant's present problems. I am accordingly of the view that whilst some diminution in the relativities must be arrived at from the point of view of the non compensable component of the hearing loss it is a relatively minor adjustment that is required. Taking all matters into account I think the relativities are in the approximate area of 1:9. 8. Accordingly the award I make in the applicant's favour is in the following terms. 1) I find that as at 29 July 1998 the applicant was employed by the respondent in employment to the nature of which boilermakers deafness is due. 2) I find that as at that date the applicant suffered 16.6 per cent binaural hearing loss due to boilermakers deafness. 3) I find further that on 14 May 1996 he received appropriate compensation for 11.6 per cent binaural hearing loss. 4) Under s 66 I make an award in the applicant's favour for $4,299.75 representing a five per cent additional binaural hearing loss deemed to have happened on 29 July 1998. 5) Under s 67 I find the appropriate figure to be $7,500. 6) Respondent to pay the applicant's costs. Mr A Brown instructed by Reid & Reid appeared for the applicant. Mr B A Odling instructed by Sparke Helmore appeared for the respondent. 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